[eDebate] "Illegal debating" discussion

NEIL BERCH berchnorto
Mon Nov 5 18:30:00 CST 2007

I'm not commenting on what went on in this particular round, but the "1st Amendment" defense makes no sense.  The First Amendment is designed to protect your rights from the government (particularly the federal government, though then there are issues of incorporation raised by the 14th Amendment, etc.).  The First Amendment also is designed to protect your right to speech in general.  It doesn't guarantee your right to speech in a particular forum.  Thus, the idiotic arguments that Imus's First Amendment rights are violated, or various right-wing talk show hosts' First Amendment rights have been violated when they've been fired for saying repulsive things on the air.  That's nonsense.  And the first Amendment doesn't give you the right to say whatever you want in a debate round without sanction.  Again, there's a line; the question is simply where the line is (and what to do when that line is crossed).

And, in terms of sexual harassment, I believe that the standard that is used is usually the "reasonable woman" standard.  Indeed, that is the standard that is espoused in CEDA By-Law XVI, "Statement on Sexual Discrimination".

--Neil Berch
West Virginia University

  ----- Original Message ----- 
  From: Sherry Hall<mailto:shahall at comcast.net> 
  To: James E. Radford jr<mailto:jeradford at gmail.com> ; edebate at ndtceda.com<mailto:edebate at ndtceda.com> 
  Sent: Monday, November 05, 2007 5:01 PM
  Subject: Re: [eDebate] "Illegal debating" discussion

  I certainly think that women are just as capable of creating a hostile environment for men, and I find that problematic as well.  The reality is that most of the issues with sexual harassment over the years, at least the one's that have been reported to me, have been male on female harassment, and some male on male harassment.  Any declaratory policy should certainly be gender neutral.

  As for whether or not the balance should favor the position of those that are offended over the right of everyone to say and do whatever they want, I tend to think it should.  About ten years ago several female high school debaters asked for my advice and help with a situation where their male coaches would talk in graphic detail about the bodies of the strippers that they had seen the night before, "Did you see the racks on that one", that kind of thing.  They said that while this conversation was not directed at them, and the coaches were not soliciting sex from them, it made them feel that their coaches reduced all women to their boobs, and it was damaging to their confidence and self-esteem. The incident in this round is similar to the conversation in the van, it creates an environment where at least some of the female participants are so uncomfortable that they can't participate. The fact that these debaters had the courage to come forward and express their feelings before the round to their opponents deserves some presumption.  They didn't wait until the round started and launch a spurious sexual harassment claim to try to get the ballot, in fact according to Wende, they refused the tournament's offer for them to advance.  They had the courage to say that some things matter more than wins and losses, like how we treat each other.  I am willing to accept a little less than total protection for speech rights to live in an environment where we respect each other.  


    ----- Original Message ----- 
    From: James E. Radford jr<mailto:jeradford at gmail.com> 
    To: Sherry Hall<mailto:shahall at comcast.net> 
    Sent: Monday, November 05, 2007 4:35 PM
    Subject: Re: [eDebate] "Illegal debating" discussion

    Well-taken. I did want to reply to your characterization of my position as "academic freedom should trump all other concerns..." I'm completely unconcerned with "academic freedom;" my concern is for regular-old first amendment freedom of speech. And I don't think freedom of speech "trumps all other concerns." I think there is a balancing act that has to happen in each individual instance, and that balance needs to err toward not restricting or punishing speech. I worry about throwing the baby out with the bathwater: wasn't there some (at least attempted) pedagogical or political value to the performance? Does the value of preventing others from feeling harrassed or uncomfortable outweigh the value of freely-flowing speech and ideas? I'm not answering that question, just asking it. 

    Another twist to this: from what I understand, the team performed some homosexual simulation? If that's the case, then this is far different from the harrassment of the past: the guys weren't coming on to or making advances toward the women; rather, the debaters simply felt uncomfortable by sexual imagery. Would they have felt just as uncomfortable if this had been two women simulating sex? And, if so, would this discussion make sense? Just something to mull over. 

    And I don't mean to discourage Wende or anyone else from speaking their mind and calling things whatever they want to call them. Just trying to add to the discussion.. J.

    On 11/5/07, Sherry Hall <shahall at comcast.net<mailto:shahall at comcast.net>> wrote: 
      The threatened sexual assault I referred to in an earlier post occurred at another tournament, but involved this same team.  It was explained as a situation where the usual performance "got out of hand."  I was not asserting that a violent sexual assault had been threatened in this debate.  I just want back and re-read Wende's post.  I thought she had originally said it included showing pornography, but I agree that that is not in there.  Someone else had written me right before Wende's post and said that it did include pornography, so I confused the two posts.   Whether there was pornography shown or not, does not change the fact that the explicit sexuality created a hostile environment, that this was communicated to the team, and that the coach for that team responded that that was their intended purpose.   It is this admission that the debaters are knowlingly and intentionally creating an environment that makes it impossible for someone else to particpate that I take exception with. 

      I guess I fundamentally disagree with you and Shawn that academic freedom should trump all other concerns.  When I debated there were less than 10 women at the NDT and only one coach who was a woman.  People sat around trying to figure out why more women chose not to participate in college debate.  A not insubstantial number of us concluded that sexual harassment, both in rounds and among squads, was a big part of the problem.  We embarked on a grass-roots consciousness raising campaign in the early 90s.  At that time we said that our goal was to try to make people aware of the kinds of practices and actions that made debating difficult for women.  I felt strongly that an explicit policy against sexual harassment was unnecessary because most of the people in this activity are basically respectful of each other.  This incident, and other recent incidents, are causing me to rethink this position.  I think it is time that this community decided whether or not we are willing to say that people can say or do whatever they want in a debate round regardless of the consequences it has on other participant's sense of empowerment, sense of inclusion/exclusion, and ultimately the overall levels of diversity of participation.  

      As for whether or not it was correct for Wende to characterize the SFSU performance as "illegal", I have to disagree with you again.  Title IX makes it illegal to create sexually or racially hostile learning environments.  This is an academic activity, most of the coaches are professors or at least employees of universities, all of the participants are students at universities (at least they are supposed to be :--) ).  The battle to include legal protections against sexual and racial discrimination in this country was a hard fought one, and if someone, especially a freshman, has the courage to stand up and express her discomfort with this situation, which is not the cool thing to do, and not an easy thing to do, then you should not tell her that it is wrong for her to invoke the legal protections that she is entitled to. 

      I am still mulling over what I think we as a community should do to address this situation.  I am leaning toward a declaratory policy that says that harassing speech and performance in debate rounds is unethical behavior that should be treated like other unethical behavior in debate rounds -- such as fabricating evidence.  This would obviously require some sort of definition of harassment, and that is going to be difficult.  But I gather from Shawn's posts and some of those that followed, that there is disagreement over whether or not intentionally harassing one's opponents should be protected, and that question needs to be answered.  My idea would still leave it up to the individual judge to decide how to address a specific allegation in a round, just as the judge does with allegations of cheating.  It has been reported to me that the judges in the debate in question were at a loss as to what they were supposed to do.  I think a declaratory policy might help prevent other people who feel that their opponents are creating a hostile environment from being silenced.  It might also help judges who want to take a stand against the "argument" but don't feel that the rules back them up.  I am not interested in creating the sexual harassment police who will go from room to room looking to see if everyone is behaving in a proper manner.  I think that all the women from Cal Poly were asking in this situation was for their feelings to be respected.  If this policy causes teams that push the envelope to be a little more careful and respectful of the feelings of their opponents, then I think that is a good thing.  You can call this censorship if you want to, I call it basic respect. 


        ----- Original Message ----- 
        From: James E. Radford jr<mailto:jeradford at gmail.com> 
        To: Sherry Hall<mailto:shahall at comcast.net> 
        Sent: Monday, November 05, 2007 3:38 PM
        Subject: Re: [eDebate] "Illegal debating" discussion

        From my reading of the discussion, I gathered that there was some speculation that there had been something sinister, like the showing of pornography or threats of sexual assault.. But, based on Wendy's post, I concluded that that had not happened, but rather, the debaters had done some sort of "performance" on which they simulated sex acts on one another, but there was no nudity. My post assumed no porn and no assault-threats. 

        In-round pornography might, in my mind, constitute harrassment (although, in the context of debate, I would be wary to attach a legal penalty even to porn, for freedom-of-speech concerns, if the display served to further some legitimate pedagogical/political/artistic goal). 

        And I think that Wende, or anyone, certainly has a "right" to call whatever happened harrassment, but, I worry that the discussion of whether the "performance" was inappropriate or even immoral might be obscured by the use of a legal term that means something specific. In other words, lets not confuse the "was it legal" issue with the "was it right" issue. 

        Moreover, I worry that reference to illegality serves to deter potentially offensive speech, which, from my standpoint, and from a constitutional standpoint, is the worst thing possible. There are also obvious line-drawing problems, if the touchstone is whether an act creates a "hostile environment," especially when the very task of debate is to defeat an opponent with a agressively-delivered torrent of combative words. 

        On 11/5/07, Sherry Hall <shahall at comcast.net<mailto:shahall at comcast.net> > wrote: 
          You leave out the showing of pornography to people who have asked not to be exposed to it.  I think that that clearly violates the sexual harassment definition at Harvard. Hanging posters of scantily clad women in office settings has been deemed to violate sexual harassment laws by creating a hostile working environment under Title VII.  I think the key here is whether or not the actions created a hostile environment.  I believe that Wende has indicated that her partner did perceive this to be hostile.  An environment that renders one so uncomfortable as to not be able to participate in the round seems pretty hostile to me.  I also think it is not very helpful for you or anyone else to suggest that Wende and her partner are wrong to characterize this as sexual harassment.  They are the ones that experienced it, and you are not really in any position to challenge their perceptions of how they felt.  If they felt they were harassed, if they felt the environment was hostile, then for them it was.  We as a community have to decide how we are going to deal with these situations.  We can continue to turn a blind eye and watch more and more women leave this activity, or we can acknowledge that some basic standards of respect for the other participants in this game are in order.  I applaud Wende's openness in explaining what happened, and wholeheartedly support her right to call it sexual harassment if she sees fit. 


            ----- Original Message ----- 
            From: James E. Radford jr<mailto:jeradford at gmail.com> 
            To: edebate at ndtceda.com<mailto:edebate at ndtceda.com> 
            Sent: Monday, November 05, 2007 12:20 PM
            Subject: [eDebate] "Illegal debating" discussion

            I've been following this discussion with some interest, and wanted to add something briefly: 

            I think it's important to note that "sexual harrassment" is understood by most to have a specific legal definition, and, when a specific act or set of acts takes place that meets that definition, those acts may constitute one element of a legal claim, in court, for monetary damages, under law. Similarly, many institutions, such as universities, have their own definitions of specific acts or processes that constitute "sexual harrassment," and, if one engages in those acts, there is some specific penalty involved. 

            While Wende may be correct that her partner felt uncomfortable and offended by the team's sexual simulations, it is a big leap to jump from "offended" or "uncomfortable" to "the team engaged in specific acts which are proscribed by (a) law, entitling us to monetary damages, or (b) institutional policy, subjecting the team to a penalty." 

            So, there should really be two separate discussions here: (1) Did the actions constitute actionable "sexual harrassment," and (2) Even if not, were the actions so reprehensible and offensive, and so lacking in pedagogical, artistic, or political value, that the team should not have done the performance? 

            I think that, based on Wende's characterization, the actions probably did not meet the def of "sexual harrassment," and, in that case, that term should probably be extracted from the debate, so that we can focus on the merits of the performance and not get distracted by a misleading legal term. 

            Just my two cents, J.


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