Vermont Law School claims right to remove mural

  • A panel from murals by Sam Kerson that had been displayed at Vermont Law School in Royalton, Vt. The school plans to cover the murals, "The Underground Railroad Vermont and the Fugitive Slave," painted in 1993, because "the depictions of the African-Americans on the mural are offensive to many in our community and, upon reflection and consultation, we have determined that the mural is not consistent with our School’s commitment to fairness, inclusion, diversity, and social justice," according to a statement from VLS Dean Dean Thomas McHenry on July 6, 2020. (Image courtesy Sam Kerson)

Valley News Staff Writer
Published: 2/5/2021 9:50:08 PM
Modified: 2/5/2021 9:50:02 PM

SOUTH ROYALTON — Vermont Law School has responded to a lawsuit filed by an artist seeking to protect murals he painted at the school 25 years ago by arguing that the paintings have “not aged well” and that “its depictions of African Americans strikes some viewers as caricatured and offensive.”

The motion, filed Monday in U.S. District Court in Burlington, asks Judge Geoffrey W. Crawford to dismiss the suit, which artist Sam Kerson filed last year after the South Royalton law school said it planned to paint over the murals.

“This lawsuit raises a simple question: Does federal law compel a private educational institution to continue to display a work of art, notwithstanding the fact that members of the school community find the work offensive and hurtful? The answer is plainly no,” the law school said in its motion to dismiss the case.

Kerson, who lived in Vermont when the murals were painted and now lives in Quebec, filed suit Dec. 2, claiming that the federal Visual Artists Rights Act prevents the removal of his work. Kerson and several assistants painted the two 8-by-24-foot murals, Vermont, The Underground Railroad and Vermont and the Fugitive Slave, in 1993 and 1994. The murals were painted directly on a wall in the law school’s Jonathan B. Chase Community Center.

Last summer, VLS officials said they planned to have the murals painted over after students complained that their depiction of African Americans was primitive. The law school later modified that plan, intending to obscure the mural behind acoustic tiles. Kerson argued that either course of action violated the Visual Artists Rights Act, or VARA.

VARA allows artists to protect their work from “any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation.” Further, the law protects works of “recognized stature” from destruction either through intent or gross negligence.

The law school, through its lawyers Karen McAndrew and Justin B. Barnard of the Burlington firm of Dinse, Knapp and McAndrew, argues that merely covering Kerson’s work does not violate VARA. “Whatever umbrage an artist might take at the act of covering his or her work and removing it from view, the act of covering is not an act of destruction, provided that it leaves the work intact,” the law school contends.

And if the law followed Kerson’s view of it, “construing VARA to require the ongoing display of a controversial and divisive work of art by a private institution would raise serious constitutional questions,” VLS argues. “The First Amendment generally prohibits the government from compelling private parties to make or endorse speech with which they disagree.”

Another Kerson mural in Vermont was covered up decades ago at the request of people who worked near it. Armed Men at the Gates of Paradise, which Kerson painted on panels that were installed in a conference room in the State Office Complex in Waterbury in 1991, depicted Christopher Columbus and conquistadors arriving in the Caribbean, where they encounter a native population depicted semi-clothed or naked.

Objections to the mural emerged when the Agency of Human Services surveyed employees about sexual harassment and several brought up the mural, according to a 1992 account in the Vermont Sunday Magazine, a copy of which Kerson has posted on his website. “How would professional men feel sitting in a professional meeting with women if there was a picture on the wall detailing penises” one employee wrote on the survey. “Yet women are expected to sit in such meetings with men as bared breasts are detailed on the wall with obvious phallic symbols. I feel uncomfortable in such an environment.”

Fearing a sexual harassment lawsuit, state officials kept bedsheets handy, and people who were uncomfortable around the murals could ask to have them covered up for the duration of a meeting.

This hasn’t been an issue for several years, however. The murals were removed when the office complex was rebuilt after flooding damaged the buildings during Tropical Storm Irene in August 2011, David Schutz, Vermont’s state curator, said in a phone interview. The conference room was reconfigured in the renovation and the panels were put into storage, where they remain, Schutz said.

“As is the case with the murals at the law school, it’s a fairly in-your-face treatment” of Columbus’ first encounter with residents of the New World, Schutz said. The figures are large and exaggerated, and the natives and their environment are rendered in bright shades of red, orange and turquoise. “It was a little notorious,” he added.

Eventually, the state installed a set of curtains, so the murals could be covered up at the pull of a string, Schutz said.

“As a lot of art things are, it’s a tricky situation, and a difficult one,” Schutz said.

A Jan. 20 court filing by Kerson includes a declaration from Schutz that the Vermont Law School murals “are important works that show the artist at his best. I believe we must ensure that Vermonters and others in the years to come are able to see the work of this compelling painter.” Schutz agrees with experts who assert that the murals can’t be moved without destroying them.

Another declaration in the same filing, from former state Supreme Court Justice Marilyn Skoglund, led the original judge in the case to recuse herself. After she had joined the court, Skoglund established an art gallery on the first floor of the Supreme Court in Montpelier. She chose Kerson to show his work there in 2000 and in 2008. The VLS mural, she wrote, “demonstrates Sam’s stature as an accomplished and important Vermont artist.”

U.S. District Court Judge Christina Reiss wrote in an order of recusal that she is a close friend of Skoglund’s, and that the two have discussed Skoglund’s “opinions regarding matters of artistic creation and expression.” Reiss’ recusal led to the case’s reassignment to Judge Crawford.

A hearing is scheduled for Feb. 24.

Alex Hanson can be reached at ahanson@vnews.com or 603-727-3207.




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