[eDebate] "Illegal Debating"-How do we identify Hostile Environment?

John Hines hines.debate
Tue Nov 6 19:40:07 CST 2007


Greetings,

I have been reticent to enter this public discussion because I have
nothing but respect for Shawn and his team and don't want to give the
impression to the larger community there is some feud brewing between
Cal Poly and SFSU. I have, however, succumbed to my feelings that my
interpretation of sexual harassment law might offer some insight into
this discussion.  I am ultimately quite distraught by this discussion
not simply because of the impact this debate had upon my students, but
I'm also concerned about the environment this will foster among our
squads.  We at Cal Poly consider the students and coaches at SFSU our
friends, and would do nothing to disparage their image.  I even made
it a point of importance to seek out the SFSU debaters after the
debate to let them know this was not a "personal" attack, nor
"strategic ploy".  I wanted to let them know that in no way did we
harbor ill will towards them, and that I would continue to be a good
judge for them in future debates. But, my students felt the need to
stand up for their rights and I applaud them for their courage in
doing so.

As the coach to whom Wende and her partner turned for clarification on
sexual harassment law before they debated Shawn's students, I would
like to offer the interpretation we were working from when describing
the SFSU students' behavior as fostering a hostile environment.  I
think the operative definition of "hostile environment" is where
Shawn's posts (among others) miss the point.  According to my
understanding of sexual harassment (based upon training I have
received from both government and private sector employers), there are
two forms of recognized sexual harassment:

1. Quid pro quo.  This one should be easily understandable to us given
some of the topicality debates going on this year.  Quid pro quo
harassment involves exchange of sex for favorable treatment (i.e.
grades, promotions, raises, employment etc.).  This usually assumes a
differential power relationship between the parties which implies the
person in position to dole out grades, raises or promotions holds
authority in the relationship and therefore the other party lacks the
ability to actually "consent" to the exchange.

2. Hostile Environment.  True, this form may appear more difficult to
recognize, but that is only the case if you assume hostile environment
can be determined by "intent".  The law (according to my past training
from employers?I do not pretend to possess a JD or be a member of any
bar association) establishes hostile environment to be determined at
the level of "impact".  Sherry actually describes this much better
than I could here.  If a person (regardless of sexed identity and
sexual orientation) is so psychologically affected by the acts or
words of another that they cannot perform the duties they normally
would in that environment (debate, work, learn), then a hostile
environment is present (also, this is limited to the legally protected
categories of sex and race as identified in Title IX by
Sherry?therefore, not just any intellectual idea or personal
expression that makes one uncomfortable).

Thus, asking others (including past audiences, judges and SFSU's own
coaches) to assess whether my students faced a hostile environment is
non sequitur, only Wende and her partner can evaluate whether one or
both of them was incapable of continuing to debate once the SFSU
students began simulating sex acts. The fact that the offended party
left the room before the 1ac was concluded should have been pretty
clear indication of a hostile environment given that she had warned
the debaters twice (including immediately before the semi's debate
with an SFSU coach present) that she would be offended by explicit
displays of sexuality. To be clear, the pedagogical/political intent
of SFSU's debaters and coaches appears to me as completely irrelevant
(as is the views of others who have seen the performance), what is
significant is the impact upon the Cal Poly student forced to watch a
performance she had twice asked not to be subjected to.  This is the
interpretation of the law I believe Sherry uses when she agrees with
our view of sexual harassment.  To say Sherry's argument that Federal
and State laws are on Wende and her partner's side "begs the question"
demonstrates Shawn's lack of understanding as to how hostile
environment is legally determined. The real question we need to
address is how are we as judges and agents of educational institutions
to proceed when faced with this dilemma again in the future.  If the
CEDA constitution allows the person creating the alleged hostile
environment to determine what is and is not hostile, then it is out of
step with sexual harassment law, and needs to be corrected.

	I'd also like to address the statement that SFSU chose to include the
performance in the second debate because they would have felt like
hypocrites for not "sticking to their guns" so to speak. I do this not
to spark a dispute, or to call them liars, but to offer the
possibility that there is a way for SFSU to make the arguments they
feel so strongly about without having to potentially create a hostile
environment.  I have judged and voted for this SFSU team twice already
this year, and I have YET to see them perform a simulation of sex
acts.  Why is it they don't feel the need to perform explicit
sexuality in front of me?  They have shown pornographic images in both
rounds I judged, and when asked after the first debate what I though
of that element of the debate I indicated a) I didn't think it did
much to help their argument other than as a shock tactic, and b) the
use of this shock tactic might potentially prove more damaging to
their argument than helpful (I believe the example I gave at the time
was they might face a "disaster porn" or "compassion fatigue" type
argument grounded in their problematic use of emotions as a persuasive
tool).  We may disagree at an intellectual level as to whether the
explicit sexuality of this performance, which I have not seen, is
justified by its epistemological foundations, but I have yet to
understand how the pornographic demonstrations facilitated and
strengthened SFSU's arguments in the debates I have judged.  I felt
the fact SFSU was able to debate and win rounds in front of me without
the explicit performances of sex acts utilized in other debates
demonstrated they could have easily made the same argument in the
semis debate without having to create a hostile environment.  Not once
did I vote for them because the pornographic images created any unique
"moment" or "rupture", rather I voted on the strength of their
arguments alone and not the sensational or pornographic elements.

Fortunately, I think Sherry has offered a potentially viable "third
way" around Shawn's objection to placing this discussion on a legal
footing as opposed to an academic debate.  I like her suggestion that
we treat this as a question of ethics.  We certainly did not want to
"call a cop" or "call a lawyer", but what options are we faced with
when one of our students clearly indicates they feel they face a
hostile environment in a debate round?  In no way would I feel
comfortable telling her to "get over it" or "that's the point".  I
think this discussion demonstrates we as a community lack a
fundamental understanding of the hostile environment provisions of
sexual harassment law, and are in clear need of a way forward in
dealing with these questions in the future.

John Hines
Assistant Coach-Cal Poly Debate



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