Vermont Law School Granted Authority to Conceal Controversial Slavery Murals Despite Artists' Objections

In a significant legal development, the Second Circuit court has upheld Vermont Law School's decision to proceed with concealing a pair of offensive murals depicting slavery despite objections from the artist, Sam Kerson. This ruling affirms the previous verdict handed down by a district court in 2021, asserting that concealing these contentious artworks does not infringe upon federal laws safeguarding artists from destroying or altering their creations.
 

The murals, conceived by artist Sam Kerson and commissioned by the school in 1993, were intended to commemorate Vermont's historical involvement in the Underground Railroad. These expansive paintings, measuring eight by 24 feet, sought to honor the state's crucial role in aiding enslaved individuals in their escape from the southern United States to the Northeast and Canada.
 
However, criticisms have arisen over time regarding Kerson's portrayal of Black individuals within the murals. Accusations of racist caricatures characterized as "cartoonish" and "animalistic" have sparked debate. Observers have pointed to exaggerated facial traits and musculature reminiscent of offensive stereotypes.
 
Shirley Jefferson, the administrator of Vermont Law School, initially discouraged protests against the murals. However, following the killing of George Floyd in May 2020, the institution reconsidered its stance. Subsequently, over 100 students, staff members, and alumni signed a petition to remove the murals.
 
An initial proposal to paint over the murals was put forth, but it was halted due to concerns that such an action could potentially violate the Visual Artists Rights Act (VARA) of 1990. VARA, a federal copyright law, grants artists specific rights over works of "recognized stature," protecting them from destruction, distortion, or modification without their consent. As a result, the school chose to conceal the murals with acoustic panels while preserving their integrity.
 
Kerson initiated legal proceedings in response, arguing that this solution violated his VARA rights. Despite Kerson's efforts, a district court ruled in favor of Vermont Law School in October 2021, setting the stage for an appeal.
 
Kerson's legal representatives, Steven Hyman and Richard Rubin, contended that the concealment of the murals amounted to a challenge to the artist's reputation and honor. They argued that VARA's definition of "modification" should encompass its impact on Kerson's professional standing as a champion of social justice.
 
In the recent ruling, Chief Judge Debra Livingston asserted that VARA does not demand the unconditional preservation of art without considering the rights of others. The court's detailed 39-page opinion clarified that "modification" in the context of artwork refers to specific alterations to the work itself and does not extend to hiding the art behind a solid barrier.
 
This ruling prompts reflections on the delicate balance between artistic expression and addressing potentially offensive content within educational institutions. As Kerson's legal team evaluates their options, this case highlights the intricate convergence of creative freedom, cultural sensitivity, and legal protections within art.