RUTLAND — The artist who painted a pair of murals at Vermont Law School about the Underground Railroad almost 30 years ago is willing to allow them to be covered with a cloth that would allow the murals to be seen by request while his lawsuit against the school goes ahead, his lawyers said in U.S. District Court in Rutland on Wednesday afternoon.
But the law school would like to build a wall in front of the murals, contending that a cloth covering is insufficiently substantial to prevent the viewing of the murals.
These arguments, presented in a hearing on whether to grant artist Sam Kerson a preliminary injunction to prevent the law school from covering his murals, suggest that while the question at issue was relatively narrow, the two parties remain far apart.
“I think both sides are an all-or-nothing proposition,” Judge Geoffrey Crawford said during Wednesday’s hearing. “You want permanent display,” he said to Kerson’s lawyers, Steven Hyman and Richard Rubin, “they want permanent entombment.”
Vermont Law School announced plans to paint over Kerson’s 1993 murals last July. The murals, titled The Underground Railroad, Vermont and the Fugitive Slave, have been condemned by students and others for their exaggerated and dated depictions of slaves and enslavers.
After investigating whether the murals could be taken down without damaging them, and determining they could not, Kerson filed suit against the state’s only law school.
He claimed that the federal Visual Artists Rights Act, or VARA, prevents the law school from removing the murals, and in court Wednesday, his lawyers argued that the law also bars the school from covering them, an act that would damage Kerson’s “honor, integrity and reputation” as an artist.
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.
“Under the statute, Sam Kerson’s art cannot be permanently covered to prevent it from being viewed,” Hyman, a former board president of the New York Civil Liberties Union, said in the hearing.
However, “we are prepared to accept the status quo,” Hyman said. The two 8-by-24-foot murals have been covered with a cloth.
Rubin, a Barre, Vt., lawyer who is also representing Kerson, noted that there are few people on campus who might encounter the murals, which are in the law school’s Chase Hall.
But the law school wants to go ahead and put up a wall of acoustical panels in front of the artwork, and has already obtained the materials, according to a court filing.
The law school is “perfectly within its rights” to decide that the murals should be walled off from public view, Burlington lawyer Justin Barnard told Crawford. VARA might prevent the law school from destroying the murals, but does not require the law school to continue to display them, Barnard said.
Further, the First Amendment of the U.S. Constitution prevents “compelled speech,” and VARA cannot outweigh the amendment, Barnard argued.
The law school should have to wait until the case is decided before it can wall off the murals, Hyman said.
“Putting up the wall is the end result of what they want, period,” he said. “We have offered something so they can live while we’re litigating.”
Crawford said he had read the case law on VARA, but noted that this particular issue, whether covering an artwork without harming it nevertheless damages the artist’s integrity, hasn’t been adjudicated.
“I couldn’t find any case that said what you say,” he told Hyman, “which is that the owner of the building can’t cover a piece of art.”
Hyman, who has argued VARA cases before, including on behalf of the creator of the well-known Charging Bull sculpture in lower Manhattan, who felt that the Fearless Girl sculpture installed facing the bull violated his artistic copyright, agreed with Crawford: “You’re in some uncharted waters,” he told the judge in the amicable, hourlong hearing.
The entire issue would be moot if the law school had negotiated with Kerson a waiver of certain aspects of VARA when the murals were painted. At the time, the federal law was only three years old.
“I don’t understand how an institution composed of law professors and attorneys could have found themselves in this pickle,” Crawford said.
The two sides are in talks about taking the case to mediation. Rubin noted that if litigation continues, it’s “likely to go to the circuit,” the federal appeals court, and that could get expensive.
Kerson, who lived in Vermont when the murals were painted and now lives in Quebec, attended the hearing via Zoom, as did a class from Vermont Law School.
A flurry of documents filed this month includes a statement from Shirley Jefferson, the law school’s associate dean for student affairs and diversity.
She said students have come to her from time to time during her 20 years as dean to complain about the murals, and that removal of the murals was first discussed by a diversity committee in 2013, but “the consensus was that the number of students pressing the issue was not sufficient to present a resolution to the Student Bar Association, or to persuade the Administration to remove the mural.”
After the May 2020 murder of George Floyd in Minneapolis, that sentiment changed, her statement says.
“When I looked at the mural again, I concluded that the mural, with its depiction of enslaved Africans as cartoonish caricatures, was part of the problem and inconsistent with the Law School’s mission no matter if the intentions that led to its creation were good,” she said.
Crawford did not indicate when he would rule on the request for an injunction.
Alex Hanson can be reached at ahanson@vnews.com or 603-727-3207.
