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-codesThe 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
