Chase mural artist’s lawsuit assigned new judge

By Lorentz Hansen, Copy Editor

After filing a complaint against Vermont Law School (VLS) on Dec. 2, 2020, Samuel Kerson has filed a motion for preliminary injunction, and the case has been reassigned to a new judge after the first recused herself.

On Jan. 22, United States District Court Judge Christina Reiss, who was originally assigned to Kerson’s case against the school, submitted an order of recusal. Judge Reiss’s order cited her desire to avoid “the appearance of a lack of impartiality” as motivation for recusal, in accordance with Canon 2 of the Code of Conduct for United States Judges.

As the order states, Judge Reiss is “close personal friends” with former Vermont Supreme Court Justice Marilyn Skoglund, who on Jan. 7 submitted a three-page declaration in favor of Kerson’s motion for injunctive relief, according to Reiss’s order. Judge Reiss also noted her “pre-existing opinion regarding [Justice Skoglund’s] credibility,” their “sufficiently numerous and continuous” contacts, and discussions they have had on “matters of artistic creation and expression.” Reiss wrote that her judgement of any evidence Skoglund might present as a witness could appear biased, so she ordered the case “back into the wheel for immediate reassignment.”

On Jan. 25, Jeffrey S. Eaton, Clerk of the Court for the United States District Court for the District of VT, reassigned the case to Chief Judge Geoffrey W. Crawford.

Samuel Kerson, who in 1993 painted the mural “The Underground Railroad: Vermont and the Fugitive Slave” in VLS’s Chase Center, filed his claim in U.S. District Court for the District of Vermont on Dec. 2. Kerson seeks to prevent the removal and/or damage of the mural, which was funded by a grant from the Puffin Foundation, from the school’s Chase Center. VLS decided to remove the mural after two students led a renewed effort seeking its removal or replacement due to the deep discomfort it caused many students to feel in their place of learning.

After distributing a letter on June 30 about their concerns and goals, VLS 3Ls Jameson Davis and April Urbanowski received signatures from over 73 current students and 109 alumni. VLS Dean Emeritus Thomas McHenry (who served as Dean and President of the school at the time) recommended on July 6 that the school’s Board of Trustees vote to approve the mural’s removal. The Board voted on July 24 to remove the mural and gave Kerson 90 days to do so.

Kerson did not comply with the Board’s decision, and he filed suit on Dec. 2 under the Visual Artists Rights Act (VARA) to prevent the mural’s removal. Under VARA, Kerson is seeking the maximum statutory damages award of $150,000 for each of the two mural panels if the school proceeds with removing or damaging his work.

Kerson’s Dec. 2 claim asserts, in part, that the mural cannot be removed because it was painted directly onto the Chase Center’s walls. According to the lawsuit, the murals were painted onto sheet rock that was then installed into the Chase Center’s walls in such a way that removing the panels of sheet rock would damage the mural.

According to the lawsuit, Kerson and “carpenters familiar with the hanging and displaying of art” examined the murals after the law school gave him 90 days to remove them, and determined that removing the murals would “require disfiguring” them and “cutting them into sections.”

VLS has not filed a countersuit to Kerson’s claim. Glenn Berger, President of the law school’s Board of Trustees, told Law360 in a statement following Kerson’s lawsuit that VLS “do[es] not believe VARA prohibits covering the work, and we will do so until the Court has resolved this matter.”

Berger stated that the school acted in accordance with VARA and “has gone to great effort” to give Kerson time to remove the mural. “We will urge the District Court to permit the Law School to remove the mural,” he wrote.

Law360 noted one prior successful VARA claim from 2013, which arose after a landlord whitewashed the famous graffiti arts-space 5Pointz in Long Island City, New York. During the night of Nov. 19, 2013, the landlord, Gerald Wolkoff, whitewashed the entire property to prepare for its redevelopment into condominiums. Wolkoff did not provide any notice. The collection of artists sued Wolkoff and won. In the Feb. 2018 decision, they were awarded $6.75 million in damages—the maximum statutory damages amount of $150,000 awarded for each of the 45 murals. In Oct. 2020, the U.S. Supreme Court declined to hear an appeal of this verdict.

VARA is meant to protect works of “recognized stature” from “any intentional distortion, mutilation, or other modification…which would be prejudicial to [the artist’s] honor or reputation.” According to the act, a property owner may not remove or alter an artist’s work on/within the landowner’s property unless the property owner “has made a diligent, good faith attempt without success to notify the author of the owner’s intended action affecting the work,” or has “provide[d] such notice in writing and the person so notified failed, within 90 days after receiving such notice, either to remove the work or to pay for its removal.”

Kerson’s attorney, Steven Hyman—a partner at McLaughlin & Stern LLP in New York—told Law360 that the story told by Kerson’s mural is “a subject that Vermont Law School and [the state of] Vermont should be proud of, their participation in the Underground Railroad. The idea of covering that up feels like an anathema, on a personal level.”

As Davis and Urbanowski told The Forum several months ago, this is not the first time that members of the VLS community have raised concerns and expressed discomfort about the mural. The school’s Diversity Committee held a special meeting in 2013 to discuss the mural due to students’ concerns and “overwhelmingly negative” responses to the work.

Many articles and pieces have inaccurately characterized Davis and Urbanowski as having declared the mural “racist.” As previously reported in The Forum, Davis expressed his concerns about this misrepresentation. “April and I crafted the original letter sent to Dean McHenry and responses to media requests using specific language to describe the mural: insensitive, demoralizing, inaccurate, dispiriting,” he wrote. “While there may or may not be students and others who feel [that the mural is “racist], that was not how April and I articulated the issues.”

Speaking on the school’s decision to remove the mural, Berger also noted that “the board is supportive of and sympathetic to the many students, faculty, and staff, and other members of the VLS community who find the mural offensive because of how it caricatures enslaved Africans specifically and casually stereotypes Black bodies in general,” according to the Valley News.

Starting Feb. 1, the law school will host one cohort of approximately 45 first-year students for on-campus classes, which will be held in the Chase Center to comply with social distancing guidelines and CDC requirements. As Berger noted, the school plans to cover the center’s mural until the matter is resolved in court.