Posted by Professor Theresa Braunschneider
The following is a slightly edited version of an email sent 5/8/08 in response to Prof. Richardson's 'respect' message.
In the last few weeks, I have appreciated your thoughtful contributions to the community conversation about the "Bracket" and its aftermath. My sense of you as both reasonable and well-intentioned makes me feel compelled to respond to an email that I find uncharacteristically irresponsible and, yes, offensive. My willingness to respond attests to my disagreement with your proposal that enforcement of a sexual harassment policy causes a chilling effect on the free exchange of ideas.
An implicit thesis of your proposal that speech should not be punished is that sexual harassment is not a legitimate category – or at least cannot be constituted by speech alone. (Did you not mean to propose this? It seems to me a necessary implication of your argument—but perhaps it was an inadvertent one since you don't spell it out.) You make this case using a sort of reductio ad absurdum – i.e., if the SFHB finds the "Bracket" writers to have transgressed the University sexual harassment and discrimination policy, then anyone who finds anyone's comments about their gender offensive can haul the speaker before a secret panel who will punish them for exercising their free speech rights. But this is not at all a necessary or even reasonable conclusion—much less comparison.
Your equating (1) a W&L body that was founded to deal sensitively with the often personally devastating transgressions of sexual assault and harassment with (2) a Nazi tribunal is highly offensive: to me personally, arguably to all people of my gender on this campus, arguably to any member of the community who has spent time thoughtfully deliberating evidence presented in a hearing pertaining to such a matter. But it's not sexual harassment. No University policy allows for any of the offended parties to claim you've harassed them simply because you've caused offense.
But if your presumably widely-disseminated email were to have contained claims about me personally that had the effect of making me fear to go to my office, feel threatened as I walked around campus, become so distracted that I was unprepared for teaching and unable to concentrate on my scholarship to the effect that my course evaluations suffered and I missed work deadlines ... well, in that case, University policy allows for the possibility that a group of representatives of our community hear evidence pertaining to that damage, deliberate over that evidence, and determine whether you should suffer any consequences other than learning that your speech caused harm.
Surely a community that seeks to protect its members from the personal damage and infringement of rights constituted by another's verbal conduct is pursuing an end with more integrity than the vindictive "tit for tat" you describe. Of course there's room for debate about the particular constitution of the SFHB and about the best way to define harassment. But our current circumstances in no way resemble the authoritarian censorship and terrorism regime you conjure up here. I find it hard to believe you really think they do or even could; and I don't believe that conjuring those images is necessary to help W&L's community avoid heading that direction. The much greater danger I see here—the frightening future I can effortlessly conjure up in my mind—is a community that goes right back to its norms of degrading speech about women because it believes that even were such speech to rise to the level of harassment no one but the victims would suffer any consequences.
Below is a message sent on 5/16/08 to Prof. Richardson, replying to his response to the message above. I particularly cite the following sections of his message:
I make a bright-line distinction between speech and conduct. It is why I have made no attempt to defend the perpetrators of The List. To me, what they did constitutes threatening behavior, and is subject to sanction as such. It fits the example you cite, language that had the effect of making [one] fear to … walk around campus [or] become so distracted that [one] was unprepared to go to class, the sorority house, parties…. […] As offensive as The Bracket was, I do not think it rises to the level of threatening behavior manifested in The List, and should not be conflated with The List when it comes to appropriate sanctions and the attendant procedures for considering them.
Procedurally, in my opinion the case brought before the SFHB was a mess. The writers were charged with sexual misconduct and conduct unbecoming a Washington and Lee student. According to the Student Handbook, only the Student Judicial Council is authorized to hear an initial charge of conduct unbecoming. In the SFHB co-chairs report, it is clear that the board thought it was hearing a charge of sexual harassment, which had not been filed. The board felt constrained by its inability to hear from the complainant. That, to me, is further evidence of the inappropriateness of the SFHB as an adjudicatory body in this case.
While some repressive societies begin by design and are implemented by
violence and bloodshed, many others begin incrementally as a response to
problems that consensus has identified. And while I am not prepared to
argue that all societies that regulate speech are totalitarian, I do
think it true that all repressive societies regulate speech. So I
believe we must be cautious. […] While simply having an SFHB does not
constitute evidence of a repressive society, I submit that secret trials
based on anonymous complaints, conflating speech with behavior, and
tinkering with a legitimate tribunal's mission for the sake of a
particular proceeding are all signs that we need to be cautious.
Thanks for your thoughts. There's much to respond to here, but I'll focus on the fact that I find mystifying your characterization of the Bracket and List incidents as clearly different from one another in their effects -- as would anyone else, I imagine, who's witnessed or felt directly, personally, individually the damage caused by that publication. Your assertion that the Bracket did not cause the same sorts of personal harm as the List is simply erroneous; I can only conclude that you have not spoken to or taught any of the numerous individuals who suffered emotionally and academically as a result of being singled out for public slander (and such suffering indeed included/s fear, restriction of movement, distraction that led to poor preparation for classes, and other aspects of the "intimidating, hostile or offensive work or academic environment" cited in the University's policy on prohibited student discrimination, harassment, retaliation, and sexual misconduct). The fact that no named student dared attest to that personal damage—and thereby support the charge of sexual harassment—at the SFHB hearing can be attributed partly to the fact that the SFHB does NOT (counter to your previous characterizations and the horribly misinformed derivative editorial in the latest Ring Tum Phi) conduct "secret trials" as this label is normally construed. Indeed, the accused parties sit right there and hear every piece of evidence the Board hears (just as they have access to every piece of written evidence the Board sees). Therefore, any witness who wanted to attest to the personal harm s/he suffered as a result of the Bracket would have had to describe that damage in front of the perpetrators of the offense. Those witnesses would also be subject – again, counter to the editorial-writer's well-publicized erroneous assertions about "secret trials" which were bolstered by your widely-publicized use of the same language – to cross-examination: cross-examination, most likely, by a well-meaning but under-trained honor advocate who has no special skill in interrogating without re-traumatizing or victim blaming. Moreover, since these proceedings are not secret but confidential, those witnesses would have to trust their accused peers to maintain their confidentiality and thereby refrain from retelling what could be experienced as shameful stories of fear, depression, and academic failure. Why in the world would they believe such trust would be well-placed? And considering that the SFHB has been getting so much bad press as the equivalent of a totalitarian regime's kangaroo court, how can we expect any future potential complainants to feel any safer bringing charges of sexual harassment before the Board? Who wants to be "that bitch who hauled my friend into a secret trial before the Thought Police just because she couldn't take a joke?"
In short: that no one felt safe enough to testify to personal damage in such a hearing does not mean no one experienced that damage. Should the SFHB not hear charges of sexual harassment simply because they may not be able to find the accused responsible? I know you think that sexual harassment was not charged in this matter, but here, too, you're mistaken. The latter part of your claim that "that the board thought it was hearing a charge of sexual harassment, which had not been filed" is erroneous. According to University policy, "Forms of sexual misconduct include: sexual harassment, as prohibited harassment is described above…." "Sexual misconduct" is an umbrella category under which "sexual harassment" falls; it is the first and most fully-described example of such misconduct listed.
I, too, believe we must be cautious: cautious, for one thing, about publicly and repeatedly mischaracterizing University policy such that students are increasingly fearful of seeking redress for wrongs that have been done to them.
Toward the ends of (1) helping stem the potential damage caused by so much negative publicity about the SFHB and (2) complicating our community's public discourse about the nature of the Bracket and the University's response to it—discourse which has overwhelmingly in recent campus publications toed (or directly quoted) your line—several faculty who have been in communication with you about such matters are planning to make our own contributions to the discourse more public, in the form of a pamphlet and/or website that reprints our words. These words have primarily taken the form of emails to you. To provide some necessary context, it will be useful to quote and redact portions of your own emails. We'd prefer to do this with your express permission than without. Will you give that?
Thank you for helping us promote open, campus-wide discussion about these important issues.