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

John Hines hines.debate
Tue Nov 6 22:49:47 CST 2007

Hi Shawn,
I think we're basically in agreement here that this issue is more
complex than can be resolved in a two hour debate or meandering email
thread.  My point is two-fold.
1.  Intent is less important than impact according to all the
information I have seen regarding this issue.  Meaning, what is
offensive to you and I is less relevant than how said actions effected
the person making the claim.
2. Invoking the law is the least preferable of all options considered.
But, absent clear institutional policies to deal with the situation we
faced,there appeared no alternative.  That is why Sherry's attempt to
establish a protocol seems extremely valuable to me.

On 11/6/07, Shawn T Whalen <swhalen at sfsu.edu> wrote:
> Hi John,
>  I will leave the defense of our performance choices to our debaters and
> their debating.  I do however, want to suggest that your description of
> sexual harassment law seems a little reductive (not entirely inaccurate just
> truncated) in importnant ways.
>  I'm not a lawyer either, so we're in the same boat on this.  From my
> reading I understand that when judges and juries assess the these
> accusations in court , that the plaintiff must prove that the conditions
> that created the hostile environment are both  "severe" and "pervasive."
> Those are vague terms to be sure and there is ample dialogue in legal
> scholarship on the exact balance between hostile environment protections and
> freedom of speech protections that we have been discussing in this thread.
> My point is only to say that I believe that proving the legal claim is more
> complex than you describe and that the question of distinguishing between
> "discomfort" and "hostility" is a central part of the defense to these
> accusations.
>  Shawn
> -----edebate-bounces at ndtceda.com wrote: -----
> To: edebate at ndtceda.com
> From: "John Hines" <hines.debate at gmail.com>
> Sent by: edebate-bounces at ndtceda.com
> Date: 11/06/2007 05:40PM
> Subject: [eDebate] "Illegal Debating"-How do we identify Hostile
> Environment?
> 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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