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Harvard Westlake-Gross-Neg-Stanford-Round6.docx
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3 -A focus on a priori reason and conceptual abstraction forces oppressed people to divorce themselves from the material conditions caused by whiteness and imagine a world in which whiteness is good. This takes out Kinsella since we indict the very logic behind that argument Curry 13
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5 -Dr. Tommy Curry, In the Fiat of Dreams: The Delusional Allure of Hope, the Reality of Anti-Black Violence and the Demands of the Anti-Ethical, Academia.edu, 2013. NS
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7 -The potentiality of whiteness—the proleptic call of white anti-racist consciousness— is nothing more than the fiat of an ahistorical dream. A command ushered before thought engages racism, before awareness of the world becomes aware of what is actual. This is forced upon accounts of racism where whiteness is morally obscured from being seen as is. Whiteness as is partly determined by what could be, since what is was a past potentiality—a could be. The appeal to the sentimentality, morality, the moral abstraction/distraction of equality—both as a political command and its anthropological requisite—complicate the most obvious consequence of anti-Black racism, namely violence. This moral apriorism urges the Black thinker to conceptualize racism as an activist project rooted in the potential of a world filled with non-racists, a world where the white racist is transformed by Black activity into the white anti-racist. But this project supposes an erroneous view of the white racist which occludes the reality of white supremacy and anti-Black racism. As Robert F. Williams argues in Negroes with Guns, “the racist is a man crazed by hysteria at the idea of coming into equal contact with Negroes. And this mass mental illness called racism is very much a part of the ‘American way of Life.’” The white racist is not seen as the delusional individual ostracized from society as a result of their abhorrent social pathologies of racist hate. Rather the white racist is normal—the extended family, the spouse, the sibling, the friend of the white individual—the very same entities upon which the inter/intrasubjectivity nexus of the white self is founded. The white he experiences no punishment for his longing for Black servitude and his need to exploit and divest the Black worker here and then of his wealth. The white she has no uneasiness about her raping of—the destruction of generations of Black selves—mothers, children, and men—and today usurps the historical imagery of “the nigger,” to politically vacate Blackness and demonize niggers as beyond political consideration. She rewrites history, pens morality, and embodies the post-racial civil rights subject. As such, racism, the milieu of the white racist is not the exposed pathological existence of the white race, but rather valorized in white individuality, the individuality that conceptualizes their racism as a normative aspiration of what the world should look like, and even more damning, an aspiration that can be supported and propagated in the world. The white racist recognizes the deliberateness of the structures, relations, and systems in a white supremacist society and seeks like their colonial foreparents to claim them as their own.
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10 -And, we should be having a debate about what to do about oppression, not what constitutes oppression – debates are 45 minutes long so endless academic moralizing is circular and gets no where, forgoing the opportunity for real world solutions.
11 -Their philosophy preaches that everyone is equal – this colorblind ideology perpetuates anti blackness under the myth of American liberalism. Curry 13
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13 -Dr. Tommy Curry, In the Fiat of Dreams: The Delusional Allure of Hope, the Reality of Anti-Black Violence and the Demands of the Anti-Ethical, Academia.edu, 2013. NS
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15 -Despite the rhetorical strategies adopted by both Black and white political theorists which urge Blacks and whites alike to demand Americans to continue their allegiance to the foundational de-racialized ethos of the post-Civil Rights era, the reality of the American racism—its sheer recurring violence against Black people—demands more than symbolic rhetorical allusion. To seriously grasp the reality of racist oppression and the sempiternal machinations of anti-Blackness throughout American society be it in its institutions like the prison industrial complex, its policies like Affirmative action, or its manipulation of Black social degradation and economic disadvantage to support pathological theses about disasters like Katrina or cultural deviance as in the death of Trayvon Martin, Darius Simmons, or Jordan Davis, the study of the matter itself—racism—must be a study of a conceptual disengagement with the myth of racial equality and the “automatic progressivism” of the American liberal project. This disengagement is not simply the refusal to accept the idealism of civil rights myth held beyond the realm of fact, but the disengagement with the illusions of democracy and equality that continue to ignore the role that violence has played and continues to play in the subjugation, incarceration, and vilification of Black life. As Dr. A.J. William Myers reveals in his work groundbreaking work entitled Destructive Impulses, ¶ Until at such time white America (and Black America) is openly willing to confront a historical legacy of its own violence (perpetrated against an American people of color), any venture into and/ or expository on race relations becomes an exercise in futility…As a result, therefore, white violence, confined to the subliminal recesses of the American psyche, continues to prevent the transition necessary for the country to move beyond the idea of race. ¶ In America, Blackness and the racism that continues to condemn those historical racialized peoples is violence—it is the forceful and coercion enclosing of human beings to an inferior social, political, and economic status of which their own humanity exceeds. This dehumanizing relegation of the raced citizen is not a gradual or incremental debasement, but rather the historically immediate condition of inferiority that presents progress to be attainable by the cyclical degrees of physical violence against the racialized population. For these racially oppressed peoples, violence is the permanent fixture of existence in America, since it is the vitiation of their humanity that rationalizes the varying techniques of their cultural erasure, birthing the emergent symbolic associations of degradation that replace their invisibility, and empowering the intentional enforcements of their societal exclusions. In fact, it is precisely this triumvirate that gauges what we take to be the negation of the necessity of revolutionary change~-~-since the raced is taken to be present, as a result of a critical redefining of humanity, integrated into society.
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17 -The aff’s attempt to whitewash history by ignoring the racist foundations that underlie their theory allows for racial domination to remain invisible – you as a judge must reject the aff’s epistemology and acknowledge the reality of oppression. That’s a voting issue. Leonardo
18 -Leonardo, Zeus. "The souls of white folk: Critical pedagogy, whiteness studies, and globalization discourse." Race, ethnicity and education 5.1 (2002): 29-50. CC
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20 -The fragmenting effects of the global economy work in tandem with the fragmenting tendencies of whiteness. As a perspective, whiteness is historicaly fractured in its apprehension of racial formations. In order to ‘see’ the formation in full view, whites have to mobilize a perspective that begins with racial privilege as a central unit of analysis. Since starting from this point would mean whites engage in a thorough historical understanding of ‘how they came to be’ in a position of power, most whites resist such an undertaking and instead focus on individual merit, exception- alism, or hard work. The act of interpreting the totality of racial formations is an apostasy that white students and educators must undertake but one which does not come easy or without costs. The costs are real because it means whites would have to acknowledge their unearned privileges and disinvest in them. This is a different tack from saying that whites benefit from renouncing their whiteness because it would increase their humanity. Whites would lose many of their perks and privileges. So, the realistic appraisal is that whites do have a lot to lose by committing race treason, not just something to gain by forsaking whiteness. This is the challenge. In his discussion of gender and race, Terry Eagleton (1996) provokes a distinction between identity politics and class relations. He calls class position relational in a way that gender and race are not, because possessing a certain skin color or body configuration does not prevent another person from owning such traits. By contrast, a landless laborer occupies a material position because the gentleman farmer owns the land or property. Eagleton goes on to say that being black does not mean one is of a different species from a white person. Pigmentation is not definitive of a general human experience in the same way that freckle-faced people do not constitute an essentialy different human category. In this, Eagleton exposes the racist and patriarchal imagination by highlighting its contradictions and ilogics. However, his analysis leaves out a more powerful explanation of how racism actualy works. Like most oppressive systems, racism functions through an illogical rationalization process. For instance, the one-drop rule, or the Rule of Hypodescent, demarcates blacks from whites by drawing an artiŽ cial and arbitrary line between them in order both to create more slaves and limit people’s power to achieve whiteness. Thus, the power of whiteness comes precisely from its ability to usurp reason and rational thought, and a purely rationalistic analysis limits our understanding of the way it functions. Despite its contradictions, the contours of racism can be mapped out and analyzed and this is what Cheryl Harris (1995) attempts when she compares whiteness to owning property. First, whiteness becomes property through the objectiŽ cation of African slaves, a process which set the precondition for ‘propertizing’ human life (Harris, 1995, p. 279). Whiteness takes the form of ownership, the deŽ ning attribute of free individ- uals which Africans did not own. Second, through the reification and subsequent hegemony of white people, whiteness is transformed into the common sense that becomes law. As a given right of the individual white person, whiteness can be enjoyed, like any property, by exercising and taking advantage of privileges co-extensive with whiteness. Third, like a house, whiteness can be demarcated and fenced off as a territory of white people which keeps Others out. Thus, caling a white person ‘black’ was enough reason, as late as 1957, to sue for character defamation; the same could not be said of a black person being mistaken for ‘white.’ This was a certain violation of property rights much like breaking into someone’s house. In al, whites became the subjects of property, with Others as its objects. As Charles Mils (1997) explains, the Racial Contract is an agreement to misinter- pret the world as it is. It is the implicit consensus that whites frequently enter into, which accounts for their fragmented understanding of the world as it is racialy structured. When confronted with the reality of racial oppression, according to Hurtado, whites respond with: I wil listen to you, sometimes for the Ž rst time, and wil seem engaged. At critical points in your analysis I wil claim I do not know what you are talking about and wil ask you to elaborate ad nauseam. I wil consistently subvert your efforts at dialogue by claiming ‘we do not speak the same language’. (cited in McLaren et al., 2001, pp. 211–212; italics in original) The frequent detours, evasions, and detractions from the circuits of whiteness cripple our understanding of the racio-economic essence of schools and society. It is a distortion of perfect communication in Habermas’s (1984) sense of it which creates what I cal an altogether ‘ideological speech situation.’ That is, communi- cation is ideological to the extent that the ‘ideal speech situation’ is systematicaly distorted, which is different from saying that it is always a bit distorted. As Hurtado plainly describes, radical communication about the Contract meets apathy and indifference, perhaps a bit predictably. Admitting the reality of white racism would force a river of centuries of pain, denial, and guilt that many people cannot assuage. In several instances, both in coleagues’ courses as wel as mine, white students have expressed their emotions and frustrations through tears when white privilege is confronted. In fact, Rains (1997) has described the same event occurring in her courses. Although it might seem cynical or unfeeling to analyze criticaly such an occurrence, it is important to deploy such a critique in the name of political and pedagogical clarity. It is imperative to address the local moment and ‘be there’ for al students but in slicing through the pathos, one also beneŽ ts from re ection on the moment in its larger, global signiŽ cance. The times when I have confronted this scenario can be described as the honest interrogation of racial power engaged by both white and non-white students. At certain moments, some anger has been expressed, sometimes frustration. In general, the milieu is emotional and politicaly charged. How can it not be? In one particular case, I witnessed a situation where a black student interrogated the issue of racial privilege and questioned a white coleague’s comments for failing to do the same. By the end of the exchange, the white student left the room crying and the discussion halted. In another case, an earnest discussion took place about racism and ways to address it in schools. A white student cried because she felt frustrated and a little helpless about how she comes into the fold of becoming an anti-racist educator. After a minute of pause, students of color returned to the discussion at hand, not breaking their stride. In a third instance, in the midst of discussing the importance of building solidarity between teachers against racism, a white student cries and asks her coleagues to remember that they must stay cohesive and support each other as comrades in struggle. A coleague reports a fourth instance where, during a dialogue about the experiences of women of color, a white woman repeatedly insisted that the real issue was class, not race, because her experiences as a woman were similar to the women of color. When a faculty of color informed her that she was monopolizing the discussion and in the process invalidated the voices of women of color, the white woman cried and was unable to continue. In al these cases, we observed the guilt of whiteness prompting the women to cry in shame. Made to recognize their unearned privileges and confronted in public, they react with tears of admission. Discussing (anti)racism is never easy and is frequently suppressed in mainstream classroom conditions. The establishment of the right conditions is precious but often precarious. In the Ž rst case, we must keep in mind that it was the black student who felt dehumanized and subsequently felt enough courage to express her anger about comments she perceived to be problematic. The act of crying by the white student immediately positioned the black student as the perpetrator of a hurt and erased/deraced the power of her charge. A reversal of sorts had just occurred. The white student earned the other students’ sympathy and the professor folowed her to the halway to comfort her white the black student nursed her anger by herself. Likewise, I could not help but feel for the white student. Upon re ection, an important difference needs to be discussed. In the act of crying, the student attenuated the centuries of hurt and oppression that the black student was trying to relay. In the act of crying, the student transformed racism into a local problem between two people. I couldn’t help feeling that other students in the class thought the black person was both wrong and racist, erasing/deracing the institutional basis of what she had to say. The room’s energy suddenly felt funneled to the white student. Clearly, there are more ‘harmonious’ ways of teaching the topic of race and racism. However, they also often forsake radical critique for feelings. Feelings have to be respected and educators can establish the conditions for radical empathy. That said, anger is also a valid and legitimate feeling; when complemented by clear thought, anger is frighteningly lucid. Thus, a pedagogy of politeness only goes so far before it degrades into the paradox of liberal feel-good solidarity absent of dissent, without which any worthwhile pedagogy becomes a democracy of empty forms. White comfort zones are notorious for tolerating only smal, incremental dozes of racial confrontation (Hunter and Nettles, 1999). This does not suggest that educators procure a hostile environment, but a pedagogical situation that fails to address white racism is arguably already the conduit of hostility. It fragments students’ holistic understanding of their identity development through the ability of whiteness to deform our complete picture of the racial formation. It practices violence on the racialized Other in the name of civility and as long as this is the case, racial progress wil proceed at the snail pace of white racial consciousness. White race traitors and progressive Others shal piece together a whole from the fragmentary pieces that whiteness has created out of this world. The Contract challenges educators of the new millennium to explain the untruth of white perspectives on race, even a century after Du Bois’s initial chalenge. Obviously, this does not mean that whites cannot grasp the Contract; many do, but they cannot accomplish this from the white point of view, a world-view which, according to Gibson, projects a ‘delusional world,’ ‘a racial fantasyland,’ and ‘a consensual halucination’ (cited in Mils, 1997, p. 18). With the rise of globalization, education—which prides itself for inculcating into students knowledge about the real world—struggles to represent the world in the most real way possible. White epistemology can be characterized as fragmentary and fleeting because white liveli- hood depends on this double helix. It is fragmentary because in order for whiteness to maintain its invisibility, or its unmarked status, it must by necessity mistake the world as non-relational or partitioned (Dwyer and Jones, III, 2000). This allows the white psyche to speak of slavery as ‘long ago,’ rather than as a legacy which lives today; it minimizes racism toward non-white immigrants today through a convenient and problematic comparison with white immigrants, like the Irish or Jews. It is also fleeting because it must deny the history of its own genesis and the creation of the Other. It can only be concerned with ‘how things are and not how they got to be that way.’ As a socio-spatial epistemology, whiteness sees the world upside-down. Mils (1997) and I agree when he says: Thus on matters related to race, the Racial Contract prescribes for its signatories an inverted epistemology, an epistemology of ignorance, a particular pattern of localized and global cognitive dysfunctions (which are psychologicaly and socialy functional), producing the ironic outcome that whites wil in general be unable to understand the world they themselves have made. (p. 18; italics in original) According to Mils, whiteness concerns itself with racial details and misses the totality of the Racial Contract. Like the way it partitions the world according to its own image, whiteness constructs history as separate racial details without coherence. As a result, it fails to provide our students the language to link together California’s Proposition 187 (anti-immigrant), 209 (anti-afŽ rmative action), and 227 (anti-bilin- gualism) as related to white hegemony. With the exception of particular Asian ethnic groups (to which I wil return later), al three legislations limit the rights of students of color. Fortunately, white and non-white activists have countered such measures with unrelenting protests and public organizing because, as Hopson et al. (1998) remind us, ‘Recognizing and valuing language varieties and multiple ways of speaking among students is a precondition to understanding how to teach them’ (p. 5). As a racial epistemology, whiteness is necessarily idealist in order to construct the Other as abstract, rather than concrete. Enslavement, discrimination, and marginalization of the Other work most efficiently when they are constructed as an idea rather than a people. They can be more easily controled, aggregated as the same, or marked as unchanging and constant when textbooks idealize them as inconse- quential to the history and evolution of humankind. In effect, whiteness eggs us on to yoke together different peoples around the globe under the sign of sameness.
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27 -Rhetoric propagating free speech as the answer to social ills directly trades off with our ability to fight injustice. Free speech is a tool that courts wield in colorblind ways against people. Delgado and Stefancic 92
28 -Richard Delgado - Charles Inglis Thomson Professor of Law, University of Colorado. J.D., U. California-Berkeley, 1974. and Jean Stefancic - Technical Services Librarian, University of San Francisco School of Law. M.L.S., Simmons College, 1963; M.A., University of San Francisco, 1989. “IMAGES OF THE OUTSIDER IN AMERICAN LAW AND CULTURE: CAN FREE EXPRESSION REMEDY SYSTEMIC SOCIAL ILLS?” Cornell Law Review. September 1992. http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=3571andcontext=clr JJN
29 -III. How THE SYSTEM OF FREE EXPRESSION SOMETIMES MAKES MATTERS WORSE Speech and free expression are not only poorly adapted to remedy racism, they often make matters worse-far from being stalwart friends, they can impede the cause of racial reform. First, they encourage writers, filmmakers, and other creative people to feel amoral, nonresponsible in what they do. 18 8 Because there is a marketplace of ideas, the rationalization goes, another film-maker is free to make an antiracist movie that will cancel out any minor stereotyping in the one I am making. My movie may have other redeeming qualities; besides, it is good entertainment and everyone in the industry uses stock characters like the black maid or the bumbling Asian tourist. How can one create film without stock characters? 18 9 Second, when insurgent groups attempt to use speech as an instrument of reform, courts almost invariably construe First Amendment doctrine against them.1 90 As Charles Lawrence pointed out, civil rights activists in the sixties made the greatest strides when they acted in defiance of the First Amendment as then understood. 191 They marched, were arrested and convicted; sat in, were arrested and convicted; distributed leaflets, were arrested and convicted. Many years later, after much gallant lawyering and the expenditure of untold hours of effort, the conviction might be reversed on appeal if the original action had been sufficiently prayerful, mannerly, and not too interlaced with an action component. This history of the civil rights movement does not bear out the usual assumption that the First Amendment is of great value for racial reformers. 19 2 Current First Amendment law is similarly skewed. Examination of the many "exceptions" to First Amendment protection discloses that the large majority favor the interests of the powerful. 19 3 If one says something disparaging of a wealthy and well-regarded individual, one discovers that one's words were not free after all; the wealthy individual has a type of property interest in his or her community image, damage to which is compensable even though words were the sole instrument of the harm. 194 Similarly, if one infringes the copyright or trademark of a well-known writer or industrialist, again it turns out that one's action is punishable. 19 5 Further, if one disseminates an official secret valuable to a powerful branch of the military or defense contractor, that speech is punishable. 19 If one speaks disrespectfully to a judge, police officer, teacher, military official, or other powerful authority figure, again one discovers that one's words were not free;1 9 7 and so with words used to defraud, 198 form a conspiracy, 1 99 breach the peace, 200 or untruthful words given under oath during a civil or criminal proceeding.20 1 Yet the suggestion that we create new exception to protect lowly and vulnerable members of our society, such as isolated, young black undergraduates attending dominantly white campuses, is often met with consternation: the First Amendment must be a seamless web; minorities, if they knew their own self-interest, should appreciate this even more than others. 20 2 This one-sidedness of free-speech doctrine makes the First Amendment much more valuable to the majority than to the minority. The system of free expression also has a powerful after-the-fact apologetic function. Elite groups use the supposed existence of a marketplace of ideas to justify their own superior position. 203 Imagine a society in which all As were rich and happy, all Bs were moderately comfortable, and all Cs were poor, stigmatized, and reviled. Imagine also that this society scrupulously believes in a free marketplace of ideas. Might not the As benefit greatly from such a system? On looking about them and observing the inequality in the distribution of wealth, longevity, happiness, and safety between themselves and the others, they might feel guilt. Perhaps their own superior position is undeserved, or at least requires explanation. But the existence of an ostensibly free marketplace of ideas renders that effort unnecessary. Rationalization is easy: our ideas, our culture competed with their more easygoing ones and won. 20 4 It was a fair fight. Our position must be deserved; the distribution of social goods must be roughly what fairness, merit, and equity call for.20 5 It is up to them to change, not us. A free market of racial depiction resists change for two final reasons. First, the dominant pictures, images, narratives, plots, roles, and stories ascribed to, and constituting the public perception of minorities, are always dominantly negative. 20 6 Through an unfortunate psychological mechanism, incessant bombardment by images of the sort described in Part I (as well as today's versions) inscribe those negative images on the souls and minds of minority persons. 20 7 Minorities internalize the stories they read, see, and hear every day. Persons of color can easily become demoralized, blame themselves, and not speak up vigorously.208 The expense of speech also precludes the stigmatized from participating effectively in the marketplace of ideas. 20 9 They are often poor-indeed, one theory of racism holds that maintenance of economic inequality is its prime function2 0 -and hence unlikely to command the means to bring countervailing messages to the eyes and ears of others. Second, even when minorities do speak they have little credibility. Who would listen to, who would credit, a speaker or writer one associates with watermelon-eating, buffoonery, menial work, intellectual inadequacy, laziness, lasciviousness, and demanding resources beyond his or her deserved share? Our very imagery of the outsider shows that, contrary to the usual view, society does not really want them to speak out effectively in their own behalf and, in fact, cannot visualize them doing so. Ask yourself: How do outsiders speak in the dominant narratives? Poorly, inarticulately, with broken syntax, short sentences, grunts, and unsophisticated ideas.21' Try to recall a single popular narrative of an eloquent, self-assured black (for example) orator or speaker. In the real world, of course, they exist in profusion. But when we stumble upon them, we are surprised: "What a welcome 'exception'!" Words, then, can wound. But the fine thing about the current situation is that one gets to enjoy a superior position and feel virtuous at the same time. By supporting the system of free expression no matter what the cost, one is upholding principle. One can belong to impeccably liberal organizations and believe one is doing the right thing, even while taking actions that are demonstrably injurious to the least privileged, most defenseless segments of our society.21 2 In time, one's actions will seem wrong and will be condemned as such, but paradigms change slowly.2 1 3 The world one helps to create-a world in which denigrating depiction is good or at least acceptable, in which minorities are buffoons, clowns, maids, or Willie Hortons, and only rarely fully individuated human beings with sensitivities, talents, personalities, and frailties-will survive into the future. One gets to create culture at outsiders' expense. And, one gets to sleep well at night, too. Racism is not a mistake, not a matter of episodic, irrational behavior carried out by vicious-willed individuals, not a throwback to a long-gone era. It is ritual assertion of supremacy, 214 like animals sneering and posturing to maintain their places in the hierarchy of the colony. It is performed largely unconsciously, just as the animals' behavior is. 2 15 Racism seems right, customary, and inoffensive to those engaged in it, while bringing psychic and pecuniary advantages.21 6 The notion that more speech, more talking, more preaching, and more lecturing can counter this system of oppression is appealing, lofty, romantic-and wrong.
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31 -Their notion of the first amendment is colorblind and obscures anti-black violence. Boler 04
32 -Boler, Megan Megan Boler is a Full Professor in the Department of Social Justice Education, at the Ontario Institute of Studies in Education (OISE) at the University of Toronto.. "All Speech Is Not Free: The Ethics of" Affirmative Action Pedagogy"." Counterpoints 240 (2004): 3-13.
33 -On what basis might one justify an affirmative action pedagogy? The first justifica-¶ tion is forwarded by legal scholars in the area of critical race theory. The authors of¶ Words That Wound (Matsuda, Lawrence, Delgado, and Crenshaw, 1993) address the¶ tension between the First and Fourteenth Amendment. The tension arises because,¶ in fact, all people are not equally protected under the law because of the institu-¶ tionalized inequities within our society. This reality complicates the effectiveness¶ of the First Amendment. Scholarship in critical race theory and educational analy-¶ ses document that in recent years, we find incidents of hate speech primarily to be¶ directed at racial, religious, or sexual minorities. Not surprisingly, one finds in turn¶ that invocations of the right to free speech are most often invocations to protect¶ the right of the members of the dominant culture to express their hatred toward¶ members of minority culture. These authors make important legal and historical¶ cases to support their observation that, in practice, while the rhetoric of the First¶ Amendment is a buzz word that makes all of us want to rally for its principle, in¶ practice "the first amendment arms conscious and unconscious racists - Nazis and¶ liberals alike - with a constitutional right to be racist. Racism is just another idea¶ deserving of constitutional protection like all ideas" (Matsuda et al., 1993, p. 15). A¶ scholar from another discipline addresses classroom dynamics and similarly argues¶ that we must "read the appeal to the First Amendment as itself a kind of panic re-¶ sponse in the same order as hate speech itself" (Roof, 1999, p. 45).¶ A second justification for privileging marginalized voices is based on the meas-¶ urement of the psychological effect of hate speech on targeted groups and individ-¶ uals. As one legal scholar explains, hate speech affects its victim in the visceral ex-¶ perience of a "disorienting powerlessness" (Lawrence, 1993, p. 70), an effect¶ achieved because hate speech is comparable to an act of violence. In reaction to¶ hate speech, the target commonly experiences a "state of semishock," nausea, and dizziness, and an inability to articulate a response. This scholar gives an example of a student who is white and gay. The student reports that in an instance where he¶ was called "faggot" he experienced all of the above symptoms. However, when he¶ was called "honky," he did not experience the disorienting powerlessness. As the¶ scholar remarks, "the context of the power relationships in which the speech takes¶ place, and the connection to violence must be considered as we decide how best to¶ foster the freest and fullest dialogue within our communities" (Lawrence, 1993,¶ p. 70).¶ These considerations bring me to another key point: The analysis of utterance¶ in the classroom requires more than rational dialogue. In fact, the critical race¶ theorists argue that because racism is irrational, no amount of rational dialogue¶ will change racist attitudes. I disagree, in part because I am convinced that class-¶ room discussion must recognize the emotions that shape and construct the mean-¶ ings of our claims, our interchange with one another, and our investments in par-¶ ticular worldviews. Thus, a discussion of racism or homophobia cannot rely¶ simply on rational exchange but must delve into the deeply emotional investments¶ and associations that surround perceptions of difference and ideologies. One is po-¶ tentially faced with allowing ones worldviews to be shattered, in itself a pro-¶ foundly emotionally charged experience
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35 -Turns the case – hate speech does real violence to people of color and necessarily locks in relationships of domination. Delgado and Stefacic 09
36 -Richard Delgado - University Professor, Seattle University School of Law; J.D., 1974, University of California, Berkeley. Jean Stefancic – Research Professor, Seattle University School of Law; M.A., 1989, University of San Francisco. “FOUR OBSERVATIONS ABOUT HATE SPEECH.” WAKE FOREST LAW REVIEW. 2009. http://wakeforestlawreview.com/wp-content/uploads/2014/10/Delgado_LawReview_01.09.pdf
37 -II. OBSERVATION NUMBER TWO: THE EVALUATION OF HARMS HAS BEEN INCOMPLETE One way, of course, to end the current standoff is for one of the parties to defer to the other’s point of view. Indeed, by pursuing an aggressive campaign of litigation, the free-speech camp has been implicitly urging that the other side do just that.58 One could also argue that a host of campus administrators, by enacting successive versions of hate-speech codes, are attempting to do the same thing, namely, wear the other side down.59 Ordinarily, though, it is the free-speech faction, with a string of lower-court victories to its credit, who urge the other side to “get over it” and toughen its collective hide.60 Yet, a careful weighing of the costs and benefits of speech regulation suggests that the case for it is closer than the ACLU and some courts seem ready to acknowledge. Before addressing the costs of hate-speech regulation versus the opposite, it is advisable to arrive at an understanding of what hate speech is. A Types of Hate Speech Hate speech, including the campus variety, can take a number of forms—direct (sometimes called “specific”) or indirect; veiled or overt; single or repeated; backed by power, authority, or threat, or not.61 One can also distinguish it in terms of the characteristic— such as race, religion, sexual orientation, immigration status, or gender—of the person or group it targets.62 It can isolate a single individual (“Jones, you goddamned X.”) or group (“The goddamned Xs are destroying this country.”). It can be delivered orally, in writing, on the Internet, or in the form of a tangible thing, such as a Confederate flag, football mascot, or monument.63 It can be anonymous, as with graffiti or a leaflet surreptitiously placed on a bulletin board or under a dormitory door, or its author can be plainly identified.64 The object of the speech may be free to leave, or trapped, as in a classroom or workplace.65 B. The Harms of Hate Speech The various forms of hate speech present different kinds and degrees of harm. The face-to-face kind is the most immediately problematic, especially if the target is not in a position to leave and the one delivering it possesses the power to harm. 1. Direct or Face-to-Face Hate Speech Although some courts and commentators describe the injury of hate speech as mere offense,66 the harm associated with the face-toface kind, at least, is often far greater than that and includes flinching, tightening of muscles, adrenaline rushes, and inability to sleep.67 Some victims may suffer psychosocial harms, including depression, repressed anger, diminished self-concept, and impairment of work or school performance.68 Some may take refuge in drugs, alcohol, or other forms of addiction, compounding their misery.69 2. Hate Speech and Children With children, the harms of hate speech may be even more worrisome. A child victimized by racial taunts or browbeating may respond aggressively, with the result that he or she is labeled as assaultive.70 Or, the child can respond by internalizing the harm and pretending to ignore it. Robbed of self-confidence and a sense of ease, such a child can easily become introspective and morose.71 If the child’s parents suffer the same fate at work, they may bring these problems home so that the parents retain even less energy for their families than before.72 Recent scholarship points out how the pathologies associated with social subordination may be transgenerational, lasting for centuries, if not millennia, and include pain, fear, shame, anger, and despair.73 3. General Hate Speech With general hate speech, such as anonymously circulated flyers or speeches to a crowd, the harms, while diffuse, may be just as serious.74 Recent scholarship shows how practically every instance of genocide came on the heels of a wave of hate speech depicting the victims in belittling terms.75 For example, before launching their wave of deadly attacks on the Tutsis in Rwanda, Hutus in government and the media disseminated a drumbeat of messages casting their ethnic rivals as despicable.76 The Third Reich did much the same with the Jews during the period leading up to the Holocaust.77 When the United States enslaved African Americans and killed or removed the Indians, it rationalized that these were simple folk who needed discipline and tutelage, or else bloodthirsty savages who resisted the blessings of civilization.78 When, a little later, the nation marched westward in pursuit of manifest destiny, it justified taking over the rich lands of California and the Southwest on the ground that the indolent Mexicans living on them did not deserve their good fortune.79 Before interning the Japanese during World War II, propagandists depicted the group as sneaky, suspicious, and despotic.80 It is possible that the connection between general hate speech and instances of mass oppression may not be merely statistical and contingent, but conceptual and necessary.81 Concerted action requires an intelligible intention or rationale capable of being understood by others. One cannot mistreat another group without first articulating a reason why one is doing it—otherwise, no one but a sadist would join in.82 Without a softening-up period, early steps toward genocide, such as removing Jews to a ghetto, would strike others as gratuitous and command little support. Discriminatory action of any kind presupposes a group that labors under a stigma of some kind.83 The prime mechanism for the creation of such stigma is hate speech.84 Without it, genocide, imperialism, Indian removal, and Jim Crow could gain little purchase.85 C. The Harms of Speech Regulation If the harms of hate speech are sobering, what lies on the other side? What happens to the hate speaker forced to hold things in? Will he or she suffer psychological injury, depression, nightmares, drug addiction, and a blunted self image?86 Diminished pecuniary and personal prospects?87 Will hate-speech regulation set up the speaker’s group for extermination, seizure of ancestral lands, or anything comparable?88 The very possibility seems far-fetched. And, indeed, regimes, such as Europe’s and Canada’s, that criminalize hate speech exhibit none of these ills.89 Speech and inquiry there seem as free and uninhibited as in the United States, and their press just as feisty as our own.90 What about harm to the hate speaker? The individual who holds his or her tongue for fear of official sanction may be momentarily irritated. But “bottling it up” seems not to inflict serious psychological or emotional damage.91 Early in the debate about hate speech, some posited that a prejudiced individual forced to keep his impulses in check might become more dangerous as a result.92 By analogy to a pressure valve, he or she might explode in a more serious form of hate speech or even a physical attack on a member of the target group.93 But studies examining this possibility discount it.94 Indeed, the bigot who expresses his sentiment aloud is apt to be more dangerous, not less, as a result. The incident “revs him up” for the next one, while giving onlookers the impression that baiting minorities is socially acceptable, so that they may follow suit.95 A recently developed social science instrument, the Implicit Association Test (“IAT”), shows that many Americans harbor measurable animus toward racial minorities.96 Might it be that hearing hate speech, in person or on the radio, contributes to that result?97 III. OBSERVATION NUMBER THREE: INTEREST BALANCING MUST TAKE ACCOUNT OF RELEVANT FEATURES OF HATE SPEECH If all types of hate speech are apt to impose costs,98 large or small, how should courts and policymakers weigh them? Not every victim of hate speech will respond in one of the ways described above. Some will shrug it off or lash back at the aggressor, giving as good as they got.99 The harm of hate speech is variable, changing from victim to victim and setting to setting.100 By the same token, it is impossible to say with assurance that the cost of hate-speech regulation will always be negligible. Some speakers who might wish to address sensitive topics, such as affirmative action or racial differences in response to medical treatments, might shy away from them.101 The interplay of voices that society relies on to regulate itself may deteriorate. In balancing hate speech versus regulation, two benchmarks may be helpful: a review of current freespeech “exceptions” and attention to the role of incessancy. A. Current Free-Speech Exceptions Not all speech is free. The current legal landscape contains many exceptions and special doctrines corresponding to speech that society has decided it may legitimately punish. Some of these are: words of conspiracy; libel and defamation; copyright violation; words of threat; misleading advertising; disrespectful words uttered to a judge, police officer, or other authority figure; obscenity; and words that create a risk of imminent violence.102 If speech is not a seamless web, the issue is whether the case for prohibiting hate speech is as compelling as that underlying existing exceptions. First Amendment defenders often assert that coining a new exception raises the specter of additional ones, culminating, potentially, in official censorship and Big Brother.103 But our tolerance for a wide array of special doctrines suggests that this fear may be exaggerated and that a case-by-case approach may be quite feasible. How important is it to protect a black undergraduate walking home late at night from the campus library?104 As important as a truthful label on a can of dog food or safeguarding the dignity of a minor state official?105 Neither free-speech advocates nor courts have addressed matters like these, but a rational approach to the issue of hate-speech regulation suggests that they should.106 B. Incessancy and Compounding Two final aspects of hate speech are incessancy—the tendency to recur repeatedly in the life of a victim—and compounding.107 A victim of a racist or similar insult is likely to have heard it more than once. In this respect, a racial epithet differs from an insult such as “You damn idiot driver” or “Watch where you’re going, you klutz” that the listener is apt to hear only occasionally. Like water dripping on stone, racist speech impinges on one who has heard similar remarks many times before.108 Each episode builds on the last, reopening a wound likely still to be raw. The legal system, in a number of settings, recognizes the harm of an act known to inflict a cumulative harm. Ranging from eggshell plaintiffs to the physician who fails to secure fully informed consent, we commonly judge the blameworthiness of an action in light of the victim’s vulnerability.109 When free-speech absolutists trivialize the injury of hate speech as simple offense, they ignore how it targets the victim because of a condition he or she cannot change and that is part of the victim’s very identity. Hate speakers “pile on,” injuring in a way in which the victim has been injured several times before. The would-be hate speaker forced to keep his thoughts to himself suffers no comparable harm. A comparison of the harms to the speaker and the victim of hate speech, then, suggests that a regime of unregulated hate speech is costly, both individually and socially. Yet, even if the harms on both sides were similar, one of the parties is more disadvantaged than the other, so that Rawls’s difference principle suggests that, as a moral matter, we break the tie in the victim’s favor.110 Moreover, the magnitude of error can easily be greater, even in First Amendment terms, on the side of nonregulation. Hate speech warps the dialogic community by depriving its victims of credibility. Who would listen to one who appears, in a thousand scripts, cartoons, stories, and narratives as a buffoon, lazy desperado, or wanton criminal? Because one consequence of hate speech is to diminish the status of one group vis-à-vis all the rest, it deprives the singled-out group of credibility and an audience, a result surely at odds with the underlying rationales of a system of free expression.111
38 -
39 -Anti-Blackness is the root cause of white supremacy and social oppression. It outweighs the case. Heitzeg 15
40 -
41 -Heitzeg, Nancy A a Professor of Sociology and Director of the¶ interdisciplinary Critical Studies of Race/Ethnicity Program at St. Catherine¶ University, St. Paul, MN.. "On The Occasion Of The 50th Anniversary Of The Civil Rights Act Of 1964: Persistent White Supremacy, Relentless Anti-Blackness, And The Limits Of The Law." Hamline J. Pub. L. and Pol'y 36 (2015): 54.
42 -
43 -While all communities of color suffer from racism in general¶ and its manifestation in criminal justice in particular, “Black” has¶ been the literal and figurative counterpart of “white”. Anti-black¶ racism is arguably at the very foundation of white supremacy; the¶ two constitute the foundational book-ends for the legal, political and¶ every day constructions of race in the United States.12¶ For this¶ reason, in combination with the excessive over-representation of¶ African Americans in the criminal justice system and the prison¶ industrial complex, this analysis will largely focus on the ways in¶ which the law has been a tool for the oppression of African¶ Americans via the furtherance of white supremacy and antiblackness¶ in both law and practice.¶ While race has never reflected any biological reality, it is¶ indeed a powerful social and political construct. In the U.S. and¶ elsewhere, it has served to delineate “whiteness” as the “unraced”¶ norm – the “unmarked marker” – while hierarchically devaluing¶ “other” racial/ethnic categories with Blackness always as the antithesis.13¶ The socio-political construction of race coincides with the¶ age of exploration, the rise of “scientific” classification schemes, and¶ perhaps most significantly capitalism. In the United States, the¶ solidification of racial hierarchies cannot be disentangled from the capitalist demands for “unfree” labor and expanded private property.¶ By the late 1600s, race had been a marker for either free citizens or¶ slave property, and colonial laws had reified this decades before the¶ Revolutionary War.14 The question of slavery was at the center of¶ debates in the creation of the United States and is referenced no less¶ than ten times.15 By the time of the Constitutional Convention of¶ 1787, the racial lines defining slave and free had already been rigidly¶ drawn – white was “free” and black was “slave” – and the result¶ according to Douglass was this: “assume the Constitution to be what¶ we have briefly attempted to prove it to be, radically and essentially¶ pro-slavery”.¶ 16 The Three-Fifths Clause, the restriction on future¶ bans of the slave trade and limits on the possibility of emancipation¶ through escape were all clear indications of the significance of¶ slavery to the Founders. The legal enouncement of slavery in the¶ Constitution is one of the first of many “racial sacrifice covenants”¶ to come, where the interests of Blacks were sacrificed for the nation.¶ 17¶ The social and constitutional construction of white as free and¶ Black as slave has on-going political and economic ramifications.¶ According to Harris, whiteness not only allows access to property,¶ may be conceived of per se as “whiteness as property”.¶ 18 These¶ property rights produce both tangible and intangible value to those¶ who possess it; whiteness as property includes the right to profit and¶ to exclude, even the perceived right to kill in defense of the borders¶ of whiteness.19 As Harris notes:¶ The concept of whiteness was premised on white¶ supremacy rather than mere difference. “White” was¶ defined and constructed in ways that increased its¶ value by reinforcing its exclusivity. Indeed, just as whiteness as property embraced the right to exclude,¶ whiteness as a theoretical construct evolved for the¶ very purpose of racial exclusion. Thus, the concept¶ of whiteness is built on both exclusion and racial¶ subjugation. This fact was particularly evident¶ during the period of the most rigid racial exclusion,¶ as whiteness signified racial privilege and took the¶ form of status property.20¶ Conversely, Blackness is defined as outside of the margins of¶ humanity as chattel rather than persons, and defined outside of the¶ margins of civil society. Frank Wilderson, in “The Prison Slave as¶ Hegemonys (Silent) Scandal,” describes it like this: “Blackness in¶ America generates no categories for the chromosome of history, and¶ no data for the categories of immigration or sovereignty. It is an¶ experience without analog — a past without a heritage.”¶ 21 Directly¶ condemned by the Constitution in ways that other once excluded¶ groups (American Indians, women, immigrants, LGBTQ) were not,¶ Blackness as marked by slavery– as property not person - creates an¶ outsider status that makes future inclusion a daunting challenge.22
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45 -The alternative is to embrace the demand of abolitionism – we must recognize that whiteness operates subtly through hands-off policies that preserve the status quo. We choose to challenge the university system at the grassroots intersection with other liberation movements. Oparah 14
46 -Oparah, Julia. Professor and Chair of Ethnic Studies at Mills College and a founding member of Black Women Birthing Justice "Challenging Complicity: The Neoliberal University and the Prison–Industrial Complex." The Imperial University: Academic Repression and Scholarly Dissent (2014).
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48 -¶ In my earlier work on the academic-prison-industrial complex, I suggested that activist scholars were producing and disseminating countercarceral knowledge by bringing academic research into alignment with the needs of social movements and interrogating and reorganizing relationships between prisoners and researchers in the free world.50 Given the history of epistemic and physical violence and exploitation of research subjects by the academy, such a reorganizing of relationships and accountabilities is clearly urgently needed. Yet no matter how radical and participatory our scholarship is, we ultimately fail to dismantle the academic-military-prison-industrial com- plex (academic-MPIC) if we address it only through the production of more knowledge. Since knowledge is a commodity, marketed through books, arti- cles, and conferences as well as patents and government contracts, the pro- duction of “better,” more progressive or countercarceral knowledge can also be co-opted and put to work by the academic-MPIC.¶ An abolitionist lens provides a helpful framework here. Antiprison schol- ars and activists have embraced the concept of abolition in order to draw attention to the unfinished liberation legislated by the Thirteenth Amend- ment, which abolished slavery “except as a punishment for a crime.”51 Aboli- tionists do not seek primarily to reform prisons or to improve conditions for prisoners; instead they argue that only by abolishing imprisonment will we free up the resources and imagine the possibility of more effective and less violent strategies to deal with the social problems signaled by harmful acts. While early abolitionists referred to themselves as prison abolitionists, more recently there has been a shift to prison-industrial complex abolitionism to expand the analysis of the movement to incorporate other carceral spaces— from immigrant detention centers to psychiatric hospitals—and to empha- size the role of other actors, including the police and courts, politicians, corporations, the media, and the military, in sustaining mass incarceration.52¶ How does an abolitionist lens assist us in assessing responses to the academic-MPIC? First, it draws our attention to the economic basis of the academic-MPIC and pushes us to attack the materiality of the militari- zation and prisonization of academia rather than limiting our interventions to the realm of ideas. This means that we must challenge the corporatization of our universities and colleges and question what influences and account- abilities are being introduced by our increasing collaboration with neoliberal global capital. It also means that we must dismantle those complicities and liberate the academy from its role as handmaiden to neoliberal globaliza- tion, militarism, and empire. In practice, this means interrogating our uni- versities’ and colleges’ investment decisions, demanding they divest from the military, security, and prison industries; distance themselves from military occupations in Southwest Asia and the Middle East; and invest instead in community-led sustainable economic development. It means facing allega- tions of disloyalty to our employers or alma maters as we blow the whistle on unethical investments and the creeping encroachment of corporate fund- ing, practices, and priorities. It means standing up for a vision of the liberal arts that neither slavishly serves the interests of the new global order nor returns to its elitist origins but instead is deeply embedded in progressive movements and richly informed by collaborations with insurgent and activ- ist spaces. And it means facing the challenges that arise when our divest- ment from empire has real impact on the bottom line of our university and college budgets. Andrea Smith, in her discussion of native studies, has argued that politi- cally progressive educators often adopt normative, colonial practices in the classroom, using pedagogical strategies and grading practices that rein- scribe the racialized and gendered regulation, policing, and disciplining that PIC abolitionists seek to end.53 In this sense, there could be no “postcarceral” academy. Certainly, sanctions for undergraduate and graduate students and faculty who challenge the university’s regular practices—from failing grades and expulsions to tenure denials and deportation—are systemically distrib- uted, along with rewards for those who can be usefully incorporated. Yet uni- versities and colleges also hold the seeds of a very different possible future, evoked, for example, by the universal admissions movement or by student strikes in Britain and Canada that demand higher education as a right, not a privilege of the wealthy. Rather than seeking to eradicate or replace higher educational institutions altogether, I suggest that we demand the popular and antiracist democratization of higher education.¶ The first step toward this radical transformation is the liberation of aca- demia from the machinery of empire: prisons, militarism, and corporations. Speaking of abolishing the white race, Noel Ignatiev argues that it is neces- sary for white people to make whiteness impossible by refusing the invisible benefits of membership in the “white club.”54 Progressive academics are also members of a privileged “club,” one that confers benefits in the form of a pay- check, health care, and other fringe benefits; social status; and the freedom to pursue intellectual work that we are passionate about. But we can also put our privilege to work by unmasking and then unsettling the invisible, symbi- otic, and toxic relationships that constitute the academic-MPIC.¶ Decoupling academia from its velvet-gloved master would begin the pro- cess of fundamental transformation. Without unfettered streams of income from corporations, wealthy philanthropists, and the military, universities and colleges would be forced to develop alternative fund-raising strategies, relationships, and accountabilities. Can we imagine a college administration aligned with local Occupy organizers to protest the state’s massive spend- ing on prisons and policing and demand more tax money for housing, edu- cation, and health care? Can we imagine a massive investment of time and resources by university personnel to solve the problem of how to decarcerate the nation’s prisons or end the detention of undocumented immigrants in order to fund universal access to higher education? Can we imagine a uni- versity run by and for its constituents, including students, kitchen and gar- den staff, and tenure-track and adjunct faculty? These are the possibilities opened up by academic-MPIC abolition.
49 -
50 -The role of the ballot is to interrogate the AFF’s scholarship using the lens of critical race theory.
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52 -Their refusal of minority voices is a conscious choice. Delgado 84
53 -
54 -Delgado, Richard. "The imperial scholar: Reflections on a review of civil rights literature." University of Pennsylvania Law Review 132.3 (1984): 561-578.
55 -
56 -
57 -It does not matter where one enters this universe; one comes to the¶ same result: an inner circle of about a dozen white, male writers who¶ comment on, take polite issue with, extol, criticize, and expand on each¶ other's ideas." It is something like an elaborate minuet.¶ The failure to acknowledge minority scholarship extends even to¶ nonlegal propositions and assertions of fact. W.E. DuBois, deceased¶ Black historian, receives an occasional citation.5 Aside from him, little¶ else rates a mention. Higginbotham's monumental In the Matter of¶ Color' might as well not exist. The same is true of the work of Kenneth¶ Clark,1 Black psychologist and past president of the American¶ Psychological Association, and Alvin Poussaint,8 Harvard Medical¶ School professor and authority on the psychological impact of race. One¶ searches in vain for references to the powerful book by physicians Grier¶ and Cobbs, Black Rage,' or to Frantz Fanon's The Wretched of the¶ Earth,10 or even to writings of or about Martin Luther King, Jr.,1¶ "¶ Cesar Chavez, 2 and Malcolm X."3 When the inner circle writers need authority for a factual or social scientific proposition about race they¶ generally cite reports of the United States Commission on Civil¶ Rights1 4 or else each other.1 5¶ A single anecdote may help to illustrate what I mean. Recently a¶ law professor who writes about civil rights showed me, for my edification,¶ a draft of an article of his. It is, on the whole, an excellent article.¶ It extols the value of a principle I will call "equal personhood." Equal¶ personhood is the notion, implicit in several constitutional provisions¶ and much case law, that each human being, regardless of race, creed, or¶ color, is entitled to be treated with equal respect. To treat someone as¶ an outsider, a nonmember of human society, violates this principle and¶ devalues the self-worth of the person so excluded.¶ I have no quarrel with this premise, but, on reading the one hundred-plus¶ footnotes of the article, I noticed that its author failed to cite¶ Black or minority scholars, an exclusion from the community of kindred¶ souls as glaring as any condemned in the paper. I pointed this out¶ to the author, citing as illustration a passage in which he asserted that¶ unequal treatment can cause a person to suffer a withered self-concept.¶ Having just written an article on a related subject, 8 I was more or less¶ steeped in withered self-concepts. I knew who the major authorities¶ were in that area.¶ The professor's authority for the proposition about withered selfconcepts¶ was Frank Michelman, writing in the Harvard Law Review. I pointed out that although Frank Michelman may be a superb scholar¶ and teacher, he probably has relatively little first-hand knowledge¶ about withered self-concepts. I suggested that the professor add references¶ to such works as Kenneth Clark's Dark Ghetto1¶ " and Grier and¶ Cobbs's Black Rage,"' and he agreed to do so. To justify his selection of¶ Frank Michelman for the proposition about withered self-concept, the¶ author explained that Michelman's statement was "so elegant."¶ Could inelegance of expression explain the absence of minority¶ scholarship from the text and footnotes of leading law review articles¶ about civil rights? Elegance is, without question, a virtue in writing, in¶ conversation, or in. anything else in life. If minority scholars write inelegantly¶ and Frank Michelman writes elegantly, then it would not be¶ surprising if the latter were read and cited more frequently, and the¶ former less so. But minority legal scholars seem to have less trouble¶ being recognized and taken seriously in areas of scholarship other than¶ civil rights theory.19 If elegance is a problem for minority scholars, it¶ seems mainly to be so in the core areas of civil rights: affirmative action,¶ the equality principle, and the theoretical foundations of race relations¶ law.¶ In 1971, Judge Skelly Wright wrote an article entitled, Professor¶ Bickel, the Scholarly Tradition, and the Supreme Court.20 In the article,¶ Judge Wright took a group of scholars to task for their bloodless¶ carping at the Warren Court's decisions in the areas of racial justice¶ and human rights. He accused the group of missing the central point in¶ these decisions-their moral clarity and passion for justice-and labelled¶ the group's excessive preoccupation with procedure and institutional¶ role and its insistence that the Court justify every element of a¶ decision under general principles of universal application, a "scholarly tradition."'2 1¶ I think I have discovered a second scholarly tradition. It consists of¶ white scholars' systematic occupation of, and exclusion of minority¶ scholars from, the central areas of civil rights scholarship. The mainstream¶ writers tend to acknowledge only each other's work. It is even¶ possible that, consciously or not, they resist entry by minority scholars¶ into the field,2 2 perhaps counseling them, as I was counseled, to establish¶ their reputations in other areas of law. I believe that this "scholarly¶ tradition" exists mainly in civil rights; nonwhite scholars in other fields¶ of law seem to confront no such tradition.23
58 -
59 -
60 -Case
61 -
62 -Prefer comparative worlds:
63 -First is Reciprocal Burdens. Truth testing requires one debater to prove a positive truth and the other to disprove it. This is unequal because disproving a statement by casting doubt is always easier than proving one. Debaters who only have to prove their opponent wrong have more options because they can argue any one point in a series of links that their opponent must prove in their entirety. Further, this opens room for pre-resolutional positions that require debaters to prove the existence of resolutional terms prior to debating the resolution. A debater with the burden of proof must be prepared to not only debate all of her case and her opponent’s case, but also beat back an infinitely regressive set of skeptical indictments. Reciprocal burdens are vital to fairness because the debater with an easier burden defenitionally has a better chance at winning. There is greater structural access to the ballot for the debater with more avenues to win.
64 -
65 -A priori only exists in truth testing. No new 1ar justifications for truth testing, necessary part of 1ac if this is an arg they want to go for.
66 -
67 -We only have to win 1 time that speech ought to be restricted. Saying anti state things is bad under their framework because it is willing the destruction of the state which his equivalent to willing onself back into the state of nature.
68 -
69 -Focus on intent diverts attention from marginalizing action and doesn’t let us stop oppression. Utt 13
70 -
71 -Jamie Utt Jamie is the Founder and Director of Education at CivilSchools, a comprehensive bullying prevention program, a diversity and inclusion consultant, and sexual violence prevention educator based in Minneapolis, MN. July 30, 2013 “Intent vs. Impact: Why Your Intentions Don’t Really Matter”
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73 -Intent v. Impact From Paula Deen to Alec Baldwin to your annoying, bigoted uncle or friend, we hear it over and over again: “I never meant any harm…” “It was never my intent…” “I am not a racist…” “I am not a homophobe…” “I’m not a sexist…” I cannot tell you how often I’ve seen people attempt to deflect criticism about their oppressive language or actions by making the conversation about their intent. At what point does the “intent” conversation stop mattering so that we can step back and look at impact? After all, in the end, what does the intent of our action really matter if our actions have the impact of furthering the marginalization or oppression of those around us? In some ways, this is a simple lesson of relationships. If I say something that hurts my partner, it doesn’t much matter whether I intended the statement to mean something else – because my partner is hurting. I need to listen to how my language hurt my partner. I need to apologize. And then I need to reflect and empathize to the best of my ability so I don’t do it again. But when we’re dealing with the ways in which our identities intersect with those around us – and, in turn, the ways our privileges and our experiences of marginalization and oppression intersect – this lesson becomes something much larger and more profound. This becomes a lesson of justice. What we need to realize is that when it comes to people’s lives and identities, the impact of our actions can be profound and wide-reaching. And that’s far more important than the question of our intent. We need to ask ourselves what might be or might have been the impact of our actions or words. And we need to step back and listen when we are being told that the impact of our actions is out of step with our intents or our perceptions of self. Identity Privilege and Intent For people of identity privilege, this is where listening becomes vitally important, for our privilege can often shield us from understanding the impact of our actions. After all, as a person of privilege, I can never fully understand the ways in which oppressive acts or language impact those around me. What I surely can do is listen with every intent to understand, and I can work to change my behavior. Because what we need to understand is that making the conversation about intent is inherently a privileged action. The reason? It ensures that you and your identity (and intent) stay at the center of any conversation and action while the impact of your action or words on those around you is marginalized. So if someone ever tells you to “check your privilege,” what they may very well mean is: “Stop centering your experience and identity in the conversation by making this about the intent of your actions instead of their impact.” That is: Not everything is about you.
74 -Moral tunnel vision is complicit with evil. Issac 2
75 -—Professor of Political Science at Indiana-Bloomington, Director of the Center for the Study of Democracy and Public Life, PhD from Yale (Jeffery C., Dissent Magazine, Vol. 49, Iss. 2, “Ends, Means, and Politics,” p. Proquest)
76 -
77 -As a result, the most important political questions are simply not asked. It is assumed that U.S. military intervention is an act of "aggression," but no consideration is given to the aggression to which intervention is a response. The status quo ante in Afghanistan is not, as peace activists would have it, peace, but rather terrorist violence abetted by a regime~-~-the Taliban~-~-that rose to power through brutality and repression. This requires us to ask a question that most "peace" activists would prefer not to ask: What should be done to respond to the violence of a Saddam Hussein, or a Milosevic, or a Taliban regime? What means are likely to stop violence and bring criminals to justice? Calls for diplomacy and international law are well intended and important; they implicate a decent and civilized ethic of global order. But they are also vague and empty, because they are not accompanied by any account of how diplomacy or international law can work effectively to address the problem at hand. The campus left offers no such account. To do so would require it to contemplate tragic choices in which moral goodness is of limited utility. Here what matters is not purity of intention but the intelligent exercise of power. Power is not a dirty word or an unfortunate feature of the world. It is the core of politics. Power is the ability to effect outcomes in the world. Politics, in large part, involves contests over the distribution and use of power. To accomplish anything in the political world, one must attend to the means that are necessary to bring it about. And to develop such means is to develop, and to exercise, power. To say this is not to say that power is beyond morality. It is to say that power is not reducible to morality. As writers such as Niccolo Machiavelli, Max Weber, Reinhold Niebuhr, and Hannah Arendt have taught, an unyielding concern with moral goodness undercuts political responsibility. The concern may be morally laudable, reflecting a kind of personal integrity, but it suffers from three fatal flaws: (1) It fails to see that the purity of one's intention does not ensure the achievement of what one intends. Abjuring violence or refusing to make common cause with morally compromised parties may seem like the right thing; but if such tactics entail impotence, then it is hard to view them as serving any moral good beyond the clean conscience of their supporters; (2) it fails to see that in a world of real violence and injustice, moral purity is not simply a form of powerlessness; it is often a form of complicity in injustice. This is why, from the standpoint of politics~-~-as opposed to religion~-~-pacifism is always a potentially immoral stand. In categorically repudiating violence, it refuses in principle to oppose certain violent injustices with any effect; and (3) it fails to see that politics is as much about unintended consequences as it is about intentions; it is the effects of action, rather than the motives of action, that is most significant. Just as the alignment with "good" may engender impotence, it is often the pursuit of "good" that generates evil. This is the lesson of communism in the twentieth century: it is not enough that one's goals be sincere or idealistic; it is equally important, always, to ask about the effects of pursuing these goals and to judge these effects in pragmatic and historically contextualized ways. Moral absolutism inhibits this judgment. It alienates those who are not true believers. It promotes arrogance. And it undermines political effectiveness.
78 -
79 -A desire to ignore the consequences of their advocacy causes failure ~-~-- you must evaluate consequences of their proposal
80 -Christopher A. Bracey 6, Associate Professor of Law, Associate Professor of African and African American Studies, Washington University in St. Louis, September, Southern California Law Review, 79 S. Cal. L. Rev. 1231, p. 1318
81 -Second, reducing conversation on race matters to an ideological contest allows opponents to elide inquiry into whether the results of a particular preference policy are desirable. Policy positions masquerading as principled ideological stances create the impression that a racial policy is not simply a choice among available alternatives, but the embodiment of some higher moral principle. Thus, the "principle" becomes an end in itself, without reference to outcomes. Consider the prevailing view of colorblindness in constitutional discourse. Colorblindness has come to be understood as the embodiment of what is morally just, independent of its actual effect upon the lives of racial minorities. This explains Justice Thomas's belief in the "moral and constitutional equivalence" between Jim Crow laws and race preferences, and his tragic assertion that "Government cannot make us equal but can only recognize, respect, and protect us as equal before the law." 281 For Thomas, there is no meaningful difference between laws designed to entrench racial subordination and those designed to alleviate conditions of oppression. Critics may point out that colorblindness in practice has the effect of entrenching existing racial disparities in health, wealth, and society. But in framing the debate in purely ideological terms, opponents are able to avoid the contentious issue of outcomes and make viability determinations based exclusively on whether racially progressive measures exude fidelity to the ideological principle of colorblindness. Meaningful policy debate is replaced by ideological exchange, which further exacerbates hostilities and deepens the cycle of resentment.
82 -
83 -Ideal theory shuts off the ability to critique oppression, has empirically never worked in guiding a society, and allows the oppressor to rationalize oppression. Mills 15
84 -Charles W. Mills (2015) Decolonizing Western Political Philosophy, New Political Science, 37:1, 1-24, DOI: 10.1080/07393148.2014.995491 PVE
85 -
86 -
87 -For all four philosophers, then, including three former Rawls students, the characterization is indeed meant descriptively. But setting aside the argument from the authority of secondary sources, there is also (and more importantly) the argument from the text itself. It is difficult to make sense of what Rawls goes on to say if “society” is to be read as “ideal society” because he then introduces the further category of a “well-ordered society.” But if we are already in the realm of the ideal, how could there be conceptual room left for further idealization? We would then, weirdly, have the following categories: societies in general, real and hypothetical (and thus presumably including oppressive societies); ideal societies, non-oppressive cooperative ventures, as a subset of societies in general, real and hypothetical; and then well-ordered societies, as a subset of ideal societies (somehow ideally ideal, as against merely ideal). This is odd enough, but it gets more peculiar. Rawls then informs us that: “Existing societies are of course seldom well-ordered in this sense, for what is just and unjust is usually in dispute.”47 How are we to read this use of “society”? Is it society-as-ideal-society? But how could it be? There are no ideal societies on the face of the planet! It is currently a category with no real instantiations. So there are no well-ordered societies either, that ideal ideal subset of the merely ideal. So Rawls has to be using the term here in its everyday sense, society-as-actual-society, which would mean either that he meant it that way all along, or that he has switched without warning from the (putative) idealized, Rawlsian term-of-art sense to the conventional sense. But by standard Gricean “conversational implicature,” one does not make a claim weaker than the facts allow. If the city is suffering a heat wave and the temperature outside is over hundred degrees Fahrenheit, we do not say: “It must be at least sixty degrees outside!” So this suggests that Rawls really believes that existing societies are in general cooperative ventures, if few can be categorized as well-ordered, because otherwise the natural thing for him to have said would be that “Existing societies are of course not cooperative ventures for mutual advantage, and so, a fortiori, are not well-ordered.” Thus we face a dilemma: either Rawls is using “society” in a perverse idiosyncratic way or he was massively ignorant of basic societal realities. But in either case, prescriptions for social justice based on such a conception of society or on such a sociology are going to be problematic to apply in the actual world. I think that the most charitable reading (though even it ultimately fails) is to assume that Rawls really had the modern Western democracies in mind when he spoke of “societies.” These are the societies that come closest to fitting the contract model, which he is trying to update for his theory. Pre-modern feudal and slave societies, modern non-Western dictatorships, clearly do not meet the criterion of genuinely being cooperative ventures, and so are not “societies” in the sense he means. Such a reading does not require comprehensive global historical illiteracy on Rawls’s part, just the kind of Eurocentric and androcentric historical illiteracy typical of his time (admittedly global in its own way). Moreover, this interpretation would be consistent with the later explicit announcement, in the 1980s essays and in the 1993 Political Liberalism, that A Theory of Justice’s seeming generality of normative reference was mistaken, and that he was really articulating a theory for the Western nations, drawing on ideas implicit within the Western tradition. But the problem is, of course, that apart from the feminist critique of Western patriarchy, and the racial subordination of people of color (Amerindian expropriation and genocide, African slavery) in the Western (alleged) democracy of which he was a citizen—which motivated Pierre van den Berghe’s famous alternative characterization of “Herrenvolk democracy”—this conception of society and of social justice excludes the formerly colonized nations from the scope of his principles of justice. Uncontroversially historically characterized by structural oppression, they presumably do not meet the bar for being “cooperative ventures” and thus do not count as “societies” proper of the appropriate normative Western kind. Apart from the absurdity of a theory of social justice that prescinds from dealing with structural social injustice—just stop for a second and think about the bizarreness of that—this partitioned normative cartography severs the very historic connections between “the West and the Rest” that are responsible for the latter’s “non-cooperative” nature in the first place! In their introduction to their edited Colonialism and Its Legacies, Jacob Levy and Iris Marion Young point out how Rawls’s framing of these issues, which projects backwards into the past a national isolation completely untrue to the actual international history, is part of a larger pattern of mystification (starting to change only recently) in contemporary political theory: Modernity—the centuries since 1500—has been at once the era of the European state and the era of the European empires . . . From 1500 through 1950, very nearly all of the inhabited world came under the power of one or another European state, or a European-derived settler state . . . Even if the age of European empires is broken into many discrete events, there are many such events . . . that would rank among the largest-scale conquests in human history. And these events include a substantial share of the greatest political evils ever committed. Yet all of this seemed, for many years, tangential to the story of modernity familiar to political theorists and philosophers.48 Formal decolonization enabled an amnesia about the colonial past and an ignoring of the neo-colonial present, problematic enough in political theory, but even worse in political philosophy: By the time of the revitalization of Anglophone political philosophy with the publication of John Rawls’ A Theory of Justice in 1971, decolonization had reshaped the political map. The world was, juridically, almost completely a world of sovereign and formally equal states. And the great debates projected back through modern intellectual history were fundamentally debates about the internal governance of such states ... Colonial and imperial relations—relations between metropolitan states and their conquered colonies and territories—figured approximately not at all . . . Contractarianism in particular treats life outside the state—the kind of state we can recognize as the modern European Weberian state— as prepolitical and extrapolitical, outside the core concerns of political philosophy . . . Social contract theory came more and more to be understood as relevant to the politics of one, self-contained and well-defined, state. If the first great work of social contract theory was Grotius’ Rights of War and Peace and the last was Theory of Justice, the contrast could hardly be more stark. The earlier work is nearly all about interpolity relations including imperial relations; the latter takes as the point of departure for political philosophy a self-governing society closed off from the rest of the world, unaffected by it and not affecting it. And Rawlsian questions (or the questions of his libertarian or communitarian critics) were projected backward through time.49 Unsurprisingly, then, nowhere in any of Rawls’s five directly authored books (or the two lecture collections) is there any mention of Native Americans, the Atlantic Slave Trade, European colonialism and imperialism, the genocide of indigenous populations, or the reality of systemic Euro-domination on a global scale.50 These people, these histories, simply cannot be accommodated by the official contract narrative. The “colonial” character of Rawls’s work and the vast, polyglot secondary literature of Rawlsianism is manifest not in racist representations of people of color, but in the simple fact that this whole body of thought takes as a starting-point what, in the period of modernity for which the contract is supposed to be most appropriate, is only true (to the extent that it is true) for the Euro-population, and for the Euro-population conceptually abstracted out of their political relations of domination over populations of color. Denying the past and present relations of colonialism and neocolonialism, which have created both, Rawls offers us a vision of autarkical polities whose respective levels of development are the result not of a transnational and intra- national (for the United States) system of extraction and exploitation, not of empire, but of different national cultures and traditions. The societies of the West get to be “cooperative ventures,” covered by the norms of justice; the societies of the Rest fall into the outer darkness, normatively registering only as “burdened societies” and “outlaw states.” Thus by the very conceptual framing of his theory, he launders colonialism and imperialism, whitewashing them out of his dikailogical framework. It is the viewpoint of the metropole, the colonizer, the white settler— the viewpoint of colonial racial privilege in a nominally post-colonial epoch, its coloniality manifesting itself not in a crude endorsement of colonialism (that would obviously be inappropriate for the postwar world) but, far more effectively, in a total aprioristic conceptual exclusion
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1 -2017-02-13 05:00:15.0
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1 -Brian Yang
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1 -Oakwood AO
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1 -27
Round
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1 -6
Team
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1 -Harvard Westlake Gross Neg
Title
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1 -Stanford R6 NC
Tournament
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1 -Stanford
Caselist.RoundClass[26]
Cites
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1 -26
Caselist.RoundClass[27]
Cites
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1 -27
EntryDate
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1 -2017-02-13 05:00:13.0
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1 -Brian Yang
Opponent
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1 -Oakwood AO
Round
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1 -6
RoundReport
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1 -AC - Kant
2 -NC - Kant Colorblindness K CRT K Case
3 -1AR - K of Curry
4 -NR - CRT K 1AR K
5 -2AR - 1AR K
Tournament
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1 -Stanford

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