Tournament: Stanford | Round: 1 | Opponent: Gig Harbor EA | Judge: Kolloru
CP Text: Public colleges and universities in the United States should ban the usage of racial insults and holocaust denial speech
The oppressed are directly threatened by racial insults. To promote inclusivity, we need to ban racial insults.
Byrne 91 J. Peter Byrne 91 Associate Professor, Georgetown University Law Center., Racial Insults and Free Speech Within the University, 79 Geo. L.J. 399 (1991), httep:scholarship.law.georgetown.edu/facpub/1577 Date Accessed: February 4, 2017
This article examines the constitutionality of university prohibitions of public expression that insults members of the academic community by directing hatred or contempt toward them on account of their race. Several thoughtful scholars have examined generally whether the government can penalize citizens for racist slurs under the first amendment, but to the limited extent that they have discussed university disciplinary codes they have assumed that the state university is merely a government instrumentality subject to the same constitutional limitations as, for example, the legislature or the police. In contrast, I argue that the university has a fundamentally different relationship to the speech of its members than does the state to the speech of its citizens. On campus, general rights of free speech should be qualified by the intellectual values of academic discourse. I conclude that the protection of these academic values, which themselves enjoy constitutional protection, permits state universities lawfully to bar racially abusive speech, even if the state legislature could not constitutionally prohibit such speech throughout society at large. At the same time, however, I assert that the first amendment renders state universities powerless to punish speakers for advocating any idea in a reasoned manner. It is necessary at the outset to choose a working definition of a racial insult. This definition, however, is necessarily provisional; any such definition implies the writer's views on the boundaries of constitutionally protected offensive speech, and the reader cannot be expected to swallow the definition until she has had the opportunity to inspect the writer's constitutional premises. Having offered such a caution, I define a racial insult as an verbal or symbolic expression by a member of one ethnic group that describes another ethnic group or an individual member of another group in terms conventionally derogatory, that offends members of the target group, and that an reasonable and unbiased observer, who understands the meaning of the words and the context of their use, would conclude was purposefully or recklessly abusive. Excluded from this definition are expressions that convey rational but offensive propositions that can be disputed by argument and evidence. An insult, so conceived, refers to a manner of speech that seeks to demean rather than to criticize, and to appeal to irrational fears and prejudices rather than to respect for others and informed judgment.
We solve -- racial insults have no truth value but to disparage victims and undercut the availability of academia.
Byrne 91 J. Peter Byrne 91 Associate Professor, Georgetown University Law Center., Racial Insults and Free Speech Within the University, 79 Geo. L.J. 399 (1991), http:scholarship.law.georgetown.edu/facpub/1577 Date Accessed: February 4, 2017
The university's first commitment is to truth. As argued above, the university does not manifest this commitment to truth by licensing all expression. Rather, truth is equated with knowledge, precepts, or hypotheses tentatively established through painstaking, expert, and disinterested inquiry.95 Students come to the university to learn disciplines of thought, whether in the sciences or the humanities, that are more likely to solve problems or contribute to constructive discourse than the more subjective, flabbier, and less coherent thinking to which they were limited upon matriculation. The commitment to forms of thought and expression conducive to truth and coherence lies at the core of academic values; without this commitment, the university is a scam. Racial insults have no status among discourse committed to truth. They do not attempt to establish, improve, or criticize any proposition or object of inquiry. They do not even have enough truth value to be false, to represent a discarded alternative idea. Racial insults communicate only scorn or hatred irrationally based on immutable characteristics of the target. Their goal can only be to diminish the victim or to accentuate the belonging of the speaker to a group outside of the despised circle. They may relieve emotional tension within the speaker, but only at the greater cost of increasing tension within and among the audience. Thus, the university's commitment to truth provides a basis for proscribing racial insults. The university justifiably could conclude that racial insults neither contribute to the pursuit of truth nor shed light on any issue of value. Rather, racial insults hamper the search for truth by breeding tribal commitments and animosities that constrain rational discussion and by fostering tensions that cloud clear-eyed perception and discredit judicious reflection. For example, racial insults may contribute to an atmosphere that causes scholars or students in the target group either to censor themselves in academic analysis or exposition or to pursue blindly the goals of their group without regard to the long-term interests of the entire academic community. Humanism is a second core value of the university. The university is committed to the intellectual development of its students. The students attend to acquire knowledge and gain intellectual skills. Influences that interfere with this goal may be prohibited. Thus, just as universities have been allowed to exclude commercial solicitation from dormitories and require that demonstrations be held beyond earshot of the library, they could also require students to wear shirts in class and exclude television sets from dormitories. In each case, preventing distraction of the student from the acknowledged work of the school permits limitation on a form of expression guaranteed to individuals in the wider world. Racial slurs more profoundly burden the striving toward educational attainments of their victims than do noise or inane sales patter. Minority scholars have been eloquent in expressing the disabling effects racial insults work on minority students and faculty. These harms are exacerbated by the social position of minorities at most American universities where until recently they studied only in small numbers. Racial insults obviously burden the ability of targets to pursue their studies; infuriated and embarrassed, their emotions may push them toward self-protection or retaliation. The university should have an obligation to protect its students from such disabling harassment. If an employer failed to take corrective action when an employee was racially insulted or sexually harassed, the employee would have an action against the employer under Title VII for fostering a hostile work environment;99 it seems that only a lack of imagination on the part of the bar has precluded analogous actions against universities under Title VI.' °° Humanist values support the prohibition of racial insults even apart from the need to protect minority students in their pursuit of education. Ethnic and national diversity among students and faculty contribute to the cosmopolitan culture of learning that has always reached beyond physical and tribal boundaries in search of merit and knowledge. During its formative years in the Middle Ages, the university recruited faculty and students from great distances; indeed, the medieval term most used for the university, the studium generale, emphasized that faculty and students came to study there from all the nations of Europe.101 The introduction of students to the international culture of the university has never been a more necessary part of education than today, when economic, environmental, and political challenges force the peoples of the world into greater contact and cooperation regardless of their prejudices. Racial insults are serious solecisms within the cosmopolitan culture of higher education, and a university has failed if it has not conveyed to its students that racial insults are as unacceptable as the mental sloth and provincial ignorance they exemplify. Serious arguments might be brought against the view I have taken of a university's authority to prohibit racist slurs. One argument is that this regime will inevitably hinder worthwhile free speech by casting a pall of "liberal" orthodoxy on controversial issues on campus. 10 2 Thus, good faith arguments about, for example, the justice of affirmative action or the value of patriarchal language in the Bible will be banned. Certainly the university cannot, consistent with its primary commitment to truth, ban substantive views because of their repugnance to any political orthodoxy. Views stated in a form that permits rational response should be answered by that means, for rational argument always has a privileged place in the university.
Racial insults inflict transgenerational psychological violence, create physical degeneration, and maintain cycles of poverty
Delgado 82 Richard Delgado 82 J.D. University of California, Berkeley, 1974. Professor of Law, UCLA Law School., “WORDS THAT WOUND: A TORT ACTION FOR RACIAL INSULTS, EPITHETS, AND NAME-CALLING,” Harvard Civil Rights-Civil Liberties Law Review, Vol. 17 (1982), http:ssrn.com/abstract=2000918 edited for potentially ableist or sexist language Date Accessed: February 4, 2017
American society remains deeply afflicted by racism. Long before slavery became the mainstay of the plantation society of the antebellum South, Anglo-Saxon attitudes of racial superiority left their stamp on the developing culture of colonial America. 10 Today, over a century after the abolition of slavery, many citizens suffer from discriminatory attitudes and practices, infecting our economic system, our cultural and political institutions, and the daily interactions of individuals." The idea that color is a badge of inferiority and a justification for the denial of opportunity and equal treatment is deeply ingrained. The racial insult remains one of the most pervasive channels through which discriminatory attitudes are imparted. Such language injures the dignity and self-regard of the person to whom it is addressed, communicating the message that distinctions of race are distinctions of merit, dignity, status, and personhood.'3 Not only does the listener learn and internalize the messages contained in racial insults, 4 these messages color our society's institutions and are transmitted to succeeding generations. The Harms of Racism The psychological harms caused by racial stigmatization are often much more severe than those created by other stereotyping actions. Unlike many characteristics upon which stigmatization may be based, membership in a racial minority can be considered neither self-induced, like alcoholism or prostitution, nor alterable. Race-based stigmatization is, therefore, "one of the most fruitful causes of human misery. Poverty can be eliminated-but skin color cannot."'6 The plight of members of racial minorities may be compared with that of persons with physical disfigurements; the point has been made that a rebuff due to one's color puts the victim in very much the situation of the very ugly person or one suffering from a loathsome disease. The suffering. . may be aggravated by a consciousness of incurability and even blameworthiness, a self-reproaching which tends to leave the individual still more aware of their loneliness and unwantedness. 7 The psychological impact of this type of verbal abuse has been described in various ways. Kenneth Clark has observed, "Human beings ... whose daily experience tells them that almost nowhere in society are they respected and granted the ordinary dignity and courtesy accorded to others will, as a matter of course, begin to doubt their own worth." 8 Minorities may come to believe the frequent accusations that they are lazy, ignorant, dirty, and superstitious.19 "The accumulation of negative images ... presents them with one massive and destructive choice: either to hate one's self, as culture so systematically demands, or to have no self at all, to be nothing."2 The psychological responses to such stigmatization consist of feelings of humiliation, isolation, and self-hatred. Consequently, it is neither unusual nor abnormal for stigmatized individuals to feel ambivalent about their self-worth and identity.2 This ambivalence arises from the stigmatized individual's awareness that others perceive him or her as falling short of societal standards, standards which the individual has adopted. Stigmatized individuals thus often are hypersensitive and anticipate pain at the prospect of contact with "normals."I It is no surprise, then, that racial stigmatization injures its victims' relationships with others. Racial tags deny minority individuals the possibility of neutral behavior in cross-racial contacts,2 thereby impairing the victims' capacity to form close interracial relationships. Moreover, the psychological responses of self-hatred and self-doubt unquestionably affect even the victims' relationships with members of their own group. 24 The psychological effects of racism may also result in mental illness and psychosomatic disease. The affected person may react by seeking escape through alcohol, drugs, or other kinds of anti-social behavior. The rates of narcotic use and admission to public psychiatric hospitals are much higher in minority communities than in society as a whole.26 The achievement of high socioeconomic status does not diminish the psychological harms caused by prejudice. The effort to achieve success in business and managerial careers exacts a psychological toll even among exceptionally ambitious and upwardly mobile members of minority groups. Furthermore, those who succeed "do not enjoy the full benefits of their professional status within their organizations, because of inconsistent treatment by others resulting in continual psychological stress, strain, and frustration."27 As a result, the incidence of severe psychological impairment caused by the environmental stress of prejudice and discrimination is not lower among minority group members of high socioeconomic status. 8 One of the most troubling effects of racial stigmatization is that it may affect parenting practices among minority group members, thereby perpetuating a tradition of failure. A recent study29 of minority mothers found that many denied the real significance of color in their lives, yet were morbidly sensitive to matters of race. Some, as a defense against aggression, identified excessively with whites, accepting whiteness as superior. Most had negative expectations concerning life's chances. Such selfconscious, hypersensitive parents, preoccupied with the ambiguity of their own social position, are unlikely to raise confident, achievement-oriented, and emotionally stable children. In addition to these long-term psychological harms of racial labeling, the stresses of racial abuse may have physical consequences. There is evidence that high blood pressure is associated with inhibited, constrained, or restricted anger, and not with genetic factors, 30 and that insults produce elevation in blood pressure." American blacks have higher blood pressure levels and higher morbidity and mortality rates from hypertension, hypertensive disease, and stroke than do white counterparts.32 Further, there exists a strong correlation between degree of darkness of skin for blacks and level of stress felt, a correlation that may be caused by the greater discrimination experienced by dark-skinned blacks. 33 In addition to such emotional and physical consequences, racial stigmatization may damage a victim's pecuniary interests. The psychological injuries severely handicap the victim's pursuit of a career. The person who is timid, withdrawn, bitter, hypertense, or psychotic will almost certainly fare poorly in employment settings. An experiment in which blacks and whites of similar aptitudes and capacities were put into a competitive situation found that the blacks exhibited defeatism, half-hearted competitiveness, and "high expectancies of failure."34 For many minority group members, the equalization of such quantifiable variables as salary and entry level would be an insufficient antidote to defeatist attitudes because the psychological price of attempting to compete is unaffordable; they are "programmed for failure. Additionally, career options for the victims of racism are closed off by institutional racism 36 -the subtle and unconscious racism in schools, hiring decisions, and the other practices which determine the distribution of social benefits and responsibilities.
Prohibiting racial insults establish public norms and check prejudice – the aff allows rampant racial insults that perpetuate stereotyping and reinforce racist mindsets
Delgado 82 Richard Delgado 82 J.D. University of California, Berkeley, 1974. Professor of Law, UCLA Law School., “WORDS THAT WOUND: A TORT ACTION FOR RACIAL INSULTS, EPITHETS, AND NAME-CALLING,” Harvard Civil Rights-Civil Liberties Law Review, Vol. 17 (1982), http:ssrn.com/abstract=2000918; Date Accessed: February 4, 2017
It is, of course, impossible to predict the degree of deterrence a cause of action in tort would create. However, as Professor van den Berghe has written, "for most people living in racist societies racial prejudice is merely a special kind of convenient rationalization for rewarding behavior."83 In other words, in racist societies "most members of the dominant group will exhibit both prejudice and discrimination,"84 but only in conforming to social norms.85 Thus, "When social pressures and rewards for racism are absent, racial bigotry is more likely to be restricted to people for whom prejudice fulfills a psychological 'need.' In such a tolerant milieu prejudiced persons may even refrain from discriminating behavior to escape social disapproval."8 Increasing the cost of racial insults thus would certainly decrease their frequency. Laws will never prevent violations altogether, but they will deter "whoever is deterrable."87 Because most citizens comply with legal rules, and this compliance in turn "reinforces their own sentiments toward conformity,"88 a tort action for racial insults would discourage such harmful activity through the teaching function of the law.89 The establishment of a legal norm "creates a public conscience and a standard for expected behavior that check overt signs of prejudice."0 Legislation aims first at controlling only the acts that express undesired attitudes. But "when expression changes, thoughts too in the long run are likely to fall into line."'" "Laws ... restrain the middle range of mortals who need them as a mentor in molding their habits."92 Thus, "If we create institutional arrangements in which exploitative behaviors are no longer reinforced, we will then succeed in changing attitudes that underlie these behaviors. ' Because racial attitudes of white Americans "typically follow rather than precede actual institutional or legal alteration,"94 a tort for racial slurs is a promising vehicle for the eradication of racism. II. Legal Protection from Racial Insults The psychological, sociological, and political repercussions of the racial insult demonstrate the need for judicial relief. Part II(A) will examine the protection from racial insults afforded by current doctrine.
