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Author Topic: Proposed Anti-Harassment Policy - open for public comments  (Read 31779 times)
SherryHall
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« on: January 14, 2014, 04:28:21 PM »

Greetings:

The Board of Trustees of the National Debate Tournament held its annual meeting at the NCA convention in November.  At this meeting the Board voted to endorse the creation of an anti-harassment policy for the NDT.  The NDT Committee later agreed with the Board at their meeting.  The NDT Chair appointed a committee to draft a policy that would be voted on at their next meeting in February in Austin.  The committee is comprised of two members of the Board--Sherry Hall and Chris Lundberg; three members of the NDT Committee--Vik Keenan, Will Repko and David Cram-Helwich; and one member of the community at large, Ben Hagwood. John Bredehoft, a former NDT debater who is a practicing attorney specializing in anti-harassment and discrimination law agreed to work pro-bono in helping to draft the policy.

This committee has been working on the development of the policy by exploring the policy in place for the Cross Examination Debate Association, anti-harassment and discrimination policies of universities, and relevant federal and state law.  John Bredehoft, who has experience in writing such policies for universities drafted an initial policy.  The committee met and discussed the draft policy and suggested changes to it.  A revised policy has now been completed, though it is still a work in progress.

The impetus to produce this policy is not in response to any singular event at the NDT, but is the result of a culmination of many factors.  First, the necessity of a policy is something that has been recognized for a while.  The NDT Committee endorsed the creation of a policy to address sexual harassment in 2011.  A committee worked on that for a year but never produced a policy.  Second, the NDT is seeking to obtain liability insurance, especially to cover the volunteers who administer the tournament.  That effort will be much easier and more affordable if a policy is in place.  Third, some school administrations are reluctant to allow their students to participate at the tournament without a policy.  Fourth, adopting a policy will bring the NDT in line with CEDA, which has had policy in place for decades.  Finally, the adoption of a policy is necessary to avoid confusion and to ensure that all participants at the tournament know what rules govern the tournament.  The failure to adopt a policy does not mean that there are no standards governing harassment because individual school policies and federal, state, and local legal standards do exist.  The committee that worked on the sexual harassment policy in 2011 learned that in the absence of a dedicated policy there was confusion about which of those standards and rules would govern the resolution of disputes.

In the interest of transparency and to ensure that members of the community have a chance to have input into the policy, the committee is making the proposed policy public and inviting comments.  If you have comments and/or suggestions for improvements to the policy, please communicate them via email to Sherry Hall at hallsherry2@gmail.com by January 22, 2014.  After we have reviewed the public comments, John Bredehoft will draft a final policy proposal.  This policy will be distributed to the the NDT Committee by February 1, 2014.  The policy will be voted on at the meeting in Austin on February 9, 2014.

Sincerely,

Members of the NDT Anti-Harassment Policy Committee





* Revised Policy for Release for Public Comments.pdf (93.53 KB - downloaded 1267 times.)
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Clark Gableism
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« Reply #1 on: January 14, 2014, 11:39:28 PM »

Thanks for posting this. I think this is an important issue and I am glad you all are opening it up for comments before making a final draft.

I want to bring up a few points that apply specifically to arguments commonly made in debate rounds, as the policy claims are covered by the Code of Conduct. I feel like a fair number of "non-traditional" debate positions would easily qualify as harassment under this policy. I don't intend on singling any one team or program out, but I'll provide some examples to illustrate my argument:

1. A team on the national circuit engages in a performance, as a method of breaking down patriarchy, of twerking as part of their constructive. I feel that this could potentially violate a few sections of the policy, namely, "is offensive to the recipient of the conduct" (2a) with particular emphasis on "...and would be offensive to a reasonable person in the same situation or circumstances as the recipient of the conduct." (2a) What constitutes "reasonable person"? Having that phrase be exclusive to the debate community seems far too limiting, while opening it up to the average person would without a doubt label their performance as offensive.

2. I recall watching a round where a debater responded to a "fuck K" with something similar to "fuck you, you motherfucker! Don't you ever fucking tell me what to fucking do! I don’t need a goddamn man telling me anything" with a few other similar lines afterward. I feel like in addition to possibly violating the sections mentioned above, it could come into conflict with "making remarks which are by common usage lewd, obscene..." (2e) The argument was relevant in the debate round since the "fuck K" directly conflicted with the team's argument that their voices should not be oppressed, as the "fuck K" does just that. Regardless, given that the policy claims that "Intentional and offensive verbal or physical conduct that is intended to constitute a part of relevant argumentation during a debate round can constitute harassment," (7a) such an argument, albeit completely relevant to the round, could be harassment.

3. I have debated against and observed multiple teams who have engaged in conduct that "interferes materially with an individual’s participation in the NDT or any associated activity, or creates an environment that is intimidating or hostile." (2d) If said teams are profusely swearing in a round or are describing sexually-explicit conditions (describing men as "walking dildos" comes to mind), this could easily violate that condition or any of the ones mentioned above. Walking into a debate round only to be called a “dildo”, a “racist”, “white”, a “a worthless piece of shit”, all of which I have been called or seen someone else been called in a round, could definitely make a “hostile” environment.

Ultimately, my concern is that this community has expressed a strong and rightful desire to minimize and hopefully eliminate instances of harassment. However, many of these, in my opinion, necessary sections of the Code of Conduct could force a removal of a variety of debate practices. If the policy goes through as-is, I can easily foresee teams cutting cards from the policy and crafting voting issue-type arguments in response to some of the arguments mentioned above.

« Last Edit: January 15, 2014, 12:03:42 AM by Clark Gableism » Logged
Hester
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« Reply #2 on: January 15, 2014, 08:48:31 AM »

And if the "reasonable person" test means someone not necessarily familiar with contemporary intercollegiate debate, many other debate arguments "would be offensive to a reasonable person in the same situation or circumstances as the recipient of the conduct." Malthus, Nuclear War Good, Wipeout, or any other position claiming that war/disease/death that falls short of full-extinction is a "good thing" because it forestalls a larger "extinction event" are decidedly offensive to the general public, e.g., the "reasonable" layperson who heard a 1N read Malthus against a Plan that increased foreign aid for Oral Rehydration Therapy to address infant mortality would be appalled.

Secondly, the issue of whether someone being offended by parts of an argument is enough to prohibit its inclusion in the round. For example, 3(d) prohibits the use of "imagery that is intentionally derogatory, demeaning, or degrading, based at least in part on a protected classification. Examples would include the gratuitous exhibition of violent pornography or of a graphic photograph of a lynching." It's unclear what the threshold for "gratuitous exhibition" is. There are many "reasonable" people who refuse to take part as audience members when the traveling exhibit of lynching photographs comes through their town. For whatever reason, viewing such images is not something they want to do. They do not have to question the "rhetorical value" or "historical significance" of exhibits that display such photos in order to choose not to view them - if they don't want to see them, no one is forcing them to attend the exhibit. In debate, with a more 'captive audience' of participants, it is a tougher issue. However, it seems odd that an activity claiming to engage in intense rhetorical engagement would err on the side of prohibiting the use of evidence. This functionally would transform the "Disaster Porn K" into a code of conduct issue. Would an detailed oral description of what was in a lynching photograph prohibited by the Code of Conduct also violate the prohibition? If not, why not? If so, is it thus the intent of the Code of Conduct to preclude lynching from ever being discussed in debate rounds?

Thanks for posting this. I think this is an important issue and I am glad you all are opening it up for comments before making a final draft.

I want to bring up a few points that apply specifically to arguments commonly made in debate rounds, as the policy claims are covered by the Code of Conduct. I feel like a fair number of "non-traditional" debate positions would easily qualify as harassment under this policy. I don't intend on singling any one team or program out, but I'll provide some examples to illustrate my argument:

1. A team on the national circuit engages in a performance, as a method of breaking down patriarchy, of twerking as part of their constructive. I feel that this could potentially violate a few sections of the policy, namely, "is offensive to the recipient of the conduct" (2a) with particular emphasis on "...and would be offensive to a reasonable person in the same situation or circumstances as the recipient of the conduct." (2a) What constitutes "reasonable person"? Having that phrase be exclusive to the debate community seems far too limiting, while opening it up to the average person would without a doubt label their performance as offensive.

2. I recall watching a round where a debater responded to a "fuck K" with something similar to "fuck you, you motherfucker! Don't you ever fucking tell me what to fucking do! I don’t need a goddamn man telling me anything" with a few other similar lines afterward. I feel like in addition to possibly violating the sections mentioned above, it could come into conflict with "making remarks which are by common usage lewd, obscene..." (2e) The argument was relevant in the debate round since the "fuck K" directly conflicted with the team's argument that their voices should not be oppressed, as the "fuck K" does just that. Regardless, given that the policy claims that "Intentional and offensive verbal or physical conduct that is intended to constitute a part of relevant argumentation during a debate round can constitute harassment," (7a) such an argument, albeit completely relevant to the round, could be harassment.

3. I have debated against and observed multiple teams who have engaged in conduct that "interferes materially with an individual’s participation in the NDT or any associated activity, or creates an environment that is intimidating or hostile." (2d) If said teams are profusely swearing in a round or are describing sexually-explicit conditions (describing men as "walking dildos" comes to mind), this could easily violate that condition or any of the ones mentioned above. Walking into a debate round only to be called a “dildo”, a “racist”, “white”, a “a worthless piece of shit”, all of which I have been called or seen someone else been called in a round, could definitely make a “hostile” environment.

Ultimately, my concern is that this community has expressed a strong and rightful desire to minimize and hopefully eliminate instances of harassment. However, many of these, in my opinion, necessary sections of the Code of Conduct could force a removal of a variety of debate practices. If the policy goes through as-is, I can easily foresee teams cutting cards from the policy and crafting voting issue-type arguments in response to some of the arguments mentioned above.


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SherryHall
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« Reply #3 on: January 21, 2014, 12:26:53 PM »

Hi.

I just wanted to remind everyone that the committee responsible for drafting the new code of conduct/anti-harassment policy is seeking public comments and suggestions.  We will continue to take comments through 12:00 noon (est) on January 23.  Comments should be emailed to hallsherry2@gmail.com.

Thanks,

Sherry
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gabemurillo
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« Reply #4 on: January 22, 2014, 05:07:59 PM »

I think the question of "reasonable person" standards are very important. I would hope this term would be clarified beyond its standard interpretation - the nature of debate brings into question the neutrality of a "reasonable person" who would, reasonably speaking, not have any interaction with debate.

I might have missed it but does this document limit who can bring complaints? For example can someone who views a debate but has nothing harassing directed at them place a complaint because they were offended by the content of a debate? This seems especially problematic given restrictions on content of debate (certain images, videos, music etc).

I think the intent of asking people with access issues to contact the committee in advance of the tournament (am I reading that correctly?) puts an unfairly high burden on people with disabilities. If a complaint is brought up is it within the committee's jurisdiction to sanction a host for a lack of accessibility at their site?

I am uncomfortable with an undemocratically appointed committee to decide these violations, is there any accountability to NDT subscribers for this decision? Can people in the community protest certain members of the committee if they feel they do not or cannot accurately make decisions about certain "protected characteristics" I certainly would not feel comfortable with the person who decided that "fag" or "gimp" were acceptable enough to not censor in this document while every other offensive term listed got censorship deciding on an accusation of harassment of queer bodies in their many forms. Will it be possible for committee members to claim a conflict of interest if a friend or colleague is accused of harassment? Will the NDT chair have "back up" options in such a case so as not to fall below the minimum of 5 members?

gabe
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PHayes
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« Reply #5 on: January 22, 2014, 05:36:23 PM »

I wasn't involved in the creation of this policy, but did review it during our district meeting this past weekend and have some views on Gabe's questions. Please don't consider any of these answers definitive.


I think the question of "reasonable person" standards are very important. I would hope this term would be clarified beyond its standard interpretation - the nature of debate brings into question the neutrality of a "reasonable person" who would, reasonably speaking, not have any interaction with debate. 

Generally, the reasonable person standards refers to a reasonable person who is aware of the context and circumstances at play.


I might have missed it but does this document limit who can bring complaints? For example can someone who views a debate but has nothing harassing directed at them place a complaint because they were offended by the content of a debate? This seems especially problematic given restrictions on content of debate (certain images, videos, music etc).

I believe you are correct that there are no such limits, and that an observer would have standing to file a complaint. 


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gabemurillo
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« Reply #6 on: January 22, 2014, 06:10:38 PM »

Also would it be considered harassment towards a white observer if a black student made an argument about an inability to trust white people, or even made an argument about whiteness as a social system? What if they made an argument that a non-black judge was not capable of making a decision about certain issues due to their inability to understand black communities? What about a team who says that men in the community create psychological violence and therefore should be excluded from certain communities? What about queer debaters who make arguments about hetero-normativity and the violence that creates in our community? These are arguments I hear in debates that I have never considered offensive, however, given that this document goes out of its way to say that it is meant to protect white folks, heterosexual folks and males from harassment (obviously not exclusively - but rhetorically its interesting to me that there is a section which makes it clear that this is the case), I am very concerned these rules can and will be deployed AGAINST traditionally considered "protected groups" by groups in positions of power. Did I miss acknowledgement in the document of how histories of oppression change the contours of what and if things are discrimination, or is it assumed that a "reasonable person" would recognize that?    
« Last Edit: January 22, 2014, 06:12:22 PM by gabemurillo » Logged
sarabethbrooks
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« Reply #7 on: January 22, 2014, 07:05:38 PM »

Quote
6. Any individual who believes that an accommodation for a disability, or an accommodation for a religious belief or preference, would be appropriate and reasonable in connection with that individual’s participation in the NDT, is encouraged to contact the Code of Conduct Committee as far in advance as possible. The NDT will engage in an iterative process to determine the need for and character of any reasonable accommodation.

It is problematic that no one at the NDT Anti-Discrimination committee thought to engage a single student, let alone the disabled students in this activity, before drafting this policy. The language is problematic, the spirit of the policy is fundamentally flawed, and the lack of engagement proves a complete disconnect with the shifting nature of arguments in the debate community.

Initial questions, though I'm sure I'll be back for more:
  • Do people have to believe that they are disabled to be disabled? Does this mean that NDT must also believe that I am disabled for me to be "accomodated"?
  • Does NDT think that it is a good form of practice to homogenize those requests that are religiously motivated and those that are based on the accessibility of an education space?
  • What does the NDT think is appropriate? Are static room requests on campus appropriate? What about requesting ADA compliant hotel rooms? What about my request that I have a chair with arms so that if I have a seizure I won't fall onto the floor and risk injury to my head? What is the brightline for "appropriate"?
  • What is the brightline for reasonable? Is NDT going to refuse to place me in a room near the center of campus based on competitive success? Wake didn't seem to think that was a reasonable request, until after the tournament when someone finally talked to Len. Does that mean that I have to go to the NDT director every time my request is called "unreasonable"?
  • Who decides what is reasonable and/or appropriate? Hint: if it is a bunch of able bodied people, we have a problem.
  • Will this policy cover only students, or also coaches? What if a coach makes a request? Will it be more reasonable because a coach made it over a student? Who decides who gets covered and who doesn't?
  • Who decided that "accomodation" was the right way to couch this policy?
  • What is an iterative process? Does it include input from the disabled person making the request?
  • What is the appeals process for a denied request?
  • What is the "character" of a "reasonable accommodation?"
  • Why was this posted in the middle of winter break for comment, with a deadline during the first weeks of a semester for most programs? Why wasn't it cross-posted on the College Policy Debate forums where much of our community exists?

I'll just leave you with this: NOTHING ABOUT US WITHOUT US. This policy forces the honus of advocacy onto disabled students who are already few and far enough between in our activity and greets them at the door with hostility and contempt. Way to go, NDT. You can expect to hear about this from me in rounds.
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zanezor
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« Reply #8 on: January 22, 2014, 09:51:29 PM »

Based on what I know of the people involved with this document, I do believe that their intentions are in the right place.  That said, I fear that the way this policy would be enforced would be biased and re-entrench systematic societal inequalities within debate. 

I think Sara has a pretty excellent point: It is problematic that no one at the NDT Anti-Discrimination committee thought to engage a single student, let alone the disabled students in this activity, before drafting this policy. The language is problematic, the spirit of the policy is fundamentally flawed, and the lack of engagement proves a complete disconnect with the shifting nature of arguments in the debate community.

The goal of establishing a more enjoyable debating environment where we are all treating each other better seems to be a step in the right direction, but the committee has succumbed to the myth that the solutions to complex, interpersonal and intergroup problems will come from the top down.

I suspect that any draft of this policy that doesn't make a serious effort to incorporate student input will fail to achieve the stated goals and create even more hostility.  That said, I believe that this whole discussion offers us as a community an important case where we can test out our skills at participatory  decisionmaking (facilitating, at the least, group email threads between different members of the committee and interest student groups---I encourage us, as students, to creatively imagine ideas to help make this document more relevant to the concerns of students.).

A few questions.

Who defines “offensive”? 

One of my students from North Lawndale walks into a debate round on the high school military topic---rhymes about their personal experience in the streets of this mass incarceration nation.  They cite evidence about the iraq war stealing billions from urban school districts to murder innocent children on the other side of the globe and advocate a topical plan to reduce troop presence in iraq. 
Keep in mind that my students are at their first national tournament, so although they are skilled and experienced they are still intimidated by the national circuit environment and associated pressures.
 
Let's say they run into one of the top “policy” teams in the country in their first preset round and they are affirmative.  The negative will respond by verbally assaulting them with a barrage of hyperbolic words written by the Architects of the Iraq War (Kagan, anyone?) about the importance of unchallenged American military dominance.  They will be yelling at my students at incomprehensible speeds with the fury of all hell. 

This is tremendously unkind and would definitely adversely affect my students in many different ways. To me, a “reasonable” observer would find this to be patently absurd and hostile.  To me, this displays a cold and calloused indifference to the systematic and ever-present webs of oppression that plague the soul of human society.  To me, that is deeply wounding and displays a dangerous ignorance of the reality of the violent warlords who own capitol hill and their effect on my students' lives (and really the hearts of anyone who still has one in this society).

Yet, I bet some people are reading this post and thinking that it is absurd for me to compare this to the trauma their students feel when they are called “white.”  If you think what i'm saying is absurd, imagine how WE feel about this policy!

I do believe that we could all do a better job of treating each other better, but I think there is some ignorance as to where the blame truly lies.  I know that  my partner Bill and I had debates with both Korey and Ameena and Dominique and Kaine that were focused on explicit efforts to discuss what it would look like to treat each other more kindly and to have FUN in our debates.  This is something that allowed us all to get a lot more out of the debates and also contributed toward keeping the tournament environment positive and conducive to creative, transformational bursts of intellectual might!  This worked because it was established in person, in specific situations.  This is also just a part of the long process of rebuilding broken relationships that have been sabotaged by years of hatred and are being destroyed by toxic profit hungry prison machines and many other institutional structures in the 21st century.

I think everyone could look into themselves and put themselves out on a limb OUTSIDE of rounds to get to know each other better.  I don't think an out-of-touch mandate from above is going to achieve much of anything positive, and I hope that you all will proactively solicit student engagement.  I won't be at the NDT most likely, though, so I hope that other students will take the initiative and put some energy into working together with the committee to work on a more effective decree.


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gabemurillo
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« Reply #9 on: January 22, 2014, 10:22:42 PM »

I've been asked to post these questions for someone:

1.  If something that could possibly violate the policy happens during a prelim or outround, does the harassment have to be reported by the person offended or can you file a report on someone else's behalf?


2. If someone wishes to make a complaint during a debate round, are the same procedures for clipping followed? If I call out someone for harassing me during an outround at the NDT, do I have to stake the round on it?
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jregnier
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« Reply #10 on: January 22, 2014, 10:47:18 PM »

Does the policy account for the fact that there may be legitimate academic and/or political reasons for offending people or violating norms of decorum? 
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AndyEllis
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« Reply #11 on: January 22, 2014, 11:54:06 PM »

Can someone point me to the clause in the standing rules which allows the NDT to impose new content restrictions for this season after this season's dues have been paid?
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lfloyd
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« Reply #12 on: January 23, 2014, 12:05:29 AM »


Secondly, the issue of whether someone being offended by parts of an argument is enough to prohibit its inclusion in the round. For example, 3(d) prohibits the use of "imagery that is intentionally derogatory, demeaning, or degrading, based at least in part on a protected classification. Examples would include the gratuitous exhibition of violent pornography or of a graphic photograph of a lynching." It's unclear what the threshold for "gratuitous exhibition" is. There are many "reasonable" people who refuse to take part as audience members when the traveling exhibit of lynching photographs comes through their town. For whatever reason, viewing such images is not something they want to do. They do not have to question the "rhetorical value" or "historical significance" of exhibits that display such photos in order to choose not to view them - if they don't want to see them, no one is forcing them to attend the exhibit. In debate, with a more 'captive audience' of participants, it is a tougher issue. However, it seems odd that an activity claiming to engage in intense rhetorical engagement would err on the side of prohibiting the use of evidence. This functionally would transform the "Disaster Porn K" into a code of conduct issue. Would an detailed oral description of what was in a lynching photograph prohibited by the Code of Conduct also violate the prohibition? If not, why not? If so, is it thus the intent of the Code of Conduct to preclude lynching from ever being discussed in debate rounds?


I don't really post here; my name is Luke and I debate at GSU.  I am a veteran of the conflict in Iraq.  Normally, I try to give policies the benefit of the doubt in terms of application, however in the face of systematic exclusion of self-identified veterans from our (space), I am not optimistic.  Hester's comments frame what could happen to my narratives, or narratives like mine.  War is a terrible, horrific event that is violent, graphic, and searing.  The graphic descriptions that I have shared of my own experience could be construed to qualify as harassment based on nationality, ethnicity, or religion.  I am at odds, in this instance, with section 3(d), because while the spirit of my narratives are very much anti-harassment, the text of "reasonable" interpreter leaves those without war experience to draw their own conclusions of it.  Clearly, this quickly becomes a matter of discerning intent.  Obviously any "reasonable" person wouldn't want to confront "gratuitous exhibition" of war narratives; it's terrible!  And yet, we're so fond of corpseless, peacefully-ending, (extinction card not needed) nuclear war. 

(Also, is calling a soldier a babykiller, or a genocidal oppressor, or "shock troops" considered harassment of a protected class?  I certainly hope not).

Similarly, it is laughable that accessibility issues are lumped into an anti-harassment document.  This reflects the clear ignorance, lack of consultation with (dis)abled folks, and motivation-by-fear of the document towards a burgeoning (dis)abled community in the activity.  Grouping the public comment of accessibility with anti-harassment is actually educationally regressive; now we have to disentangle the two issues, as if we didn't already have enough myths to dispel. 
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kevin kuswa
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« Reply #13 on: January 23, 2014, 01:04:23 AM »

Overview:

1. We need some kind of a document.  We need to be more pro-active.  We need to protect the NDT, all the participants in the NDT, and the hosts/NDT Committee from litigation.  The intent of the people working on this is certainly admirable and I do not think we should “scrap the whole thing” just because there are some major issues with it.

That said, the current document may create some bigger problems than it solves and I really think we need more time to work through some of the specific language and the likely effects of the Code.  I understand that the “clock is ticking” and the NDT Committee requires some type of document to be in place.  The problem is that those time pressures do not contribute to the best policy deliberations and may make us adopt some seriously flawed provisions for fear of not passing something in time.  There has to be a way to find a short-term governing policy that is more minimalist or a temporary litigation shield for this year’s NDT in order to fine-tune the Code and achieve better policy over the longer term. 

What we need is a fair and reasonable document—this document makes some strides in the right direction, but there are some things to refine/revise/rewrite and even strike completely.

2. Restorative models work better than punitive models.  There are a few lines in the Code that talk about how most NDT participants do not violate these kinds of prohibitions and that the Committee does not expect to deploy sanctions very often, but the overall feel of this policy is punitive and legalistic.  Is this Code designed to encourage people to respect one another or is it primarily a legal tool to ward off litigation?  Probably some of both, but the latter is emphasized more than the former.  If it is primarily designed to provide legal cover (still important, btw), we should call it “Liability Protection” and not a full blown Code of Conduct.

3. Free speech still matters and is particularly significant in the debate rounds themselves.  Does that mean we should allow violence or harassment on any level?  Of course not—but we also need to be very careful about restricting speech, even offensive speech, in a debate round, let along in the tournament hotel, at a meal during the tournament, or among participants talking about the NDT months after the event.  Keep in mind, the current Code quotes the AAUP Association Council at the top of the document when the AAUP says “‘intimidation and harassment’ are inconsistent with the maintenance of academic freedom.”  This statement is accurate and Title IX goes much further in this direction than was common in 1994, but I think it is incredibly valuable to look at the rest of the AAUP Statement.   

One line that the “NDT Code” authors should consider would state something like this:  “This “Code” should be distinguished from a ‘speech code’ as delineated by the 1994 statement on academic freedom adopted by the American Association of University Professors.  Here is their larger statement:

http://www.aaup.org/report/freedom-expression-and-campus-speech-codes

The statement that follows was approved by the Association’s Committee A on Academic Freedom and Tenure in June 1992 and adopted by the Association’s Council in November 1994.

LONG QUOTATION STARTS HERE:
“Freedom of thought and expression is essential to any institution of higher learning. Universities and colleges exist not only to transmit knowledge. Equally, they interpret, explore, and expand that knowledge by testing the old and proposing the new. This mission guides learning outside the classroom quite as much as in class, and often inspires vigorous debate on those social, economic, and political issues that arouse the strongest passions. In the process, views will be expressed that may seem to many wrong, distasteful, or offensive. Such is the nature of freedom to sift and winnow ideas.
On a campus that is free and open, no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful or disturbing that it may not be expressed.

Universities and colleges are also communities, often of a residential character. Most campuses have recently sought to become more diverse, and more reflective of the larger community, by attracting students, faculty, and staff from groups that were historically excluded or underrepresented. Such gains as they have made are recent, modest, and tenuous. The campus climate can profoundly affect an institution’s continued diversity. Hostility or intolerance to persons who differ from the majority (especially if seemingly condoned by the institution) may undermine the confidence of new members of the community. Civility is always fragile and can easily be destroyed.

(yet) … banning speech often avoids consideration of means more compatible with the mission of an academic institution by which to deal with incivility, intolerance, offensive speech, and harassing behavior:

1.   Institutions should adopt and invoke a range of measures that penalize conduct and behavior, rather than speech—such as rules against defacing property, physical intimidation or harassment, or disruption of campus activities. All members of the campus community should be made aware of such rules, and administrators should be ready to use them in preference to speech-directed sanctions.

2.   Colleges and universities should stress the means they use best—to educate—including the development of courses and other curricular and co-curricular experiences designed to increase student understanding and to deter offensive or intolerant speech or conduct. These institutions should, of course, be free (indeed encouraged) to condemn manifestations of intolerance and discrimination, whether physical or verbal.

3.   The governing board and the administration have a special duty not only to set an outstanding example of tolerance, but also to challenge boldly and condemn immediately serious breaches of civility.

4.   Members of the faculty, too, have a major role; their voices may be critical in condemning intolerance, and their actions may set examples for understanding, making clear to their students that civility and tolerance are hallmarks of educated men and women.

5.   Student-personnel administrators … should set high standards of their own for tolerance and should make unmistakably clear the harm that uncivil or intolerant speech inflicts.

To some persons who support speech codes, measures like these—relying as they do on suasion rather than sanctions—may seem inadequate. But freedom of expression requires toleration of “ideas we hate,” as Justice Holmes put it. The underlying principle does not change because the demand is to silence a hateful speaker, or because it comes from within the academy. Free speech is not simply an aspect of the educational enterprise to be weighed against other desirable ends. It is the very precondition of the academic enterprise itself.”
END QUOTE

Yes, despite being very instructive, this AAUP document must be balanced with the recent realities of Title IX.  The Title IX information page, cited by the National Women’s Law Council in October of 2007 (http://www.titleix.info/10-Key-Areas-of-Title-IX/Sexual-Harassment.aspx, http://www.nwlc.org/sites/default/files/pdfs/Final%20SH%20Fact%20Sheet-Students.pdf), states:

“Sexual harassment in education includes any unwanted and unwelcome sexual behavior that significantly interferes with a student's access to educational opportunities. The Supreme Court has confirmed that schools have an obligation under Title IX to prevent and address harassment against students, regardless of whether the harassment is perpetrated by peers, teachers, or other school officials.”

The point here is that the line between speech and behavior needs to be explicitly referenced—in some cases, speech is behavior but in other cases there is a difference.  This kind of thing makes a big difference to the language of the Code and the types of sanctions pursued in certain contexts.   The idea is not to justify harmful speech—on the contrary—the idea is to act against violence and harassment, even if such action is verbal in nature, but to also demonstrate a commitment to free speech in an academic environment, even if that speech may be offensive to some.  All instances of offensive speech are not equivalent to harassment and some of are protected by the Constitution.  Keep in mind, provision 7, sub-point a, of the current NDT Code states “(a) Intentional and offensive verbal or physical conduct that is intended to constitute a part of relevant argumentation during a debate round can constitute harassment.”  Again, I do not disagree with this statement, but its reach needs more explanation.

The bottom line is that effective measures against actions such as “verbally offensive statements” need to be very narrowly tailored or else they lose their value altogether.

Here are a few other places in the Code that deserve scrutiny:

1.  The bulk of the examples in this document seem to be about protecting the majority from discrimination.  Why is that? I understand the need to say “discrimination can occur in many ways,” but this seems to go a bit too far.  This is from the Code:

“The policy prohibits discrimination or harassment based on a protected
characteristic no matter who is being harassed, and no matter who is
doing the harassing. It is equally forbidden to discriminate against a male
for being male; to harass an Asian for being Asian; to denigrate a white
male for being a white male; to abuse a heterosexual for being
heterosexual, or to discriminate against a light-skinned person of color in
favor of a dark-skinned person of color.”

2. How do we interpret what constitutes a threat of violence?  I am not against this provision and we obviously need to work against violence.  The problem, however, is that the prohibition is “unconditional” and based on the perceptions of the target OR of an observer.  It is not a stretch to say that many debaters make statements like “we will crush them on the impact flow” or “we are severely beating them down on uniqueness.”  I know that the Code has certain provisions that deter “frivolous or tactical” complaints, but those provisions should not be used to prevent someone from making a complaint (see my point below about retaliation) and the provision against threats of violence is unconditional, potentially based on the “perception of an observer,” and has a low burden of proof (probably preponderance of evidence).  I do not have specific suggestions at this point (thus the call for more time to work on this), but I do know that some of the tensions between this provision and the attempt to stop frivolous or tactical complaints need to be worked out in greater detail.  I can see this provision creating some issues that have not taken place at the NDT at any point in its history.  Have previous NDT hosts been polled to see how their University Council approaches this kind of thing?  If not, the NDT Code Community has not done due diligence.  I know of at least one former NDT host who has not been consulted and has some opinions that go against the specifics of some of the current Code.  Giving the community a few weeks or even months in the middle of the season to study and reflect on a very complicated document is not the same thing as seeking out suggestions from more constituents.  More from the Code:   

“This policy’s prohibition on violence or threats of violence is independent
from any consideration of protected category, or whether the threat or
violent conduct rises to the level of “harassment.” The prohibition on
violence or threats of violence is unconditional. A “threat of violence” is
either an explicit threat of violence, or any action, oral or physical, that
creates in the target or other observer a reasonable perception that
violence is, or may be, imminent or intended.”

3. Defining harassment.  I’m still working on comparing the Code’s definition to other documents and I find it troubling that the three “protected classifications” that are mentioned are sex, race, and national origin, but I have two more specific questions here:

A) What does it mean for “any person to experience the benefits of the NDT”? If someone cannot hear a debate because of the room configuration, does this Code make that a form of harassment?  I would hope not, but the language seems to imply that structural impediments to “full participation” are harassment—that may be a good direction to pursue, but I think the Committee needs to revisit #2 d.

B) Does harassment really include “remarks which are by common usage lewd.”  I could see some remarks that are lewd being problematic, but this is close to a provision that restricts speech in a dangerous way.  The Code specifies (in 2e) “remarks” and then says “that are lewd…”  Given that any person’s participation in the NDT could include someone who is offended by the word “shit,” and given that lewd remarks are defined as harassment, this could go a bit too far.  What is “lewd”?  The Code Committee might respond with “we explicitly discourage those kinds of complaints,” but that is not a justification for overly broad punitive language.

4. Prohibiting certain imagery.  There is no doubt that certain images are problematic, but not all imagery that is obscene and includes reference to a protected classification should be prohibited.  The NDT does not even have guidelines for any imagery at this point.  When the example is about lynching (isn’t all lynching graphic), I worry about the applications of this provision.  Does an image of a drone strike constitute prohibited speech/behavior?  I don’t think claims of “subjectivity” or “arbitrary enforcement” should deter us from action, but in this case the room for the use of the Code to prohibit an argument that, at least in some cases, should be acceptable, is a little frightening.  Again from the Code:

“(d) A participant exhibits obscenity, or other imagery that is intentionally
derogatory, demeaning, or degrading, based at least in part on a protected
classification. Examples would include the gratuitous exhibition of violent
pornography or of a graphic photograph of a lynching.”

5. Reach of the Code.  I do not know the various legal arguments on how far a Code like this can reach, but I would like the Committee to provide some more information on this point in particular.  Certainly actions that break local, State, or federal law would always be just that, against the law, but what about some of the other aspects of the Code (such as the provisions against lewd speech or graphic imagery)?  Can those prohibitions really extend as far as the tournament hotel, restaurants near the event, facebook posts, or even actions taken months later that involve describing the NDT?  More language from the Code:

“Harassment, discrimination, threats of violence, or other abuse may occur based
on conduct in or outside of a debate round. For example, harassment may occur
at the NDT tournament site, at the tournament hotel, or at an outside activity
associated or affiliated with the tournament, such as a tournament meal,
committee meeting, or award ceremony.”

And, reinforcing this reach, the Code continues:

“The Code of Conduct applies to interactions at
tournament meetings, meals, announcements, and at the tournament site.
This Policy also governs the conduct of participants at the NDT in other or
post-tournament activities arising from the NDT, such as discussions of
results, arguments, individuals, ballots, and the like by participants in
social media.”

6. The direct reference to Judges and speaker points is curious at best and deserves more explanation.  I would guess that at every NDT (and probably every tournament) judges will lower points to varying degrees for types of “inappropriate or offensive behavior.”  I think that is one way that speaker points can help further the educational goals of the activity.  I am also not against some of those instances of “inappropriate or offensive behavior” resulting in other actions.  What does concern me, however, is that every time a judge makes this decision, the judge will now be obligated to report the incident and inform the NDT Code of Conduct Committee.  This will probably reduce the number of times judges make this determination because they may want to avoid the larger reporting requirements.  The effect of this provision may be to reduce the instances where judges can point out inappropriate behavior and have some teeth behind it.  I am definitely not saying that lowering someone’s speaker points would be a sufficient way, by itself, to call out some types of offensive behavior, but mandatory reporting for all such instances is not going to work.  If one debater monopolizes cross-ex and does not provide space for his or her partner to contribute equally, that is inappropriate and offensive and may justify lower points, but should that require the judge to inform the Code of Conduct Committee what happened?  I’m not so sure.  Here is what the Code has to say on that matter:

“Nothing in this Policy prevents or restricts individual judges from
exercising their independent discretion in awarding or withholding speaker
points, ranking, wins or losses, based on inappropriate or offensive
behavior that may also violate this Code of Conduct. Individual judges
taking action based on their independent discretion as to conduct that may
also violate this Policy are encouraged to report any violations or
perceived violations to the Code of Conduct Committee. The imposition of
individual discretionary consequences by one or more judges shall not
preclude the Code of Conduct Committee from imposing additional
sanctions. The Code of Conduct Committee shall have no authority to
reverse or revise any competitive demerit (as to speaker points, rank, win,
or loss) imposed by an individual judge.”

Finally, 7. Tension exists between “no frivolous or tactical complaints” and “no retaliation.”  Current Title IX legal doctrine is very explicit about retaliation—any and all retaliation against a person making a complaint or even considering a compliant is absolutely prohibited.  Often the action taken against retaliation is more severe than that against the initial offense.  The last section of the NDT Code prohibiting retaliation is consistent with Title IX, but there is no definition of retaliation and there is no attempt to rectify the tension that this anti-retaliation provision has with the earlier portion of the Code that says “baseless” complaints will be sanctioned as severely as the sanctions would be against harassment itself.  Here is that section from the Code:

“The Code of Conduct
Committee will not look kindly upon misuse of the Code of Conduct as a
tactical tool. Harassment and discrimination are serious matters, and the
making of a willfully false or frivolous complaint is, correlatively, also a
serious matter, which may be subject to the same sanctions as are set
forth for harassment or discrimination. Given the nature of the offense, it
is inevitable that some complaints will raise close or narrow issues of fact
or interpretation, and there is no desire to deter those complaints, even if it
is eventually determined that no violation of this Policy has occurred.
Baseless complaints interposed for competitive advantage will, however,
be subject to sanctions.

This provision is fairly severe and in many ways could lead to retaliation against someone raising a complaint.  How is it determined that a complaint is “tactical,” frivolous,” or “baseless”?  I am sure that some complaints may be without merit, but how is that determined and how is it determined quickly enough to protect the person being accused and not create a retaliatory environment against the accuser?  Part of the Code specifies that certain appeals must be made “before the announcement of elimination rounds.”  If things are that time-sensitive and sanctions are being placed on both someone accused and someone making a baseless accusation, how is all that information to be gathered fairly and within a reasonable period of time?  It may be impossible to strike a balance here, but the breadth of the provisions on both sides seems to invite conflict regardless of the merit of the initial complaint.

If you have read all the way through this, you are probably on the Code Committee (in which case, thank you immensely for your efforts) or you recognize the importance of this for the community and are interested in how this evolves (in which case, please add your comments to the thread).  Either way, please do not take this as a criticism of the idea behind this document or of the larger Code itself.  The purpose of this note is primarily to ask for more time to work through the details or, if that is not possible, to add some additional places in the text that need refining and more explanation.

Best of luck to the Committee and please consider giving more of us more time to deliberate—The Texas NDT meeting is right around the corner and the vast majority of the people who will be implicated by the Code are just now getting a chance to look at this, if they now it is being considered at all.

Respectfully,

Kevin Kuswa
Whitman College   

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Nathan Rothenbaum
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Posts: 3


« Reply #14 on: January 23, 2014, 01:27:28 AM »

I agree with luke and others that the document should be modified to exclude the concerns about accessibility. At the moment it is the definition of a footnoting practice
Quote
Any individual who believes that an accommodation for a disability, or an
accommodation for a religious belief or preference, would be appropriate and
reasonable in connection with that individual’s participation in the NDT, is
encouraged to contact the Code of Conduct Committee as far in advance as
possible. The NDT will engage in an iterative process to determine the need for
and character of any reasonable accommodation.
Accessibility should be its own bill and entirely separate from issues pertaining to Harassment. As it is, this is the definition of a half-hearted gesture.

Now to the proposal:
I understand that any document governing hate-speech and discrimination is a hotly contested issue. These concerns make writing these documents difficult: it must be a.) Broad enough to encompass discrimination that doesn't typically 'fit the bill' of the status quo, and b.) Strict enough to set out clear and explicit limits to where hate speech starts and regular criticism ends.

In some ways, a formal document regulating hate speech feels like an impossibility, but if that is the direction we think we should be heading then so be it.

With that being said, some linguistic comments
1B
I feel like this entire section goes without saying, and the very need to say it raises some questions about the document. This section should be revised to say...
"The policy prohibits discrimination or harassment based on a protected
characteristic no matter who is being harassed, and no matter who is
doing the harassing."


2 In General
I think that 2B is overly vague and that vagueness is a problem pointed out by folks here. I think that the 'and' at the end of 2C could be interpreted to mean that: for an activity to meet the qualification of harassment, it must meet 2a, 2b, 2c, and 2d.
1.) I think this and vs. or distinction should be made explicitly at the start of 2A. I also think that 2a should state "is predicated on or derogatory of a protected classification as defned above"
2.) I think that 2B should be removed, there is not a defense of it.
3.) 2E should be revised to say
Quote
Such conduct may include threats; gestures; making remarks which are by
common usage lewd, obscene, or may
expose a person to hatred; or any
other conduct which is sufficiently severe, pervasive or persistent so as to
interfere with or limit a person’s ability to participate in, or benefit from, the
services, activities, or opportunities offered by the NDT.

3 In General
1.) 3C should be revised. I think the care taken for some slurs but not others is problematic
2.) 3D should be removed.
3.) 3E and 3F should be revised and collapsed into a single standard. I say this not because I do not think "mental or emotional distress" is important, but as this standard is written it is too broad. I believe the purpose of this standard is to be used in a way that says, "Hate speech is hate speech if commonly accepted hate words are used AND received as hate speech" and should be rewritten as such. I am not sure now as to what that rewording should be, but I believe a language which accepts the possibility of those who are historically the victims of such injurious language to engage in a practice of reappropriating that language. I also think this re-writing should deal with the fact that if someone referred to someone like myself as a hate-word that does not imply, i.e: "N----er' then it should not be thought of as harassment. There is something that does not ring well in my mouth about this document allowing a 3rd party to say that two close groups are engaging in hate speech with one another.

Amber Kelsie wrote a concern on facebook that,
Quote
So whats the brightline for that? If I say I'm a dyke is it over for me? Folks have reclaimed fag
This document should explicitly state that this form of repurposing / "nosy-neighboring" does not apply.

6
As already explained, this part should be removed.

7
1.) 7A is an important addendum to the topic at hand. I think this section should stay for obvious reasons, however, I believe that this section must be written in reference and regard to my comments above about 3E and 3F. Given that this board, I imagine, will not be at all tournaments at all times, there exists a very real possibility that one of these examples of 'in round harassment' will occur without the board being present. What should judges do in these scenarios? I would hope that violations to this conduct go above and beyond meaning that said team loses the round - and if this is the case, this section should be rewritten to explain that it is not that individual rounds will be policed, but that coaches, and persons will be held accountable to the things they say while steeped in argumentation.
2.) 7D should be removed. This screams "decorum" in the name of stamping out hate speech.

8
1.) 8D should be removed. I believe in all cases, a formal investigation must be made before sanctioned NDT action is taken.
2.) 8E.vi: this section should be removed. I believe that this section is out of touch with the severity of hate speech. Punishment for hate speech should never be simply 'you lose a round' or 'no speaker awards', it is a much more earthshaking act. I believe that debates about language should remain in debate rounds, and those debates about language (over metaphors, language roots, sanitized discourse, purported exclusionary words) should not be governed by the NDT, but decided in each case by the debaters and the judge. I believe that the document's policy should be explicitly written as in 8G concerning the distinction between hate speech and scholarly argumentation.

9
This section should be removed or substantially reworded because the term retaliation deserves a definition, not simply passing reference.

This post should be read both as an addendum to some concerns raised, and also a proported solution to some of those challenges.  
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