Unsettling Settlement

It is doubtful that University of South Florida professor Diane Elmeer could have found a better teaching assistant than Derek Washington to help her class explore the hot-button topic of racial stereotyping in art. An avowed "visual terrorist," Washing-ton was equally fortunate to have a student like Nicole L. Ferry enrolled in Elmeer's introductory course to help make his point.

The resulting lesson might just cost state taxpayers $25,000.

The toll on academic freedom at Florida's freshly re-politicized public universities is still being tabulated.

USF officials are on the verge of paying Ferry the $25,000 to settle a federal lawsuit she brought against the school, Elmeer and Washington.

During almost two years of investigation and litigation, USF had rejected Ferry's claims that Washington sexually harassed her in 1999 and that Elmeer retaliated against the student for complaining.

Did Washington, a graduate assistant pursuing a master's degree in fine arts, hit on Ferry, a freshman art major?

No, both sides agree. "There were 250 people in this class," said Washington. "I have never seen her, don't know what she looks like, and never spoken to her, to my knowledge. I don't know the girl." Washington merely displayed for Elmeer's class two slides from his artistic portfolio. The pieces are titled Nigger Lover and O.J. with a Fever Blister. Ferry said the pair of slides projected onto a big screen by Washington, who is black, constituted sexual harassment.

USF records suggest Ferry, who is white and was 18 at the time of the class, was alone among Elmeer's 252 students in finding Washington's September 1999 presentation offensive.

Nigger Lover is a photograph of a naked Washington atop a woman whose white hands rest upon his ebony backside during what appeared to Ferry to be sexual intercourse. No genitals are shown.

The other piece is a collage of what Ferry described as "pornographic magazine cutouts of the female anatomy." It prominently features "a helpless white woman" — Ferry said it is O.J. Simpson's slain ex-wife — trying to escape a black man's open mouth. (Washington said Nicole Ferry misidentified Nicole Brown Simpson in the artwork.)

"That was lambasting O.J.," said Washington. "My work is caustic."

Nobody remembered Washington using crude language while he narrated his 80 slides. Elmeer warned students at least once during the term that they could leave a class without penalty if they objected to anything shown.

Washington, 40, has a history of courting controversy.

His 1991 display of what some considered a pornographic video in an exhibition on violence against women prompted USF officials to post warning signs at the Centre Gallery. Two years later, Washington wanted to include the head of a dead dog in a Ybor City show. In 1998, city officials in his hometown of St. Petersburg removed one of his murals from public display because, Washington said, it contained a picture of black activist Omali Yeshitela.

Washington is scheduled to appear on national cable television late this month on Fox News Channel's The O'Reilly Factor, his lawyer said. Ferry's reaction to the slides has aided Washington in amplifying his message. Her father complained to USF, and Washington was removed from the class as a teaching assistant. At a subsequent class, Elmeer somberly announced that an unnamed female student had filed a sexual-harassment complaint against Washington due to his presentation.

The ensuing uproar, which featured Ferry's classmates marching for Washington's reinstatement, forced the frosh to withdraw from USF, she said.

A university review cleared Washington.

"This whole thing reeks of racism," one student quoted a tearful Elmeer as telling the class.

Ferry's lawsuit and statements to USF officials do little to dispel Elmeer's perception.

While claiming Ferry was defamed because USF turned the incident into a "racial issue," the lawsuit nevertheless makes a point of introducing Washington as "an African-American male" and the plaintiff as a "white female." Co-defendant Elmeer's race isn't mentioned. She is white.

The lawsuit relates that the student's father, Jay Ferry, met with USF officials in October 1999 "to discuss the sexual harassment of his daughter by an African-American male in a position of authority."

The wording is curious. In an alleged heterosexual harassment situation, a harassed female generally isn't required to prove that her male harasser is of another race for a court to find in her favor.

Ferry told USF officials in a February 2000 interview that she had seen pictures of other couples having sex in the class. Earlier in the term, depictions of a naked cancer patient and Mona Lisa as a lesbian were displayed too. But Ferry said she found those images only in "bad taste."

During an initial interview with USF officials, Ferry summed up the theme of Washington's two pieces as "black males controlling white females." She erroneously referred to Nigger Lover by an incorrect title, "Nigger Having Sex with White Woman."

Washington said such details are telling. "If it was two white people or two black people, or a white man with a black woman, we would not be sitting here talking today," said the dread-locked artist, his feet propped up on a table inside a vacant studio on USF's Tampa campus.

Mary B. Meeks, Ferry's lawyer, said it wasn't her client who injected race into the dispute. "The racial component was created by USF," Meeks said. "Diane Elmeer, in particular, made it an issue."

Meeks said the lawsuit was simply a factual complaint. "He is an African-American male. The woman in the picture is a white female," said Meeks. "I guess he brought it up, that way."

USF officials reported Ferry told them that she took offense to Nigger Lover because the instructor for that class was in the photo.

Meeks expanded on that by arguing Washington's slides constituted a sexual advance towards her client and all other females in the class.

"A man, given a position of authority and influence over freshman students, depicted pornographic material of himself to the students," Meeks wrote USF officials.

Yet Washington wasn't assigned to be Ferry's teaching assistant, and she acknowledged that he never contacted her.

After the school refused to discipline Washington and Ferry sued last year, he said USF officials backed him right up until a May mediation session. "I was given an attorney by USF and told there was no way in hell they would win this suit," said Washington. ""It was stupid. It's a frivolous lawsuit.' I guess it's not, if you win 25 grand."

R. B. Friedlander, USF associate general counsel, said a proposed resolution was reached in May. But she said it hasn't been finalized. Until it is, whatever else USF did to get Ferry to drop her lawsuit won't be known to the public.

There will be no admission of wrongdoing nor apology to Ferry in any settlement, said Michael Reich, spokesman for USF President Judy Genshaft.

Reich said the state's self-insurance office overruled USF and forced school lawyers into settlement talks.

How long have risk managers been in charge of deciding how far to defend unconventional campus teaching? Reich said the risk managers have always participated in litigation decisions. "This case is unique," said Reich. "We're not concerned about a precedent here."

Contact Staff Writer Francis X. Gilpin at 813-248-8888, ext. 130, or [email protected].

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