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... ... @@ -1,87 +1,0 @@ 1 -1 2 - 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 4 - 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 6 - 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. 8 - 9 - 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 12 - 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 14 - 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. 16 - 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 19 - 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 arti 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 objecti 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 de 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 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 bene ts from re ection on the moment in its larger, global signi 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 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-af 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. 21 - 22 - 23 -2 24 - 25 -1NC – K 26 - 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. 30 - 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 34 - 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 44 - 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). 47 - 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. 51 - 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” 72 - 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 - EntryDate
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... ... @@ -1,87 +1,0 @@ 1 -Off 2 - 3 -1NC – K 4 - 5 -The 1AC perpetuates the exact abstraction that recreates anti-black violence by ignoring the underlying antagonism inherent to its structure – asking historically racist institutions to try and fix problems is blind optimism that dooms them to recreate anti-blackness. Curry 13 6 -Dr. Tommy J. Curry 13, Assistant Professor, Department of Philosophy, Texas AandM, "In the Fiat of Dreams: The Delusional Allure of Hope, the Reality of Anti-Black Violence and the Demands of the Anti-Ethical", 2013. CC 7 - 8 -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. 9 - 10 - 11 -Their framework arguments are another link – their ethics are colorblind and abstract from reality in a way in a way that is inaccessible to oppressed bodies – they serve as another hoop to jump through before we can engage in racism and are exactly what keeps that oppression prevalent. Curry 13 12 -Dr. Tommy J. Curry 13, Assistant Professor, Department of Philosophy, Texas AandM, "In the Fiat of Dreams: The Delusional Allure of Hope, the Reality of Anti-Black Violence and the Demands of the Anti-Ethical", 2013. CC 13 - 14 - In the post-structuralist era, post-colonial thinking about racism specifically, and difference/otherness generally, has given a peculiar ameliorative function to discourse and the performance of “other-ed” identities. In this era, the dominant illusion is that discourse itself , an act that requires as its basis the recognition of the “other” as “similar,” is socially transformative—not only with regard to how the white subject assimilates the similitude of the “other-ed,” but as an actual activity gauged by the recognition by one white person or by a group of white people in any given scenario, is uncritically accepted and encouraged as anti-racist politics.. In actuality such discourse appeals, which necessitate—become dependent on—(white) recognition, function very much like the racial stereotype, in that the concept of the Black body being the expression and source of experience and phenomena (existential-phenomenological-theorization) is incarcerated by the conceptualization created the discursive catalyst yearning to be perceived by the white thing seeing the Black. Such appeals lend potentiality-hope-faith to the already present/demonstrated ignorance-racism-interest of the white individual, who in large part expresses the historical tone/epistemology of their racial group’s interest. When morality is defined, not by the empirical acts that demonstrate immorality, but the racial character of those in question, our ethics become nothing more than the apologetics of our tyrannical epoch. Ought implies a projected (futural) act. The word commands a deliberate action to reasonably expect the world to be able to sustain or support. For the Black thinker, the Black citizen-subject-slave-(in)human, ought is not rational but repressive. For the oppressed racialized thinker, the ethical provocation is an immediate confrontation with the impossibility of actually acting towards values like freedom, liberty, humanity, and life, since none of these values can be achieved concretely for the Black in a world controlled by and framed by the white. The options for ethical actions are not ethical in and of themselves, but merely the options the immorality of the racist world will allow, thus the oppressed is forced to idealize their ethical positions, eliminating the truth of their reality, and the peeling away the tyranny of white bodies, so that as the oppressed, the can ideally imagine an “if condition,” whereby they are allowed to ethical engage racism from the perspective of: “if whites were moral and respected the humanity of Blacks, then we can ethically engage in these behaviors. Unfortunately, this ought constraint only forces Blacks to consciously recognize the futility of ethical engagement, since it is in this ought deliberation that they recognize that their cognition of all values are dependent not on their moral aspirations for the world, but the determined by the will of white supremacy to maintain virtue throughout all ethical calculations. In short, Black ethical deliberation is censored so that it can only engage moral questions by asserting that whites are virtuous and hence capable of being ethically persuaded towards right action, hence all ethical question about racism, white supremacy and anti-Blackness is not about how Blacks think about the world, but what possibility the world allows Blacks to contemplate under the idea of ethics. These ethics, the ethics that result from this vitiated morality, are not arbiters of oppression at all. They are not a rational calculus that is capable of revealing a categorical imperative, rather they function as the Kantian constraints upon human experience; the synthetic apriori upon which the phenomena of whiteness is the landscape of thinking about Blackness under the Western anthropos. There is an implicit appeal to a hierarchy of being that is both empirical and universal—all man is superior to non-man. Hence, ethics emerges as the product of the overrepresentation of Western man thinking itself—projecting itself—into the future. These ethics, theorized away from the anti-Blackness not within it, only uphold an overdetermined virtue of whiteness. They hold within them no actual delineation between good or bad, only a Puritanical call to reason to turn its attention towards the other-ed created. This attention however relies on the perceptions and caricatures of Black torment that appeal to the whites’ self-assuring imagining of themselves, so that even when confronted with racism and their role as whites thinking about Black people incarcerated within a racist society and dying, these whites can claim that their conceptualization of racism itself, or (inter-sectionally) next to other injustices like poverty, sexism, homophobia, etc. makes them (whites) virtuous. It is the process of, the appeal to, “getting whites to recognize” (racist) oppression that allows the destruction of reality, Black death, to continue unabated, since it is the exact moment that whites are forced to engage racist problems in America, be it the anti-Black violence of American society, which animates the aversion of the justice system, the police state, the white citizenry, or the practice of American democracy itself—where the death of Black people/criminals/deviants/thugs remain normal and justified by whites—that they, the white(s) thinking about racism, get to impose upon Black reality, a racist moral maxim, namely that racism is not death and beyond –the end of~-~-ethical calculus or moral evaluation, but ultimately contingent in America and of measurable consequence so much so that must be weighed next to the other democratic values that preserve this great white society: security, safety, individuality, property, profit, and freedom, the very values that when enacted by whites continue to perpetuate one ultimate end, the death of Blacks. 15 - 16 -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 02 17 -Leonardo, Zeus. "The souls of white folk: Critical pedagogy, whiteness studies, and globalization discourse." Race, ethnicity and education 5.1 (2002): 29-50. CC 18 - 19 -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 arti 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 objecti 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 de 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 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 bene ts from re ection on the moment in its larger, global signi 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 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-af 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. 20 - 21 - 22 -The role of the ballot is to vote for the debater who best challenges anti-blackness. Fiat is illusory so they don’t get to weigh the case. 23 - 24 -Debate is a speech act – debaters should be held accountable for their discourse in round. Vincent 13 25 -Chris Vincent, Re-Conceptualizing our Performances: Accountability in Lincoln Douglas Debate, Vbriefly, 2013. NS 26 - 27 -The question then becomes how does our discourse justify what we believe? For many debaters it is the gaming aspect of debate that allows us to assume that our speech can be disconnected from the speech act. The speech can be defined as the arguments that are placed on the flow, and is evaluated in the context of what is the most logical and rational argument to win the round. The critical distinction is the speech act, which is the performance of that discourse. It’s not what you say, but what you justify. Understanding the speech act requires critically assessing the ramifications of the debaters discourse. Debate is in and of itself a performance. To claim that it is not is to be divorced from the reality of what we do. We must evaluate what a debaters performance does and justifies. For white debaters it is easy to view the discourse as detached from the body. For those with privilege in debate, they are never forced to have their performance attached to them but instead their arguments are viewed as words on paper. They are taught to separate themselves from any ideologies and beliefs, and feel that there is no consequence to what they say. It becomes the way in which they justify what is deemed as “rational” and “logical” thought. The argument sounds like it will be competitive so it is read but it is deemed as just an argument. Judges evaluate this as just a speech. This becomes what I deem as a performance by the body, rather than a performance of the body. Performances by the body allow debaters to not be held accountable to the words they say. Words are seen as divorced from any meaning outside of the flow, versus the performance of the body where the words are attached to the body itself. Debaters often insert the performance by the body, when they make arguments that they claim that they do not believe, but think it is the best strategy for the round. This is a false assumption, since for black debaters meaning is always connected to their bodies. The best strategy should never be one that at the same time justifies acts of racism. 28 - 29 - 30 -1NC – K 31 - 32 -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 33 -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 34 -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. 35 - 36 -Their notion of the first amendment is colorblind and obscures anti-black violence. Boler 04 37 -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. 38 -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 39 - 40 -Turns the case – hate speech does real violence to people of color and necessarily locks in relationships of domination. Delgado and Stefacic 09 41 -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 42 -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 43 - 44 -Anti-Blackness is the root cause of white supremacy and social oppression. It outweighs the case. Heitzeg 15 45 - 46 -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. 47 - 48 -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 49 - 50 -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 51 -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). 52 - 53 -¶ 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. 54 - 55 - 56 -Their refusal of minority voices is a conscious choice. Delgado 84 57 - 58 -Delgado, Richard. "The imperial scholar: Reflections on a review of civil rights literature." University of Pennsylvania Law Review 132.3 (1984): 561-578. 59 - 60 - 61 -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 62 - 63 -Case 64 - 65 -UV 66 - 67 -1. Anti blackness is worse harm under fairness – it stops people from engaging in the activity as a whole 68 - 69 -2. Fairness for who? This presumes a colorblind ideal notion of fairness which we impact turn – slight skews in round are necessary to compensate for the non ideal reality that queer debaters are always excluded 70 - 71 -3.The use of procedural requirements to bracket off criticism reinforces oppression – you should endorse a rejection of those procedures. Prosise 96 72 -Prosise, Theodore O., Greg R. Miller, and Jordan P. Mills. "Argument fields as arenas of discursive struggle." Argumentation and Advocacy 32.3 (1996): 111. 73 - 74 -A central aspect of argument field theory left unexamined has been the role of power in the establishment of argumentative author- ity in fields. The importance of the discursive struggles over the standards that distinguish legitimate and illegitimate forms of expression has also eluded thorough analysis. Critical theorists must recognize the practical discursive struggles of social agents.26 The actual symbolic practices of agents must be understood if we are to analyze how logical types become invested with authority. The establishment of authority may preclude participation in the field and marginalize those who could or should have a say. Field theory is better conceptualized by considering argument fields as social arenas of struggle, accounting for the key elements and factors that make fields dynamic. Toulmin, while recognizing the role of argumentative conflict in the establishment of authority, originally employed an evolutionary model in his explanation of the development of disciplinary fields. In Human Understanding, he argues that forums of competition allow the best warrants of a field to become accepted. The dominant warrants, he believes, did not develop from an "arbitrary authority or contest for power."27 His evolutionary perspective embraces the metaphor of change as progress. Condensing this, Robert Rowland explains, "The theories which best meet a discipline's needs will survive."28 The work of Thomas Kuhn, however, amply demonstrates the limits of such an evolutionary perspective of epistemic development.29 And although Toulmin now would not embrace the container model of knowledge accumulation, the original discussion of fields lacked an emphasis on the dynamics of social struggles for symbolic legitimacy, which may explain the current limitations in understanding how authority is produced and articulated in social space.The shared purposes of social agents also has been offered as a useful descriptor of argument fields. Rowland argues a conception of fields based on the shared purpose of the agents operating within the field.30 Zarefsky summarizes this notion, indicating that "two arguers are in the same field if they share a common purpose, and . . . the arguments they produce will differ in important ways from arguments which derive from a different purpose."31 In short, participants argue over what constitute the "best way" to engage in activities within the area of inquiry.:;2 This conception of fields begins to define a social arena based on an agent's participation in a struggle over the instrumental means and terminal states of a social field. It should be recognized that participants also share in the struggle for scarce resources-be they economic, cultural, political or symbolic.These agents argue over the legitimate perspective on what should constitute a claim to know, so they share in a struggle for epistemic legitimacy. The resolution of this struggle determines what types of argumentative proof are legitimated in the field. Extending from Toulmin's work, many scholars recognize that the symbolic negotiation of authority within social fields is ongoing. Such negotiation requires a discursive struggle in which arguments are presented and then accepted or rejected by the community of participants. 33 Charles Kneupper notes that "social fields are strongly influenced by rhetorical practice in both their continuation and change."34 Furthermore, James Klumpp suggests that "when a community encounters an experience there are normally multiple understandings of it. Through communication the community works out its choice of ways to respond (that is, its definition of the situation) and then sanctions ... appropriate action."35 Social actors categorize events in order to respond to those events in appropriate ways. This categorization is based, primarily, on the language practices of the social field. 36 For example, welfare policies frame cultural myths of an "underclass" and may exacerbate the problems of social members of lower economic status. The connotations associated with the term "underclass," such as chronic laziness, stigmatize members of the group. The policies that are formulated, therefore, are based on the perceived "character" of the members of the underclass, rather than the larger social, historical, and economic causes of their economic status. The implication is that action is often based on the successful symbolic struggles which categorize events, rather than on "good reasons."37 Since new ideas are filtered through taken-for-granted social assumptions, there is a general conservative social orientation toward argument. This helps explain how argument fields are maintained. Craig Dudczak, while recognizing that struggles take place within disciplines, claims that overall participants "maintain general disciplinary assumptions."38 Wenzel writes that "argument fields exhibit a persistence over time"39 and for Charles Willard "fields exist … through the ongoing defining activities" and the "recurring themes in a group's practices." In other words, certain symbolic forms of authority are reproduced and others are limited socially. Certain forms of argumentative support are celebrated and other forms are dismissed, based on the social forms of authority previously established by the agents participating in the field. But fields are not always stable. Postmodern scholars remind us that diversity and differences are the norm. Hence, attention must be paid to the diversity of discursive struggles that challenge traditional forms of social authority. Communities of memory, necessary for social negotiation, are partially established through discursive practices. But within the community, conflict is ever-present. So, what is the relationship between the community and the conflict within the field? Furthermore, what are the implications of the struggle? Hanson argues that the forums of field disputes can serve to "exclude" an individual "from further discussions. " 42 He is certainly correct; however, it is more than just a forum that excludes discourse. The successful symbolic struggle to define social authority excludes individuals and perspectives from participation and consideration in social fields. Despite these contributions, there has been insufficient discussion of the pragmatic struggles in which agents are engaged. The community of argument scholars will be served by a general theory of social fields in order to evaluate particular examples. Over a decade ago, Zarefsky contended that "we need an account of the growth and demise of fields against which we can check individual claims."4:1 What the current discussion lacks, specifically, is a consideration of the role that symbolic struggles of categorization of "appropriate" and "inappropriate" forms of authority plays in the stability and change of a social field's assumptions, which serve as the basis for the subsequent social structuring of practices. Current field theory fails to account adequately for social power and the conflict over scarce symbolic resources at the base of that social power. The study of such struggle is important because it relates to the stability and legitimacy of the dominant forms of discourse. Subsequently, there has been little attention to the real world implications of marginalizing alternative arguments within fields. For example, Nancy Fraser argues that the conceptual framing of social welfare policies excludes meaningful interpretation of social needs from a feminist perspective.44 The social forms of authority surrounding the welfare debate are defined by political "professionals." Consequently, the interpretation of a welfare recipient's "needs" and "interests" are considered primarily from the dominant political perspective. Excluded from the political debate are alternative voices and arguments. Lack of attention to the symbolic means of exclusion, such as this, is troubling. Rhetorical scholars need a theory which can help explain how and why certain arbitrary expressions are celebrated, while others are excluded altogether due to discursive struggles within dynamic social fields. Furthermore, scholars should be encouraged to explore the symbolic means agents employ to challenge traditionally dominant forms of argumentative authority. 75 - 76 - 77 -Independently, bad Strat skew – they pigeonhole the NEG to turns to the AFF contention – that’s uniquely bad since the AFF has infinite prep to choose advantages and can choose a hyper specific advocacy that don’t link to – NCs and Ks are key to neg flex. 78 -FW 79 - 80 - 81 -You must evaluate the consequences of their advocacy – 82 - 83 -Attempting to abstract away from social realities is repugnant and eliminates the possibility of a concrete solution to oppression. Curry 14 84 - 85 -Curry, Tommy J. Ph.D., Associate Professor of Philosophy, Texas A and M University “The Cost of a Thing: A Kingian Reformulation of a Living Wage Argument in the 21st Century.” Victory Briefs, January/February 2015. CC 86 - 87 -Despite the pronouncement of debate as an activity and intellectual exercise pointing to the real world consequences of dialogue, thinking, and (personal) politics when addressing issues of racism, sexism, economic disparity, global conflicts, and death, many of the discussions concerning these ongoing challenges to humanity are fixed to a paradigm which sees the adjudication of material disparities and sociological realities as the conquest of one ideal theory over the other. In “Ideal Theory as Ideology,” Charles Mills outlines the problem contemporary theoretical-performance styles in policy debate and value-weighing in Lincoln-Douglass are confronted with in their attempts to get at the concrete problems in our societies. At the outset, Mills concedes that “ideal theory applies to moral theory as a whole (at least to normative ethics as against metaethics); since ethics deals by definition with normative/prescriptive/evaluative issues, it is set against factual/descriptive issues.” At the most general level, the conceptual chasm between what emerges as actual problems in the world (e.g.: racism, sexism, poverty, disease, etc.) and how we frame such problems theoretically— - EntryDate
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... ... @@ -1,67 +1,0 @@ 1 -Shell General 2 -Neoliberalism is a mafia protection racket – it defunds schools of private funding and makes them come to corporations for funding. This logic structures what speech and knowledge are free in the first place. The aff misdiagnoses the problem and lets neoliberalism slip through the cracks. Bagakis 11/15/16 3 - 4 -Gus Bagakis retired philosophy instructor at San Francisco State University and author of "Seeing Through The System: The Invisible Class Struggle in America," October 15, 2016 “Neoliberalism's Decades-Long Attack on Public Universities” 5 - 6 -One aspect of the project of neoliberalism was to reshape the population's understanding of the purpose of public institutions, such as schools and universities, to fit the corporate model. This transformation was part of a larger cultural shift that began in the '70s and '80s, when policy-makers started to see higher education more as a private (rather than public) good.¶ The plan to transform the higher education system to meet the needs of neoliberalism can be most clearly seen in a memo sent by Lewis Powell, a future member of the Supreme Court, to the US Chamber of Commerce in 1971. The memo was a response to some setbacks that befell the business community, ranging from government regulations on the environment to occupational safety and consumer protection laws. The memo presented a framework for the conservative reaction.¶ Powell stated:¶ One of the bewildering paradoxes of our time is the extent to which the enterprise system tolerates, if not participates in, its own destruction.¶ The campuses from which much of the criticism emanates are supported by (i) tax funds generated largely from American business, and (ii) contributions from capital funds controlled or generated by American business. The boards of trustees of our universities overwhelmingly are composed of men and women who are leaders in the system.¶ Further, he argued that¶ ... it is essential that spokesmen for the enterprise system ~-~- at all levels and at every opportunity ~-~- be far more aggressive than in the past ... There should be no hesitation to attack the Naders, the Marcuses and others who openly seek destruction of the system. There should not be the slightest hesitation to press vigorously in all political arenas for support of the enterprise system. Nor should there be reluctance to penalize politically those who oppose it.¶ The Powell memo's plan was to: a) defund public higher education; b) then "save" the universities with ideologically focused corporate funding friendly to "free enterprise;" c) turn universities into corporations; and d) turn the students into consumers who became educated labor products.¶ Neoliberal Plan for Defunding Universities ¶ States provide much of the funds for higher education but need to balance their budgets. So when tax revenues fall, higher education suffers, since it is a lower priority than Medicare, prisons and K-12 education. In addition, large corporations often pay little or no state income tax in states where they have large operations. In a 2011 report, the Center on Budget and Policy Priorities concluded that at least 46 states have imposed cuts in the funding of higher education.¶ The American Legislative Exchange Council (ALEC) ~-~- a nationwide association of state legislators and corporations ~-~- best expressed the neoliberal perspective. It successfully lobbied both the states and the federal government to reduce corporate taxes and, in effect, deprive public universities of the state and federal funds they needed.¶ In an Americans for Tax Fairness fact sheet on corporate tax rates, we can see that:¶ The corporate share of federal tax revenue has dropped by two-thirds in 60 years.¶ General Electric, Boeing, Verizon and 23 other profitable Fortune 500 firms paid no federal income taxes.¶ US corporations dodge $90 billion a year in income taxes.¶ US corporations officially hold $2.1 trillion in profits offshore.¶ Tax avoidance, plus lobbying that reduced corporate taxes, diminished the revenue for social programs, especially education. This reduced funding was coordinated with a public relations campaign claiming that public schools were failing, and that they should be privatized and would be improved if they were turned into profit-making ventures. The project is already running for K-12 education with the charter school movement, and now it's being used in higher education, as federal and state governments have gradually reduced funding.¶ The least discussed reason for reduced state revenue for social programs is our ever-growing defense budget. The Pentagon spends more on war than all 50 states combined spend on health, education, welfare and safety. Even prior to the arrival of neoliberalism, military adventures drained money from the social budget. In 1935, Gen. Smedley Butler wrote a book titled, War Is a Racket, in which he exposed greedy profit-making corporations as instigators of imperialism and war. In 1961, President Eisenhower warned of the military industrial complex as a hidden force in US politics. But the military budget is higher today than at any point since the Eisenhower administration.¶ We now have a new neoliberal-inspired military industrial complex consisting of companies, agencies, militarized policing, hidden budgets, a "deep state," private mercenaries and lobbyists that make Eisenhower's warning mild by comparison. Our budget priorities keep the country on a war footing, and our economy allows for military and homeland departments to be virtually untouchable. The current excuse for funds is "terrorism," but under neoliberalism, the actual purpose is to control the world's resources for American capitalism and to stop other countries from competing with us. As Colonel Wilkerson, echoing general Butler, stated recently: "We've privatized the ultimate public function: war ... In many respects it is now private interests that benefit most from our use of military force." A few universities are beneficiaries of war spending through their research for the war machine, but most are losers due to the financial and educational effects of the loss of funding, while the war machine grows.¶ "Saving" Defunded Universities With Corporate Funding¶ A partial replacement for the loss of public funds comes from corporate and philanthropic "gifts" and industry contracts for universities. Groups of conservative millionaires like the Koch brothers have created institutions to push the corporate agenda. They have infiltrated universities and introduced the neoliberal worldview through think tanks and programs designed to give "assistance" to those institutions that would accept their money and programs. These groups, with the combined help of the corporate controlled press and a sophisticated public relations campaign, eased the transition to the corporatization of universities.¶ Turning Universities Into Corporations¶ A 2014 Institute for Policy Studies report finds that the outcome of treating education as a commodity has led to universities mimicking business models. Presidents, chief executives and a layer of bureaucrats earning excessive salaries were established, while the earnings of the faculty declined, largely because tenured and tenure-track faculty were replaced by adjuncts (part-time faculty) and temporary faculty. Instead of giving primary focus to education, scholarship and research, colleges and universities began marketing themselves as products worth purchasing by the consumer. Science and humanities faculty were encouraged to become entrepreneurs and seek ways to profit directly from their intellectual and technical pursuits.¶ Mark Yudof, former president of the University of California, conceded that the university needed to stop viewing itself as a public institution and consider itself a "hybrid" university, bridging the divide between private and public institutions. In a time of scarce resources, privatization has emerged as a potential replacement for the historic model of community support of public universities. The danger is that when corporations fund universities, they get influence over studies and analysis produced by universities, as well as influence over the perspectives and career paths of large numbers of students. They also get use of vast resources for private gain and tax breaks associated with making donations.¶ Students as Consumers and Educated Labor Products¶ Fifty years ago, students often pursued their favorite high school subjects in college, assuming that the degree itself would guarantee a job. Not so today, as living expenses and tuition have risen. Students and their families paying the bill see themselves more as consumers of a commodity rather than engaging in a learning process. Because there is no guarantee of a good job after graduation, universities increasingly connect learning with the skills needed for the hard-to-enter job force. Education more and more becomes job training, and students become educated labor products.¶ By ensuring the need for outside sources of funding, neoliberalism set the context that led to the growth of tuition. When the federal government opened its student loan service to profit-making corporations, profit dominated. The privatized loan industry, through predatory lending schemes, offered loans to all students ~-~- even to those who sometimes could not afford them. Their profit motive, combined with the laws passed by a highly lobbied Congress, eventually made the $1.3 trillion student debt the worst kind of debt for students, but the best for banks and debt collectors. Currently, all involved in the student loan industry make money from student debt: banks, private investors and even the federal government. This action has led to the rise of for-profit colleges whose goal was often to exploit the poor who couldn't afford to enter higher education in the first place. And finally, as Kenneth Saltman pointed out, "Shifting the costs of higher education onto students represents a kind of debt spending by youth to fund the military and corporations."¶ Resisting Neoliberalism¶ Even though neoliberalism is in decline due to the 2008 depression and weak recovery, its values and accomplishments have staying power. By using rhetoric like "individual freedom," "liberty," "personal responsibility," "privatization" and the "free market," it was able to undo much of the New Deal and restore corporate power, and in the case of higher education, be responsible for the rise in tuitions and decline in educational quality.¶ The neoliberal plan for public universities is to defund, then refund with strings attached, corporatize them into profit-makers, and turn the students into educated labor products that would fit into the economy. Its effects are most clearly expressed by Grover Norquist's quote about government: "I don't want to abolish government. I simply want to reduce it to the size where I can drag it into the bathroom and drown it in the bathtub." Neoliberalism doesn't want to abolish universities; it simply wants to turn them into profitable corporations that will maintain and promote the neoliberal version of capitalism. 7 - 8 -Our critique independently outweighs the case - neoliberalism causes extinction and massive social inequalities – the affs single issue legalistic solution is the exact kind of politics neolib wants us to engage in so the root cause to go unquestioned. Farbod 15 9 - ( Faramarz Farbod , PhD Candidate @ Rutgers, Prof @ Moravian College, Monthly Review, http://mrzine.monthlyreview.org/2015/farbod020615.html, 6-2) 10 -Global capitalism is the 800-pound gorilla. The twin ecological and economic crises, militarism, the rise of the surveillance state, and a dysfunctional political system can all be traced to its normal operations. We need a transformative politics from below that can challenge the fundamentals of capitalism instead of today's politics that is content to treat its symptoms. The problems we face are linked to each other and to the way a capitalist society operates. We must make an effort to understand its real character. The fundamental question of our time is whether we can go beyond a system that is ravaging the Earth and secure a future with dignity for life and respect for the planet. What has capitalism done to us lately? The best science tells us that this is a do-or-die moment. We are now in the midst of the 6th mass extinction in the planetary history with 150 to 200 species going extinct every day, a pace 1,000 times greater than the 'natural' extinction rate.1 The Earth has been warming rapidly since the 1970s with the 10 warmest years on record all occurring since 1998.2 The planet has already warmed by 0.85 degree Celsius since the industrial revolution 150 years ago. An increase of 2° Celsius is the limit of what the planet can take before major catastrophic consequences. Limiting global warming to 2°C requires reducing global emissions by 6 per year. However, global carbon emissions from fossil fuels increased by about 1.5 times between 1990 and 2008.3 Capitalism has also led to explosive social inequalities. The global economic landscape is littered with rising concentration of wealth, debt, distress, and immiseration caused by the austerity-pushing elites. Take the US. The richest 20 persons have as much wealth as the bottom 150 million.4 Since 1973, the hourly wages of workers have lagged behind worker productivity rates by more than 800.5 It now takes the average family 47 years to make what a hedge fund manager makes in one hour.6 Just about a quarter of children under the age of 5 live in poverty.7 A majority of public school students are low-income.8 85 of workers feel stress on the job.9 Soon the only thing left of the American Dream will be a culture of hustling to survive. Take the global society. The world's billionaires control $7 trillion, a sum 77 times the debt owed by Greece to the European banks.10 The richest 80 possess more than the combined wealth of the bottom 50 of the global population (3.5 billion people).11 By 2016 the richest 1 will own a greater share of the global wealth than the rest of us combined.12 The top 200 global corporations wield twice the economic power of the bottom 80 of the global population.13 Instead of a global society capitalism is creating a global apartheid. What's the nature of the beast? Firstly, the "egotistical calculation" of commerce wins the day every time. Capital seeks maximum profitability as a matter of first priority. Evermore "accumulation of capital" is the system's bill of health; it is slowdowns or reversals that usher in crises and set off panic. Cancer-like hunger for endless growth is in the system's DNA and is what has set it on a tragic collision course with Nature, a finite category. Secondly, capitalism treats human labor as a cost. It therefore opposes labor capturing a fair share of the total economic value that it creates. Since labor stands for the majority and capital for a tiny minority, it follows that classism and class warfare are built into its DNA, which explains why the "middle class" is shrinking and its gains are never secure. Thirdly, private interests determine massive investments and make key decisions at the point of production guided by maximization of profits. That's why in the US the truck freight replaced the railroad freight, chemicals were used extensively in agriculture, public transport was gutted in favor of private cars, and big cars replaced small ones. What should political action aim for today? The political class has no good ideas about how to address the crises. One may even wonder whether it has a serious understanding of the system, or at least of ways to ameliorate its consequences. The range of solutions offered tends to be of a technical, legislative, or regulatory nature, promising at best temporary management of the deepening crises. The trajectory of the system, at any rate, precludes a return to its post-WWII regulatory phase. It's left to us as a society to think about what the real character of the system is, where we are going, and how we are going to deal with the trajectory of the system ~-~- and act accordingly. The critical task ahead is to build a transformative politics capable of steering the system away from its destructive path. Given the system's DNA, such a politics from below must include efforts to challenge the system's fundamentals, namely, its private mode of decision-making about investments and about what and how to produce. Furthermore, it behooves us to heed the late environmentalist Barry Commoner's insistence on the efficacy of a strategy of prevention over a failed one of control or capture of pollutants. At a lecture in 1991, Commoner remarked: "Environmental pollution is an incurable disease; it can only be prevented"; and he proceeded to refer to "a law," namely: "if you don't put a pollutant in the environment it won't be there." What is nearly certain now is that without democratic control of wealth and social governance of the means of production, we will all be condemned to the labor of Sisyphus. Only we won't have to suffer for all eternity, as the degradation of life-enhancing natural and social systems will soon reach a point of no return. 11 - 12 -The alternative is a relentless class-based politics that works against the university’s economic underpinnings – only engaging in a critique that focuses on the economic forces at play in public universities can we resolve capitalism. Oparah 14 13 -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). 14 -¶ 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. 15 - 16 -The role of the judge is to be a critical analyst testing whether the underlying assumptions of the AFF are valid. This is a question of the whether the AFF scholarship is good – not the passage of the plan. 17 - 18 -First, neoliberalism operates through a narrow vision of politics that sustains itself through the illusion of pragmatism. We should refuse their demand for a plan. Blalock, JD, 2015 19 -(Corinne, “NEOLIBERALISM AND THE CRISIS OF LEGAL THEORY”, Duke University, LAW AND CONTEMPORARY PROBLEMS Vol. 77:71) MG from file 20 -RECOVERING LEGAL THEORY’S RELEVANCE? The lens of neoliberalism not only allows one to see how these narratives fit together to reveal a larger rationality but also to understand why the solutions they propose fail to challenge or even escape that rationality. I address the three most prominent prescriptions being offered by critical legal scholars today: (1) a pragmatic turn to politics, (2) a return to more explicit normative and moral claims, and (3) acceptance in recognition that the decline is merely an ebb in the regular cycles of theory. A. Prescription: More Politics The most common prescription for recovering legal theory’s vibrancy is a greater participation in politics—scholars should eschew descriptive projects, especially those that might be used to bolster the conservative argument on an issue or in a case, as well as those critiques that appear purely academic, in favor of projects intended to influence the courts in progressive ways.134 One can certainly understand why this is a tempting prescription in light of the success of explicitly conservative legal theory and methods135 and concern that left-leaning legal academics have not taken up this charge.136 However, this demand for political engagement has unintended consequences: It legitimizes the current frameworks. As the Roberts Court further embraces neoliberal principles, persuading the Court means functioning within neoliberal logic and is therefore counterproductive for the revitalization of critical legal theory. Moreover, this political prescription tends to produce a reified notion of what counts as politics, limiting the political as well as intellectual potential of theoretical projects. For example, in the wake of the of the Court’s incremental move toward recognition of same-sex marriage in United States v. Windsor, 137 many progressive legal scholars have written on the subject hoping to nudge the Court toward full recognition. But in light of Nancy Fraser’s work, one should ask just what kind of recognition that would be—whether it would displace materialist claims or reify forms of identity.138 Full recognition of same-sex marriage is a destination toward which the Court is already heading and an area where the public discourse has largely already arrived. Emphasizing this area also participates in the ideology of erasure, leading many to believe that the current Court is making progressive interventions because it is progressive on identity and cultural issues, even though Windsor was handed down in a term in which the Court retrenched on significant materialist issues and embodied a number of blatantly neoliberal positions.139 Even if not writing for the Court, a legal scholar’s attempt to be useful to those in the profession who share her political goals risks constraining the legal profession and its own professional and disciplinary norms.140 In this way, the focus on concrete political effects helps foster legal thought’s “considerable capacity for resisting self-reflection and analysis,”141 which has only become more pronounced in the face of the neoliberalization of the academy as instrumental knowledge is increasingly privileged. When attempting to counter hegemony, what one needs to do is disrupt the legible—to expand the contours of what is considered political—not to accept the narrowly circumscribed zone of politics neoliberalism demarcates. Therefore, it is crucial not to judge critical legal scholarship according to whether its political impact is immediate or even known, and thus a turn to politics is not the remedy for legal theory’s marginalization. B. Prescription: More Normativity Some scholars recognize the danger of embracing a reified notion of politics that unwittingly reaffirms the status quo, and instead champion assertions of substantive morality to counteract the cold logics of pragmatism and efficiency.142 This proposed solution advocates a return to more substantive ideals of justice and equality. Although it may be true that change will ultimately require wresting these liberal and democratic ideals from neoliberalism and refilling their hollowed-out forms, this approach entails a number of pitfalls. The first is simply the inevitable question regarding moral claims: Whose morality is to be asserted? This question has created crisis on the left before, even producing some of the schisms among the crits recounted above. Neoliberalism does not have to contend with this issue—it foregrounds its formal nature and holds itself out as not needing to create a universal morality or set of values. More importantly, it claims to provide a structure in which one can keep one’s own substantive morals. Therefore, neoliberalism’s logic cannot be countered by moral claims without first disrupting its illusion of amorality. The ineffectiveness of the progressive critique of law and economics, based in claims of distributive justice and moral imperative, provides a clear example of how the neoliberal discourse can capture normative claims. The work of Martha McCluskey, one of the few legal scholars writing about neoliberalism in the domestic context over the last ten years, highlights the extent to which the “distributive justice” critique, which argues against the privileging of efficiency over equality and redistribution, fails to challenge the underlying logic.143 McCluskey illustrates how critics of law and economics who critique the approach’s inattention to redistribution have already ceded the central point, by arguing within the conventional views that “efficiency is about expanding the societal pie and redistribution is about dividing it.”144 “Neoliberalism’s disadvantage is not, as most critics worry, its inattention to redistribution, but to the contrary, its very obsession with redistribution as a distinctly seductive yet treacherous policy separate from efficiency.”145 In order to challenge this rationality, she explains, one cannot “misconstrue neoliberalism as a project to promote individual freedom and value-neutral economics at the expense of social responsibility and community morality.”146 One must instead recognize that neoliberalism has redefined social responsibility and community morality. Therefore, one must refuse the false dichotomy between the economic and cultural spheres (a division that allows the neoliberal discourse to displace cultural concerns to a moment after the economic concerns have been dealt with). Merely asserting the falsity of this separation is not sufficient. Neoliberalism has real effects in the world that strengthen its ideological claims.147 Therefore, it is not a struggle that can take place solely on the terrain of discourse or ideology. Like neoliberalism generally, law and economics does not hold itself out as infallible or as an embodiment of social ideals, but instead as the best society can do. It functions precisely on the logic that there is no alternative. Like Hayek’s theory, “law and economics is full of stories about how liberal rights and regulation designed to advance equality victimize the all-powerful market, undermining its promised rewards.”148 In light of this, it is a mistake to see neoliberalism as disavowing moral principles in favor of economic ones; it instead folds them into one another: “The Law and Economics movement is rooted in the moral ideal of the market as the social realization of individual liberty and popular democracy.”149 Neoliberalism’s approach presents itself not only as efficient, but also as just. Legal scholars need to recognize neoliberalism’s focus on the market is not only a form of morality, but also a powerful one. They cannot assume that in a battle of moralities the substantive communitarian ideal will win.150 Furthermore, the neoliberal framework, through its reconfiguration of the subject as an entrepreneur, justifies material inequalities—in contrast to liberalism’s mere blindness to them. Consequently, merely asserting the existence of material inequalities does not immediately undermine neoliberalism’s claims. Far from the engaged citizen who actively produces the polis in liberal theory, the neoliberal subject is a rational, calculating, and independent entity “whose moral autonomy is measured by her capacity for ‘self-care’—the ability to provide for her own needs and service her own ambitions.”151 The subject’s morality is not in relation to principles or ideals, but is “a matter of rational deliberation about costs, benefits, and consequences.”152 If efficiency is the morality of our time, the poor are cast not only as “undeserving” but also as morally bankrupt. Therefore, efficiency replaces not only political morality, but also all other forms of value. Therefore, critics are right that other forms of value have been crowded out; but the logic is deeper than they seem to realize. It goes beyond the scope of what is being done in the legal academy. It is a logic that organizes our time and therefore must be countered differently. More normativity is not the answer to legal theory’s marginalization because neoliberalism’s logic can accommodate even radically contradictory moralities under its claims of moral pluralism. Ethical claims of justice and community may need to be made, but one must first recognize that countering hegemony is harder than merely articulating an alternative; hegemony must be disrupted first. Disrupting neoliberalism’s logic thus entails not only recognizing that neoliberalism has a morality, but also taking that morality seriously. C. Prescription: Acceptance The final response of legal theorists to their field’s marginalization is to dismiss it as merely the regular ebb and flow of theory’s prominence.153 Putting it in terms of Thomas Kuhn’s theory of paradigm shifts, the contemporary moment is just the “normal science” of the paradigm brought about by the crits’ revolutionary moment in the 1970s and 1980s.154 The vitality, this narrative contends, will return when a competing paradigm emerges. There are several problems with this perspective on the decline. First, it entails an error in logic insofar as it takes an external perspective. Legal theory does not inevitably rise and fall but only according to the work being produced; or, to put it another way, this descriptive account of theory’s ebb can be a selffulfilling prophecy insofar as it decreases scholars’ motivation to pursue and receptivity toward theoretical projects. Second, legal scholars cannot be content with normal science when it has the kinds of consequences for democracy and economic inequality that neoliberal hegemony does. The Court is currently entrenching these principles at an unprecedented rate in areas of free speech, equal protection, and antitrust to name a few.155 At first, such acceptance appears to be what Janet Halley is advocating in “taking a break from feminism,”156 but upon closer inspection it is not. Halley is cautioning against the left’s nostalgia—concluding that operating under the banner of feminism and a preoccupation with “reviving” feminism looks backward instead of forward.157 Critical legal scholarship instead needs to be “self-critical” and to recognize that “how we make and apply legal theory arises out of the circumstances in which we recognize problems and articulate solutions.”158 Theory must arise from engagement with the current circumstances. Acceptance cannot be the solution; legal theory must produce the momentum to move forward. VII CONCLUSION: WHERE WE GO FROM HERE The way forward cannot entail a return to reified notions of theory any more than by a return to reified notions of politics. Critical legal scholars should not attempt to revitalize previous critical movements but, instead, reinvigorate the practice of critique within the legal academy. A. Why Critique Naming neoliberalism is necessary in order to counteract it. Without explicit identification, there can be no truly oppositional position. It also makes legible connections that would otherwise go unseen, as was the case with scholars writing about the decline. But there must also be a step beyond naming: critique. Critique means taking neoliberal rationality seriously. The approach must not be dismissive, merely pointing out neoliberalism’s inconsistencies, but instead must recognize that neoliberal rationality is inherently appealing. One cannot merely indict efficiency as contrary to more substantive values, but one also must recognize that efficiency is inextricably tied to beliefs about liberty, dignity, and individual choice, as well as corresponding beliefs about the capacities and limits of the state to effectuate change. No one is arguing that neoliberalism is the best of all possible worlds; in fact, its power comes precisely from abandoning such a claim. In recognizing its hegemonic status, legal scholars can understand the critical task as being more than just demystification. Neoliberal does not paper over inequalities after all; it justifies them. Ultimately, critique should function as a means of opening the conversation in ways that go beyond the picture of law painted by the Roberts Court—to refuse to allow the legal academy to be merely mimetic of a Court that is clearly embracing a neoliberal vision. Critique provides a means of thinking about law as not limited by what the markets can tolerate; it is the means through which one can discover a form of resistance that goes beyond nostalgia for the liberal welfare state. And finally, critique is simply a means of asserting that things can be different than they are in a world that constantly insists that there is no alternative. 21 - 22 -DA Shell 23 -Title IX investigations are increasing. Kingiade 16. 24 -Tyler Kingkade. “There Are Far More Title IX Investigations Of Colleges Than Most People Know”. Huffington Post. June 16, 2016. http://www.huffingtonpost.com/entry/title-ix-investigations-sexual-harassment_us_575f4b0ee4b053d433061b3d AGM 25 -The growing backlog of federal Title IX investigations into colleges and universities has now topped 300, but many people, including students at the schools under scrutiny, aren’t aware of those reviews. As of Wednesday, there were 246 ongoing investigations by the U.S. Department of Education into how 195 colleges and universities handle sexual assault reports under the gender equity law. A Freedom of Information Act request by The Huffington Post revealed another 68 Title IX investigations into how 61 colleges handle sexual harassment cases. This puts the total number of Title IX investigations officially dealing with sexual harassment at 315. (Under civil rights statutes, sexual assault is defined as an extreme form of sexual harassment.) But dozens of those Title IX reviews receive no publicity because they don’t specifically deal with sexual assault. If a school is being investigated for allegedly mishandling harassment cases, but not reports of assault, it doesn’t appear on the list regularly given to reporters by the Education Department. Major educational institutions — including New York University, the University of Minnesota-Twin Cities, Georgia State University, Florida AandM University, Rutgers University, Howard University, the University of Oklahoma, Kent State University and the University of Wisconsin-La Crosse — have escaped public scrutiny because Title IX investigations into their actions haven’t been highlighted by the government or the schools themselves.SUNY Broome Community College is under three investigations that haven’t been previously disclosed. The Education Department has no plans to regularly issue a list of cases involving sexual harassment only, an official told HuffPost. 26 - 27 -AFF guts effectiveness of Title IX – it causes first amendment opportunism. Schauer 04 28 -Schauer, Frederick David and Mary Harrison Distinguished Professor of Law. "The boundaries of the First Amendment: A preliminary exploration of constitutional salience." Harvard Law Review (2004): 1765-1809. 29 -In addition to the properties of First Amendment claims that may¶ make them less likely to appear legally frivolous, the First Amend-¶ ment's magnetism may assist in ensuring that those claims will not¶ arise in isolation. There will often be multiple lawyers, multiple liti-¶ gants, and multiple public actors who perceive the virtues of the same¶ opportunistic strategy at roughly the same time, or who even may be¶ in active coordination with each other - as with the multiple chal-¶ lenges to the "Don't Ask, Don't Tell" policy, the proliferation of First¶ Amendment rhetoric surrounding legal arguments regarding computer¶ source code, and the panoply of parallel claims about First Amend-¶ ment limitations on copyright. When this is the case, the multiplicity¶ of individually tenuous claims may produce a cascade effect160 such¶ that the claims no longer appear tenuous. The combination of, say,¶ four scarcely plausible but simultaneous court challenges and twenty¶ scarcely plausible public claims of a First Amendment problem could make all these individually implausible claims seem more credible¶ than they actually are.161 From the standpoint of an interest group¶ seeking to achieve change and to mobilize public support or the sup-¶ port of other interest groups,162 winning is better than losing publicly,¶ but losing publicly is perhaps still preferable to being ignored.¶ Once the claim or argument achieves a critical mass of plausibility,¶ the game may be over. Even if individual courts reject the claim, the¶ multiplicity of now-plausible claims may give the issue what is re-¶ ferred to in inside-the-Beltway political jargon as "traction" and in¶ newsroom jargon as "legs." Interestingly, this phenomenon sometimes¶ survives even authoritative rejection of the claim. With respect to the¶ argument that hostile-environment sexual harassment enforcement has¶ serious First Amendment implications, for example, neither the Su-¶ preme Court's rejection of this argument in dicta in R.A. V v. City of¶ St. Paul163 nor the Court's silent dismissal of the same claim in Harris¶ v. Forklift Systems, Inc.164 has slowed the momentum of those who¶ would wage serious First Amendment battle against hostile-¶ environment sexual harassment law.'65 Similarly, decades of judicial¶ rejection of the argument that copyright law must be substantially re-¶ stricted by the commands of the First Amendment have scarcely dis-¶ couraged those who urge otherwise; and in some respects the Supreme¶ Court's recent decision in Eldred v. Ashcroftl66 can be considered not a¶ defeat, but rather one further step toward the entry of copyright into¶ the domain of the First Amendment: the Supreme Court did grant cer-¶ tiorari, in part to determine "whether ... the extension of existing and¶ future copyrights violates the First Amendment;"'67 and the seven-¶ Justice majority, as well as Justice Breyer in dissent,'68 acknowledged¶ that the First Amendment was not totally irrelevant. 30 -Title IX is currently effective against harassment – this dramatically increases access to higher education. Musil 07 31 - 32 -Caryn Musil, Scaling the Ivory Towers, MS Magazine Fall 2007: The Triumphs of Title IX, http://www.feminist.org/education/TriumphsOfTitleIX.pdf. NS 33 - 34 -The contrast between her academic landscape and mine could not be more dramatic. And Title IX is the primary cause for the seismic shifts. The law’s impact has been elemental. Not only has it helped eliminate blatant discriminatory practices across educational institutions, but it has helped root out subtler methods of holding women back by closing the gap between men’s and women’s financial aid packages, improving housing opportunities for women students (a lack of women’s dorms was once used to restrict women’s admissions) and combating sexual harassment. Just before Title IX was signed into law, women were underrepresented as undergraduates, at just over 40 percent of all students. And it wasn’t that easy for them to get into those ivied halls. Young women typically had to make higher grades and SAT scores than young men to gain college admission, and often faced quotas limiting the number of women admitted. Once they got on campus, there were few women role models—less than one in five faculty members were women, and a mere 3 percent of college presidents. In some fields, even the women students were barely visible: About 1 percent of master’s degrees in engineering, 1 percent of doctoral dental degrees, and under 2 percent of master’s degrees in mathematics were awarded to women in 1970. The barriers were formidable, and sex discrimination unashamedly open and normative. In the years since Title IX, however, all of those numbers have risen tremendously. Take college enrollment, for starters: By 2005, women students comprised almost three out of five undergraduates, with some of this growth due to increased access for women of color (who have more than doubled their share of degrees since 1977, when they earned just over 10 per- cent). Women have not simply in- creased their numbers in academia, though: They have also moved into fields formerly dominated by men, particularly business and the sciences (see chart on page 45). These are the sorts of fields that lead women into higher-paying jobs after graduation. Bucking the rising trend, however, are computer and information sci- ence, where numbers peaked in 1984 before declining, and engineering and engineering technologies, in which the numbers of women grew and then leveled off. Certain fields have continued to be women-dominant from 1980 until 2005—health professions other than physicians and related inical sciences (currently more than 86 percent women) and education (about 79 percent women), but this isn’t the best news for economic equity, since wages tend to stay low in fields with few men. In graduate and professional schools, too, young women have enjoyed far greater access thanks to Title IX. In 1970, women earned only 14 percent of doctoral degrees, but today earn nearly half. Yet women’s doctorates are still not distributed evenly across disciplines: They range from a low of about 19 percent in engineering and engineering technologies to a high of about 71 per- cent in psychology. The most dramatic gains are in the professional schools. In 1971, just about 1 of 100 dental school graduates were women, while in 2005 that number grew nearly fortyfold. In medical schools the numbers jumped from less than 10 percent to nearly 50 percent, and law school numbers from about 7 percent to nearly 49 percent. There’s been quite a psychological benefit, too. As my older daughter, Rebecca, says of her experience at New York University Law School, “Women were more than half of the students, so sex discrimination was not something we ever worried about. ... It’s not that we don’t think about equality, but that we don’t have to think about it as much because of what’s already been done.” Armed with their professional degrees in medicine and law, women have entered those professions at steadily increasing rates. Yet their numbers—and in law firms, their advancement—still lag behind. In 2006, women made up 33 percent of lawyers but just 16 percent of partners in law firms. Similarly, in medicine only 27 percent of doctors are women, and they’re unevenly spread across specialties, the top three choices being internal medicine, pediatrics and general family medicine. The news is also mixed about women in academic leadership. By 1986 the number of women college presidents had tripled from 1970 to almost 10 percent, and by 2006 reached 23 percent, with a large proportion serving as presi- dents of community colleges. But most of the progress occurred between 1986 and 2001 and now has slowed considerably. Furthermore, today’s presidents re- main much less diverse by race, gender and ethnicity than the students, faculty or administrators who report to them: Only 4 percent of the respondents in a recent survey of college presidents identified as “minority women.” Women also tend to be more qualified and make more sacrifices than men in order to gain leadership; they’re far less likely than men presidents to be married and have children, and significantly more likely to hold an advanced degree. On faculties, women have increased across every rank but continue to move up more slowly than men. In 2006 they accounted for nearly 40 percent of full- time faculty and nearly 50 percent of part-timers. Young women benefit extraordinarily from all these women role models. As my daughter Emily says, “Women professors looked out for me the whole time ... and that is where I got my career counseling.” But women professors are not employed equally across institutional types—they’re just over half the faculty at institutions offering associate degrees, but only 34 percent at doctoral institutions. While women are increasing their numbers in tenure-track positions (nearly 45 percent), they still face the accumulated disad-vantages of sex discrimination over time and represent only about 31 per- cent of currently tenured faculty. “People change faster and more easily than institutions,” explains Yolanda T. Moses, associate vice chancellor for diversity at the University of California, Riverside. While the most blatant violations have been eliminated, Moses argues that the next level of work is even more complicated: “Systems can undermine progress ... and we need to unearth those behaviors that sabotage even our best intentions.” A search committee in physics or engineering, for example, may profess to be seeking more women, but make no efforts to break out of all-men, frequently all- white, networks to identify strong women candidates. These are the sorts of challenges that still remain, yet Title IX has gone a long way toward making campuses more hospitable. By offering legal protection from hostile work and learning environments, it helped draw attention to sexism in the classroom and opened the door for change. The fields of science, tech- nology, engineering and math were among the most chilly toward women, so Title IX helped usher in a period of serious self-study that has led to the adoption of more women-friendly teaching practices and programs, and thus a rise in women taking courses formerly dominated by men. 35 - 36 -Gender equality in higher education and the workforce is key to climate science and innovation. Gender Summit 13 37 - 38 -Gender Summit 3 — North America, Diversity Fueling Excellence in Research and Innovation: 39 -Conference Report, 11/13/13, https://www.nsf.gov/od/oia/activities/gendersummit/GS3-ConfReport.pdf. NS 40 - 41 -Ms. Jarrett noted that gender equality in STEM is not just a women's issue, but one that affects all scientists and researchers. The incorporation of the gender dimension into research and innovation benefits everyone. Diversity in STEM brings innovation; it drives science forward and benefits society as a whole. She pointed out that GS3 is more than just about women: it is about our societies and tapping into the power of women to unlock the full potential of global communities. If we truly want to champion innovation and expand the capacity for discovery, everyone has to be involved. President Obama’s administration is committed to ensuring that our women and girls are in a position to lead in the future. The President has been quoted as saying, "When women succeed, nations are safer, more secure and more prosperous.” Ralph Cicerone, PhD President, US National Academy of Sciences and Chair, National Research Council, USA emphasized (a) the importance of utilizing the full capacity of creative, talented and dedicated people; (b) the collective responsibility for ensuring that women scientists and engineers flourish and that they are supported and encouraged; and (c) the need to confront existing obstacles along their career paths. He stated that the Academy remains committed to enhancing gender inclusion by supporting the creation of networks around the world, including Africa, Latin America and Europe. Establishing these networks and collaborations promotes the creation of goals and strategies for implementation and an awareness of the efforts of others that can bring value to our own. To underscore the importance of gender incorporation within global research and development, former NSF Director Subra Suresh, PhD President, Carnegie Mellon University, USA stated that diversity in education and the workplace accelerates innovation because people have different life experiences that allow them to address the same issue from different vantage points. Diversity fostering global research is becoming more popular. In May 2012 the Global Research Council was established at NSF as a virtual organization to collectively engage in the development of principles governing scientific merit review, research integrity, pathways for open access to publications and data and mobility of researchers. Nearly 100 countries participated in the most recent meeting where the topics included the mobility of researchers, as well as a discussion of strategic planning for collective action in the near future. Wanda E. Ward, PhD Head, Office of International and Integrative Activities, National Science Foundation, USA posited that North America stood ready to further integrate and leverage the gender dimension in forging new and transformative discoveries and in fostering a diverse and inclusive scientific community. Importantly, the greater inclusion of biological sex and gender considerations in disciplinary and interdisciplinary frameworks is significant as all nations increase their investments in science and technology. Working collaboratively to ensure that scientific research is beneficial to women and men is a transformative moment for the shifting landscape of the scientific enterprise. This time of collective commitment for gender considerations in science and engineering will be beneficial to society at large as North America embraces the new opportunities of the shifting landscape of science innovation marked by emerging fields of science and the demographic changes of the scientific workforce. Attention was given to the fact that the more than 650 registrants comprised a diverse group of women and men interested in women’s issues, as well as diversity within the group of women who represent every stage of STEM workforce development, advancement and success. Dr. Ward’s presentation highlighted the NSF’s gender considerations in research design and analysis, as well as the Foundation’s emphasis on gender equity in the STEM workforce. This Summit was considered exemplary for engaging women of all backgrounds in imagining future work at the frontiers of science and in realizing their full potential in the scientific enterprise. Additionally, pending the availability of funding, NSF is pursuing four major areas for multinational collaboration: o discovery/frontier research for knowledge generation and translation, o human capacity/talent development and advancement, o institutional transformation in higher education systems and practices and o equity in stewardship activities, such as the merit review process, evaluation and assessment. Across the participating partners, there are compelling examples of individual contributions of women in basic research, as well as in the advancement of applied research within a gender- focused context. There are also success stories of policy changes and transformative practices emanating from the leadership, mentoring and advocacy roles of well-known women scientists and engineers. The shared commitment for framing a multi-national strategy was continued with input from the European Commission, Natural Sciences and Engineering Research Council of Canada, the National Council on Science and Technology of Mexico, and the Human Sciences Research Council of South Africa. Europe is working aggressively to change the workforce environment by encouraging more females to study science and engineering and to go on to research careers. MarieGeoghegan-Quinn Commissioner of Research, Innovation and Science, European Commission stressed that because gender issues are not unique to Europe, it is important to tackle issues jointly. She stated that we need all of our talented scientists working toward research and innovative efforts and that there is no tradeoff between promoting gender equity and excellence in science. She expressed much interest in collaborating with North America. She stressed that it is logical, for both scientific and economic reasons, to work collaboratively to tackle common challenges. She also highlighted Horizon 2020, Europe’s new research funding program, which will champion gender equality in three ways: integrating the gender dimension into funded programs, encouraging balanced participation of men and women on funded research teams and ensuring gender balance in advisory groups and in teams that evaluate applications for funding. Oldřich Vlasák Vice-President of the European Parliament stressed the importance of (a) research and development in future economic growth and (b) investing effectively, given the frequent scarcity of financial and human resources to support research. He stated that both the US and Europe need to invest more and do a better job with regard to human capital: “we can’t afford to waste research talent, which means we should not discourage any part of the population from participating in research and innovation.” Quoting U.S. Secretary of State John Kerry, he said that “no team can ever win if half of its players are on the bench.” Measures to ensure gender equality should be considered an investment in future economic growth, rather than a cost. He stated that “what we pay today will generate returns for the economy as a whole in the medium- and long-term by reducing the ineffectiveness associated with inequality.” The gender imbalances are not a self-correcting phenomenon, and Vlasák encouraged discussions during the third Gender Summit to view these issues as a matter of research potential and social justice. Remarks by Dominique Ristori Director General, European Commission Directorate General Joint Research Council focused on the importance of science and society, the latest developments in Europe’s gender equality policy and the European interest in a gender focused multi-national collaboration. He described the motivation and challenges for global research and innovation in the context of climate change, clean energy and the improved health and well-being of all citizens. Ensuring gender balance is a necessary condition for the achievement of the objective of Europe’s 2020 strategy for 75 employment, an objective that cannot be reached without strong commitment to gender equality, he stated. 42 - 43 -Climate innovations are the primary key to solve warming. Moniz 15 44 - 45 -Ernest Moniz (U.S. Secretary of Energy), Interviewed by David Biello, Accelerated Innovation Is the Ultimate Solution to Climate Change, Scientific American, 12/11/15, https://www.scientificamerican.com/article/accelerated-innovation-is-the-ultimate-solution-to-climate-change/. NS 46 - 47 -PARIS—From "clean coal" evangelists to solar power enthusiasts, most experts at the U.N. climate talks here agree that solving climate change means transforming how the world produces and uses energy—and as quickly as possible. Such a transformation would be unprecedented. It would require enormous investments. To help make it happen, the U.S. Department of Energy, which for decades has spent billions of dollars to develop and deploy advanced energy technologies (not always clean), will play a major role in the new "Mission Innovation." The initiative is an effort announced by 20 major countries at the COP 21 negotiations here to significantly accelerate clean-energy improvements. On December 9, Secretary of Energy Ernest Moniz sat down with Scientific American to explain how innovation and transformation might be sped up to meet the climate challenge, which requires a world without carbon dioxide pollution, soon. An edited transcript of the interview follows. How do we get to 80 percent cuts in CO2 emissions in 35 years, the Obama administration's long-term goal? And beyond that, to meet a Paris deal that might even require "zero carbon" by then. Obviously, innovation is going to be central. We're very pleased that our French hosts put innovation on the front burner: having Innovation Day, following Energy Day. And of course, the announcement on the very first day by 20 countries, including Pres. Obama, French Pres. Hollande, India Prime Minister Modi and others, of Mission Innovation. Then the Bill Gates announcement on the parallel Breakthrough Energy Coalition initiative. There is no question that the world now understands that innovation is the core to meet the INDCs national climate action plans, known as "intended nationally determined contributions". We've had a lot of cost reduction and innovation and deployment increases. That virtuous cycle has put us in a pretty good spot to meet a 10-year horizon, maybe a 15-year horizon. For sure, as we go to the longer time periods and extraordinarily low levels of greenhouse gas emissions being discussed, we're going to have to keep that going. I just came from a meeting of the Mission Innovation countries. There is a tremendous amount of enthusiasm. The resonance of the Mission Innovation agenda was so great because it largely fits with the directions that so many countries were going in. It's crystallized that—given that a very explicit framework. We are the dog that caught the car. And now we're laughs figuring out what to do with the car. Some people argue that we can meet the goal with the technology we already have, whether it be CO2 capture and storage for fossil fuels and nuclear power or more renewables or all of the above, to use a phrase. Others say we really need a breakthrough. You're on the breakthrough side? In some sense, the answer is yes. What we're talking about is this cycle of innovation, deployment, cost reduction. They all go hand in hand. We have seen that explicitly in the last six years. Continued cost reduction in clean technologies is going to be important. And new enabling technologies are going to be important. So, for example, with wind and solar, we still are not at the point where we can have a large scale-up of energy storage. We are still not at the stage where we really have incorporated information technology, like computers and the Internet extensively into the energy infrastructure in the way we're going to need. We also have qualitatively new directions to go in. One is the Makani flying wind turbines. Or now the Google X flying wind turbine; it’s so novel that we don't understand exactly how it could have a big, major transformative impact. But it sure looks like it would if it became a widespread technology. 48 - 49 -Warming leads to extinction – multiple scenarios prove. Roberts ‘13 50 -David Roberts - staff writer for Grist. “If you aren’t alarmed about climate, you aren’t paying attention.” Grist. January 10, 2013. http://grist.org/climate-energy/climate-alarmism-the-idea-is-surreal/ JJN 51 -There was recently another one of those (numbingly familiar) internet tizzies wherein someone trolls environmentalists for being “alarmist” and environmentalists get mad and the troll says “why are you being so defensive?” and everybody clicks, clicks, clicks. I have no desire to dance that dismal do-si-do again. But it is worth noting that I find the notion of “alarmism” in regard to climate change almost surreal. I barely know what to make of it. So in the name of getting our bearings, let’s review a few things we know. We know we’ve raised global average temperatures around 0.8 degrees C so far. We know that 2 degrees C is where most scientists predict catastrophic and irreversible impacts. And we know that we are currently on a trajectory that will push temperatures up 4 degrees or more by the end of the century. What would 4 degrees look like? A recent World Bank review of the science reminds us. First, it’ll get hot: Projections for a 4°C world show a dramatic increase in the intensity and frequency of high-temperature extremes. Recent extreme heat waves such as in Russia in 2010 are likely to become the new normal summer in a 4°C world. Tropical South America, central Africa, and all tropical islands in the Pacific are likely to regularly experience heat waves of unprecedented magnitude and duration. In this new high-temperature climate regime, the coolest months are likely to be substantially warmer than the warmest months at the end of the 20th century. In regions such as the Mediterranean, North Africa, the Middle East, and the Tibetan plateau, almost all summer months are likely to be warmer than the most extreme heat waves presently experienced. For example, the warmest July in the Mediterranean region could be 9°C warmer than today’s warmest July. Extreme heat waves in recent years have had severe impacts, causing heat-related deaths, forest fires, and harvest losses. The impacts of the extreme heat waves projected for a 4°C world have not been evaluated, but they could be expected to vastly exceed the consequences experienced to date and potentially exceed the adaptive capacities of many societies and natural systems. my emphasis Warming to 4 degrees would also lead to “an increase of about 150 percent in acidity of the ocean,” leading to levels of acidity “unparalleled in Earth’s history.” That’s bad news for, say, coral reefs: The combination of thermally induced bleaching events, ocean acidification, and sea-level rise threatens large fractions of coral reefs even at 1.5°C global warming. The regional extinction of entire coral reef ecosystems, which could occur well before 4°C is reached, would have profound consequences for their dependent species and for the people who depend on them for food, income, tourism, and shoreline protection. It will also “likely lead to a sea-level rise of 0.5 to 1 meter, and possibly more, by 2100, with several meters more to be realized in the coming centuries.” That rise won’t be spread evenly, even within regions and countries — regions close to the equator will see even higher seas. There are also indications that it would “significantly exacerbate existing water scarcity in many regions, particularly northern and eastern Africa, the Middle East, and South Asia, while additional countries in Africa would be newly confronted with water scarcity on a national scale due to population growth.” Also, more extreme weather events: Ecosystems will be affected by more frequent extreme weather events, such as forest loss due to droughts and wildfire exacerbated by land use and agricultural expansion. In Amazonia, forest fires could as much as double by 2050 with warming of approximately 1.5°C to 2°C above preindustrial levels. Changes would be expected to be even more severe in a 4°C world. Also loss of biodiversity and ecosystem services: In a 4°C world, climate change seems likely to become the dominant driver of ecosystem shifts, surpassing habitat destruction as the greatest threat to biodiversity. Recent research suggests that large-scale loss of biodiversity is likely to occur in a 4°C world, with climate change and high CO2 concentration driving a transition of the Earth’s ecosystems into a state unknown in human experience. Ecosystem damage would be expected to dramatically reduce the provision of ecosystem services on which society depends (for example, fisheries and protection of coastline afforded by coral reefs and mangroves.) New research also indicates a “rapidly rising risk of crop yield reductions as the world warms.” So food will be tough. All this will add up to “large-scale displacement of populations and have adverse consequences for human security and economic and trade systems.” Given the uncertainties and long-tail risks involved, “there is no certainty that adaptation to a 4°C world is possible.” There’s a small but non-trivial chance of advanced civilization breaking down entirely. Now ponder the fact that some scenarios show us going up to 6 degrees by the end of the century, a level of devastation we have not studied and barely know how to conceive. Ponder the fact that somewhere along the line, though we don’t know exactly where, enough self-reinforcing feedback loops will be running to make climate change unstoppable and irreversible for centuries to come. That would mean handing our grandchildren and their grandchildren not only a burned, chaotic, denuded world, but a world that is inexorably more inhospitable with every passing decade. Take all that in, sit with it for a while, and then tell me what it could mean to be an “alarmist” in this context. What level of alarm is adequate? 52 - 53 - 54 - 55 -Controls the I/L to econ in adv 1 is diversity, title IX independently solves. 56 - 57 - 58 -Case 59 - 60 -US Econ high now. Means no collapse. Irwin 2/15 61 -Neil Irwin, 2-15-2017, "While We’re Distracted by the Drama, the Economy Seems to Be Taking Off," New York Times, https://www.nytimes.com/2017/02/15/upshot/us-economy-shows-more-signs-of-heating-up.html MG 62 -You could be forgiven for not noticing it, but the United States economy is gaining momentum. It may not be as dramatic as the torrent of political news out of Washington; an improving economy, after all, announces itself through a series of data releases that are just a little bit better than people were expecting. But that’s exactly what has happened. In consumer spending, the job market and manufacturing, the economy seems to be enjoying consistent, broad-based growth to start the year. There could always be a setback, of course, but the momentum is almost uniformly positive as the Trump era gets underway. Some of the factors at work may turn out to be temporary. Energy prices were near recent lows a year ago, and their recovery since has meant oil exploration and related fields are recovering. Similarly, the effects of a steep run-up in the value of the dollar from 2014 to early 2015 have now worked their way through the economy and aren’t holding back manufacturing the way they once were. An unusually warm winter is probably a factor in some of the good numbers, as people who in a normal year would have hunkered down amid snowstorms instead went shopping. But the positive tenor of the latest data has been building for months, and includes some data sets that shouldn’t be too affected by the weather. Think of the numbers released Wednesday and Thursday as the latest strong signals, not in isolation. Retail sales rose 0.4 percent in January, the Commerce Department said, and a booming 0.8 percent when volatile auto sales are excluded. American consumers are powering ahead in the eighth year of the expansion. Continue reading the main story The Consumer Price Index rose 0.6 percent, the Labor Department said; even excluding volatile food and energy, it was up 0.3 percent. The index is now up 2.3 percent over the last year excluding food and energy, suggesting that inflation is now in the ballpark of the 2 percent mark that the Federal Reserve aims for (the Fed focuses on a different inflation number that still shows readings below 2 percent). And the number of permits issued for new housing units rose 4.6 percent in January, the Census Bureau said Thursday, and is up 8.2 percent from a year ago, as the housing recovery kicks into a higher gear. The number of housing units started fell slightly in January, but November and December numbers were revised higher. While overall industrial production fell 0.3 percent in January, according to new Fed data, that was only because the warm winter depressed energy demand and thus output by utilities. Manufacturing output rose 0.5 percent. To cap off a day of good data pointing to an economic surge, the Federal Reserve Bank of New York said its survey of business activity soared to its highest level in two years. This all continues a recent theme. The economy added 227,000 jobs in January despite an unemployment rate that is already low. The number of people filing new claims for jobless benefits each week keeps hitting lows not seen since the 1970s. Photo Shoppers have continued to buy, which has kept the American economy moving. Credit Steve Griffin/The Salt Lake Tribune, via Associated Press The improving data — and particularly the uptick in inflation — does create a puzzle for the Federal Reserve. In testimony this week, the Fed’s chairwoman, Janet Yellen, made clear that an interest rate increase was on the way, though she left ambiguity on whether it would happen at the Fed’s March meeting or later in the spring or summer. If the Fed indeed raises interest rates this spring in an effort to keep the economy from overheating and inflation from taking off, it will be the third rise since December 2015 — but would signal that a faster pace of rate increases was on tap. On one hand, the Fed’s policies work with a lag, so it must act with an eye toward where the economy is going, not where it has been. On the other, after years of trying to slog out of a deep recession, Ms. Yellen and her colleagues don’t want to act prematurely and stop the expansion in its tracks.“Waiting too long” to raise rates, Ms. Yellen told Congress this week, would be unwise because it might require the Fed “to eventually raise rates rapidly, which could risk disrupting financial markets and pushing the economy into recession.” The stock market has reached new highs in recent days based on a mix of positive economic data and optimism that the Trump administration will bring business tax cuts and profit-friendly deregulation. Granted, a trade war or other disruptions could be damaging, and markets could turn quickly if some of the anticipated goodies don’t materialize from Washington. But the steady flow of improving economic data is a reminder that things are looking pretty good for 2017 if President Trump and Ms. Yellen can avoid messing it up. 63 - 64 - 65 -The marketplace of ideas is terrible – government influence creates a chilling effect, it acts as a palliative for broader reform, and shuts dissent into endless debate instead of action – the aff opens a procedural can of worms that makes change impossible. Inbger 84 66 -Stanley Ingber, THE MARKETPLACE OF IDEAS: A LEGITIMIZING MYTH, Duke Law Review, February 1984 EE 67 -The clear and present danger test presupposes that market imperfections sometimes give speakers an unacceptable level of advantage in influencing others. Because information opposing the speaker's viewpoint cannot be transmitted instantaneously to all market participants, the real market substantially departs from the theoretical one.80 Therefore, emergency situations are exempted from first amendment coverage. As long as sufficient time remains for the marketplace's process of deliberation to persist, however, and as long as lawless action is not imminent, no emergency exists and all speech must be protected. Yet the goal of free speech is not merely to have citizens enjoy participating in an effete truth-seeking process. Instead, citizens seek truth through free speech precisely to influence choice and behavior. Recognizing that beliefs are important primarily because those who hold them are likely to act accordingly, Holmes conceded that "every idea is an incitement. '81 Ironically, however, Holmes's "clear and present danger" formula allows government officials to prohibit expression precisely when such speech threatens to incite action.82 An interpretation of the first amendment that permits the state to cut off expression as soon as it comes close to being effective essentially limits the amendment's protection to encompass only abstract or innocuous communication. 83 Consequently, speech is constitutionally protected under the clear and present danger test as long as it is either ineffective84 or insignificant. 85 In either instance the test creates an establishment bias. Other factors peculiar to the clear and present danger test accentuate this bias. The test is both ad hoc and vague. Speakers receive no warning whether their contemplated speech extends beyond the parameters of constitutional protection. The test is totally contextual, giving little guidance to either the speaker or the official censor who must predict the impact of the expression. 6 For the speaker, this lack of notice fosters continuous uncertainty and thus may chill a risk-averse speaker who desires to minimize his personal legal peril.87 Such a person may censor himself by intentionally avoiding those messages he perceives as approaching the fringe of official acceptability. The official, in turn, must decide when the expression is clearly dangerous and when insufficient time exists for a full and fair hearing of responsive expression that would allow good counsel to defeat bad.88 The censor's evaluation involves a two-tiered decision. First, the official must evaluate the speech ideologically to determine whether it is good or evil, because if the speech is good the lack of sufficient time for response is irrelevant. 89 But under the market model, only the marketplace can accurately separate good from evil; therefore, no criteria can exist to determine whether speech is sufficiently evil to warrant exclusion from the market. Second, the official must calculate the seriousness of the speech's evil, because the market requires greater response time for more serious evils. This requirement forces the official to differentiate without any guidelines between evil counsel that is about to lead an insufficiently educated public astray, and good counsel that merely has convinced an adequately informed public of its "rightness." Under a test with such elasticity, speakers who proclaim any radical political doctrine may expect to receive little or no protection because they will always appear as a threat to the nation and, thus, embody the most serious of all possible evils. 90 The establishment bias is again obvious. The clear and present danger test also encourages prolonging debate indefinitely. According to Brandeis, expression may not be prohibited so long as debate remains ongoing. 91 Thus, only the process of truth-seeking is fully protected; decisions and actions predicated upon truths once discovered are protected not at all.92 Brandeis's approach to the marketplace of ideas accordingly encourages prolonged discussion and, therefore, the delay of decisions that might lead to actions contrary to society's generally accepted "truths." There is, however, little value in the discovery of truth that cannot be used as a basis of choice and behavior. Brandeis's focus on procedural aspects of the market rather than on the substantive actions it triggers also fosters delay in implementing any ideas that challenge the status quo perspective. Disputes over the best solutions for societal problems are converted into disputes over proper marketplace processes. For example, rather than focusing on whether the military draft should be reinstated, the debate may well center on whether antidraft groups should be allowed to stage a massive demonstration in a business district. Such procedural concerns divert attention from the substantive issue so that the status quo is more easily preserved. Through this process of transforming substantive conflicts into procedural debates, challengers to the status quo may be placated with a procedural victory while their overt threat is defused.93 This shift in focus helps to insulate society from the trauma of having to reconsider its accepted values while at the same time it allows the protesting individual and his supporters to believe that they have a fair opportunity to win popular support for their position.94 If freedom of expression only gives protection as long as decisions are not yet made, actions are not yet taken, and debate is still in progress, then there is little threat to established norms - EntryDate
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