Response Paper

Doyle Srader srader
Sat Jun 20 00:48:22 CDT 1998

On Fri, 19 Jun 1998, Marcia Tiersky wrote:

> 1. Resolved: that the United Sates Congress should enact legislation
> substantially (lowering, diluting, relaxing, easing) the burden of proof
> for complaining parties pursuant to Title VI, VII, and/or VIII of the 1964
> Civil Rights Act for claims of racial, ethnic, and/or gender discrimination.
> I actually like this topic idea a lot.  The problem is it does not allow
> cases that do affirmative action, which is what I thought the topic was
> designed to be about.

Crystallizing one of the important questions: is that the topic we want? I'll
be candid: that is the topic I want. If we could engineer a topic that would
set affirmatives up defending affirmative action and negatives attacking it, I
think that would be a dream come true. Deep debates on both sides on the
merits of that approach. I hoped we could find another health
insurance/consumption tax set of a handful of solvency mechanisms, but if that
exists, I surely didn't find it. Still, a topic about marginalized groups that
came complete with layered literature on the solvency question would have
incredible potential.

> In fact, lowering the burden of proof for people
> suing for discrimination would actually make it harder to do affirmative
> action because challenges to it would be more likely to win. All that the
> topic does is allow individuals who have been discriminated against to win
> their cases more often.  I don't mean to suggest that this isn't something
> worth debating about (or doing for a living) but it is somewhat more
> limited in scope than what I anticipated for this topic.

Which brings me to the point I started to make above, then forgot about. If
this topic wording is valuable, it's as a way of discussing discrimination
without debating affirmative action. Seems like that should be an option.
Marcia's impression is that this is debatable. I think it's less so than the
scrutiny topic, but I'm still thinking over her concerns about that one.

> I have trouble with the phrase "burden of proof" (and I don't mean my
> pronunciation or spelling).  When I first read this topic idea, all that it
> looked like to me was cases that say "the status quo requires proof by
> clear and convincing evidence and the plan changes it to preponderance of
> evidence, so more people win."  Having seen Doyle's clarification of what
> would be topical, e.g. eliminating the pattern and practice requirement, I
> am unconvinced that the language "burden of proof" captures the concept. It
> is my impression (confirmed by another lawyer I spoke with) that burden of
> proof is a narrow term and the only changes you could make in it would be
> what I described above. I am unaware of a term that captures the concept
> Doyle is going for.  Perhaps "enabling complaining parties to bring more
> successful claims" although I think that language is kind of scary too.

Hmm. How about "Resolved, that the United States Congress should enact
legislation substantially lowering the requirements for complaining parties to
prove/demonstrate discrimination pursuant to Title VI, VII, and/or VIII of the
1964 Civil Rights Act for claims of racial and/or gender discrimination"?

> As far as the verb ideas go, I think diluting basically is terrible. I
> doubt that it's much used in the literature and I don't think it's the
> right concept. I feel relatively certain that most discussion of change in
> burdens of proof refers to raising and lowering, "lowering" seems like a
> good call.

Look, I was *brainstorming*. (The drizzle joke is too easy.) You stay in law
school and bone up on oppressing the masses, and I'll stay in the academy and
generate provocative but meaningless turns of phrase, OK?

(Sorry. This is how we always talk to each other. I'd been relatively polite
up to here, and didn't want her thinking someone had cracked my account.)

> This topic limits the actor to the Congress.  However, Sean points out that
> there are likely to be situations where Court action is needed to pave the
> way for Congressional action (or at least back them up when the legislation
> is challenged.) The affirmative appears not to have the fiat power to
> control the Court, understandably, as Doyle is right in wanting to avoid
> the cases that allow lowering the standard for just one case.  Perhaps
> using the federal government but including a "nationwide policy" type term
> would help.

Resolved, that the United States Federal Government should enact rules and/or
statutes substantially lowering the requirements for complaining parties to
prove/demonstrate discrimination pursuant to Title VI, VII, and/or VIII of the
1964 Civil Rights Act for claims of racial and/or gender discrimination

> My final concern about this topic is the "complaining parties" language.
> While the people that I work with only use the term the way Doyle intends
> it, and while I think it is basically a term of art that means people
> bringing a complaint in court, I am concerned that creative debaters will
> find some way to twist it into a much broader spectrum of people. I think
> "plaintiffs" might be a more limiting term for that purpose.

Got no problem with that, but I really think "creative debaters" would face
an uphill fight answering the definition that appears in one of the laws
that's in the topic wording. As one who ordinarily relishes such uphill
fights, I have to say I'd leave it alone. But there's probably no reason not
to use "plaintiff."

> Another thing I wanted to mention for the purposes of clarification is that
> Title VII discrimination includes sexual harassment. I am not saying that
> this is good or bad, I just wanted to be sure that it was clear, in case
> some people were not aware of that relationship.

Which grafts in another controversy about gender and the workplace, meaning
the issues are proximate, but also gives some variety to the topic, and the
controversy is nice in that there's deep literature supporting remedies and
deep literature attacking them.

> 2. Resolved: that the United States Congress should enact legislation
> substantially (lowering, diluting, relaxing, easing) the burden of proof
> for complaining parties pursuant to Title VI, VII and/or VIII of the 1964
> Civil Rights Act for claims of racist, sexist or ethnic nationalist
> practice/discrimination.
> There is nothing about the language of this resolution that actually
> produces unidirectionality. I know Doyle is hoping that traditional notions
> of power relationships limit the topic. However, the fact is that members
> of majority groups can also claim that they are victims of
> racist/sexist/ethnic nationalist discrimination.

Clearly, this is why Marcia dropped out of graduate school. Yes, people make
cavalier references to racism in print. There also exist well-explained and
-defended works arguing that a more precise definition of "racism" and
"sexism" necessarily incorporates the one-way valence of power, i.e. women can
be bigots in dealing with mean, or Chicano/as can be prejudiced against
Anglos, but only white people can partake of the power of being of the
dominant group to engage in the unique form of exclusion that "racism" refers
to, and, for similar reasons, men and men only can be "sexist". The arguments
for this definition are deep, the definition is more precise, and it makes the
topic unidirectional. The topicality debate on that term gives negatives a
ninety meter head start in the hundred meter dash.

> There is no substantive difference between this topic and topic one, it is
> just a rhetorical attempt to create a direction, so the discussion from
> above applies.

Have I mentioned that at one time, Marcia was pursuing a master's degree in
rhetorical study? Or that she dropped out?

> As between the two wordings, I think the first one is
> preferable. Doyle is correct that racist discrimination is not a commonly
> used term, and I am not sure that racist practice is the same concept
> exactly.  Since the change in wording doesn't really accomplish his goal
> anyway, topic one is preferable.

Here we just differ. I was concerned about "racist discrimination," but I
think it makes enough sense. "Discrimination on the basis of race" is a phrase
that obviously makes sense, and "racist discrimination" would be a subset. I
will say that I think "ethnic nationalist" should be purged, as it doesn't
accomplish the same thing.

> 3. Resolved: that (The United States Supreme Court, One or more United
> States Federal Courts, The United States Federal Government) should
> substantially relax the standard of scrutiny applicable to federally
> administered race and/or gender conscious classifications in one or more of
> the following areas: employment, education, housing.

*comments on lower and U.S. Supreme Court snipped -- I suspect she's right*

> Another problem I see with this resolution is there aren't many case
> options.  There are three levels of scrutiny.  We're at strict scrutiny
> now, so all the plan can do is lower scrutiny to intermediate or rational
> basis. There are three areas for which you can do this lowering, and two
> groups for whom you can do it. My math says twelve cases. (Of course, there
> are reasons I did not become a math major.) I guess you can combine
> race/gender or combine some of the case areas, so there may be a few more
> than that.

I have no idea why the Court couldn't carve out exceptions. Prior to Adarand,
race-based classifications were suspect, but *benign* ones, like affirmative
action, had their own niche to hide in. My concern for case areas is that I
don't know how often law students -- I beg your pardon, serious legal
scholars, argue for limited applications of different levels of scrutiny.
Sometimes they do. They often make arguments that big changes should be made.
Seems like what we wind up with is a topic with four or five BIG cases, and
perhaps a half-dozen or dozen smaller cases. No problem yet.

> It's also limited to federally administered programs. There are very few
> federally administered education programs (many federally funded, but not
> administered). Also, a lot of the interesting affirmative action debate (in
> my opinion) has to do with private companies who attempt to implement
> affirmative actions measures, and this topic would not allow that
> discussion. In addition, ethnicity seems to have fallen by the wayside.

Oh, ethnicity comes and goes ... I included it rather lukewarmly because the
laws include it. They also include religion and disability, but in my random
line-drawing (I chose NOT to go to law school, remember?) I decided that the
issue of discrimination based on ethnicity was closer to race & gender than
the other two. Wouldn't cry if those categories were moved around.

How about "federally regulated and/or administered"?

> I have this idea that a team might be able to lower the standard without
> actually increasing the amount of affirmative action.  For example, the
> plan might lower the standard from strict scrutiny to intermediate in
> housing for race discrimination, and then claim that the same cases that
> are rejected and accepted now will still be under the new standard, so the
> advantage is merely procedural.

Seems like an easy enough trick to prepare for. And an obvious one. And one
for which ample evidence the other way would exist. Justice O'Connor seemed to
think the move to strict scrutiny was awfully important.

> Doyle says that this topic is more bidirectional than the previous topics.
> This puzzles me, both because the previous topics are completely
> bidirectional, and because I am having a hard time seeing how a plan
> decreases affirmative action under this topic.  The plan has to make it
> easier for race or gender conscious classifications to get past the courts.
> How does that decrease affirmative action?

I've got this fixation about "reverse discrimination" moves, and the ability
people have to turn racial discrimination arguments on their heads by claiming
that the dominant group is getting the raw end of the deal. This concern is
shrinking in my mind, but ain't gone yet. Mancuso's topic only allows such
arguments to manifest themselves as "preferences for white males," which, he
rightly points out, is a 2NR's dream come true. Call me paranoid, I guess. I
remember the privacy topic and the dozens of cases aside from Bowers that were
about "Government commits vile act, we say that's bad." That was the result of
a topic that was advertised as "Affirmatives have to decrease privacy rights."

> My final thought on this topic is that the negative ground is somewhat
> skimpy (notwithstanding Adarand) and, frankly, kind of dull.  Debates about
> what level of scrutiny to apply often don't include actual reasons as to
> why one standard should be applied over another. Or, the Court will say one
> thing and do another (see Romer v. Evans for an example of the Court saying
> they were using rational basis and then really using something closer to
> intermediate scrutiny). Of all the possible ways to debate civil rights,
> arguing about which standard of scrutiny to apply seems the least
> interesting. I understand that the goal of the topic is that lowering the
> standard increases affirmative action, and that part of the debate will be
> interesting with a wide variety of literature. But that part of the debate
> also happens in the topics below.

It might float off into "Properly decided/improperly decided" debates, but I
think negatives will have ample opportunity to say that backing off from the
Adarand "strict scrutiny for everything" move would have big-time political
and precedential repercussions, including a slowing or reversal of the slowmo
gutting of affirmative action programs nationwide.

> 4. Resolved: that the United States Federal Government should substantially
> increase race and/or gender conscious remedies for discrimination in one or
> more of the following areas: education, employment, housing.
> The first thing I am wondering about is that Sean talks extensively about
> the importance of the word "based" as a way of requiring affirmatives to
> defend classifications that use race/gender as a criterion against
> counterplans (or whatnot) that advocate a color-blind system. However, none
> of the proposed topics have the word "based" in them. It could be that
> "conscious" has the same effect as "based," but I don't think so. "Based,"
> according to Sean, requires a certain amount of exclusivity, whereas
> "conscious" would just be one factor among many.

This phrase shows up a ton in people's writings, and seems always to be the
opposite of "colorblind." But I'm willing to concede that "based" has some
obvious meanings that are helpful.

*Affirmative Action as remedy snipped -- I've never admitted to Tiersky being
right so many times in one day in my life*

> There is a lot of affirmative ground on this topic. Cases can range from
> huge increases in affirmative action, to very small tinkerings with
> individual school's affirmative action programs. There is, obviously, a
> concern about negative ground against these small cases (and don't anyone
> say the word substantially will limit the topic).  I would suggest
> considering tossing the word "nationwide" into the topic.  There obviously
> is negative ground on the general concept that color/gender blindness is
> good or that the law is bad, so if the affirmatives are limited to
> relatively broad policy options, there should be plenty of room for good
> debate.

I do worry, with the race-based remedies wordings, that there is no "term of
scale" filtering out the tiny affirmatives, of which there will be legion.
Sean's card 6b, destined to go down in debate history as our Footnote 4, is
only the tip of the iceberg. I like "nationwide".

*Not going to repeat my difference with Tiersky on race vs. racist*

> 6. Resolved: that the USFG should substantially increase race and/or gender
> conscious remedies which/to (abate, address, assuage, combat)
> discrimination against minorities and/or women in one or more of the
> following areas: education, employment, housing.
> I am having a little trouble squaring the concept that a remedy is designed
> to correct a past wrong with the idea that it is designed to prevent future
> discrimination.  Perhaps it is possible to try this topic without the word
> remedies, and substitute a term like initiatives or policies. The second
> card under Sean's #6  supports the idea that there are other ways to
> justify affirmative action besides remedial, so there is no reason it
> necessarily needs to be in the topic.

In the literature about "remedies" that I read, many examples were prospective
rather than compensatory. The example I had in my wording paper of an
employer forced to higher more women as a *remedy* was lifted straight from a
law review.

> The verb is certainly a problem. Address is clearly too vague. I don't have
> any idea how to measure abate or assuage. I kind of like combat, actually,
> although decrease might work too.  Alternatively, instead of wording the
> concept in terms of decreasing discrimination, we could consider a phrase
> like "promote equal opportunity" instead.

We'd be endangering colorblindness as negative ground, no?

> Those are my thoughts, sorry this posting was so long. I appreciate Doyle's
> giving me the chance to have the first crack at his paper. I leave it to
> the rest of you to continue the discussion.

And, distasteful though it is, I have to thank Marcia for her efforts. I asked
her not only because I knew she'd had the class, but because I knew she'd do a
good, thorough job, and would rein me in on my occasonal tendency to spin off.
(I knew she was going to pitch a conniption on "dilute", and I wasn't
disappointed.) Thanks, Counsellor -- the activity is lucky that you continue
to slum with us.

Doyle Srader
Director of Forensics
Arizona State University
(602) 965-5578

"We make of the quarrel with others, rhetoric,
 but of the quarrel with ourselves, poetry."
 -- W.B. Yeats, "Anima Hominis," _Essays_, 1924

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