Court denies mural artist’s motion for preliminary relief, Artist appears to reference VLS students in new paintings

By Lorentz Hansen, Copy Editor

On March 10, the United States District Court for the District of Vermont denied artist Sam Kerson’s motion for a preliminary injunction, allowing Vermont Law School to cover Kerson’s mural, “The Underground Railroad, Vermont and the Fugitive Slave,” until the court makes a final ruling on Kerson’s initial claim. Recently, Kerson published a new series of paintings entitled, “The Muralist Imagines the Destruction of his Work,” to his website. The series of 36 watercolor paintings depicts Kerson’s account of the effort to remove his mural from Vermont Law School’s (VLS) campus and his lawsuit in response. Kerson’s new paintings appear to directly reference VLS students.

Kerson filed his initial claim on Dec. 2, 2020 under the Visual Artist Rights Act (VARA). He sought temporary, preliminary, and permanent injunctions to enjoin the school from removing or covering his work. Kerson requested, among other damages, compensation of $150,000 for each of the mural’s two panels, should the school proceed with its plan to remove them.

Lat summer, the school decided to remove Kerson’s mural after current 3Ls Jameson Davis and April Urbanowski raised concerns about the work and received support from much of the VLS community. Past VLS students have also expressed discomfort with the mural. In March of 2013, the school’s Diversity Committee held a special meeting to discuss the murals. The responses were “overwhelmingly negative,” according to Davis, who spoke with several alumni about the mural. The Diversity Committee discussed the murals again in an Oct., 2014 meeting, which resulted in the school installing plaques to explain the purpose of the mural shortly thereafter.

Faculty, staff, students of color, and white students have for over twenty years expressed their perception of the mural as “insensitive and offensive,” according to a sworn statement by Shirley Jefferson, VLS Associate Dean for Student Affairs and Diversity. Several current students have said they intentionally avoid the Chase Center, which is used for school events and as a study space, because they were deeply discomforted by the mural.

On June 30 of last year, Davis and Urbanowski circulated a letter explaining their position on the mural. Before distributing the letter, Davis called Kerson to discuss the mural, according to a sworn statement by Davis from Feb. 2, 2021. During the nearly two-hours-long phone conversation, Kerson “did not seem able to comprehend that his artistic intentions, even if good, were an entirely separate question from how the mural was received by and impacted Black viewers,” according to Davis’ statement.

The letter advocated for the mural’s removal to hold VLS accountable for making the school “an inclusive place for Black, Indigenous People of Color (BIPOC) students.” Davis and Urbanowski proposed replacing the mural with an “updated and more inclusive and accurate depiction” of African American history and advocacy in the United States and Vermont. Over 100 students and alumni signed the petition within 24 hours, and over 70 alumni expressed support for the letter after Davis and Urbanowski presented it to the school’s administration.

In a July 6 email to VLS students, faculty, staff, and alumni, then-President and Dean Thomas McHenry voiced his support for removing the mural. Last year’s widespread protests against police brutality and racial discrimination “require all of us to consider whether any of our operations or facilities discriminate or perpetuate harmful racial, gender, or sexual orientation stereotypes,” he wrote. The school’s Board of Trustees voted on July 24, 2020 to remove the mural.

On Aug. 5, 2020, the school provided Kerson with written notice of its intent to remove or cover the mural. “While we respect the effort, vision, and creativity that you brought to creating the mural, we have concluded that it does not have a place on our campus,” McHenry wrote.

On Jan. 20, 2020, Kerson filed a motion for a preliminary injunction to enjoin the school from removing or covering the mural pending the court’s final decision. Kerson’s motion included a statement from carpenter Daniel Hecht, who inspected the mural and determined that it had been installed in such a way that removing the work would cause it to be destroyed.

Kerson attached a sworn statement, writing, “if VLS is permitted to proceed with its stated plans, this will send the clear message to the art world and general public that the Murals are offensive and unworthy to be viewed.” Removing the murals “will this denigrate the value of the work itself” and “will undoubtably tarnish my reputation as an artist committed to progressive causes,” he wrote.

Kerson’s Jan. 20 motion sought to “maintain the status quo” by placing a movable screen or curtain in front of the mural such that “a student, visitor, or other person” could view the work. As the school reiterated in a Feb. 12 letter to the court, the campus has been closed to the public since last spring due to the COVID-19 pandemic, and the Chase Center “is closed to all” at the moment.

On Feb. 1, 2021, VLS filed a motion to dismiss the complaint with prejudice, pursuant with Rule 12(b)(6) of the Federal Rules of Civil Procedure. The motion states that Kerson’s claim lacks legal merit, because VARA “affords no basis to compel VLS to continue to display his work in the face of community opposition and disruption to the school’s learning environment.”

The school also filed a motion in opposition to Kerson’s Jan. 20 motion. The school’s motion contained statements from Davis, Urbanowski, Jefferson, and VLS Buildings and Grounds Supervisor Jeffrey Knudsen.

Jefferson wrote in her statement that several students of color, and some white students, have expressed to her their discomfort with mural ever since Jefferson first began working at VLS in 1999. Jefferson wrote that, despite “the way the mural depicts the enslaved African people in a cartoonish, almost animalistic style,” she generally urged students to ignore the mural and focus on their studies. After police officers murdered George Floyd on May 25, 2020, however, “I realized that I could no longer suggest that the students who were deeply offended—hurt—by the presence of the mural should ‘go along to get along,’ and that institutional racism in this country was so pervasive that we needed to address it on every level,” she wrote.

Knudsen addressed Kerson’s concerns about the integrity and accessibility of his murals in a Feb. 3, 2021 sworn statement. According to Knudsen’s statement, he researched panels and materials that could be used to cover the murals without damaging them, before choosing to cover the mural with “pieces of painter’s drop cloth temporarily pinned” on bare portions of wall surrounding the mural. Knudsen also provided details of his proposed more-permanent covering, which would be composed of acoustical panels affixed to a wooden frame. The frame would be fastened to the wall surrounding the mural “without touching or applying fasteners to the mural itself.” The school had already purchased the panels, according to Knudsen.

In her sworn statement, Jefferson expressed her belief—echoed by Davis and Urbanowski in their statements—that, “While it would be preferable to have the mural permanently removed, the Law School’s decision to affix to the wall acoustical panels that hide the mural, making it inaccessible, is a compromise solution.”

The court’s March 10 order allows VLS to proceed with its plan to cover the mural until the court reaches a final decision.

After the court’s ruling on Kerson’s motion for preliminary injunction, McCormack wrote in an email she is “cautiously optimistic” about the court’s final ruling, citing the ruling’s statement that “Plaintiff [Kerson] is unlikely to succeed on the merits in this case.”

On the day the court announced its ruling, Burlington-based newspaper Seven Days published an article on the ruling and the series of new pieces Kerson had published on his website. The article describes Kerson as having “doubled down on the stylistic choices of the mural” in his new works. The series depicts Kerson’s account of events since the Board voted to remove the mural last July, as well as “his fears for the mural’s future,” according to Seven Days. It is unclear exactly when Kerson published his new works, but each piece is marked with Kerson’s signature and the year 2020. The series was not published on his website at the time we last covered this case in January.

A Black male figure appears throughout the series of paintings. The first piece, entitled “Alarmed,” depicts this character on the left half of the piece standing in front of one of the mural’s panels. On the right half of the piece, the character appears on a television screen being watched by two people who appear to be in discussion. The character is portrayed pointing his finger in the air and holding what appears to be a cell phone. Along the bottom of the painting are the words, “Mr. Kerson Me and my Friend April, We do not like Your UnderGround Railroad” [capitalization shown as written].

Speaking with Seven Days, Kerson said that the paintings were not intended to depict Davis. “We don’t want to antagonize Jameson,” he said. 

Kerson said the character’s name is Zebulon Vance and that he is “imaginary,” according to the Seven Days article. As the article notes, Zebulon Vance is the name of a Confederate leader and politician. 

In her March 11 email, McCormack addressed the new paintings. “[M]uch to my concern,” she wrote, “new work from the artist seems to directly target VLS students who were involved in advocating for the mural’s removal.” Singling out individual students, McCormack wrote, does not reflect the “widespread sentiment” among the school’s community that “the mural has no place at VLS.”

“I unequivocally support the students who have been unfairly singled out by the artist,” McCormack wrote. Singling out a few students, she continued, does not reflect the widespread community support for removing the mural, “nor is it constructive to the overall discussion surrounding the mural.” “I know that the administration and our community also fully stand behind our fellow Swans.” 

Davis and Urbanowski declined to comment on the court’s ruling or on Kerson’s new works.

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