February 17, 2004

The Argument Clinic (Apologies to Monty Python)

There is a real difference between my reading and Erin O’Connor’s reading of Swarthmore’s 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: I’m 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. O’Connor 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. O’Connor’s 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. O’Connor 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.

O’Connor raises some real potential problems with Swarthmore’s 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 O’Connor’s 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? Doesn’t 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? Hasn’t 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 Swarthmore’s 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. It’s all about context. If you take Swarthmore’s policies on harassment to completely cancel out or obviate the existence of a comprehensive protection of speech in our policy, as O’Connor 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 it’s incorrect. I’m not clear if this is O’Connor’s 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. I’d actually be curious to see whether O’Connor 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, that’s 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 doesn’t really matter what one community member says to another if there’s a finding of general harassment here: the content of the speech is irrelevant. If the content is irrelevant, I really think it’s not about a restriction on speech.

Except for the sexual harassment and discriminatory harassment policies, and here I can only reiterate that I believe—I hope—our general protection of speech is firmly understood to be the bedrock principle that has precedence over those policies.

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 they’re commonly understood, well, that’s a real point. It’s my big problem with most such policies on college campuses, and the major place where they are typically mischieviously misused. O’Connor is right to say that I essentially trust my colleagues and my institution and trust that nothing will go wrong, but it’s 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 O’Connor simply shrugs off the question of legal exposure and liability—and 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 can’t 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 those standards.

On the third question, I have to confess that I’m 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 I’m 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.

I’d sum up by saying, however, that I really think O’Connor simply doesn’t 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). O’Connor chooses to portray me as a person who conveniently "pretends" otherwise. No, I just think it’s more complicated than she lets on, and that there is as much reason for optimism as there is for criticism, that the devil—at least in this case—is in the details.