February 17, 2004
The Argument Clinic (Apologies to Monty Python)
There is a real difference between my reading and Erin OConnors reading of Swarthmores policies on speech, one which may reflect some very deep differences in the ways we approach working with the interpretation of texts and much else as a whole.
There are also
stylistic differences: Im long-winded, obsessed with nuance and ambiguity,
and uninterested in calling people to the barricades even when there is an evidently
urgent need to get them there. OConnor is trying to mobilize people, and
to do so with as much immediacy and intensity as she can. On the whole, I think
we agree about a lot of the problems facing academia, and in particular, about
the dangers to speech rights in academia today. OConnors way of
framing these issues is certainly much more powerful in getting people to acknowledge
and confront those dangers. But I still worry about collateral damage on the
way. Sometimes, I think complexity really is important, not just as an aesthetic
preference but as the heart and soul of an issue. Perhaps on speech rights,
what is more important is the root principle of the matter, and assertions of
complexity are an unhelpful distraction. I would rather build bridges and mediate
between opposing sides, playing for small positional gains. OConnor would
rather burn bridges and achieve victory in our time. You make the call, dear
reader. There are reasons to prefer either approach, and reasons to think that
in either case, we are kids with hammers who think everything in the world looks
like a nail.
some real potential problems with Swarthmores policies, most of which
we broadly share with all colleges, and indeed, all institutional entities with
sexual harassment or anti-discrimination policies.
Here are three
probing questions that I think are pretty cogent that I get out of OConnors
second post on this subject:
1) How do we resolve contradictions in policies where one part says one thing and another part says another thing? Doesnt Swarthmore's sexual harassment cancel out or make actively irrelevant any statement anywhere else about protecting speech?
2) Isn't trusting in grievance procedures dangerous given that they tend to violate due process concerns? Is there any reason to think that Swarthmore's procedures are any more protective of due process than most colleges? Hasnt that already been a slippery slope elsewhere? Isn't Burke concerned about that?
3) What about this little section on discriminatory harassment? Doesn't that cancel out the general harassment policy? Can we talk about how to read those two in relation to one another?
I have a straightforward
answer to the first question, which is that as I read it and understand it,
our policy on non-harassing speech takes precedence over everything else, that
it is the largest and most expansive principle we assert on the issue of speech.
Harassment (sexual, general, discriminatory) is only a situational, contextual
exception from the general principle, and only becomes meaningful when it can
be proven to exist according to a defined set of precise criteria. In this sense,
harassment under Swarthmores policy functions rather like the defamation
or incitement to violence functions in relation to the First Amendment. The
First Amendment is the bedrock principle; defamation or incitement are special
cases which restrict speech only in relation to a judicial finding, and only
within narrowly constrained and defined bounds. They exert no prior restraint:
you cannot in advance define particular acts of speech, particular words, particular
phrases as defamation or incitement. Its all about context. If you take
Swarthmores policies on harassment to completely cancel out or obviate
the existence of a comprehensive protection of speech in our policy, as OConnor
does, then you are basically setting yourself up as a free speech absolutist
in general, and arguing that any circumstantial restriction on speech annihilates
a foundational protection for speech, that the existence of libel laws definitionally
and intrinsically cancels out the First Amendment. You can make that case, and
some do. I think its incorrect. Im not clear if this is OConnors
general position on speech rights.
I might also note
that to take this position is to argue that Swarthmore (or any other college)
can never actually articulate a policy that sanctions harassment which makes
reference to speech acts. Id actually be curious to see whether OConnor
thinks that it is notionally possible for a university to reserve the right
to expel a student who personally harasses another student on a repeated basis
but commits no direct violence against them. If one student followed another
student around campus saying, Faggot. Faggot. Faggot continuously
for a week, is there any legitimate grounds for saying, Listen, thats
a problem that goes beyond moral persuasion directed at the harasser?
If so, is there any way to construct a policy that legitimizes administrative
action without making reference to speech? We went out of our way, at any rate,
to avoid defining that speech as a class of speech like hate speech
which would be definable without reference to context. In fact, it doesnt
really matter what one community member says to another if theres a finding
of general harassment here: the content of the speech is irrelevant. If the
content is irrelevant, I really think its not about a restriction on speech.
Except for the
sexual harassment and discriminatory harassment policies, and here I can only
reiterate that I believeI hopeour general protection of speech is
firmly understood to be the bedrock principle that has precedence over those
On the second question, of whether the sexual harassment policy is a ticking time bomb or slippery slope, in particular because it is adjudicated through a grievance procedure which has no due process protections as theyre commonly understood, well, thats a real point. Its my big problem with most such policies on college campuses, and the major place where they are typically mischieviously misused. OConnor is right to say that I essentially trust my colleagues and my institution and trust that nothing will go wrong, but its also right to suggest that this is a flawed approach. I agree here that we share in common with most academic institutions a serious problem that could well obliterate any of the best intentions of our policies. I would also underscore, as I did in my first post on this subject, that I regard hostile environment standards as intrinsically dangerous. (Though I suppose here too I wonder whether O'Connor thinks that there is anything that would consistitute sexual harassment besides quid-pro-quo, and how you could identify it in a policy without reference to speech acts.)
On the other hand,
I think OConnor simply shrugs off the question of legal exposure and liabilityand
easy as it would be for me to do so, I have enough empathy for those who have
a legal responsibility to safeguard the resources and wealth of this institution
to recognize that you cant have a revolution in one country on these issues.
Barring a serious statutory reform of harassment law in general, it is insane
for any single institution to voluntarily expose itself to serious liability
by failing to conform to existing legal standards, whatever the weakness of
On the third question,
I have to confess that Im busily inquiring about just where the policy
statement on discriminatory harassment came from. I remember the debate on the
general harassment policy and the question of hate speech, and how
we came to the policy we have. I remember the same for the sexual harassment
policy. But Im honestly puzzled about this smaller statement, and where
it came from, particularly because it seems more pressingly contradictory to
the statement on general harassment and speech rights.
Id sum up by saying, however, that I really think OConnor simply doesnt give Swarthmore enough credit for drafting a policy which is actually quite different from the campus norm, and which actually intended to repudiate the idea of a speech code, with its prior restraint on defined classes of speech acts. I don't see the policy as a "trojan horse" with sinister conspirators inside, much less see myself as one of the Greeks waiting to pillage. As I see our existing policy, students here could hold all the affirmative action bake sales they like without any fear of sanction or judicial action by the college against them (though not without fear of being criticized for doing so). OConnor chooses to portray me as a person who conveniently "pretends" otherwise. No, I just think its more complicated than she lets on, and that there is as much reason for optimism as there is for criticism, that the devilat least in this caseis in the details.