At Large  August 22, 2023  Rebecca Schiffman

Controversial Mural Can Be Covered, Court Rules

Photo: Paul Rogers, Stowe, Vermont, Courtesy Dragon Dance Theater

Detail from the Mural The Underground Railroad, Vermont and the Fugitive Slave, Entering Vermont in 1855, memory of Harriet Tubman and Sojourner Truth

Last week, a U.S. federal court sided with Vermont Law School, stating they the school is legally justified in concealing two murals that it deems offensive. The mural, painted by artist Samuel Kerson, depicts the slave trade and the history of the Underground Railroad in Vermont

The court opinion, written by U.S. Circuit Chief Judge Debra Livingston, explains that the artwork “stirred controversy” which prompted the law school to erect walls around the mural to conceal them from public view. Kerson filed suit alleging that by obscuring the work, the law school violated his rights under the Visual Artist Rights Act (VARA) of 1990, which protects artists against the modification or destruction of their work. On this, Livingston wrote that the law “does not mandate the preservation of art at all costs and without due regard for the rights of others.”

The murals were conceived in 1993 for the Jonathan B. Chase Community Center at the school to commemorate Vermont’s involvement in the Underground Railroad and its efforts to combat the evils of slavery in the United States. The mural, titled The Underground Railroad, Vermont and the Fugitive Slave, is comprised of eight scenes (four per panel) and spans the history of American slavery, from Africans being captured in their homeland through to the abolitionist movement. 

Photo: Paul Rogers, Stowe, Vermont, Courtesy Dragon Dance Theater

The Underground Railroad, Vermont and the Fugitive Slave panel 1

When they were unveiled, the murals were praised, but as early as 2001 they began to attract controversy, with VLS receiving complaints from community members who felt uncomfortable with how the mural presented Black people. According to the opinion, viewers in 2013 took offense to the way Kerson, who is white, depicted the enslaved African people, “in a cartoonish, almost animalistic style” with “large lips, startled eyes, big hips and muscles eerily similar to ‘Sambos’ or other racist…caricatures.” 

In light of these complaints, the following year, VLS installed plaques beside the murals. But in 2020, after the George Floyd protests, calls to remove the murals escalated. Over 100 students, alumni, faculty, and staff sent a petition to the law school’s president demanding the removal and replacement of the mural.

Wikimedia Commons

Vermont Law School, Debevoise Hall

The school initially wanted to paint over the murals, but the limitations of VARA prohibits this type of modification of a work when an artist is still alive (and without their consent). Kerson, upon learning of the request for removal, hired carpenters to see if he could remove the mural himself, but it was unable to separate from the drywall. The school determined that the best course of action would be to conceal the mural behind fabric-cushioned panels. 

But Kerson was not happy with this idea. This is one of the artist’s major works, and the thought of it being permanently concealed did not sit right with him. Kerson, Livingston wrote, thus “invoked his rights under VARA to prevent what he perceived as the Law School’s ‘destruction’ or ‘intentional distortion, mutilation, or other modification’ of the murals.” 

And yet, the court did not find Kerson’s claim valid, and sided with Vermont Law School, determining that because the school would not be completely destroying the artwork, the case could not be considered under the VARA laws. 

The court concluded their opinion by stating that their decision does not mean that VLS and Kerson cannot come to a mutual agreement to extricate the murals from the school so as to “preserve them as objects of art in a manner agreeable to all.”

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