SOUTH ROYALTON – It’s not everyday that a law student listens when someone is pursuing law school, Monet Ballard, a freshman at Vermont Law School, said Friday.
Ballard and dozens of other students gathered in a boardroom for a hearing on the school’s motion to dismiss a case brought by an artist whose VLS wants to put the murals behind a wall.
“I absolutely loved hearing both sides of the story,” Ballard, 22, said after Friday morning’s US District Court hearing. Lawyers for law school and artist Sam Kerson made credible arguments, she said.
The case, brought by Kerson last fall, has an unusual cultural weight. In many cases, when an institution removes a symbol, like Dartmouth College’s decision last year to store the Baker Library weather vane, there isn’t much of a public process.
But the lawsuit against the law school generated a voluminous case, and Friday’s hearing at Oakes Hall involving case lawyers and Federal Judge Geoffrey W. Crawford was a rare opportunity to listen to a thoughtful argument and well documented on what it means, from a legal point of view at least, to conceal a visual representation.
Law school announced last summer its plans to paint on a pair of 8-foot-by-24-foot murals depicting runaway slaves escaping via the Underground Railroad to Vermont. Almost three decades ago, school officials invited Kerson to paint them on the walls of Law School’s Chase Community Center, adjacent to the hearing venue, and he and several assistants completed them in 1994.
Over the years, members of the school community have criticized the way the murals depict African Americans, with exaggerated and awkward physical features.
Renewed debate over the treatment of African Americans after George Floyd’s murder at the hands of the Minneapolis police last year has intensified efforts to remove the murals, and school officials have taken action. They are currently covered with protective cloths.
Kerson’s attorneys Steven Hyman, former chairman of the board of directors of the New York branch of the American Civil Liberties Union, and Barre, Vt. Attorney Richard Rubin, argue that federal visual artists’ rights law ( VARA) protects murals from destruction, damage or alteration affecting the honor or reputation of the artist.
Crawford ruled in March that under VARA “an owner’s decision to conceal a work does not constitute alteration or mutilation.” He also wrote at the time that it seemed unlikely that Kerson would win, and Friday’s hearing was on the law school’s summary judgment motion, which would avoid the time and expense of ‘a full trial.
As the law school motion was up for debate, his attorney, Justin Barnard, argued first. From the outset, the law school argued that nothing in VARA or any other law prevents it from placing the murals behind a wall of acoustic tiles.
“The bottom line is that Congress (by creating VARA)… did not intend to compel an institution to exhibit a work of art that it no longer wants to exhibit,” Barnard said.
In addition, the law does not oblige the owner of a work of art to maintain it in a particular way, he said. If the condition of the mural deteriorates behind the panels, “it will just be a work of art in worse condition than it could have been,” Barnard said.
Crawford noted that if he owned a portrait and drew a mustache in it, it could be seen as a modification that pokes fun at the artist, but if he just kept the portrait in his basement and directed curses there, then the artist would have no legal recourse.
“There is no intentional attempt to make fun of the artwork,” Barnard said.
Considering Crawford’s decision in March, Hyman’s argument for the judge to hold a full trial was a bit of a Hail Mary, and he launched it with rhetorical power.
“The law school,” he said, “does not even deign to talk about the structure of the statute.”
He called the VLS effort to obscure the mural “a maneuver. … We will hide the fresco and hope that it will be erased.
The law school worked out its plan without consulting an art conservator, he noted. A professional conservator consulted by Kerson’s team said in a court file that the murals would be damaged by their confinement, although she did not specify how.
The law school’s approach to VARA ignores its intention, Hyman said.
“It is a law on culture and the protection of art and the protection of artists so that we can promote our cultural heritage in this country,” he said. “It is centered on what happens to art in relation to the artist. “
The murals were celebrated when Kerson – who was then a resident of Vermont and now lives in Quebec – painted them. Now the law school doesn’t want them to be seen.
“They say, ‘Sam Kerson’s artwork is terrible. … Sam Kerson is a bad person, ”Hyman said.
“It’s a bit of a stretch,” Crawford said, a point Hyman partially conceded.
“I agree with you that this is not positive for Mr. Kerson,” Crawford continued. But if the law school had hired a conservator to take care of the welfare of the murals, would that have been OK?
The law school admitted that the wall could damage the murals, Hyman said.
Even lawyers and judges are often ignorant of the law. There is a reason everything is written down.
“I keep thinking,” Hyman said of VARA and the murals, “we’re in law school and they didn’t know the law.”
“I probably shouldn’t reveal this,” Crawford said. “I had never heard of VARA until I got this deal. ”
There isn’t much case law on VARA, which was enacted in 1990, so Crawford’s decision is likely to break new ground. The circumstances of the law school murals are unusual. They cannot be moved without destroying them, as they were painted directly onto the drywall walls. Hyman said he hadn’t seen another case like this.
“Once it’s incorporated into a building, it’s there to be seen,” Hyman said. “It’s unfortunate that law school has to find a way to live with it, not cover it.”
In a brief rebuttal, Barnard pointed out that there is an overarching constitutional problem: requiring law school to present a work of art “is going to be a violation of the First Amendment.”
“The law school does not intend to portray Mr. Kerson as a bad artist or a bad person,” he added. But the murals and the debate about them are “a distraction” and the law school has the right to decide what to do with them.
“I certainly don’t think it’s necessary to have a trial on this,” he said.
In a brief order on Friday afternoon, Crawford said the hearing minutes were now on the court file and that he had taken the summary judgment motion “under advisement”.
In a question-and-answer session after the hour-long hearing, Crawford and the lawyers answered questions on everything but the details of the case.
For the students, the hearing was complicated. The idea of covering up a piece of art that people find offensive is simple and straightforward. Where Barnard’s arguments lined up as “stepping stones to firing,” Hyman’s written and spoken arguments seemed designed to muddy the waters, Scott Berkley, 27, said as freshman Ballard.
The way the national situation is playing out, said Phoebe Howe, 27, Berkley’s partner and classmate, underlines the difficulty of “mistaking a racist act for someone being a racist person.” She wasn’t talking about Kerson specifically.
“I really wish our culture could have a better conversation,” she said.
Alex Hanson can be reached at [email protected] or 603-727-3207.