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Summary

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43 43  Saul 12-2-16 Stephanie Saul is a reporter for The New York Times and a recipient of the Pulitzer Prize in journalism. Saul attended public schools in New Albany, where she showed an early interest in journalism as editor of the high school newspaper. At Ole Miss, Saul was on the staff of the Daily Mississippian and the yearbook. She was a member of Phi Kappa Phi, the academic honor society, and Kappa Delta social sorority. After graduating in 1975 with a B.A. in journalism, Saul joined The Clarion-Ledgeras a reporter, covering Mississippi government and the state legislature. A succession of reporting jobs at other newspapers led her to The New York Timesin 2005, where she is currently a member of the newspaper’s investigative reporting team. "Campus Press vs. Colleges: Kentucky Suit Highlights Free-Speech Fight,". 12-2-2016. New York Times, http://www.nytimes.com/2016/12/02/us/kentucky-student-journalism-free-speech.html//roman
44 44  The confidential informant had an explosive tip for the University of Kentucky's campus newspaper: An associate professor of entomologv had been accused of groping students, and the college, after an investigation, had permitted him to leave quietly. On the trail of a hot story, the paper, The Kentucky Kernel, requested files from the university. Officials turned over some documents, but they contained few details. Months later, though, in August, a 122-page dossier about the accusations was leaked to the newspaper, which reported the specifics, including one woman's claim that the professor had grabbed her buttocks, crotch and breast during an off-campus conference in 2013. Now The Kernel is being sued by the university in a continuing battle over whether records in the case should be disclosed. And it is just one of several disputes between universities and student newspapers, which are pushing administrations to become more transparent about sexual assault, a defining issue on campuses around the country. With cuts at traditional news organizations, student journalists see their role as increasingly important in shedding light on the subject and are becoming more dogged in ferreting out information about sexual assault cases, particularly when faculty or student perpetrators could simply find other jobs or transfer to another university. Some are demanding that the student body be given details when a college confirms wrongdoing, particularly of a violent nature, by students, faculty or staff members. Universities, though, often invoke privacy concerns in refusing to make details of inquiries public. "The critical question is whether we are able to continue protecting the confidentiality and privacy of victim-survivors who courageously come forward to report details of their victimization, " wrote the University of Kentucky's president, Eli Capilouto, in a university wide email. "The protection of victim-survivor privacy, " the email continued, requires more than the redaction of names. It requires the redaction of any information that might reasonably lead to the identification of victim-survivors as well as the intimate details of the sexual assault. " Frank LoMonte, executive director of the Student Press Law Center, a nonprofit organization, sees it another way. With state funding reductions and increasing competition for top students, colleges are more motivated than ever, he suggested, to maintain their reputations. "The stakes have increased for colleges to keep secrets, " Mr. LoMonte said. "They're getting more aggressive." His group has helped student journalists fight to get documents and other information, and has worked to fend off funding cuts that students believe were in retaliation for controversial articles. At Brandeis University, in Waltham, Mass. three staff members on The Justice, the student newspaper, were notified in February that they would be called to a university meeting — the first step in a disciplinary process — because the newspaper had audiotaped a public rally in 2015 at which students criticized the university's handling of sexual assault cases. Someone had complained that the rally was recorded without permission, which the complainant viewed as possibly violating state law and college rules. The Justice had used the recordings for an article about the rally. No formal charges were filed, the university said, because it concluded that student journalists covering public events were within their rights to use recording devices. "We were very concerned that the student press at Brandeis was being targeted unfairly," said Ari Cohn, a lawyer with the nonprofit Foundation for Individual Rights in Education, which aided the students. "The public relations issues around sexual assault on campus are massive right now. There's definitely a desire by universities to be out in front of those issues and to show they're taking this seriously. In some cases, like this one, that causes an overreaction. The Daily Tar Heel, an independent publication at the University of North Carolina-Chapel Hill, sued the university on Nov. 21 after officials refused to release details about sexual assault cases there. In a statement, the vice chancellor for communications, Joel Curran, said the university had a "profound responsibility to protect and vigorously defend the privacy of sexual assault victims and all students, including witnesses, who may be involved." But Jane Wester, The Daily Tar Heel's editor, said, "Once someone has been found responsible for a violent offense, the university is under no obligation to keep that information private." At Indiana University, the independent Indiana Daily Student has been battling since September to obtain a 13-page report on the school's inquiry into sexual assault accusations against a former ballet instructor, Guoping Wang, who was and charged with sexual battery of a student. The criminal case is pending. Hannah Alani, the investigations editor for The Indiana Daily Student, said the university's refusal to release its report — partly on grounds that it is part of Mr. Wang's personnel file — fits a pattern in which the university has repeatedly declined requests related to sexual assault, prompting it to seek legal advice. "Indiana University insists it takes sexual assault serious ly," said Ms. Alani, whose newspaper has been aggressively covering campus sexual assault. "But when pressed for transparency on student and faculty cases, the university tells the public very little." An Indiana spokeswoman, Margie Smith-Simmons, said the documents requested by the paper were not "public records," and therefore could not be released. The Kernel, which is partly financed by the University of Kentucky, has won numerous journalism awards. The university itself is home to a First Amendment Center endowed by the venerable Scripps Howard broadcasting and newspaper chain.
45 45  Underview
46 -1. To clarify, the First Amendment doesn’t permit meaningless obscenity, child pornography, expressions that in and of itself causes injury, and remarks intended to cause violence
46 +To clarify, the First Amendment doesn’t permit meaningless obscenity, child pornography, expressions that in and of itself causes injury, and remarks intended to cause violence
47 47  Ruane 14 Kathleen Anne Ruane – Legislative Attorney. Her report was published by the Congressional Research Service, which is a branch of government, "Freedom of Speech and Press: Exceptions to the First Amendment", https://fas.org/sgp/crs/misc/95-815.pdf,pgs. 1-5//roman
48 48  The First Amendment to the United States Constitution provides that “Congress shall make no law ... abridging the freedom of speech, or of the press.” This language restricts government’s ability to constrain the speech of citizens. The prohibition on abridgment of the freedom of speech is not absolute. Certain types of speech may be prohibited outright. Some types of speech may be more easily constrained than others. Furthermore, speech may be more easily regulated depending upon the location at which it takes place. This report provides an overview of the major exceptions to the First Amendment—of the ways that the Supreme Court has interpreted the guarantee of freedom of speech and press to provide no protection or only limited protection for some types of speech. For example, the Court has decided that the First Amendment provides no protection for obscenity, child pornography, or speech that constitutes what has become widely known as “fighting words.” The Court has also decided that the First Amendment provides less than full protection to commercial speech, defamation (libel and slander), speech that may be harmful to children, speech broadcast on radio and television (as opposed to speech transmitted via cable or the Internet), and public employees’ speech. Even speech that enjoys the most extensive First Amendment protection may be subject to “regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Furthermore, even speech that enjoys the most extensive First Amendment protection may be restricted on the basis of its content if the restriction passes “strict scrutiny” (i.e., if the government shows that the restriction serves “to promote a compelling interest” and is “the least restrictive means to further the articulated interest”). This report will outline many of the standards the government must meet when attempting to regulate speech in a constitutional manner. The report will be updated periodically to reflect new developments in the case law.
49 -2. Ask if I will meet your interp in cx; this avoids unnecessary theory- we can work something out; this allows for greater substantive debate which is the only form of education which is unique to debate. Grant me an auto I meet on theory if the interp isn’t checked in cross-ex to discourage nonchecking.
50 -3. Abstract theorizing without providing material solutions to problems turns itself
49 +Ask if I will meet your interp in cx; this avoids unnecessary theory- we can work something out; this allows for greater substantive debate which is the only form of education which is unique to debate. Grant me an auto I meet on theory if the interp isn’t checked in cross-ex to discourage nonchecking.
50 +Abstract theorizing without providing material solutions to problems turns itself
51 51  Bryant 12 (Levi Bryant, professor of philosophy at Collin College, “Underpants Gnomes: A Critique of the Academic Left,” 11/11/2012, http://larvalsubjects.wordpress.com/2012/11/11/underpants-gnomes-a-critique-of-the-academic-left/)
52 52  **edited for gendered language
53 53  But finally, and worst of all, us Marxists and anarchists all too often act like assholes. We denounce others, we condemn them, we berate them for not engaging with the questions we want to engage with, and we vilify them when they don’t embrace every bit of the doxa that we endorse. We are every bit as off-putting and unpleasant as the fundamentalist minister or the priest of the inquisition (have people yet understood that Deleuze and Guattari’s Anti-Oedipus was a critique of the French communist party system and the Stalinist party system, and the horrific passions that arise out of parties and identifications in general?). This type of “revolutionary” is the greatest friend of the reactionary and capitalist because they do more to drive people into the embrace of reigning ideology than to undermine reigning ideology. These are the people that keep Rush Limbaugh in business. Well done! But this isn’t where our most serious shortcomings lie. Our most serious shortcomings are to be found at phase 2. We almost never make concrete proposals for how things ought to be restructured, for what new material infrastructures and semiotic fields need to be produced, and when we do, our critique-intoxicated cynics and skeptics immediately jump in with an analysis of all the ways in which these things contain dirty secrets, ugly motives, and are doomed to fail. How, I wonder, are we to do anything at all when we have no concrete proposals? We live on a planet of 6 billion people. These 6 billion people are dependent on a certain network of production and distribution to meet the needs of their consumption. That network of production and distribution does involve the extraction of resources, the production of food, the maintenance of paths of transit and communication, the disposal of waste, the building of shelters, the distribution of medicines, etc., etc., etc. What are your proposals? How will you meet these problems? How will you navigate the existing mediations or semiotic and material features of infrastructure? Marx and Lenin had proposals. Do you? Have you even explored the cartography of the problem? Today we are so intellectually bankrupt on these points that we even have theorists speaking of events and acts and talking about a return to the old socialist party systems, ignoring the horror they generated, their failures, and not even proposing ways of avoiding the repetition of these horrors in a new system of organization. Who among our critical theorists is thinking seriously about how to build a distribution and production system that is responsive to the needs of global consumption, avoiding the problems of planned economy, ie., who is doing this in a way that gets notice in our circles? Who is addressing the problems of micro-fascism that arise with party systems (there’s a reason that it was the Negri and Hardt contingent, not the Badiou contingent that has been the heart of the occupy movement). At least the ecologists are thinking about these things in these terms because, well, they think ecologically. Sadly we need something more, a melding of the ecologists, the Marxists, and the anarchists. We’re not getting it yet though, as far as I can tell. Indeed, folks seem attracted to yet another critical paradigm, Laruelle. I would love, just for a moment, to hear a radical environmentalist talk about their** ideal high school that would be academically sound. How would he provide for the energy needs of that school? How would he meet building codes in an environmentally sound way? How would she provide food for the students? What would be her plan for waste disposal? And most importantly, how would she navigate the school board, the state legislature, the federal government, and all the families of these students? What is your plan? What is your alternative? I think there are alternatives. I saw one that approached an alternative in Rotterdam. If you want to make a truly revolutionary contribution, this is where you should start. Why should anyone even bother listening to you if you aren’t proposing real plans? But we haven’t even gotten to that point. Instead we’re like underpants gnomes, saying “revolution is the answer!” without addressing any of the infrastructural questions of just how revolution is to be produced, what alternatives it would offer, and how we would concretely go about building those alternatives. Masturbation. “Underpants gnome” deserves to be a category in critical theory; a sort of synonym for self-congratulatory masturbation. We need less critique not because critique isn’t important or necessary– it is –but because we know the critiques, we know the problems. We’re intoxicated with critique because it’s easy and safe. We best every opponent with critique. We occupy a position of moral superiority with critique. But do we really do anything with critique? What we need today, more than ever, is composition or carpentry. Everyone knows something is wrong. Everyone knows this system is destructive and stacked against them. Even the Tea Party knows something is wrong with the economic system, despite having the wrong economic theory. None of us, however, are proposing alternatives. Instead we prefer to shout and denounce. Good luck with that
54 -4. Particularism is good—root cause claims and focus on overarching structures ignore application to material injustice.
54 + Particularism is good—root cause claims and focus on overarching structures ignore application to material injustice.
55 55  Gregory Fernando Pappas 16 Texas AandM University “The Pragmatists’ Approach to Injustice”, The Pluralist Volume 11, Number 1, Spring 2016, BE
56 56  The pragmatists’ approach should be distinguished from nonideal theories whose starting point seems to be the injustices of society at large that have a history and persist through time, where the task of political philosophy is to detect and diagnose the presence of these historical injustices in particular situations of injustice. For example, critical theory today has inherited an approach to social philosophy characteristic of the European tradition that goes back to Rousseau, Marx, Weber, Freud, Marcuse, and others. Accord- ing to Roberto Frega, this tradition takes society to be “intrinsically sick” with a malaise that requires adopting a critical historical stance in order to understand how the systematic sickness affects present social situations. In other words, this approach assumes that¶ a philosophical critique of specific social situations can be accomplished only under the assumption of a broader and full blown critique of soci- ety in its entirety: as a critique of capitalism, of modernity, of western civilization, of rationality itself. The idea of social pathology becomes intelligible only against the background of a philosophy of history or of an anthropology of decline, according to which the distortions of actual social life are but the inevitable consequence of longstanding historical processes. (“Between Pragmatism and Critical Theory” 63)¶ However, this particular approach to injustice is not limited to critical theory. It is present in those Latin American and African American political philosophies that have used and transformed the critical intellectual tools of ¶ critical theory to deal with the problems of injustice in the Americas. For instance, Charles W. Mills claims that the starting point and alternative to the abstractions of ideal theory that masked injustices is to diagnose and rectify a history of an illness—the legacy of white supremacy in our actual society.11 The critical task of revealing this illness is achieved by adopting a historical perspective where the injustices of today are part of a larger historical narrative about the development of modern societies that goes back to how Europeans have progressively dehumanized or subordinated others. Similary, radical feminists as well as Third World scholars, as reaction to the hege- monic Eurocentric paradigms that disguise injustices under the assumption of a universal or objective point of view, have stressed how our knowledge is always situated. This may seem congenial with pragmatism except the locus of the knower and of injustices is often described as power structures located in “global hierarchies” and a “world-system” and not situations.12¶ Pragmatism only questions that we live in History or a “World-System” (as a totality or abstract context) but not that we are in history (lowercase): in a present situation continuous with others where the past weighs heavily in our memories, bodies, habits, structures, and communities. It also does not deny the importance of power structures and seeing the connections be- tween injustices through time, but there is a difference between (a) inquiring into present situations of injustice in order to detect, diagnose, and cure an injustice (a social pathology) across history, and (b) inquiring into the his- tory of a systematic injustice in order to facilitate inquiry into the present unique, context-bound injustice. To capture the legacy of the past on present injustices, we must study history but also seek present evidence of the weight of the past on the present injustice.¶ If injustice is an illness, then the pragmatists’ approach takes as its main focus diagnosing and treating the particular present illness, that is, the particular situation-bound injustice and not a global “social pathology” or some single transhistorical source of injustice. The diagnosis of a particular injustice is not always dependent on adopting a broader critical standpoint of society in its entirety, but even when it is, we must be careful to not forget that such standpoints are useful only for understanding the present evil. The concepts and categories “white supremacy” and “colonialism” can be great tools that can be of planetary significance. One could even argue that they pick out much larger areas of people’s lives and injustices than the categories of class and gender, but in spite of their reach and explanatory theoretical value, they are nothing more than tools to make reference to and ameliorate particular injustices experienced (suffered) in the midst of a particular and unique re- lationship in a situation. No doubt many, but not all, problems of injustice are a consequence of being a member of a group in history, but even in these cases, we cannot a priori assume that injustices are homogeneously equal for all members of that group. Why is this important? The possible pluralism and therefore complexity of a problem of injustice does not always stop at the level of being a member of a historical group or even a member of many groups, as insisted on by intersectional analysis. There may be unique cir- cumstances to particular countries, towns, neighborhoods, institutions, and ultimately situations that we must be open to in a context-sensitive inquiry. If an empirical inquiry is committed to capturing and ameliorating all of the harms in situations of injustice in their raw pretheoretical complexity, then this requires that we try to begin with and return to the concrete, particular, and unique experiences of injustice.¶ Pragmatism agrees with Sally Haslanger’s concern about Charles Mills’s view. She writes: “The goal is not just a theory that is historical (v. ahistori- cal), but is sensitive to historical particularity, i.e., that resists grand causal narratives purporting to give an account of how domination has come about and is perpetuated everywhere and at all times” (1). For “the forces that cause and sustain domination vary tremendously context by context, and there isn’t necessarily a single causal explanation; a theoretical framework that is useful as a basis for political intervention must be highly sensitive to the details of the particular social context” (1).13¶ Although each situation is unique, there are commonalities among the cases that permit inquiry about common causes. We can “formulate tentative general principles from investigation of similar individual cases, and then . . . check the generalizations by applying them to still further cases” (Dewey, Lectures in China 53). But Dewey insists that the focus should be on the indi- vidual case, and was critical of how so many sociopolitical theories are prone to starting and remaining at the level of “sweeping generalizations.” He states that they “fail to focus on the concrete problems which arise in experience, allowing such problems to be buried under their sweeping generalizations” (Lectures in China 53).¶ The lesson pragmatism provides for nonideal theory today is that it must be careful to not reify any injustice as some single historical force for which particular injustice problems are its manifestation or evidence for its exis- tence. Pragmatism welcomes the wisdom and resources of nonideal theories that are historically grounded on actual injustices, but it issues a warning about how they should be understood and implemented. It is, for example, sympathetic to the critical resources found in critical race theory, but with an important qualification. It understands Derrick Bell’s valuable criticism as context-specific to patterns in the practice of American law. Through his inquiry into particular cases and civil rights policies at a particular time and place, Bell learned and proposed certain general principles such as the one of “interest convergence,” that is, “whites will promote racial advantages for blacks only when they also promote white self-interest.”14 But, for pragma- tism, these principles are nothing more than historically grounded tools to use in present problematic situations that call for our analysis, such as deliberation in establishing public policies or making sense of some concrete injustice. The principles are falsifiable and open to revision as we face situation-specific injustices. In testing their adequacy, we need to consider their function in making us see aspects of injustices we would not otherwise appreciate.15
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1 +Framework
2 +The role of the ballot is to vote for the debater that presents the best policy option – key to out of round advocacy skills. Role playing as public actors shatters apathy and political alienation which is critical to check oppression
3 +Mitchell 2000. Gordon Mitchell, Associate Professor of Communication at University of Pittsburgh, Winter 2000, “Stimulated Public Argument As Pedagogical Play on Worlds”, Argumentation and Advocacy, vol 36, no 3, pq
4 +When we assume the posture of the other in dramatic performance, we tap into who we are as persons, since our interpretation of others is deeply colored by our own senses of selfhood. By encouraging experimentation in identity construction, role-play "helps students discover divergent viewpoints and overcome stereotypes as they examine subjects from multiple perspectives..." (Moore, p. 190). Kincheloe points to the importance of this sort of reflexive critical awareness as an essential feature of educational practice in postmodern times. "Applying the notion of the postmodern analysis of the self, we come to see that hyperreality invites a heteroglossia of being," Kincheloe explains; "Drawing upon a multiplicity of voices, individuals live out a variety of possibilities, refusing to suppress particular voices. As men and women appropriate the various forms of expression, they are empowered to uncover new dimensions of existence that were previously hidden" (1993, p. 96). This process is particularly crucial in the public argument context, since a key guarantor of inequality and exploitation in contemporary society is the widespread and uncritical acceptance by citizens of politically inert self-identities. The problems of political alienation, apathy and withdrawal have received lavish treatment as perennial topics of scholarly analysis (see e.g. Fishkin 1997; Grossberg 1992; Hart 1998; Loeb 1994). Unfortunately, comparatively less energy has been devoted to the development of pedagogical strategies for countering this alarming political trend. However, some scholars have taken up the task of theorizing emancipatory and critical pedagogies, and argumentation scholars interested in expanding the learning potential of debate would do well to note their work (see e.g. Apple 1995, 1988, 1979; Britzman 1991; Giroux 1997, 1988, 1987; Greene 1978; McLaren 1993, 1989; Simon 1992; Weis and Fine 1993). In this area of educational scholarship, the curriculum theory of currere, a method of teaching pioneered by Pinar and Grumet (1976), speaks directly to many of the issues already discussed in this essay. As the Latin root of the word "curriculum," currere translates roughly as the investigation of public life (see Kincheloe 1993, p. 146). According to Pinar, "the method of currere is one way to work to liberate one from the web of political, cultural, and economic influences that are perhaps buried from conscious view but nonetheless comprise the living web that is a person's biographic situation" (Pinar 1994, p. 108). The objectives of role-play pedagogy resonate with the currere method. By opening discursive spaces for students to explore their identities as public actors, simulated public arguments provide occasions for students to survey and appraise submerged aspects of their political identities. Since many aspects of cultural and political life work currently to reinforce political passivity, critical argumentation pedagogies that highlight this component of students' self-identities carry significant emancipatory potential.
5 +
6 +I value morality, as per the evaluative term, ‘ought’ in the resolution.
7 +
8 +Structural violence is based in moral exclusion which is flawed because exclusion is based on arbitrarily perceived difference.
9 +Winter and Leighton 01. Winter, D. D., and Dana C. Leighton." Structural violence." Peace, conflict and violence: Peace psychology for the 21st century (2001): 99-101.
10 +Finally, to recognize the operation of structural violence forces us to ask questions about how and why we tolerate it, questions which often have painful answers for the privileged elite who unconsciously support it. A final question of this section is how and why we allow ourselves to be so oblivious to structural violence. Susan Opotow offers an intriguing set of answers, in her article Social Injustice. She argues that our normal perceptual cognitive processes divide people into in-groups and out-groups. Those outside our group lie outside our scope of justice. Injustice that would be instantaneously confronted if it occurred to someone we love or know is barely noticed if it occurs to strangers or those who are invisible or irrelevant. We do not seem to be able to open our minds and our hearts to everyone, so we draw conceptual lines between those who are in and out of our moral circle. Those who fall outside are morally excluded, and become either invisible, or demeaned in some way so that we do not have to acknowledge the injustice they suffer. Moral exclusion is a human failing, but Opotow argues convincingly that it is an outcome of everyday social cognition. To reduce its nefarious effects, we must be vigilant in noticing and listening to oppressed, invisible, outsiders. Inclusionary thinking can be fostered by relationships, communication, and appreciation of diversity. Like Opotow, all the authors in this section point out that structural violence is not inevitable if we become aware of its operation, and build systematic ways to mitigate its effects. Learning about structural violence may be discouraging, overwhelming, or maddening, but these papers encourage us to step beyond guilt and anger, and begin to think about how to reduce structural violence. All the authors in this section note that the same structures (such as global communication and normal social cognition) which feed structural violence, can also be used to empower citizens to reduce it. In the long run, reducing structural violence by reclaiming neighborhoods, demanding social jus- tice and living wages, providing prenatal care, alleviating sexism, and celebrating local cultures, will be our most surefooted path to building lasting peace.
11 +Thus, the standard is combatting structural violence.
12 +
13 +Prefer consequence-based frameworks:
14 +1 Intent and means-based frameworks reflect privilege and decenter oppressed voices
15 +Utt ’13. Jamie Utt is a writer and a diversity and inclusion consultant and sexual violence prevention educator, “Intent vs. Impact: Why Your Intentions Don’t Really Matter,” July 30, 2013
16 +Imagine for a moment that you’re standing with your friends in a park, enjoying a nice summer day. You don’t know me, but I walk right up to you holding a Frisbee. I wind up – and throw the disc right into your face. Understandably, you are indignant. Through a bloody nose, you use a few choice words to ask me what the hell I thought I was doing. And my response? “Oh, I didn’t mean to hit you! That was never my intent! I was simply trying to throw the Frisbee to my friend over there!” Visibly upset, you demand an apology. But I refuse. Or worse, I offer an apology that sounds like “I’m sorry your face got in the way of my Frisbee! I never intended to hit you.” Sound absurd? Sound infuriating enough to give me a well-deserved Frisbee upside the head? Yeah. So why is this same thing happening all of the time when it comes to the intersection of our identities and oppressions or privileges? 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. “What They Did” vs. “What They Are” The incredible Ill Doctrine puts it well when he explains the difference between the “What They Did” conversation and the “What They Are” conversation, which you can watch here. In essence, the “intent” conversation is one about “what they are.” Because if someone intended their action to be hurtful and racist/sexist/transphobic/pickyourpoison, then they must inherently be racist/sexist/transphobic/pickyourpoison. On the other hand, the “impact” conversation is one about “what they did.” For you, it takes the person who said or did the hurtful thing out of the center and places the person who was hurt in the center. It ensures that the conversation is about how “what they did” hurts other people and further marginalizes or oppresses people. And it’s important for people to understand the difference. Just because you did something sexist doesn’t mean that you are sexist. Just because you said something racist doesn’t mean that you are racist. When your actions are called into question, it’s important to recognize that that’s all that is being called into question – your actions, not your overall character. Listen. Reflect. Apologize. Do Better. It doesn’t matter whether we, deep down, believe ourselves to be __________-ist or whether we intended our actions to be hurtful or _________-ist. It. Doesn’t. Matter. If the impact of our actions is the furthering of oppression, then that’s all that matters. So we need to listen, reflect, apologize, and work to do better in the future. What does that look like? Well, to start, we can actually apologize. I don’t know about you, but I am sick of hearing the ““I am sorry your face got in the way of my Frisbee! I never intended to hit you” apologies. Whether it’s Paula Deen weeping on TV or Alec Baldwin asking us to simply trust that he’s not a “homophobe,” those are not apologies. That’s why I was incredibly inspired and relieved to see a major organization do it well when Kickstarter apologized and took full responsibility for their role in funding a creepy, rapey seduction guide. They apologized earnestly and accepted the role they played in something really terrible. hey pledged to never allow projects like this one to be funded in the future. And then they donated $25,000 to RAINN. At the interpersonal level, we can take a cue from Kickstarter. When we are told that the impact of our action, inaction, or words is hurtful and furthers oppression, we can start by apologizing without any caveats. From there, we can spend the time to reflect in hopes of gaining at least some understanding (however marginal) of the harmful impact. And we can do our best to move forward by acting more accountably.
17 +2 Experience is epistemic – it is how we empirically ground our existence. Pain is universally bad and pleasure is universally good.
18 +Nagel 86 (Thomas “The View From Nowhere”, 1986)
19 +I shall defend the unsurprising claim that sensory pleasure is good and pain bad, no matter who’s they are. The point of the exercise is to see how the pressures of objectification operate in a simple case. Physical pleasure and pain do not usually depend on activities or desires which themselves raise questions of justification and value. They are just is a sensory experiences in relation to which we are fairly passive, but toward which we feel involuntary desire or aversion. Almost everyone takes the avoidance of his own pain and the promotion of his own pleasure as subjective reasons for action in a fairly simple way; they are not back up by any further reasons. On the other hand if someone pursues pain or avoids pleasure, either it as a means to some end or it is backed up by dark reasons like guilt or sexual masochism. What sort of general value, if any, ought to be assigned to pleasure and pain when we consider these facts from an objective standpoint? What kind of judgment can we reasonably make about these things when we view them in abstraction from who we are? We can begin by asking why there is no plausibility in the zero position, that pleasure and pain have no value of any kind that can be objectively recognized. That would mean that I have no reason to take aspirin for a severe headache, however I may in fact be motivated; and that looking at it from outside, you couldn't even say that someone had a reason not to put his hand on a hot stove, just because of the pain… Without some positive reason to think there is nothing in itself good or bad about having an experience you intensely like or dislike, we can't seriously regard the common impression to the contrary as a collective illusion. Such things are at least good or bad for us, if anything is. What seems to be going on here is that we cannot from an objective standpoint withhold a certain kind of endorsement of the most direct and immediate subjective value judgments we make concerning the contents of our own consciousness. We regard ourselves as too close to those things to be mistaken in our immediate, nonideological evaluative impressions. No objective view we can attain could possibly overrule our subjective authority in such cases. There can be no reason to reject the appearances here.
20 +3 Intentions and states of being are non-falsifiable and can only be informed by hypothetical consequences
21 +4 Life is a pre-requisite to agency and freedom – that justifies exceptions to hyper-individualist ethics
22 +5 Discussions of free speech and the constitution mandate a consequentialist approach
23 +Goldberg 15 (Erica Goldberg is a Climenko Fellow and Lecturer on Law for the Harvard Law School and Assistant Professor for the Ohio Northern Law School. “FREE SPEECH CONSEQUENTIALISM,” Columbia Law Review Vol. 116:687. August 17, 2015. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2645869) //WW JA 1/5/16
24 +Even scholars who favor what they deem nonconsequentialist theories of free speech, and who believe, for example, that free speech has inherent value and is a right of autonomous moral agents,16 will in some circumstances balance these values against the harms speech causes. This balancing would occur for so-called nonconsequentialists either in defining what constitutes speech, in determining which categories of speech are protected, or in evaluating whether speech that is protected can nonetheless be prohibited because its harms greatly outweigh its virtues.17 Some scholars would argue that free speech rights are balanced not against harms but against other rights, such as the right to privacy, property, or reputation. However, unless one of the rights at issue is defined absolutely, resolving this conflict would also require consideration of the harms at issue and the value of the speech. Thus, the question becomes not whether free speech consequentialism is appropriate, but how harms caused by speech should be accounted for in First Amendment jurisprudence. The allure of free speech consequentialism is also reflected in the courts. Describing the Supreme Court’s approach to content-based restrictions on speech is superficially simple. Laws that suppress speech on the basis of content are subject to the strictest constitutional scrutiny, which is often outcome determinative.18 Strict scrutiny is a demanding standard.19 But in operation, the doctrine is much more complex—it incorporates considerations of harm in multiple ways. In a variety of cases, different groups of concurring and dissenting Justices have shown willingness to relax the strict scrutiny applied to content-based restrictions in order to account for the harm from depictions of animal cruelty,20 violent video games,21 and lies about military honors.22 The Supreme Court is not even clear on at what point in its First Amendment analysis, or at what level of abstraction, this balancing should be performed, if at all, when free speech doctrine intersects with both criminal and tort law.23
25 +Plan
26 +Plan Text: Public colleges and universities in the United States should not restrict any constitutionally protected speech.
27 +Advantage 1 is Echo Chambers
28 +Campus speech codes are controlled by liberals – they utilize them to exclude conservatives from campuses. This creates liberal echo chambers wherein liberals insulate themselves from conservative ideas, thus never learning how to contest opposing views.
29 +Powers 15. Kirsten Powers is a columnist for The Daily Beast. She is also a contributor to USA Today and a Fox News political analyst. She served in the Clinton administration from 1993 to 1998 and has worked in New York state and city politics. Her writing has been published in The Wall Street Journal, USA Today, New York Post, The New York Observer, Salon.com, Elle magazine, and American Prospect online., 5-11-2015, "How Liberals Ruined College," Daily Beast, http://www.thedailybeast.com/articles/2015/05/11/how-liberals-have-ruined-college.html //RS
30 +The root of nearly every free-speech infringement on campuses across the country is that someone—almost always a liberal—has been offended or has sniffed out a potential offense in the making. Then, the silencing campaign begins. The offender must be punished, not just for justice’s sake, but also to send the message to anyone else on campus that should he or she stray off the leftist script, they too might find themselves investigated, harassed, ostracized, or even expelled. If the illiberal left can preemptively silence opposing speakers or opposing groups— such as getting a speech or event canceled, or denying campus recognition for a group—even better. In a 2014 interview with New York magazine, comedian Chris Rock told journalist Frank Rich that he had stopped playing college campuses because of how easily the audiences were offended. Rock said he realized some time around 2006 that “This is not as much fun as it used to be” and noted George Carlin had felt the same way before he died. Rock attributed it to “Kids raised on a culture of ‘We’re not going to keep score in the game because we don’t want anybody to lose.’ Or just ignoring race to a fault. You can’t say ‘the black kid over there.’ No, it’s ‘the guy with the red shoes.’ You can’t even be offensive on your way to being inoffensive.” Sadly, Rock admitted that the climate of hypersensitivity had forced him and other comedians into self-censorship. This Orwellian climate of intimidation and fear chills free speech and thought. On college campuses it is particularly insidious. Higher education should provide an environment to test new ideas, debate theories, encounter challenging information, and figure out what one believes. Campuses should be places where students are able to make mistakes without fear of retribution. If there is no margin for error, it is impossible to receive a meaningful education. Instead, the politically correct university is a world of land mines, where faculty and students have no idea what innocuous comment might be seen as an offense. In December 2014, the president of Smith College, Kathleen McCartney, sent an email to the student body in the wake of the outcry over two different grand juries failing to indict police officers who killed African-American men. The subject heading read “All Lives Matter” and the email opened with, “As members of the Smith community we are struggling, and we are hurting.” She wrote, “We raise our voices in protest.” She outlined campus actions that would be taken to “heal those in pain” and to “teach, learn and share what we know” and to “work for equity and justice.” Shortly thereafter, McCartney sent another email. This one was to apologize for the first. What had she done? She explained she had been informed by students “the phrase/hashtag ‘all lives matter’ has been used by some to draw attention away from the focus on institutional violence against black people.” She quoted two students, one of whom said, “The black students at this school deserve to have their specific struggles and pain recognized, not dissolved into the larger student body.” The Daily Hampshire Gazette reported that a Smith sophomore complained that by writing “All Lives Matter,” “It felt like McCartney was invalidating the experience of black lives.” Another Smith sophomore told the Gazette, “A lot of my news feed was negative remarks about her as a person.” In her apology email McCartney closed by affirming her commitment to “working as a white ally.” McCartney clearly was trying to support the students and was sympathetic to their concerns and issues. Despite the best of intentions, she caused grievous offense. The result of a simple mistake was personal condemnation by students. If nefarious motives are imputed in this situation, it’s not hard to extrapolate what would, and does, happen to actual critics who are not obsequiously affirming the illiberal left. In an article in the Atlantic, Wendy Kaminer—a lawyer and free-speech advocate—declared, “Academic freedom is declining. The belief that free speech rights don’t include the right to speak offensively is now firmly entrenched on campuses and enforced by repressive speech or harassment codes. Campus censors don’t generally riot in response to presumptively offensive speech, but they do steal newspapers containing articles they don’t like, vandalize displays they find offensive, and disrupt speeches they’d rather not hear. They insist that hate speech isn’t free speech and that people who indulge in it should be punished. No one should be surprised when a professor at an elite university calls for the arrest of ‘Sam Bacile’ who made the YouTube video The Innocence of Muslims while simultaneously claiming to value the First Amendment.” On today’s campuses, left-leaning administrators, professors, and students are working overtime in their campaign of silencing dissent, and their unofficial tactics of ostracizing, smearing, and humiliation are highly effective. But what is even more chilling—and more far reaching—is the official power they abuse to ensure the silencing of views they don’t like. They’ve invented a labyrinth of anti-free speech tools that include “speech codes,” “free speech zones,” censorship, investigations by campus “diversity and tolerance offices,” and denial of due process. They craft “anti-harassment policies” and “anti-violence policies” that are speech codes in disguise. According to the Foundation for Individual Rights in Education’s (FIRE) 2014 report on campus free speech, “Spotlight on Speech Codes,” close to 60 percent of the four hundred–plus colleges they surveyed “seriously infringe upon the free speech rights of students.” Only 16 of the schools reviewed in 2014 had no policies restricting protected speech. Their 2015 report found that of the 437 schools they surveyed, “more than 55 percent maintain severely restrictive, ‘red light’ speech codes—policies that clearly and substantially prohibit protected speech.” FIRE’s Greg Lukianoff attributed the slight drop to outside pressure from free-speech groups and lawsuits. For many Americans the term “speech code” sends shivers up the spine. Yet these noxious and un-American codes have become commonplace on college campuses across the United States. They are typically so broad that they could include literally anything and are subject to the interpretation of school administrators, who frequently fail to operate as honest brokers. In the hands of the illiberal left, the speech codes are weapons to silence anyone—professors, students, visiting speakers—who expresses a view that deviates from the left’s worldview or ideology. Speech that offends them is redefined as “harassment” or “hate speech” both of which are barred by most campus speech codes. At Colorado College, a private liberal arts college, administrators invented a “violence” policy that was used to punish non-violent speech. The consequences of violating a speech code are serious: it can often lead to public shaming, censoring, firings, suspensions, or expulsions, often with no due process. AMAZON.COM Many of the incidents sound too absurd to be true. But true they are. Consider, for example, how Yale University put the kibosh on its Freshman Class Council’s T-shirt designed for the Yale-Harvard football game. The problem? The shirt quoted F. Scott Fitzgerald’s line from This Side of Paradise, that, “I think of all Harvard men as sissies.” The word “sissy” was deemed offensive to gay people. Or how about the Brandeis professor who was found guilty of racial harassment—with no formal hearing—for explaining, indeed criticizing, the word “wetbacks.” Simply saying the word was crime enough. Another professor, this time at the University of Central Florida, was suspended for making a joke in class equating his tough exam questions to a “killing spree.” A student reported the joke to the school’s administration. The professor promptly received a letter suspending him from teaching and banning him from campus. He was reinstated after the case went public. The vaguely worded campus speech codes proliferating across the country turn every person with the ability to exercise his or her vocal cords into an offender in the making. New York University prohibits “insulting, teasing, mocking, degrading or ridiculing another person or group.” The College of the Holy Cross prohibits speech “causing emotional injury through careless or reckless behavior.” The University of Connecticut issued a “Policy Statement on Harassment” that bans “actions that intimidate, humiliate, or demean persons or groups, or that undermine their security or self-esteem.” Virginia State University’s 2012–13 student handbook bars students from “offending ... a member of the University community.” But who decides what’s “offensive”? The illiberal left, of course. The list goes on and on. The University of Wisconsin-Stout at one point had an Information Technology policy prohibiting the distribution of messages that included offensive comments about a list of attributes including hair color. Fordham University’s policy prohibited using email to “insult.” It gets worse: Lafayette College—a private university—instituted a “Bias Response Team” which exists to “respond to acts of intolerance.” A “bias-related incident” was “any incident in which an action taken by a person or group is perceived to be malicious ... toward another person or group.” Is it really wise to have a policy that depends on the perception of offense by college-aged students? Other schools have bias-reporting programs encouraging students to report incidents. Speech codes create a chilling environment where all it takes is one accusation, true or not, to ruin someone’s academic career. The intent or reputation or integrity of the accused is of little import. If someone “perceives” you have said or acted in a racist way, then the bar for guilt has been met. If a person claims you caused them “harm” by saying something that offended them, case closed. In November 2013, more than two dozen graduate students at UCLA entered the classroom of their professor and announced a protest against a “hostile and unsafe climate for Scholars of Color.” The students had been the victims of racial “microaggression,” a term invented in the 1970s that has been recently repurposed as a silencing tactic. A common definition cited is that racial microaggressions “are brief and commonplace daily verbal, behavioral, or environmental indignities, whether intentional or unintentional, that communicate hostile, derogatory, or negative racial slights and insults towards people of color.” Like all these new categories, literally anything can be a microaggression. So what were the racial microaggressions that spawned the interruption of a class at the University of California at Los Angeles? One student alleged that when the professor changed her capitalization of the word “indigenous” to lowercase he was disrespecting her ideological point of view. Another proof point of racial animus was the professor’s insistence that the students use the Chicago Manual of Style for citation format (the protesting students preferred the less formal American Psychological Association manual). After trying to speak with one male student from his class, the kindly 79-year-old professor was accused of battery for reaching out to touch him. The professor, Val Rust, a widely respected scholar in the field of comparative education, was hung out to dry by the UCLA administration, which treated a professor’s stylistic changes to student papers as a racist attack. The school instructed Rust to stay off the Graduate School of Education and Information Services for one year. In response to the various incidents, UCLA also commissioned an “Independent Investigative Report on Acts of Bias and Discrimination Involving Faculty at the University of California, Los Angeles.” The report recommended investigations, saying that “investigations might deter those who would engage in such conduct, even if their actions would likely not constitute a violation of university policy.”
31 +Rights Precedent: restrictions on free speech creates a dangerous slippery slope. Universities should not be the arbiters of communication.
32 +*Climate change NC, Sustainability Florida
33 +Fisher 16 (Anthony L. Fisher, Dec 13, 2016, “Opposition to “offensive” speech on campuses will ultimately burn dissidents”, http://www.vox.com/the-big-idea/2016/12/13/13931524/free-speech-pen-america-campus-censorship)
34 +In perhaps the most cogent line of the entire report, the authors write: “Overreaction to problematic speech may impoverish the environment for speech for all.” In the name of social justice, some students are demanding administrators become the arbiters of what speech is legitimate and what isn’t. These students don’t seem to grasp that by granting authority figures the power to adjudicate which speakers have the right to be heard, they will inevitably find their own speech silenced when opponents claim offense, fear, or discomfort. Calls for crackdowns on “offensive” speech inevitably boomerang It’s already happening. Just ask the Palestinian activists whose boycott campaigns against Israel have been deemed hate speech by a number of public universities, and whose future political activities could be endangered by an act of Congress. Just this month, the Senate unanimously passed the "Anti-Semitism Awareness Act,” which directs the Department of Education to use the bill's contents as a guideline when adjudicating complaints of anti-Semitism on campus. Among the speech-chilling components of the bill, the political (and subjective) act of judging Israel by an "unfair double standard" could be considered hate speech. To cite other examples of unintended consequences of the crackdown on “offensive” speech, a black student at the University of Michigan was punished for calling another student “white trash,” and conservative law students at Georgetown claimed they were “traumatized” when an email critical of deceased Supreme Court Justice Antonin Scalia landed in their inboxes. The PEN America report also notes the Foundation for Individual Rights’ analysis of hundreds of campuses with “severely restrictive” speech codes. While a number of these campuses don't aggressively enforce their speech codes, the rules remain on the books; more than a dozen such codes have been overturned in the courts. What’s even more concerning is the increasingly popular notion that some ideas, such as opposition to abortion, should simply be “non-platformed" — that is, deemed unworthy of even being heard on campus. Although the trend of denying contentious speakers such as former Secretary of State Condoleezza Rice or refugee-turned-Dutch politician and critic of Islam Ayaan Hirsi Ali public platforms by "disinviting" them from campus is disconcerting, it is not censorship. However, a pro-choice group physically blocking the display of a pro-life group on the campus of the University of Georgia is a form of censorship. As is the case of University of California-Santa Barbara professor Mireille Miller-Young, who assaulted a young woman holding a pro-life placard including graphic imagery in a "free speech" zone on campus and stole her sign. When the young woman objected to the theft of her property, Miller-Young replied, "I may be a thief, but you're a terrorist." Like it or not, almost half of all Americans consider themselves pro-life. Banning their perspective from campus won't win over converts, and it’s both immoral and counterproductive to declare completely legitimate political perspectives beyond the pale. Think of anti-war protests or demonstrations in support of integration when both causes were broadly unpopular, and then try to consider a majority on campus declaring their school a "safe space" from such "offensive" expressions of free speech.
35 +The 1AC is key to challenge the broader culture of bigotry – restrictions on hate speech fail – multiple warrants.
36 +Majeed 9. Azhar Majeed, a native of Grosse Pointe, Michigan, received a B.A. in Political Science with a minor in History from the University of Michigan in 2004. He is also a 2007 graduate of the University of Michigan Law School. As an undergraduate, his academic interests included comparative constitutional law and political philosophy, particularly from the time period of the Enlightenment. During law school, Azhar represented the University of Michigan at the 2006 Tulane International Moot Court competition. Azhar was one of FIRE’s inaugural Robert H. Jackson Legal Fellows and was also a FIRE legal intern in 2005. , 11-18-2009, "Defying the Constitution: The Rise, Persistence, And Prevalence Of Campus Speech Codes," FIRE, https://www.thefire.org/defying-the-constitution-the-rise-persistence-and-prevalence-of-campus-speech-codes/ //RS ***BRACKETS IN ORIGINAL***
37 +The fourth major argument in defense of speech codes is that they combat the existence of racism, sexism, and other forms of prejudice in our society. According to proponents of this argument, speech codes, by prohibiting the expression of prejudicial and hateful views and punishing speakers who engage in such expression, discourage prejudicial thinking among university students. Ultimately, the theory goes, speech codes advance equality and result in a society less burdened with prejudice and intolerance. Proponents of this justification for speech codes believe that colleges and universities have a duty toward their students “to act affirmatively as a teacher of social mores and behavior that contribute positively to the overall societal goal of equality.”259 In the face of this obligation, to “‘tolerate an equal speaking to another equal in a way that denies the dignity and truth of equality is an implicit betrayal of the whole body politic, hampering positive social evolution.'”260 According to these proponents, speech codes are therefore justifiable because they discourage prejudice and intolerance among university students. By prohibiting the expression of prejudicial and hateful views, speech codes will lead students to abandon these types of beliefs and to support and uphold the equality of all members of society. Surprisingly, these arguments have found some credence in the courts, as well. The Sixth Circuit has stated, for instance, that “by informing people that the expression of racist or sexist attitudes in public is unacceptable, people may eventually learn that such views are undesirable in private, as well.”261 At an extreme, some commentators have argued that the equality purportedly created by speech codes is necessary before freedom of speech can exist at all. Alice Ma writes, “equality will not be possible without temporary inequality in the form of . . . hate speech regulations.”262 This equality, in turn, makes truly free speech possible. As Ma argues, “free speech is illusory unless each individual has equal opportunity to speak.”263 Richard Delgado similarly posits that “equality is a precondition of effective speech.”264 In other words, not only do speech codes eliminate prejudice and advance equality in society, they allow for true freedom of expression. This is because speech codes “increase the participation of minority students in the debate and dialogue that is central to college life.”265 Therefore, according to this line of reasoning, it is justifiable for universities to use speech codes to dictate what may or may not be said on campus, because this ultimately advances social equality, thereby making free speech truly possible. 1. Prejudicial Views Cannot Be Eliminated Through Censorship The first major flaw in this justification is that, intuitively, one cannot eliminate racist, sexist, and otherwise prejudicial viewpoints simply by prohibiting their expression. It is one thing to recognize that “there is a great deal of intolerance in today’s society” and that “the problems need to be acknowledged and addressed in order to produce effective policy solutions.”266 However, “repressing views does not solve the problem, but merely curtails minor symptoms and prevents true discussion of real solutions.”267 In suppressing the expression of certain views, speech codes merely create a “fictional ‘equality.'”268 The reality is that, regardless of the extent to which universities use speech codes to regulate campus speech, “incidents of hatred will continue because prohibiting certain speech will not eliminate the feelings and emotions underlying the speech.”269 As legal commentators have recognized, “driving racist, sexist, and other discriminatory speech underground will not necessarily eliminate a student’s thoughts and emotions.”270 Nadine Strossen argues that “no law could possibly eliminate all racist speech, let alone racism itself. If the marketplace of ideas cannot be trusted to winnow out the hateful, then there is no reason to believe that censorship will do so.”271 Strossen points to the fact that “there is no persuasive psychological evidence that punishment for name-calling changes deeply held attitudes” and that, rather, psychological studies “show that censored speech becomes more appealing and persuasive to many listeners merely by virtue of the censorship.”272 She also points to the dearth of empirical evidence, from nations which do prohibit racist speech, that censorship is an effective method of combating racism.273 For example, she points out that in Great Britain, which began to prohibit racist defamation in 1965, censorship of racist speech “has had no discernible adverse impact on the National Front and other neo-Nazi groups active in Britain.”274 She writes that not only has censorship “had no effect on more subtle, but nevertheless clear, signals of racism,” but in fact “some observers believe that racism is more pervasive in Britain than in the United States.”275 Therefore, she concludes, “those who share the dual goals of promoting racial equality and protecting free speech must concentrate on countering racial discrimination, rather than on defining the particular narrow subset of racist slurs that constitutionally might be regulable.”276 Generalizing from Strossen’s insights regarding racist speech, censorship is not an effective method of eliminating or reducing societal prejudice in its various forms. Speech codes therefore cannot be justified on this basis. 2. Censorship Leads to Dangerous and Counterproductive Outcomes Secondly, the justification that speech codes will eliminate prejudice and advance equality fails to recognize that censorship actually leads to dangerous and counterproductive outcomes. Legal commentators have recognized that free speech serves a “safety valve” function in that it “encourages expression of feelings of frustration and thereby decreases resort to violence.”277 This can also be thought of as the “emotive function of speech,” whereby “free speech is a necessary emotional outlet.”278 Very often, the “release” of engaging in free speech “reduces the speaker’s need to verbally or physically ‘vent’ on others in a confrontational manner.”279 Thus, when universities use speech codes to suppress and punish various forms of protected expression, they take away these crucial benefits of free speech. As a consequence, when students are not allowed to engage in free speech, there are several undesirable results. One is that those students holding beliefs the expression of which is restricted “may feel persecuted by the university’s edict forbidding those beliefs, or at least, their expression, and may therefore cling more tightly to them than if they had been permitted to voice their opinion.”280 Such hardening of views and perpetuation of stubborn thinking is extremely counterproductive and, moreover, fundamentally at odds with the university’s marketplace of ideas ideal. These students may also feel increased resentment towards groups on campus they perceive to be receiving preferential treatment in the form of protective speech codes.281 This, too, is to be avoided if one wishes to promote inter-group dialogue and understanding. The second counterproductive result of censorship is that it drives much “thought and expression underground, where it will be more difficult to respond to such speech and the underlying attitudes it expresses.”282 Once again, this is contrary to the university’s function as a marketplace of ideas; the ideal of rigorous and open debate is defeated when some views never enter the marketplace and students are deprived of an opportunity to learn from, and respond to, these views. Moreover, “revealing prejudicial attitudes, rather than forcing them underground, is the best path to eventually eliminating them through education and discussion.”283 When students holding prejudicial and hateful views simply respond to censorship by voicing them through alternative means and in alternative forums, those views essentially go unchallenged, allowing ignorance and bias to survive. The third and final dangerous outcome of censorship is that it may increase the likelihood of dangerously disruptive or even violent outbursts on campus. Perhaps owing to the frustration felt by some students due to perceived persecution by the university administration for their beliefs, as well as resentment felt by those students towards particular groups on campus, censorship often creates optimal conditions for violent behavior. One commentator therefore asserts that censorship can lead to “physical, potentially violent expressions that would otherwise be verbal.”284 Another similarly observes, “Regulation of speech serves only to silence the verbal cacophony of ignorance. The vapid thoughts of hatred will only be submerged temporarily, festering and multiplying, preparing to erupt as actions and deeds much worse than mere words and language.”285 Thus, on at least some occasions the devastating result of censorship may be campus violence. This is obviously a result to be avoided at great costs, as it does an immeasurable amount of harm to the lives of the students involved, to the state of inter-group relations on campus, and to the overall reputation and stature of the university. 3. Counterspeech is the Most Effective Response In addition to the fact that censorship of prejudicial speech fails to address the underlying beliefs and actually leads to counterproductive outcomes, there is a third flaw with this justification for speech codes: it ignores the fact that counterspeech is the more effective method of responding to the expression of hateful views. As I discussed in the previous section with respect to the rationale of protecting minority students from injurious speech, there are significant benefits to combating hateful speech with counterspeech rather than with censorship.286 One theorist argues, “The fallacy of the speech code arguments is the assertion that equality and an end to oppression will be achieved through unilateral speech regulation. Instead, the answer to the scurrilous problems of bigotry and hatred must be more speech and better speech. The force of speech and counter speech in the push for social change cannot be underestimated.”287 Another commentator similarly notes that “to eliminate intolerance and hatred we must expose the falsehoods and inconsistencies of those arguments supporting hatred,” because these views “will fall out of favor and become increasingly unacceptable to all of society as a result of the public being exposed to and recognizing the problems and weak foundations of the hate speech argument.”288 By contrast, “speech codes are an unprincipled way out, and actually contribute to the dilemma by stifling healthy debate.”289 The use of speech codes “stultifies the candid intergroup dialogue concerning racism and other forms of bias that constitutes an essential precondition for reducing discrimination.”290 Therefore, universities should recognize that whereas censorship does nothing to address the underlying problems of prejudice and hate, counterspeech can actually change some people’s thinking and in the process create meaningful progress. This holds true even if prejudicial viewpoints initially survive and linger in the marketplace of ideas, because it reflects the unfortunate reality that some individuals are ignorant about other people and cultures.291 Ultimately, counterspeech can successfully make a difference in people’s views and thereby combat the existence of intolerance and hatred in society. Speech codes, conversely, are ill-equipped for this purpose. Consequently, the existence of speech codes on the college campus cannot be justified under the rationale of eliminating societal prejudice and advancing equality.
38 +Advantage 2 is Sexual Assault
39 +Scenario 1 – Rape Law
40 +Teachers are dissuaded from teaching rape law due to a culture of fear surrounding liberal speech codes.
41 +Fisher 2 (Anthony L. Fisher, Dec 13, 2016, “Opposition to “offensive” speech on campuses will ultimately burn dissidents”, http://www.vox.com/the-big-idea/2016/12/13/13931524/free-speech-pen-america-campus-censorship)
42 +PEN America, the literary and human rights association that lists as one of its core principles a commitment to "protect open expression in the United States and worldwide," set out to explore the state of free speech on the nation’s campuses — re-examining several high-profile incidents and controversies. While not comprehensive, the report, published this fall, is impressively thorough, treating much of its content as teachable case studies, rather than a set of self-affirming anecdotes. Some press coverage, however, suggested that the PEN America report — titled “And Campus For All: Diversity, Inclusion, and Freedom of Speech at U.S. Universities" — had exonerated campuses from the charge that they insufficiently protect free speech, and that it sided with students who think "cries of ‘free speech’ are too often used as a cudgel against them,” as the New York Times put it. The report itself contributes in a small way to this confused take, largely due to a single line in its conclusion which (improbably) asserts that there is no “pervasive ‘crisis’ for free speech on campus.” But that same report exhaustively details dozens of cases where certain speech was inappropriately muted on campus. More examples: Skidmore College’s Bias Response Group determined that the posting of Donald Trump's official campaign motto "Make America Great Again" in classrooms where women and people of color worked constituted "racialized, targeted attacks." A tenured associate professor at Louisiana State University, Teresa Buchanan, was dismissed for the offenses of using off-color language (including "fuck no”) in class, and off campus (where she said “pussy” in a conversation with another teacher). Like the University of Colorado’s Adler, Buchanan was deemed to have created a "hostile learning environment." The authors write of the "chilling effect" such administrative actions have on professors who fear reprisals for unintentional offense, and as a result, will avoid certain subjects, including rape law and even some aspects of Greek mythology, out of an abundance of caution.
43 +Lack of rape law education hurts survivors of sexual assault – they won’t win court cases
44 +Soave 14 (Robby Soave, Dec. 16, 2014, “Profs Have Stopped Teaching Rape Law Now That Everything 'Triggers' Students”, http://reason.com/blog/2014/12/16/profs-have-stopped-teaching-rape-law-now)
45 +Students seem more anxious about classroom discussion, and about approaching the law of sexual violence in particular, than they have ever been in my eight years as a law professor. Student organizations representing women’s interests now routinely advise students that they should not feel pressured to attend or participate in class sessions that focus on the law of sexual violence, and which might therefore be traumatic. These organizations also ask criminal-law teachers to warn their classes that the rape-law unit might “trigger” traumatic memories. Individual students often ask teachers not to include the law of rape on exams for fear that the material would cause them to perform less well. One teacher I know was recently asked by a student not to use the word “violate” in class—as in “Does this conduct violate the law?”—because the word was triggering. Some students have even suggested that rape law should not be taught because of its potential to cause distress. Suk—who is one of the signatories on this statement of opposition to Harvard's illiberal sexual assault policy—goes on to note that the very real, terrible consequence of not teaching rape law will be the proliferation of lawyers ill-equipped to deal with such matters. Victims of sexual assault deserve competent legal representation; the legal system needs prosecutors, defense attorneys, and judges who have vigorously studied the nuances of rape adjudication. Social progress on all these fronts will be rolled back if law professors stop educating students about rape. That would be a travesty of justice.
46 +Scenario 2 – Student Journalism
47 +Universities continuously abuse legislation to hide sexual violence by denying information to reporters, redacting information about the perpetrator, and suing students who disclose reports – Student Journalism is key to sexual assault justice.
48 +Saul 12-2-16 Stephanie Saul is a reporter for The New York Times and a recipient of the Pulitzer Prize in journalism. Saul attended public schools in New Albany, where she showed an early interest in journalism as editor of the high school newspaper. At Ole Miss, Saul was on the staff of the Daily Mississippian and the yearbook. She was a member of Phi Kappa Phi, the academic honor society, and Kappa Delta social sorority. After graduating in 1975 with a B.A. in journalism, Saul joined The Clarion-Ledgeras a reporter, covering Mississippi government and the state legislature. A succession of reporting jobs at other newspapers led her to The New York Timesin 2005, where she is currently a member of the newspaper’s investigative reporting team. "Campus Press vs. Colleges: Kentucky Suit Highlights Free-Speech Fight,". 12-2-2016. New York Times, http://www.nytimes.com/2016/12/02/us/kentucky-student-journalism-free-speech.html//roman
49 +The confidential informant had an explosive tip for the University of Kentucky's campus newspaper: An associate professor of entomologv had been accused of groping students, and the college, after an investigation, had permitted him to leave quietly. On the trail of a hot story, the paper, The Kentucky Kernel, requested files from the university. Officials turned over some documents, but they contained few details. Months later, though, in August, a 122-page dossier about the accusations was leaked to the newspaper, which reported the specifics, including one woman's claim that the professor had grabbed her buttocks, crotch and breast during an off-campus conference in 2013. Now The Kernel is being sued by the university in a continuing battle over whether records in the case should be disclosed. And it is just one of several disputes between universities and student newspapers, which are pushing administrations to become more transparent about sexual assault, a defining issue on campuses around the country. With cuts at traditional news organizations, student journalists see their role as increasingly important in shedding light on the subject and are becoming more dogged in ferreting out information about sexual assault cases, particularly when faculty or student perpetrators could simply find other jobs or transfer to another university. Some are demanding that the student body be given details when a college confirms wrongdoing, particularly of a violent nature, by students, faculty or staff members. Universities, though, often invoke privacy concerns in refusing to make details of inquiries public. "The critical question is whether we are able to continue protecting the confidentiality and privacy of victim-survivors who courageously come forward to report details of their victimization, " wrote the University of Kentucky's president, Eli Capilouto, in a university wide email. "The protection of victim-survivor privacy, " the email continued, requires more than the redaction of names. It requires the redaction of any information that might reasonably lead to the identification of victim-survivors as well as the intimate details of the sexual assault. " Frank LoMonte, executive director of the Student Press Law Center, a nonprofit organization, sees it another way. With state funding reductions and increasing competition for top students, colleges are more motivated than ever, he suggested, to maintain their reputations. "The stakes have increased for colleges to keep secrets, " Mr. LoMonte said. "They're getting more aggressive." His group has helped student journalists fight to get documents and other information, and has worked to fend off funding cuts that students believe were in retaliation for controversial articles. At Brandeis University, in Waltham, Mass. three staff members on The Justice, the student newspaper, were notified in February that they would be called to a university meeting — the first step in a disciplinary process — because the newspaper had audiotaped a public rally in 2015 at which students criticized the university's handling of sexual assault cases. Someone had complained that the rally was recorded without permission, which the complainant viewed as possibly violating state law and college rules. The Justice had used the recordings for an article about the rally. No formal charges were filed, the university said, because it concluded that student journalists covering public events were within their rights to use recording devices. "We were very concerned that the student press at Brandeis was being targeted unfairly," said Ari Cohn, a lawyer with the nonprofit Foundation for Individual Rights in Education, which aided the students. "The public relations issues around sexual assault on campus are massive right now. There's definitely a desire by universities to be out in front of those issues and to show they're taking this seriously. In some cases, like this one, that causes an overreaction. The Daily Tar Heel, an independent publication at the University of North Carolina-Chapel Hill, sued the university on Nov. 21 after officials refused to release details about sexual assault cases there. In a statement, the vice chancellor for communications, Joel Curran, said the university had a "profound responsibility to protect and vigorously defend the privacy of sexual assault victims and all students, including witnesses, who may be involved." But Jane Wester, The Daily Tar Heel's editor, said, "Once someone has been found responsible for a violent offense, the university is under no obligation to keep that information private." At Indiana University, the independent Indiana Daily Student has been battling since September to obtain a 13-page report on the school's inquiry into sexual assault accusations against a former ballet instructor, Guoping Wang, who was and charged with sexual battery of a student. The criminal case is pending. Hannah Alani, the investigations editor for The Indiana Daily Student, said the university's refusal to release its report — partly on grounds that it is part of Mr. Wang's personnel file — fits a pattern in which the university has repeatedly declined requests related to sexual assault, prompting it to seek legal advice. "Indiana University insists it takes sexual assault serious ly," said Ms. Alani, whose newspaper has been aggressively covering campus sexual assault. "But when pressed for transparency on student and faculty cases, the university tells the public very little." An Indiana spokeswoman, Margie Smith-Simmons, said the documents requested by the paper were not "public records," and therefore could not be released. The Kernel, which is partly financed by the University of Kentucky, has won numerous journalism awards. The university itself is home to a First Amendment Center endowed by the venerable Scripps Howard broadcasting and newspaper chain.
50 +Underview
51 +To clarify, the First Amendment doesn’t permit meaningless obscenity, child pornography, expressions that in and of itself causes injury, and remarks intended to cause violence
52 +Ruane 14 Kathleen Anne Ruane – Legislative Attorney. Her report was published by the Congressional Research Service, which is a branch of government, "Freedom of Speech and Press: Exceptions to the First Amendment", https://fas.org/sgp/crs/misc/95-815.pdf,pgs. 1-5//roman
53 +The First Amendment to the United States Constitution provides that “Congress shall make no law ... abridging the freedom of speech, or of the press.” This language restricts government’s ability to constrain the speech of citizens. The prohibition on abridgment of the freedom of speech is not absolute. Certain types of speech may be prohibited outright. Some types of speech may be more easily constrained than others. Furthermore, speech may be more easily regulated depending upon the location at which it takes place. This report provides an overview of the major exceptions to the First Amendment—of the ways that the Supreme Court has interpreted the guarantee of freedom of speech and press to provide no protection or only limited protection for some types of speech. For example, the Court has decided that the First Amendment provides no protection for obscenity, child pornography, or speech that constitutes what has become widely known as “fighting words.” The Court has also decided that the First Amendment provides less than full protection to commercial speech, defamation (libel and slander), speech that may be harmful to children, speech broadcast on radio and television (as opposed to speech transmitted via cable or the Internet), and public employees’ speech. Even speech that enjoys the most extensive First Amendment protection may be subject to “regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Furthermore, even speech that enjoys the most extensive First Amendment protection may be restricted on the basis of its content if the restriction passes “strict scrutiny” (i.e., if the government shows that the restriction serves “to promote a compelling interest” and is “the least restrictive means to further the articulated interest”). This report will outline many of the standards the government must meet when attempting to regulate speech in a constitutional manner. The report will be updated periodically to reflect new developments in the case law.
54 +Ask if I will meet your interp in cx; this avoids unnecessary theory- we can work something out; this allows for greater substantive debate which is the only form of education which is unique to debate. Grant me an auto I meet on theory if the interp isn’t checked in cross-ex to discourage nonchecking.
55 +Abstract theorizing without providing material solutions to problems turns itself
56 +Bryant 12 (Levi Bryant, professor of philosophy at Collin College, “Underpants Gnomes: A Critique of the Academic Left,” 11/11/2012, http://larvalsubjects.wordpress.com/2012/11/11/underpants-gnomes-a-critique-of-the-academic-left/)
57 +**edited for gendered language
58 +But finally, and worst of all, us Marxists and anarchists all too often act like assholes. We denounce others, we condemn them, we berate them for not engaging with the questions we want to engage with, and we vilify them when they don’t embrace every bit of the doxa that we endorse. We are every bit as off-putting and unpleasant as the fundamentalist minister or the priest of the inquisition (have people yet understood that Deleuze and Guattari’s Anti-Oedipus was a critique of the French communist party system and the Stalinist party system, and the horrific passions that arise out of parties and identifications in general?). This type of “revolutionary” is the greatest friend of the reactionary and capitalist because they do more to drive people into the embrace of reigning ideology than to undermine reigning ideology. These are the people that keep Rush Limbaugh in business. Well done! But this isn’t where our most serious shortcomings lie. Our most serious shortcomings are to be found at phase 2. We almost never make concrete proposals for how things ought to be restructured, for what new material infrastructures and semiotic fields need to be produced, and when we do, our critique-intoxicated cynics and skeptics immediately jump in with an analysis of all the ways in which these things contain dirty secrets, ugly motives, and are doomed to fail. How, I wonder, are we to do anything at all when we have no concrete proposals? We live on a planet of 6 billion people. These 6 billion people are dependent on a certain network of production and distribution to meet the needs of their consumption. That network of production and distribution does involve the extraction of resources, the production of food, the maintenance of paths of transit and communication, the disposal of waste, the building of shelters, the distribution of medicines, etc., etc., etc. What are your proposals? How will you meet these problems? How will you navigate the existing mediations or semiotic and material features of infrastructure? Marx and Lenin had proposals. Do you? Have you even explored the cartography of the problem? Today we are so intellectually bankrupt on these points that we even have theorists speaking of events and acts and talking about a return to the old socialist party systems, ignoring the horror they generated, their failures, and not even proposing ways of avoiding the repetition of these horrors in a new system of organization. Who among our critical theorists is thinking seriously about how to build a distribution and production system that is responsive to the needs of global consumption, avoiding the problems of planned economy, ie., who is doing this in a way that gets notice in our circles? Who is addressing the problems of micro-fascism that arise with party systems (there’s a reason that it was the Negri and Hardt contingent, not the Badiou contingent that has been the heart of the occupy movement). At least the ecologists are thinking about these things in these terms because, well, they think ecologically. Sadly we need something more, a melding of the ecologists, the Marxists, and the anarchists. We’re not getting it yet though, as far as I can tell. Indeed, folks seem attracted to yet another critical paradigm, Laruelle. I would love, just for a moment, to hear a radical environmentalist talk about their** ideal high school that would be academically sound. How would he provide for the energy needs of that school? How would he meet building codes in an environmentally sound way? How would she provide food for the students? What would be her plan for waste disposal? And most importantly, how would she navigate the school board, the state legislature, the federal government, and all the families of these students? What is your plan? What is your alternative? I think there are alternatives. I saw one that approached an alternative in Rotterdam. If you want to make a truly revolutionary contribution, this is where you should start. Why should anyone even bother listening to you if you aren’t proposing real plans? But we haven’t even gotten to that point. Instead we’re like underpants gnomes, saying “revolution is the answer!” without addressing any of the infrastructural questions of just how revolution is to be produced, what alternatives it would offer, and how we would concretely go about building those alternatives. Masturbation. “Underpants gnome” deserves to be a category in critical theory; a sort of synonym for self-congratulatory masturbation. We need less critique not because critique isn’t important or necessary– it is –but because we know the critiques, we know the problems. We’re intoxicated with critique because it’s easy and safe. We best every opponent with critique. We occupy a position of moral superiority with critique. But do we really do anything with critique? What we need today, more than ever, is composition or carpentry. Everyone knows something is wrong. Everyone knows this system is destructive and stacked against them. Even the Tea Party knows something is wrong with the economic system, despite having the wrong economic theory. None of us, however, are proposing alternatives. Instead we prefer to shout and denounce. Good luck with that
59 + Particularism is good—root cause claims and focus on overarching structures ignore application to material injustice.
60 +Gregory Fernando Pappas 16 Texas AandM University “The Pragmatists’ Approach to Injustice”, The Pluralist Volume 11, Number 1, Spring 2016, BE
61 +The pragmatists’ approach should be distinguished from nonideal theories whose starting point seems to be the injustices of society at large that have a history and persist through time, where the task of political philosophy is to detect and diagnose the presence of these historical injustices in particular situations of injustice. For example, critical theory today has inherited an approach to social philosophy characteristic of the European tradition that goes back to Rousseau, Marx, Weber, Freud, Marcuse, and others. Accord- ing to Roberto Frega, this tradition takes society to be “intrinsically sick” with a malaise that requires adopting a critical historical stance in order to understand how the systematic sickness affects present social situations. In other words, this approach assumes that¶ a philosophical critique of specific social situations can be accomplished only under the assumption of a broader and full blown critique of soci- ety in its entirety: as a critique of capitalism, of modernity, of western civilization, of rationality itself. The idea of social pathology becomes intelligible only against the background of a philosophy of history or of an anthropology of decline, according to which the distortions of actual social life are but the inevitable consequence of longstanding historical processes. (“Between Pragmatism and Critical Theory” 63)¶ However, this particular approach to injustice is not limited to critical theory. It is present in those Latin American and African American political philosophies that have used and transformed the critical intellectual tools of ¶ critical theory to deal with the problems of injustice in the Americas. For instance, Charles W. Mills claims that the starting point and alternative to the abstractions of ideal theory that masked injustices is to diagnose and rectify a history of an illness—the legacy of white supremacy in our actual society.11 The critical task of revealing this illness is achieved by adopting a historical perspective where the injustices of today are part of a larger historical narrative about the development of modern societies that goes back to how Europeans have progressively dehumanized or subordinated others. Similary, radical feminists as well as Third World scholars, as reaction to the hege- monic Eurocentric paradigms that disguise injustices under the assumption of a universal or objective point of view, have stressed how our knowledge is always situated. This may seem congenial with pragmatism except the locus of the knower and of injustices is often described as power structures located in “global hierarchies” and a “world-system” and not situations.12¶ Pragmatism only questions that we live in History or a “World-System” (as a totality or abstract context) but not that we are in history (lowercase): in a present situation continuous with others where the past weighs heavily in our memories, bodies, habits, structures, and communities. It also does not deny the importance of power structures and seeing the connections be- tween injustices through time, but there is a difference between (a) inquiring into present situations of injustice in order to detect, diagnose, and cure an injustice (a social pathology) across history, and (b) inquiring into the his- tory of a systematic injustice in order to facilitate inquiry into the present unique, context-bound injustice. To capture the legacy of the past on present injustices, we must study history but also seek present evidence of the weight of the past on the present injustice.¶ If injustice is an illness, then the pragmatists’ approach takes as its main focus diagnosing and treating the particular present illness, that is, the particular situation-bound injustice and not a global “social pathology” or some single transhistorical source of injustice. The diagnosis of a particular injustice is not always dependent on adopting a broader critical standpoint of society in its entirety, but even when it is, we must be careful to not forget that such standpoints are useful only for understanding the present evil. The concepts and categories “white supremacy” and “colonialism” can be great tools that can be of planetary significance. One could even argue that they pick out much larger areas of people’s lives and injustices than the categories of class and gender, but in spite of their reach and explanatory theoretical value, they are nothing more than tools to make reference to and ameliorate particular injustices experienced (suffered) in the midst of a particular and unique re- lationship in a situation. No doubt many, but not all, problems of injustice are a consequence of being a member of a group in history, but even in these cases, we cannot a priori assume that injustices are homogeneously equal for all members of that group. Why is this important? The possible pluralism and therefore complexity of a problem of injustice does not always stop at the level of being a member of a historical group or even a member of many groups, as insisted on by intersectional analysis. There may be unique cir- cumstances to particular countries, towns, neighborhoods, institutions, and ultimately situations that we must be open to in a context-sensitive inquiry. If an empirical inquiry is committed to capturing and ameliorating all of the harms in situations of injustice in their raw pretheoretical complexity, then this requires that we try to begin with and return to the concrete, particular, and unique experiences of injustice.¶ Pragmatism agrees with Sally Haslanger’s concern about Charles Mills’s view. She writes: “The goal is not just a theory that is historical (v. ahistori- cal), but is sensitive to historical particularity, i.e., that resists grand causal narratives purporting to give an account of how domination has come about and is perpetuated everywhere and at all times” (1). For “the forces that cause and sustain domination vary tremendously context by context, and there isn’t necessarily a single causal explanation; a theoretical framework that is useful as a basis for political intervention must be highly sensitive to the details of the particular social context” (1).13¶ Although each situation is unique, there are commonalities among the cases that permit inquiry about common causes. We can “formulate tentative general principles from investigation of similar individual cases, and then . . . check the generalizations by applying them to still further cases” (Dewey, Lectures in China 53). But Dewey insists that the focus should be on the indi- vidual case, and was critical of how so many sociopolitical theories are prone to starting and remaining at the level of “sweeping generalizations.” He states that they “fail to focus on the concrete problems which arise in experience, allowing such problems to be buried under their sweeping generalizations” (Lectures in China 53).¶ The lesson pragmatism provides for nonideal theory today is that it must be careful to not reify any injustice as some single historical force for which particular injustice problems are its manifestation or evidence for its exis- tence. Pragmatism welcomes the wisdom and resources of nonideal theories that are historically grounded on actual injustices, but it issues a warning about how they should be understood and implemented. It is, for example, sympathetic to the critical resources found in critical race theory, but with an important qualification. It understands Derrick Bell’s valuable criticism as context-specific to patterns in the practice of American law. Through his inquiry into particular cases and civil rights policies at a particular time and place, Bell learned and proposed certain general principles such as the one of “interest convergence,” that is, “whites will promote racial advantages for blacks only when they also promote white self-interest.”14 But, for pragma- tism, these principles are nothing more than historically grounded tools to use in present problematic situations that call for our analysis, such as deliberation in establishing public policies or making sense of some concrete injustice. The principles are falsifiable and open to revision as we face situation-specific injustices. In testing their adequacy, we need to consider their function in making us see aspects of injustices we would not otherwise appreciate.15
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1 +Winston Churchill
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1 +1AC – Border Patrol
2 +Part 1 is The Fence
3 +Qualified immunity gives the US Border Patrol a shield under which it brutally tortures and kills Mexicans.
4 +Kennis 16. (Andrew Kennis. Andrew Kennis is an international journalist, a higher education pedagogue and an academic researcher specializing in Digital Journalism Studies, Communication Policy Studies, Global Media, Political Communication, Political Economy and International Communications. Dr. Kennis was recently appointed as a Visiting Assistant Professor at the National Autonomous University of Mexico (UNAM), where he will teach several courses, including a graduate seminar analyzing the news media and the drug war. He recently completed his third year as an Assistant Professor at the University of Texas, El Paso (UTEP), where he undertook research on and taught courses in journalism studies and practice, global media and the drug war. While publishing peer-reviewed, scholarly research and completing grant-funded studies, Dr. Kennis still continues to practice journalism from many corners of the globe. As a researcher, Dr. Kennis has published in peer review journals ranging across three different disciplines (communications, political science and technology studies). He has won top conference paper awards and presented his work in both the United States and abroad (London, Tokyo, Vancouver and Mexico City). University-level courses Dr. Kennis has designed and taught have included "Multimedia Writing," "Investigative and Public Affairs Reporting," "Digital Media and Globalization," “Global Media, Money and Power," "Media and the Drug War," "Media and Democracy," “Politics and the Media,” and other classes in political science, policy studies and society and technology studies. As a journalist, Dr. Kennis has practiced online-based / convergence reporting, investigative and print reporting, citizen journalism, and online-based and traditional radio throughout the last fifteen years. He has reported from locations based in four continents and over twenty countries across the globe, including on-the-scene reporting from the El Paso / Ciudad Juarez border corridor, Brazil, Colombia, Israel and the Occupied Territories, Japan, Venezuela, Taiwan, Guatemala and Mexico. Dr. Kennis served as the border correspondent for teleSUR's English division and has also published in a variety of news sources, including The Christian Science Monitor, Al Jazeera English, teleSUR English, Proceso (Mexico), Time Out, emeequis (Mexico). His work has resulted in invited on-air expert appearances on both live international television and radio broadcasts. “Supreme Court to Decide Fate of Case That Challenges Cross-Border Killings by US Agents”. 03/30/16. https://news.vice.com/article/supreme-court-cross-border-killing-patrol-agent-usa-mexico) //TruLe
5 +Sergio Adrián Hernández was a slender 15-year-old boy who loved soccer and aspired to be a police officer when he was shot through his left eye by Jesus Mesa Jr., a US Border Patrol agent, on June 6, 2010 in Ciudad Juárez. Guillermo Arevalo Pedroza, a longtime construction worker, was in the midst of a family barbecue picnic and birthday celebration on September 3, 2012 when he was shot by the Border Patrol. The 37-year-old Arevalo bled to death in his 10-year-old daughter's arms in Nuevo Laredo, just across the border from Laredo, Texas. José Antonio Elena Rodríguez was taking an evening walk to pick up a hot dog at a local food stand when he was hit by at least 12 rounds from a Border Patrol agent's .40 caliber pistol. The 16-year-old died on October 10, 2012 in Nogales near the Arizona border. Juan Pablo Santillan was collecting firewood on July 7, 2012 with his brother when he was killed in Nogales. His brother said the man behind the gun responded to an appeal for help by yelling "Let the dog die."
6 +All these victims were Mexican nationals who were unarmed and, according to background checks, only one had a criminal record. All the deaths occurred in border towns in Mexico. Most importantly, they were among the seven people killed on Mexican soil since 2010 by Border Patrol agents who fired their weapons from the US side of the border. Based on more than 13,000 documents worth of data coming from Border Patrol reports, records from the Mexican foreign ministry, news accounts compiled by the Southern Border Coalition, and an investigation by the Arizona Republic, Border Patrol agents have killed at least 52 people since 2004, including 15 US citizens, with 30 of those fatalities occurring since 2010, including the seven cross-border cases. Now the families of these victims, their lawyers and advocacy groups, have joined together to force a decision with important implications for border politics, as well as their respective quest for justice. One of the cases, the shooting of the 15-year-old boy, led to a lawsuit— Hernández v. Mesa— that is now before the US Supreme Court, which is due to decide by April 1 whether to postpone the case, fully consider it, or throw it out altogether. At the same time, several other cases are moving through the courts, including another civil suit that is similar to the one being considered by the Supreme Court and the first criminal case ever to be prosecuted for a cross-border shooting. If the Supreme Court either rejects the case, or if it upholds the last appellate court ruling in the government's favor, Mexican families will not have the right to sue the government for civil rights violations of deceased relatives who have been victims of cross-border killings at the hands of Border Patrol agents. However, if Mexican families win either or both of the civil cases, they will gain Fourth and Fifth Amendment rights, including the chance to sue Border Patrol agents who kill or seriously injure their family members. This could result in compensatory damages via the constitutional and civil rights they will have gained. The Hernández v. Mesa case got to the Supreme Court after the notoriously conservative Fifth Circuit Court of Appeals, which has jurisdiction over all of Texas and many border areas, ruled against the families. The government argues that this is a case where "qualified immunity" applies to the agent responsible for the shooting. This means that in order to successfully sue a government official, you have to show a violation of clearly established law. The Fifth Circuit agreed, reasoning that it is not clearly established by law that the US Constitution applies to a Mexican national killed in Mexico. Lawyers representing the families argue that this argument circumvents the obvious. "You don't need a court decision to say that it is wrong to kill an unarmed 15-year-old boy," says Steve Shadowen, one of the lawyers representing the Hernández family. "It's common sense and decency that you get judicial review when it comes to police killings of unarmed children," he added. Shadowen also stressed that at the time Hernández was shot, the officer didn't know whether the boy was a US or a Mexican national. Federal agencies — Border Patrol is part of US Customs and Border Protection (CBP), which is part of the Department of Homeland Security — have tended to justify cross-border killings on the grounds that Border Patrol agents only shot because they were in danger from the victims throwing rocks at them. Lawyers for the families of shooting victims have dismissed this argument, as have US government officials in other contexts. When Hillary Clinton was secretary of state, she criticized Egyptian security forces for using deadly force against stone-throwing protesters shortly before the fall of the US-supported Hosni Mubarak regime. At the international level, United Nations Commissions on Human Rights, civil rights groups such as the American Civil Liberties Union, and human rights groups such as Amnesty International and Human Rights Watch have issued condemnations against fatal force being used against rock throwers. The so-called "rockers" defense was used in the case of Hernández, though now there are serious doubts about whether the teen ever even threw a stone before he was killed on the Mexican side of the Rio Grande. James Tomsheck, a former CBP internal affairs director turned whistleblower, recently wrote in a deposition for the Supreme Court case that he saw three different videotapes of the murder of Hernández, and they all confirmed that the teenager did not throw any rocks at Mesa. Related: 'It's an American Problem': Meet the Militias Patrolling the US Border Tomsheck also recalled the assessment of a senior FBI official who stated that if the Border Patrol were a municipal police agency, its excessive use of force would have resulted in it being put into "federal receivership," similar to what has happened in Ferguson, Albuquerque, and other cities with troubled police departments where the Department of Justice has intervened by launching civil rights probes. The 52 people killed by Border Patrol agents since 2004 include several unarmed men who were beaten to death, a Mexican citizen who died after he was forced to drink concentrated liquid methamphetamine, and other civilians who were shot, pepper-sprayed, or shocked with stun guns. Some frontier watchers say Border Patrol violence is linked to less stringent recruiting standards and poor training amid a push to militarize the border that goes back several administrations. The efforts first began in the mid-90s, but accelerated dramatically after George W. Bush signed the 2006 Secure Fence Act, which led to more than 600 miles of fencing and additional funding for staff and surveillance. Funding increases continued under the Obama administration, which has deported more people than in any other previous administration. "This The means by which potentially hired Border Patrol personnel have been screened has led to a significant percentage who are unfit to carry a gun and a badge," said Chris Rickerd, a staff attorney at the American Civil Liberties Union who has long monitored the lack of punishments registered against the Border Patrol. "It is the largest law enforcement agency in the country, but doesn't nearly have the commensurate oversight and accountability it needs." It is rare for CBP to even release the names of agents involved in shootings or the identities of their victims, and, until recently, there had never been a criminal charge filed against any Border Patrol agent involved in a fatal cross-border shooting. Last September, CPB agent Lonnie Swartz was charged with second-degree murder for killing 16-year-old José Antonio Elena Rodríguez. Swartz shot the teenager at least 10 times from the US side of the border while Elena Rodríguez was taking a nighttime stroll down International Avenue in Nogales, Mexico in 2012. Luis Parra, a Nogales and Tucson, Arizona-based lawyer, is representing the family of Elena Rodríguez. "There has never been a cross-border homicide case, ever," he said. "It is unique." Parra maintains that the government is contradicting itself by charging one of its officers with murder while also taking the position that "qualified immunity" applies to civil cases related to cross-border shootings. Parra added that his client's citizenship is irrelevant. "There was a boy that was shot with 10 bullets in his own country and he was not committing any crimes," he said. "What gives them the right to spray 10 bullets into a boy in his own country?" For more than a half-decade, grieving Mexican families who have lost relatives to Border Patrol shootings have had to contend with contradictory legal decisions that have given them both victories and defeats on the path to the Supreme Court. "Maybe, just maybe because of the death of my son, all of this mess will change," Araceli Rodríguez Salazar told VICE News. "I don't want any other parents to suffer in the manner in which I have." Rodríguez is the mother of José Antonio Elena Rodríguez, the 16-year-old who was shot unarmed in Nogales, and whose case is currently being considered in the Ninth Circuit Court of Appeals. Guillermo Arevalo Pedroza, the unarmed construction worker killed by the Border Patrol in 2012, was "a happy person, a playful father and a family man. He liked to play and watch soccer," his widow Nora Isabel Lam told VICE News. "Nobody expected it and I never thought they were going to kill my husband," she said. "I am not sure if the case will be considered but I simply pray that good news will come out this when all is said and done." Whether Border Patrol agents will ultimately be held accountable for cross-border shootings depends on the pending Supreme Court case regarding the killing of 15-year-old Sergio Adrián Hernández. Prior to their case reaching the high court, the Hernández family had a string of ups and downs in the courtroom. In 2012, a lower court judge acknowledged that the case involved the "wrongful taking of life," but ultimately ruled that it should be dismissed because "the victim was not a US citizen and incurred the injury in Mexico." A partial panel of the Fifth Circuit Court reversed the decision in 2014, resulting in an unexpected and significant victory for the Hernández family. But even that gain was short-lived — the full court reversed the decision after an appeal by the Obama administration. Now, the Hernández family awaits word on whether its own appeal will be heard from the Supreme Court. The court has until Friday to decide which direction it wants to go with a case that has seen a flurry of contradictory rulings. Robert Hilliard, a lawyer for the Hernández family based in Corpus Christi, Texas, will handle oral arguments in the case if the justices decide to hear it. He has never argued a case in front of the Supreme Court, but his colleagues told VICE News that he has been known to "bring courtrooms to tears." Shadowen, another Hernández family attorney and Hilliard's colleague, said he thinks it is unlikely to be thrown out, in large part because the justices decided late last year to send the case to Solicitor General Donald B. Verrilli, Jr., the government's legal expert and adviser, for consideration. Although Verrilli wrote in opposition to the Mexican families on behalf of the federal government, Shadowen said that it's a less important indicator than the fact that most cases sent to the solicitor general for an opinion end up being fully considered by the Supreme Court. In light of the recent death of Justice Antonin Scalia, however, some believe that the most likely decision will be a delay. Parra, the Elena Rodríguez lawyer, said that this could also give more importance to his pending case before the Ninth Circuit since it could come to trial before the Supreme Court decides anything on the Hernández case. Lower courts have ruled favorably for Elena Rodríguez, which could be significant going forward depending on the outcome of the separate Supreme Court case. Hilliard nevertheless remains optimistic about his chances. He told VICE News that, at the end of the day, "You can't have a free killing zone or a place where law enforcement agents are allowed to shoot and murder innocent Mexican nationals without civil recourse." In spite of Hilliard's optimism, the question remains: Will border immunity in terms of cross-border killings continue to survive without any legal recourse for Mexican victims? Nothing less than that question is what is at stake this week in light of the pending decision to be taken by the Supreme Court.
7 +The Border Patrol systematically uses the legal system as a tool to hide their violence and to absolve themselves of any responsibility.
8 +Bennett 15. Brian Bennett, 6-15-2015, "Border Patrol absolves itself in dozens of cases of lethal force," La Times, http://www.latimes.com/nation/la-na-border-patrol-shootings-20150615-story.html//AD
9 +A U.S. Border Patrol agent who killed an unarmed 15-year-old Mexican boy by shooting him in the face after a rock-throwing incident on a border bridge to El Paso in 2010 was recently cleared of wrongdoing by the agency's internal affairs office. So was a Border Patrol agent who shot and killed a 17-year-old Mexican who threw rocks from the Mexican side of the border fence near Nogales, Ariz., in 2011. Internal affairs also cleared an agent who shot and killed a 19-year-old U.S. citizen as he climbed over a border fence into Mexico near Douglas, Ariz., in 2011. Agents said the man was seeking to flee after driving a narcotics-laden truck into a Border Patrol vehicle. In all, an internal investigation of 67 shooting incidents, which left 19 people dead, absolved agents of criminal misconduct in all but three cases, which are still pending. The review was completed last month. None of the agents involved has been charged with a crime, said Anthony Triplett, who helped direct the review at the office of internal affairs for U.S. Customs and Border Protection, the parent agency of the Border Patrol. Only two agents faced disciplinary action. Both received oral reprimands. Criminal charges are still possible in the three pending cases, officials said. Prosecutors in the Justice Department's civil rights division have been investigating those lethal shootings, all from 2012, since they occurred. The agents in those three cases are still conducting armed patrols on the border, officials said. Critics along the Southwest border and in Mexico long have argued that the Border Patrol, the federal government's largest law enforcement force, operates with little transparency or accountability in cases involving purported abuses. The agency's broad approval of its own record in scores of shooting cases, despite vows by the Obama administration to crack down on agents who use excessive force, is unlikely to change that perception. "We are deeply disappointed" with the lack of action, said Juanita Molina, executive director of Border Action Network, a human rights organization based in Tucson. "When you have someone throwing rocks and someone responding with lethal force, it is just not proportional." "Turning the page doesn't mean burying the past," said Chris Rickerd, a border security expert at the American Civil Liberties Union in Washington. "There is no assurance to border residents that agents who have used excessive, improper lethal force aren't on the job in their communities." Administration officials say they are determined to restore public trust in the Border Patrol despite its tradition of closing ranks around its paramilitary culture. Last month, Customs and Border Protection made it possible for people to file written complaints against officers in Spanish for the first time. The move came after pressure from activists who said the Border Patrol deliberately made it difficult to file complaints. Unlike domestic police departments, the 21,000-member Border Patrol released almost no public information about shootings, including the outcome of its investigations, until recently. That practice has started to ease slightly as supervisors have been granted more latitude from headquarters to describe individual incidents. The internal affairs review was started in July after an earlier study of the same 67 shooting cases by an independent group of law enforcement experts found a pattern of agents firing in frustration at people throwing rocks from across the border, as well as agents deliberately stepping in front of cars apparently to justify shooting at the drivers. That study by the Police Executive Research Forum, a nonprofit research and policy organization in Washington, criticized the Border Patrol for a "lack of diligence" in investigating its deadly incidents. The Border Patrol did not give a copy to Congress until the Los Angeles Times Washington Bureau disclosed its contents in February 2014. In response, R. Gil Kerlikowske, commissioner of Customs and Border Protection, ordered new limits on when Border Patrol agents were permitted to fire their weapons and revamped weapons training. He also removed the longtime head of internal affairs and created an internal panel to review incidents of deadly force. He also tapped an FBI agent, Mark Morgan, to temporarily lead the office of internal affairs and to review the 67 cases, which date from January 2010 to October 2012. Before he returned to the FBI in December, Morgan had helped identify cases with gaps, a lack of witness statements or other discrepancies. Sixty-three cases were subsequently cleared. Three others are with the Justice Department. Disciplinary action is still possible in the final case. Last Monday, Kerlikowske named a new head of internal affairs. Matthew Klein spent 26 years in the police department that serves Washington, D.C., and he oversaw deadly force investigations when the department was following a federal mandate to improve its treatment of citizens. In an interview, Klein said he wanted the Justice Department to decide more quickly whether to bring charges in border shootings. "We would prefer a faster resolution," Klein said. He said he would bring up the three pending cases with Justice Department lawyers. Until recently, internal affairs officers were not permitted to begin criminal investigations of Customs and Border Protection officers and agents. Jeh Johnson, secretary of Homeland Security, expanded their authority last year, and Klein said the new powers should allow them to investigate "more completely." Janet Napolitano, who headed Homeland Security from 2009 to 2013, said Friday that she sought to take on the spate of border shootings during her tenure. She expressed frustration that some of the cases were still pending. "I think part of it was just the civil rights division is only so big and it can take that long," said Napolitano, who now heads the University of California system. "I would say that ideally, yes, those cases would move more quickly." Napolitano would not discuss specific lethal-force cases because she is a defendant in multiple lawsuits brought by families of people killed by Border Patrol agents. The three cases still under investigation at the Justice Department involve three Mexican men who were shot and killed from across the border. In one, Border Patrol agents repeatedly shot at Juan Pablo Perez Santillan, 30, as he stood watch for a group of migrants crossing the Rio Grande illegally near Brownsville, Texas, in July 2012. According to a lawsuit his family filed in U.S. District Court in Texas, an agent used a high-power scope on his rifle to aim at Perez Santillan and fired at least five times, hitting him in the chest. After Perez Santillan's brother Damien pleaded for help, one agent shouted back, "Que se muera el perro," meaning "Let the dog die," the lawsuit states. He died at a hospital. Two months later, a Border Patrol agent in an airboat shot and killed Guillermo are valo Pedraza, 37, in a park across the Rio Grande from L are do, Texas. The agent later said he had been pelted with rocks from shore. Witnesses told the Los Angeles Times last year that are valo was at a family barbecue. That October, an agent in Nogales, Ariz., shot through a border fence after a rock-throwing incident and killed Jose Antonio Elena Rodriguez, 16. The official incident report says the agent fired 15 times. The official autopsy says Rodriguez was hit eight times in the back.
10 +Qualified Immunity is used to commit racialized genocide at the border.
11 +Dunn 01. Dunn, Timothy J. “Border Militarization Via Drug And Immigration enforcement: Human Rights Implications.” Social Justice, vol. 28, no. 2 (84), 2001, pp. 7–30. www.jstor.org/stable/29768073.//AD
12 +Military collaboration with the Border Patrol in the U.S.-Mexico border region on drug and immigration enforcement has been extensive and enduring. The military's geographic focus extends beyond the border and it now works with a plethora of police bodies throughout the U.S. on drug enforcement. Such ongoing military involvement in domestic police matters is unique in post-Reconstruction U.S. history. The more militaristic elements of that collaboration and support, however, have focused primarily on the border. Such support gave rise to the tragic killing in 1997 of a U.S. citizen by a Marine during a border-area ground surveillance mission conducted for the Border Patrol. Since then, military collabo? ration has lessened somewhat in practice, but has changed little at the level of formal policy. The door remains open to a return to the use of armed ground troops. Moreover, military support for border policing may expand in the future. Despite the significant human rights implications, neither the military, the Border Patrol, nor policymakers appear to have given them much consideration. What are the human rights implications of military involvement in policing, at the border and beyond? Among the theoretical principles guiding such a discussion is the significance of human rights for nation-state conduct. For Turner (1993: 178, 182), "the point about the concept of human rights is that they are extra governmental and have traditionally been used to counteract the repressive capacity of states...." He proposes that institutions are often responsible for human rights violations, an outcome attributable in part to the bureaucratization process. Dunn Sjoberg and Vaughan (1993:145-146) argue that bureaucracy tends to undermine the human rights of the "truly disadvantaged" through a process of "social triage" that includes the sacrifice of their general well-being and dignity, as well as the occasional use of repression. It becomes more "efficient" to write off the rights and well-being of the most subordinated groups, because to really address their needs would entail profound societal reforms and "sacrifices" on the part of elites (Sjoberg, 1996). Thus, institutions and bureaucratic power structures threaten the rights, dignity, and well-being of people, especially subordinated groups. The military and Border Patrol are bureaucratic entities, and their law enforcement efforts target subordinated groups: working-poor undocumented immigrants, and poor, low-level drug couriers ("mules"). In the borderlands, this generally means people with a Latino/a appearance, especially Mexicans and Mexican Americans. Consequently, increased border enforcement efforts tend to "sacrifice" the human rights of members of those groups (at least more so than those of other groups). The Border Patrol's troubled human rights record in the region reflects this pattern (e.g., Human Rights Watch, 1995; DLEMP, 1992; Dunn, 1996: 83-91; 1999a: Chapter 6; 1999b). The military is responsible for the most severe human rights abuse related to border enforcement to date, the killing of a Mexican American teenager in Redford, Texas. In this instance of (probably unintentional) repression, military conduct was replete with gross misunderstandings by soldiers and their unwarranted escalation of the use of force. The inappropriate matching of military troops against nonmilitary threats (more properly, social problems) illustrates the danger bound up in border enforcement, because they are trained to respond with deadly force to perceived threats, regardless of the objective situation. As Lawrence Korb, a former assistant secretary of defense in the Reagan administration, stated shortly after the Redford incident, "the military, to put it bluntly, is trained to vaporize, not Mirandize" (Holt, 1997c). The institutional forces involved had as little regard for respecting human rights as they did with reading one's rights. Even the less severe forms of military collaboration in border policing have negative implications for the status of human rights. For instance, much of the military training and intelligence support offered by JTF-6 seems inappropriate for civilian police bodies. This is because military interrogation techniques, raids, and intelligence activities are typically not designed or conducted with a concern for the U.S. legal system's requirements for safeguarding suspects' rights, but rather aim to eliminate or neutralize an enemy threat. Even elements of the military recognize this. Part of the fallout from the 1993 Waco tragedy is that the Special Forces Command has since 1996 refused to provide police with training in some of the most extreme military tactics. Another danger is the spread of militarization related to antidrug enforcement from the Southwest border to interior areas. My "spectrum of border militarization" could be used to examine interior areas, for the border experience appears to be a vanguard of a larger process of military/police collaboration. Ground troops have been restricted mainly to border areas, but elsewhere other types of military support for police agencies, such as training in military operational and intelligence tactics, could lead police to adopt ever-more military tactics. (Kraska, 1997, has documented this with regard to the flourishing of police paramilitary units.) The blurring of lines between the police and the military has long been associated with human rights problems, especially in developing countries. Moreover, once military collaboration has developed with the Border Patrol and other police bodies, limiting it to features on the less militaristic end of the continuum has proved difficult, apart from the few actions explicitly prohibited by law (i.e., military troops conducting arrests, searches, or seizures). The tendency seems to be gradual escalation, one quite removed from public consciousness, let alone debate. The Redford tragedy, an illustration of the human rights danger of that evolution, spurred a relatively brief period of public debate and a partial inhibition of the escalation in the militarization of border enforcement. Human rights concerns are by default "sacrificed" in favor of ever-greater drug and immigration enforcement, and perhaps a future "homeland defense" mission for the military that exceeds physical threats. When illegal immigration and drugs are cast principally as security matters, human rights become a secondary concern. Debate could bring to light that the drug issue would be better viewed as a public health problem than a security threat. Scholars have yet to theorize the human rights implications and significance of the trend toward enhanced military collaboration with police border enforcement. The border is a contemporary proving ground for the militarization of law enforcement. Largely out of public view, subordinate groups have been targeted in this peripheral region on a broader scale than anywhere else in contemporary U.S. history. An insidious form of "mission creep," this expansion of militarism is consistent with the state's intensified and punitive wars against crime and drugs. Collaboration between the state's main corporal bureaucratic power structures does not auger well for the vulnerable human rights of subordinated groups, mainly those of Hispanic appearance in the borderlands. Given the importance of human rights as a building block for a decent, democratic society, it would be a grave error if policymakers were to continue to neglect them; their security may even hang in the balance. Beyond making human rights a central consideration in all law enforcement measures, several reforms could address this ominous development. Democratic accountability for JTF-6 and other military bodies engaged in domestic policing could be fostered by requiring regular, detailed, public reporting on their activities and the establishment of a mechanism for public, external oversight and investigation. Another positive step would be to prohibit the most coercive and severe forms of military support for police bodies. An example would be the U.S. Special Forces Command's refusal to allow its troops to provide training to police in several extremely coercive military tactics; such restrictions could be generalized to all U.S. military units. Ultimately, the best course would be to abolish JTF-6 and to sever most or all military ties to domestic police agencies. Recent history in Latin America and other developing regions demonstrates that such collaboration invariably imperils human rights and democracy itself. Beyond these reforms, serious policy attention is needed to address the larger underlying economic, social, political, and cultural dimensions on both sides of the border that drive so much of the cross-border flow of immigrants and drugs. Failure to do so will likely fan the mania for border enforcement and endanger human rights.
13 +Part 2 is The Resistance
14 +Plan text: The Supreme Court of the United States should limit qualified immunity for Border Patrol Agents. To clarify the Supreme Court should rule in favor of Hernandez in the ongoing Hernandez V. Mesa court case. I reserve the right to clarify in cx.
15 +
16 +The plan sets a precedent that holds Border Patrol agents accountable.
17 +TNAP 10/21 (The Tucson News Associated Press frequently writes articles on local and national news related to the Tucson area. “Appeals court considers claim against agent in fatal cross-border shooting,” Tucson.com. October 21, 2016. http://tucson.com/news/local/border/appeals-court-considers-claim-against-agent-in-fatal-cross-border/article_fe6f3ae8-97bc-11e6-9d7f-bb001c158b16.html) //WW JA 11/4/16
18 +Allowing a Border Patrol agent to escape trial for shooting a Mexican teen through the border fence in Nogales would expose area residents to the same danger, an attorney for the teen's mother told federal judges Friday. Lee Gelernt, of the American Civil Liberties Union, contends Lonnie Swartz should be forced to answer the wrongful death claim filed by the mother of 16-year-old Jose Antonio Elena Rodriguez. He acknowledged that the boy was not in the United States when shot, nor had he just fled over the fence. In fact, there was no evidence the boy had ever even been in this country or that he wanted to live in this country. But Gelernt told the 9th U.S. Circuit Court of Appeals that's legally irrelevant. “We don't think that you need to want to live in the U.S. to not be shot across the border,” he said. Potentially more significant, Gelernt warned the three-judge panel that allowing Swartz — and anyone else who fires shots across the border — to escape civil liability in a cross-border shooting is bad policy. He pointed out that the boy was walking along Calle Internacional, a major street in Nogales, Son., which runs parallel and adjacent to the border fence. “This is a community that has to walk along this street all the time,” Gelernt said. He said they should not have to have some contact with the United States, like asking for health care benefits, to have legal standing and legal protections. “They're just saying that they don't want to be shot when they walk to the store or go to the doctor along the border which it's inescapable that they have to do,” Gelernt said. “They cannot be asked to have to assume the risk of being shot every time they walk along the main thoroughfare.” Swartz has separately been charged with second degree murder, with that case pending before a federal judge in Tucson. But Swartz, who is on administrative leave, is trying to get the indictment dismissed. And Gelernt said even if Swartz is convicted, that is not the same as giving civil relief to the boy's family. The judges are not expected to rule any time soon. The U.S. Supreme Court earlier this month agreed to hear a similar case out of Texas where a Border Patrol agent in 2010 shot and killed a Mexican teen playing in a culvert that separates El Paso from Juarez. The 5th Circuit Court of Appeals ruled last year the parents cannot pursue their claim against Jesus Mesa Jr. because the boy, Sergio Hernandez, was a Mexican citizen “who was on Mexican soil at the time he was shot.” Appellate Judge Milan Smith Jr. said his court will be bound by whatever the Supreme Court rules. But Smith pointed out that there are still only eight justices on the high court. The U.S. Senate has refused to consider the nomination of Merrick Garland by President Obama. And Smith said if the high court splits 4-4 on that Texas case, there will be no precedent set, freeing the 9th Circuit to reach its own conclusion.
19 +The plan is key to accountability and spills over – we catalyze institutional reform.
20 +De Stefan 16. (Lindsey De Stefan is a former lawyer for Maceri and da Costa LLC and currently works for Seton Hall Law Review, 2017, " “No Man Is Above the Law and No Man Is Below It:” How Qualified Immunity Reform Could Create Accountability and Curb Widespread Police Misconduct," Law School Student Scholarship, http://scholarship.shu.edu/cgi/viewcontent.cgi?article=1861andamp;context=student_scholarship) //RS
21 +Irrespective of whether there has been an increase in the incidence of brutality or whether the nation is merely recognizing what has been an ongoing reality for many U.S. citizens, the existence of a problem is now inescapably obvious. The solution, however, is decidedly less clear. Perhaps none of the aforementioned proposals are the right answer. Alternatively, and more likely, maybe they are all the answer—at least partially and in combination with a number of other considerations. It is improbable that a single factor can be deemed the sole cause of widespread police misconduct. Of course, an elaborate problem with multiple dimensions will require an equally multifaceted solution. In fact, any adequate resolution will likely require the cooperation of many individuals and entities across various disciplines and industries.13 But no matter how winding, every path to change must begin with a single step. And the most logical place to begin is by reforming the stringent protection from civil liability enjoyed by law enforcement officers alleged to have violated individual constitutional rights. This Comment will explore how judicial amendment of the qualified immunity doctrine— specifically as it is applied to law enforcement officers—could serve as a catalyst to begin to rein in police misconduct. Part II will describe the general history of the most significant statutory provision in this context, Section 1983, and the expansion of constitutional torts that occurred in the mid-twentieth century. Part III focuses on the judicial development of qualified immunity in the Supreme Court and explains the status of the doctrine today. Part IV discusses some of the most significant practical problems with the modern qualified immunity jurisprudence and its application. Part V goes on to analyze the recent spotlight on police use of force. Finally, Part VI proposes that judicial amendment of qualified immunity application will serve as an effective first step in decreasing the overall incidence of police misconduct in the United States.
22 +They continue:
23 +By beginning to mend the qualified immunity doctrine in these ways, the Court will allow more civil suits for the vindication of constitutional rights to succeed. This will help to reduce the public mentality—strengthened by recent events—that cops get away with everything, in every regard. Civil suits avoid subjecting law enforcement to any criminal liability that, because of recent events, many laypersons believe is warranted. While this may be true in select circumstances, reality demonstrates that criminal charges are highly unlikely to stick against a police officer. But allowing more civil suits to go forward will serve as an important reminder to both civilians and law enforcement that the police are not above the law, and that they are held accountable for their wrongdoings. In turn, this accountability will begin to heal the relationship between law enforcement and communities by serving as the first step on what will surely be a long path to rebuilding the trust that is so crucial.
24 +Action must be grounded in anti-militarist epistemology – our literal reading of this aff is key to rupture dominant nationalist framing of the border.
25 +Chávez 12 (Karma R. Chávez is an associate professor of rhetoric, politics, and culture at University of Wisconsin-Madison. Ph.D. Arizona State University, 2007. M.A. University of Alabama, 2003. M.A. University of Alabama, 2002. “Border Interventions: The need to Shift from a Rhetoric of Security to a Rhetoric of Militarization,” 2012) //JA 11/24/15
26 +Scholars of rhetoric and performance have opened important terrains in the study of immigration and borders pertaining to subjects such as citizenship, media representation, and migrant identity (Cisneros, “(Re)Bordering the Civic imaginary”; DeChaine, “Bordering the Civic imaginary”; McKinnon; o no and Sloop; Shi). Though a number of scholars in other academic disciplines within the humanities and social sciences have written about border militarization (e.g., Andreas, “Redrawing the Line”; Dunn, Militarization of the US Mexico Border; nevins), in reviewing rhetoric and communication scholarship pertaining to immigration and borders, with the exception of a few passing mentions (Demo, “Afterimage” and “Sovereignty Discourse; Carrillo Rowe; DeChaine, “Bordering the Civic imaginary”; o no and Sloop), an engagement with the rhetoric of border militarization is virtually nonexistent. instead, in post–September 11, 2001, US America, where the dominant border rhetorics emerge from the so- called War on Terror, discourses of “border security” and “national security” are the parlance of the day for rhetoric scholars (e.g., Dunmire, “9/11 Changed Everything” and “Preempting the future”; Gales; i vie; i vie and Giner; Mirrlees; o no; Rojecki; Ross). Though many of these analyses offer rigorous critiques of the way security discourses manifest and perpetuate troubling imaginaries of safety and privacy, the problem with the emphasis scholars place on analyses of the rhetoric of security is that it enables state apparatuses and conservative ideology to dictate the framing of discussion and debate. Ono and Sloop argue that discourses construct borders, and I would extend this to say that discourse constitutes the way immigration, generally, is understood. If scholars use the state’s conservative ideographs— their ideological building blocks—to talk about matters of public interest (McGee, “‘ ideograph’”), conservative ideology continues to frame the broader debate in people’s minds. This in turn suggests that the public may be more willing to support problematic state policy and action, for no other terms exist by which to understand important issues. The issue of framing is especially dire in relation to the US- Mexico border, which has, in the eyes of many politicians, pundits, and citizens alike become the greatest source for insecurity in the national imaginary. The discourse of national security intertwines with the War on Terror, the threat of drug smuggling, and the invasion of “illegal aliens” so that militarization of regions of the US- Mexico border seems natural and warranted in order to protect citizens from these supposed threats. Moreover, as scholars increasingly note, “everyday militarization” aptly describes the ways in which “ordinary people” accept the beliefs of militarism and militarization in such a way that upholds state military and militarization policy (Bernazzoli and f lint). Caren Kaplan quips in an essay on how the popularity of technology like Global Positioning Satellites (GPS) can lead to militarized consumers and citizens: “ for most people in the United States, war is almost always everywhere” (693). feminist scholars such as Cynthia Enloe have long called attention to the way that militarization seeps into ordinary lives as a regular part of public discourse (Enloe, Does Khaki Become You?, Globalization and Militarism, Maneuvers ). Because military discourse pervades the everyday, its further expansion in myriad forms proves for many to be commonplace instead of worrisome. Importantly, militarization of the US- Mexico border has not occurred in response to the War on Terror; instead, it has been in the US government’s plan at least since the Reagan administration, and has virtually nothing to do with the events of September 11, 2001 (Dunn, Militarization of the US Mexico Border ). As one example, the immigration and naturalization Services’ ( in S’s) four- phase “Southwest Border Strategy,” implemented post- NAFTA in 1994, strategically planned to militarize the US- Mexico border in order to allegedly deter clandestine crossings (Stana and Rezmovic). The events of September 11, 2001, provided a convenient rationale to heighten these strategies, which had been in motion for decades; yet, a context of “everyday militarization” coupled with the rhetoric of security has obfuscated an urgent need to focus on the devastation of border militarization on border crossers and communities specifically, and privacy and civil liberties more generally. Gordon Mitchell suggests that rhetoric scholars who study social movements should also enable movement with their work. This chapter will demonstrate the need for border rhetoric scholars to turn the discourse of security toward a discourse of militarization in the hopes of making a civic intervention into the broader national debate. If more people understood how militarization works and the careful way that the rhetoric of security disguises its material impacts, it is likely that the US government would be forced to be more accountable to its people, and rhetoric scholars should lead this charge. I begin this argument by first defining militarization and briefly tracing the increase in border militarization, specifically on the US-Mexico border since the mid- to late 1 980s. Next, I outline the severity of the consequences such militarization has had for border communities and border crossers, and what this means for residents of the United States more broadly. I then argue why the language of militarization is so crucial through a brief analysis of Secure Border Initiative Monthly, or SBI Monthly, produced by the Secure Border initiative (SB i ) Program Management o ff ice (PM o ) and designed to provide news and information on the SB i and the now- defunct SB i net, two major programs of the Department of Homeland Security (DHS) to augment “border security.” These newsletters evidence the ease with which undocumented migration and terrorism are conflated, similarly to how undocumented migration and drug trafficking were conflated.
27 +Anti-militarist knowledge production precedes T/Theory:
28 +1 Militarism controls education – it has seeped into the debate space and corrupted our epistemology.
29 +2 The 1AC appeals to social fairness i.e. the inclusion of minorities in political discourse – outweighs any trivial versions of fairness in the game of debate.
30 +3 No impact to theory – people won’t stop being abusive after this round, but the classroom should be a focal point of resistance – militarism manifests itself in the debate space by silencing deviant viewpoints and rigorously conditioning students to accept the culture of war.
31 +Part 3 is The Mechanism
32 +The role of the ballot is to vote for the debater that best ruptures the ideology of militarization that has infected the public sphere. Resistance to the police state is a prior question.
33 +Giroux 04. (Henry A. Giroux is an American and Canadian scholar and cultural critic. One of the founding theorists of critical pedagogy in the United States, he is best known for his pioneering work in public pedagogy, cultural studies, youth studies, higher education, media studies, and critical theory. “War on Terror The Militarising of Public Space and Culture in the United States”, Third Text, Vol. 18, Issue 4, 2004. http://www.henryagiroux.com/online_articles/Third20Text202004-war20on20terror.pdf) //JA 11/26/15
34 +As militarisation spreads its influence both at home and abroad, a culture of fear is mobilised in order to put into place a massive police state intent on controlling and manipulating public speech while making each individual a terrorist suspect subject to surveillance, fingerprinting, and other forms of ‘electronic tattooing’. But the increasing danger of militarisation is also evident in the attempt by the corporate/military/ media complex to create those ideological and pedagogical conditions in which people either become convinced that the power of the commanding institutions of the state should no longer held accountable or believe that they are powerless to challenge the new reign of state terrorism. And as militarisation spreads its values and power throughout American society and the globe, it works to eliminate those public spaces necessary for imagining an inclusive democratic global society. Militarisation and the culture of fear that legitimises it have redefined the very nature of the political, and in so doing have devalued speech and agency as central categories of democratic public life. And it is precisely as a particular ideology and cultural politics that militarisation has to be opposed. As the forces of militarisation are ratcheted up within multiple spaces in the body politic, they increasingly begin to produce the political currency of what begins to look like proto-fascism in the United States. To expose and resist such an ideology should be one of the primary responsibilityies of intellectuals, activists, parents, youth, community members, and others concerned about the fate of democracy on a global scale. Working both within and outside traditional public spheres, artists, community activists, writers, and educators can expose the ideology of militarisation in all its diversity and how it risks turning the United States into a military state while at the same time undermining crucial social programmes, constitutional liberties, and valuable public spaces. According to Arundhati Roy, this new politics of resistance demands: Fighting to win back the minds and hearts of people. . . . It means keeping an eagle eye on public institutions and demanding accountability. It means putting your ear to the ground and listening to the whispering of the truly powerless. It means giving a forum to the myriad voices from the hundreds of resistance movements across the country which are speaking about real things – about bonded labor, marital rape, sexual preferences, women’s wages, uranium dumping, unsustainable mining, weavers’ woes, farmers’ suicides. It means fighting displacement and dispossession and the relentless, everyday violence of abject poverty. Fighting it also means not allowing your newspaper columns and prime-time TV spots to be hijacked by their spurious passions and their staged theatrics, which are designed to divert attention from everything else.42Progressives everywhere have to reinvent the possibility of an engaged politics and real strategies of resistance. This suggests not only working through traditional spheres of political contestation, such as elections or union struggles or various means of education. Collective struggle must combine the tasks of a radical public pedagogy with massive acts of nonviolent, collective disobedience. Such acts can serve to educate, mobilise, and remind people of the importance of struggles that change both ideas and relations of power. By making militarisation visible through the force of words and peaceful resistance, politics can become both meaningful and possible as a contested site through which people can challenge both locally and through international alliances the obscene accumulation of power symptomatic of the increasing militarisation of public space that is spreading both throughout the US and across the globe. Arundhati Roy is right in her incessant and courageous call to globalise dissent but if dissent is to work it must have a focus that cuts across empires, nation states, and local spaces, to the heart of a clear and present danger posed to democracy and social justice. Challenging militarisation in all of its expressions is a direct strike at the heart of a policy that has exceeded democracy and now formed a dreadful pact with a creeping and dangerous authoritarianism. We find ourselves in the midst of a war globally, not simply a war against terrorism but also a war against democratic solidarity in which a democratic future both at home and abroad stands in the balance.
35 +Debates over qualified immunity require a focus on consequences.
36 +Chen 97. Alan Chen is a leading national expert in free speech doctrine and theory, 1997, " THE BURDENS OF QUALIFIED IMMUNITY: SUMMARY JUDGMENT AND THE ROLE OF FACTS IN CONSTITUTIONAL TORT LAW," The American University Law Review, http://www.americanuniversitylawreview.org/pdfs/47/47-1/chen.pdf //RS
37 +In the modem constitutional era, the Court defines the scope of substantive constitutional law by articulating balancing tests-broad, open-ended standards that define the scope of most individual constitutional rights. 267 Rather than providing a set of bright-line rules divining predetermined results for particular types of government conduct or regulation, balancing tests identify general criteria for constitutional decisionmaking, but leave great discretion to the decisionmaker to apply these criteria to the individual circumstances of each case.' When it creates balancing tests, the Court instructs lower courts to explicitly "weigh" individual rights (e.g., privacy, equality, speech) against governmental interests (e.g., public health, social welfare, social order) .26 The balancing metaphor symbolizes the evaluation of the relative substantive importance of these often competing values. Balancing tests, like all legal standards, necessitate individualized, context-specific determinations of constitutional rights because the quantum of interests may vary substantially from case to case, even under the same constitutional provision. In each case, the decisionmaker determines the outcome by evaluating which interest or value is "weightier.”
38 +Pure critique is useless without concrete solutions and moving away from the state dooms the left’s critique to failure – must work within the state without being statist
39 +Connolly 08. (William, Professor of Political Science at John Hopkins, Capitalism and Christianity, American Style, page numbers are at the bottom of the card.)
40 +Before turning to possible strategies to promote these objectives, we need to face an objection posed by one segment of the left: "Don't you depend a lot upon the state, when it must be viewed as the enemy?" My response is threefold. First, there is no way to take on global warming without engaging the state in the effort as well as international agencies, and global warming is a key danger of this epoch. Second, it is less the state itself and more its existing subsidies and priorities that are at issue. If you were to oppose both the market and the state you might reduce the democratic left to pure critique, with no presentation of positive possibilities and strategies. But critique is always important and never enough, as the left has begun to rediscover and as the American right has known for forty years. Third, although one must acknowledge the issues of cumbersome state bureaucracy, corporate cronyism, and state corruption, all three increased radically when the evangelical-capitalist resonance machine achieved hegemony, and they will get worse unless eco-egalitarians and still enter the fray at the interceded levels of micropolitics, microeconomic experiments, and the state. It is unwise to act as if the state must always be what it has become. Challenging the media is critical in this respect, making it become a watchdog of corporations, the state, religious movements, and the multiple imbrications between them. My view, as becomes clear in the next few pages, is that no interim agenda on the left can proceed far without finding expression in state policy, and state policy must draw inspiration from microeconomic experiments initially launched outside its canopy: microeconomic experiments and creative state policies must inform each other. We thus seek to include the state without becoming statist. Those who invest hope in revolutionary overthrow may oppose such a combination. I suspect that revolution, were it to occur, would undermine rather than vitalize democratic culture.29
41 +Inequality creates flawed epistemic conclusions, making normative decision making impossible.
42 +Medina 11. Medina, J. (2011). Toward a Foucaultian Epistemology of Resistance: Counter-Memory, Epistemic Friction, and Guerrilla Pluralism. Foucault Studies, 1(12), 9–35
43 +Foucault invites us to pay attention to the past and ongoing epistemic battles among competing power/knowledge frameworks that try to control a given field. Different fields—or domains of discursive interaction—contain particular discursive regimes with their particular ways of producing knowledge. In the battle among power/ knowledge frameworks, some come on top and become dominant while others are displaced and become subjugated. Foucault’s methodology offers a way of exploiting that vibrant plurality of epistemic perspectives which always contains some bodies of experiences and memories that are erased or hidden in the hegemonic mainstream frameworks that become hegemonic after prevailing in sustained epistemic battles. What Foucault calls subjugated knowledges3 are forms of experiencing and remembering that are pushed to the margins and rendered unqualified and unworthy of epistemic respect by prevailing and hegemonic discourses. Subjugated knowledges remain invisible to mainstream perspectives; they have a precarious subterranean existence that renders them unnoticed by most people and impossible to detect by those whose perspective has already internalized certain epistemic exclusions. And with the invisibility of subjugated knowledges, certain possibilities for resistance and subversion go unnoticed. The critical and emancipatory potential of Foucaultian genealogy resides in challenging established practices of remembering and forgetting by excavating subjugated bodies of experiences and memories, bringing to the fore the perspectives that culturally hegemonic practices have foreclosed. The critical task of the scholar and the activist is to resurrect subjugated knowledges—that is, to revive hidden or forgotten bodies of experiences and memories—and to help produce insurrections of subjugated knowledges.4 In order to be critical and to have transformative effects, genealogical investigations should aim at these insurrections, which are critical interventions that disrupt and interrogate epistemic hegemonies and mainstream perspectives (e.g. official histories, standard interpretations, ossified exclusionary meanings, etc). Such insurrections involve the difficult labor of mobilizing scattered, marginalized publics and of tapping into the critical potential of their dejected experiences and memories. An epistemic insurrection requires a collaborative relation between genealogical scholars/activists and the subjects whose experiences and memories have been subjugated: those subjects by themselves may not be able to destabilize the epistemic status quo until they are given a voice at the epistemic table (i.e. in the production of knowledge), that is, until room is made for their marginalized perspective to exert resistance, until past epistemic battles are reopened and established frameworks become open to contestation.
44 +Particularism is good—root cause claims and focus on overarching structures ignore application to material injustice.
45 +Gregory Fernando Pappas 16 Texas AandM University “The Pragmatists’ Approach to Injustice”, The Pluralist Volume 11, Number 1, Spring 2016, BE
46 +The pragmatists’ approach should be distinguished from nonideal theories whose starting point seems to be the injustices of society at large that have a history and persist through time, where the task of political philosophy is to detect and diagnose the presence of these historical injustices in particular situations of injustice. For example, critical theory today has inherited an approach to social philosophy characteristic of the European tradition that goes back to Rousseau, Marx, Weber, Freud, Marcuse, and others. Accord- ing to Roberto Frega, this tradition takes society to be “intrinsically sick” with a malaise that requires adopting a critical historical stance in order to understand how the systematic sickness affects present social situations. In other words, this approach assumes that¶ a philosophical critique of specific social situations can be accomplished only under the assumption of a broader and full blown critique of soci- ety in its entirety: as a critique of capitalism, of modernity, of western civilization, of rationality itself. The idea of social pathology becomes intelligible only against the background of a philosophy of history or of an anthropology of decline, according to which the distortions of actual social life are but the inevitable consequence of longstanding historical processes. (“Between Pragmatism and Critical Theory” 63)¶ However, this particular approach to injustice is not limited to critical theory. It is present in those Latin American and African American political philosophies that have used and transformed the critical intellectual tools of ¶ critical theory to deal with the problems of injustice in the Americas. For instance, Charles W. Mills claims that the starting point and alternative to the abstractions of ideal theory that masked injustices is to diagnose and rectify a history of an illness—the legacy of white supremacy in our actual society.11 The critical task of revealing this illness is achieved by adopting a historical perspective where the injustices of today are part of a larger historical narrative about the development of modern societies that goes back to how Europeans have progressively dehumanized or subordinated others. Similary, radical feminists as well as Third World scholars, as reaction to the hege- monic Eurocentric paradigms that disguise injustices under the assumption of a universal or objective point of view, have stressed how our knowledge is always situated. This may seem congenial with pragmatism except the locus of the knower and of injustices is often described as power structures located in “global hierarchies” and a “world-system” and not situations.12¶ Pragmatism only questions that we live in History or a “World-System” (as a totality or abstract context) but not that we are in history (lowercase): in a present situation continuous with others where the past weighs heavily in our memories, bodies, habits, structures, and communities. It also does not deny the importance of power structures and seeing the connections be- tween injustices through time, but there is a difference between (a) inquiring into present situations of injustice in order to detect, diagnose, and cure an injustice (a social pathology) across history, and (b) inquiring into the his- tory of a systematic injustice in order to facilitate inquiry into the present unique, context-bound injustice. To capture the legacy of the past on present injustices, we must study history but also seek present evidence of the weight of the past on the present injustice.¶ If injustice is an illness, then the pragmatists’ approach takes as its main focus diagnosing and treating the particular present illness, that is, the particular situation-bound injustice and not a global “social pathology” or some single transhistorical source of injustice. The diagnosis of a particular injustice is not always dependent on adopting a broader critical standpoint of society in its entirety, but even when it is, we must be careful to not forget that such standpoints are useful only for understanding the present evil. The concepts and categories “white supremacy” and “colonialism” can be great tools that can be of planetary significance. One could even argue that they pick out much larger areas of people’s lives and injustices than the categories of class and gender, but in spite of their reach and explanatory theoretical value, they are nothing more than tools to make reference to and ameliorate particular injustices experienced (suffered) in the midst of a particular and unique re- lationship in a situation. No doubt many, but not all, problems of injustice are a consequence of being a member of a group in history, but even in these cases, we cannot a priori assume that injustices are homogeneously equal for all members of that group. Why is this important? The possible pluralism and therefore complexity of a problem of injustice does not always stop at the level of being a member of a historical group or even a member of many groups, as insisted on by intersectional analysis. There may be unique cir- cumstances to particular countries, towns, neighborhoods, institutions, and ultimately situations that we must be open to in a context-sensitive inquiry. If an empirical inquiry is committed to capturing and ameliorating all of the harms in situations of injustice in their raw pretheoretical complexity, then this requires that we try to begin with and return to the concrete, particular, and unique experiences of injustice.¶ Pragmatism agrees with Sally Haslanger’s concern about Charles Mills’s view. She writes: “The goal is not just a theory that is historical (v. ahistori- cal), but is sensitive to historical particularity, i.e., that resists grand causal narratives purporting to give an account of how domination has come about and is perpetuated everywhere and at all times” (1). For “the forces that cause and sustain domination vary tremendously context by context, and there isn’t necessarily a single causal explanation; a theoretical framework that is useful as a basis for political intervention must be highly sensitive to the details of the particular social context” (1).13¶ Although each situation is unique, there are commonalities among the cases that permit inquiry about common causes. We can “formulate tentative general principles from investigation of similar individual cases, and then . . . check the generalizations by applying them to still further cases” (Dewey, Lectures in China 53). But Dewey insists that the focus should be on the indi- vidual case, and was critical of how so many sociopolitical theories are prone to starting and remaining at the level of “sweeping generalizations.” He states that they “fail to focus on the concrete problems which arise in experience, allowing such problems to be buried under their sweeping generalizations” (Lectures in China 53).¶ The lesson pragmatism provides for nonideal theory today is that it must be careful to not reify any injustice as some single historical force for which particular injustice problems are its manifestation or evidence for its exis- tence. Pragmatism welcomes the wisdom and resources of nonideal theories that are historically grounded on actual injustices, but it issues a warning about how they should be understood and implemented. It is, for example, sympathetic to the critical resources found in critical race theory, but with an important qualification. It understands Derrick Bell’s valuable criticism as context-specific to patterns in the practice of American law. Through his inquiry into particular cases and civil rights policies at a particular time and place, Bell learned and proposed certain general principles such as the one of “interest convergence,” that is, “whites will promote racial advantages for blacks only when they also promote white self-interest.”14 But, for pragma- tism, these principles are nothing more than historically grounded tools to use in present problematic situations that call for our analysis, such as deliberation in establishing public policies or making sense of some concrete injustice. The principles are falsifiable and open to revision as we face situation-specific injustices. In testing their adequacy, we need to consider their function in making us see aspects of injustices we would not otherwise appreciate.15
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