Student Research: Removing Hate and Amending Harms
Utilizing Student Mediation in Addressing Hate Speech on University Campuses
By Patrick J. Mehler, '23, ILR. Mehler is President of the Scheinman Conflict Resolution Club. Mehler is also President of Cornell Votes and Club Sports Council as well as the Director of Elections for the Student Assembly.
Introduction: Hate Speech’s Recent History and Place in Universities
Since 2014, hate crimes in the United States have climbed from 5,479 to 7,314 in the span of five years (Balsamo, 2020). Although correlated to hate crimes, hate speech remains unreported and unregulated under the Constitution’s guarantees of free speech (United States of America Constitution, 1783) and has been upheld numerous times by the Supreme Court in Brandenburg v. Ohio (1969), Virginia v. Black (2003), and, most recently, Matal v. Tam (2017). Federal law prohibits any alteration to free speech (with an exception for a “clear and present danger” danger established in Brandenburg v. Ohio), yet many universities and institutions of higher education prohibit hate speech within their codes of conduct and governing policies. Brown University garnered national attention in 1991 when the university expelled a student for yelling anti-Black, anti-Semitic, and anti-homosexual remarks under its anti-harassment policy in what was recognized as the first expulsion of its kind (New York Times Archives, 1991). Since then, universities, both private and public, have expelled students for violations of verbal harassment policies as recently as at the University of Oklahoma in 2015 (Svrluga, 2015) and at the University of Alabama in 2018 (Bell, 2018). Regardless of the legal implications, anti-harassment policies continue to exist in codes of conduct throughout the nation and the consequences that follow those violations will be contested.
After a summarization of anti-harassment and anti-hate speech policies in universities, I will present an alternative to punitive measures for harassment, one that repairs harm and rebuilds trust in university communities: restorative justice through student mediations. Student mediations have already been implemented for some code of conduct violations at universities, most notably at Cornell University and Syracuse University (Palmadesso, 2017). This alternative approach holds the potential to meet anti-harassment policies’ goal (that being to remove harassment on university campuses) in a way that allows violating students to grow and learn from their negative actions. I will then “define” hate speech and present possible avenues for constructive and inclusive harm repair through student mediation. Ultimately, I will propose a model to address these scenarios and assert that peer mediations through a restorative justice model can alleviate harm done by hate speech on campuses in a reconstructive and inclusive manner.
Codes of Conduct and Anti-Harassment
Hate speech falls under harassment in most university codes of conducts with public universities typically employing more relaxed policies on speech limitations. Over fear that judicial courts may mandate public universities to overturn their policies on freedom of speech, such as in Papish v. Board of Curators of the Univ. of Missouri (1973) and Joyner v. Whiting (1973), public universities have been forced to align their anti-harassment policies very closely to the First Amendment itself. Private universities more aggressively address harassment and hate speech in their codes of conduct, typically correlated with a punitive process separate from any local, state, or federal government. Cornell University’s Policy 6.4 (Cornell University Policy Library, 2020), New York University’s Code of Ethical Conduct Section VI (New York University, 2020), and Stanford University’s Policy 1.1.1 (Stanford University, 2020) are a small sample of the hundreds of universities that outline harassment, but not explicitly hate speech, as unacceptable and punishable under their codes of conduct. While their codes prohibit harassment, harassment rarely finds an explicit definition. This intentional vagueness leaves universities the room to interpret harassment in a variety of ways, such as in hate speech, should it become necessary to enforce. In researching how many harassment cases have occurred throughout different universities, and what resulted of them, I came to find minimal academic research. This can mainly be attributed to universities attempting to limit public displays of malpractice and unsafe communities while also being attributed to the anonymity of involved parties that typically revolves around harassment cases. While it may not be public knowledge how many cases go through universities and how many cases result in expulsions, the systems that facilitate them are. To evaluate every university’s procedures would unnecessarily elongate this paper but I hold that the successful models by Cornell University and Syracuse University (Palmadesso, 2017) present a system in which student-to-student mediation can bring members that harass others back into the community and this system can be implemented throughout universities across the country.
Restorative Justice: An Alternative to Punitive Practices
Before delving into Cornell and Syracuse’s mediation programs, focusing on the STudent Accountability and Restorative Research (STARR) project presents a broader picture of restorative justice in universities. STARR assimilates data surrounding student disciplinary practices from eighteen colleges and universities in the United States and highlights different practices’ successes and failures (Karp and Sacks, 2014). While the colleges are not publicly named, the research conducted by Karp and Sacks found that “the type of conduct process used is the single most influential factor in student learning (Karp and Sacks, 2014)” when conducting student code violations. Their research emphasizes the importance of restorative justice: an essentiality in addressing hate speech on campuses in a community building fashion. Restorative justice focuses on four principles as outlined in Karp’s book, “Little Book of Restorative Justice for Colleges and Universities” (Karp, 2014): inclusive decision-making, active accountability, repairing harm, and rebuilding trust. Each lay the foundation for offenders of contracts both explicit (such as codes of conduct) and implicit (such as general community norms) to reenter a community. While restorative justice is not novel in concept, its implementation has scarcely occurred. Syracuse University’s Conflict Management Center (CMC) is a student-led initiative to develop students’ conflict resolution skills through theoretical application and practical training (Palmadesso, 2017). Through shadowing current mediators and a progressive build up to mediating conflict, Syracuse’s student mediators teach strategies of de-escalation to incoming freshmen and cross-cultural strategies for students preparing to travel abroad. Although academic credit is not offered, the volunteers for the program continue to replace themselves with incoming students, continuing its success. At Cornell University’s Scheinman Institute on Conflict Resolution, students have multiple options for getting involved in restorative justice. Multiple for-credit classes, such as Campus Mediation Practicum (CMP) I & II, conflict resolution clubs, and general trainings are offered to all Cornell students across the undergraduate, graduate, and law levels. Students in the CMP courses mediate student violations of the campus code of conduct with an Associate Judicial Administrator through Summary Decision Agreements by Mediation, Facilitated Dialogues, and referrals of the Judicial Administrator. Through an understanding of restorative justice in reading Karp’s book and other scholarly works, students mediate through a modified process that includes themes of restorative justice rather than the whole process itself. The core difference between the two processes is Cornell’s collaboration between students and the Office of the Judicial Administrator to mediate cases between students and create sanctions for code violations in conjunction with the Judicial Administrator. Cornell continues to expand and improve its mediation usages but provides the groundwork for all universities to employ a system that allows for students to mediate cases relating to hate speech.
Defining Hate Speech and Mediation’s Potential, Regardless of Definition
So far in this paper, I have intentionally omitted a definition of hate speech. Various scholars have debated what qualifies as hate speech, both in the legal regard and less formal. Professor Alexander Brown of the University of East Anglia in the United Kingdom’s definition most closely mirrors what I believe mediation could resolve; he holds that
many ordinary people have been willing to use the term ‘hate speech’ (and its non-English equivalents) for much the same reason that legal scholars coined the term in the first place, namely, that it provides a rough but nevertheless serviceable term to describe phenomena that have been the subject of legal sanctions, of one kind or another, since the Roman laws on group defamation but that, in all likelihood, have also been present throughout human history beginning with the earliest multiethnic societies of the ancient world, that is, the expressive dimensions of identity-based envy, hostility, conflict, mistrust and oppression (Brown, p. 9, 2017).
Although longwinded, the idea that hate speech can simply be defined as what people generally believe to be expressions of negative and identity-specific comments allows the room for necessary interpretation.
I assert that the specific definition of hate speech does not matter for mediating conflicts that involve speech possibly deemed hateful. The intentional vagueness provides a level of adaptability for mediation and the opportunity to bring parties together in a more constructive and less accusatory way. Utilizing a combination of Syracuse and Cornell’s student mediation programs, the vagueness of hate speech could be addressed through student and peer mediation in a way where all cases that might relate to hate speech are considered, allowing accused parties to feel less subjective to the process.
Tenants of a Suggested Model: Civil, Voluntary, and Safe
Understanding what will anchor a potential mediation model precedes its ultimate creation. Ideally, peer mediation creates a space in which violators and victims of campus codes of conduct can come together in an explicitly civil, voluntary, and safe place that promotes the pillars of restorative justice. Cornell’s model mirrors this space for official judiciary procedures while Syracuse’s provides a space for more cross-cultural issues in an informal manner (Palmadesso, 2017). In addressing hate speech as defined in Professor Brown’s definition, hate speech meets the grey middle ground of an expression surrounding identity yet not illegal under governmental laws but illegal under codes of conduct (Brown, 2017). A model for addressing hate speech should include the space for students that believe themselves to be victims of hate speech yet also include the potential for university judicial measures should a specific instance of hate speech be regarded as harassment in varying codes of conduct. A mixture of Cornell’s and Syracuse’s models presents a mediation model in which social and cultural contexts are considered and judicial procedures can occur if necessary.
Civility must remain central to this model. The inability to communicate honestly and openly with one another without fear of further harm critically anchors a productive conversation between potential victims and perpetrators. The training provided to Cornell and Syracuse students both emphasize the need for civil interactions in their training and should be continued in this model (Palmadesso, 2017). Civility’s place in alternative dispute resolution (ADR), and more specifically mediation, has anchored ADR’s prior success. After passing the Civility Resolution through the American Bar Association’s House of Delegates in 2011, the ABA has called on all aspects of ADR to foster civil discourse more strongly. Deborah Masucci, a Fordham Law professor and Chair of the Section of Dispute Resolution when the Civility Resolution passed, expressed the ABA’s position succinctly: “The adoption of our Civility Resolution by the ABA House of Delegates reaffirmed that the principle of civility is a foundation for democracy and the rule of law. Differences must be resolved constructively, and lawyers must promote a more civil public discourse” (Masucci, 2011). Although the majority of student mediators will not be lawyers themselves when mediating their cases, the principle of civility must be equally important in a mediation as in a court room for open and honest conversations amidst high tensions.
Civility’s lure of peaceful conversation can quickly devolve into chaos or, worse, further instances of hate speech and traumatization regarding that speech. Advanced portions of Cornell’s peer mediation program intentionally focus on trauma and, more specifically, how to prevent re-traumatization for harmed students (Nobles, personal communication, 2021). However, these portions do not specifically address how to bring civility into mediations. The Little Book of Trauma Healing: Revised & Updated anchors Cornell’s advanced mediation courses, but similarly does not address how civility impacts potential trauma healing, as in recovering from hate speech (Yoder, 2020). Rather, The Little Book speaks to the essentiality of nonviolence in addressing raw emotions and direct harms to victims (Yoder, 2020). Nonviolence is an exceptionally important portion of mediation, but I contend that more than nonviolence is necessary for peer mediation regarding hate speech to effectively work. Ultimately, there is little research regarding civility within mediation, as most mediations are voluntary and conclude when incivility arises. Providing a stronger focus on the combination of civility and the voluntary aspects of mediation could allow peer mediation to address hate speech more effectively.
The voluntary nature of mediation and innate human desire to avoid conflict raise an especially difficult question: how does this model ensure people accused of anything, especially more drastic accusations such as hate speech, come to mediation if the process is entirely voluntary? Simply put, it cannot be. To mandate mediation would remove the integrity of the process and discourage parties from acting in a way that truly benefits the parties rather than one or both parties seeking to please an authority who demanded the mediation. While the voluntary aspect cannot be altered, the perceptions of the model that encourage its usage can be.
The barriers that discourage both offenders and victims from mediation could be eased so that they could come to mediation without altering the voluntariness of the process. Written agreements from both parties that outline expectations and have parties agree on the purpose of the mediation prior to its commencement could alleviate some of the concerns of parties walking unprepared into their sessions. Providing more information on mediation before sessions could especially benefit students who have never even interacted with ADR or mediation previously. While most preparation for ADR scenarios revolves around arbitrations and negotiations, preparation for mediation could serve similar benefits. In preparing for negotiations, parties who hope to negotiate the best scenario for themselves consider both position- and interest-based bargaining, with researchers agreeing that interest-based bargaining is the most agreeable situation for both parties (Fisher, Ury, & Patton, 2011). General information sheets that explain that mediation differs from traditional arbitration or negotiation situations and how mediation works to foster interest-based conversations could benefit both parties.
In personal experience mediating cases, student respondents who do not have even minor knowledge of the mediation process before beginning the mediation often arrive with, and keep throughout, a hesitancy and defensiveness towards the mediation. Providing more in-depth explanations of the process and creating more explicit agreements has the potential to addresses these fears beforehand. Cornell already utilizes a system that creates explicit agreements at the end, but the possibility of more front-and-center agreements at the beginning could alleviate parties’ fears and make the process truly voluntary.
Creating a safe place mirrors that of a civil place but requires significantly more preparation on the mediators’ end. Conscious knowledge of resources that student participants may wish to utilize following a mediation, and an understanding of cultural perspectives and norms that may impact student participants’ ability to fully engage with the process, remain essential in a successful mediation. While both Syracuse and Cornell have different procedures for assisting students, neither programs provide direction on how to provide resources to a potential perpetrator-and-victim situation. Syracuse’s program successfully ensures students have the resources at the ready should mediations deviate, but only for student respondents, not perpetrators (Palmadesso, 2017). Cornell’s process does not as explicitly outline which resources to provide as student mediators, but the typical presence of either an associate judicial administrator or additional mentor-mediator with extensive experience creates a more-likely-than-not scenario for providing resources (Nobles, personal communication, 2020). Ensuring a safe space requires doing so for both a perpetrator and victim, although the space to creating one space for both can be difficult.
Although creating a safe space for perpetrators may appear offensive to the victim, allowing perpetrators the opportunity to openly share why they committed the harms may provide closure to both parties. Including the perpetrator in repairing the harms done is essential in preventing future offensives (Bulatovic, 2015). For victims of hate speech, safety mostly looks like not being spoken to in a hateful way again. Perpetrators cannot be guaranteed to not speak hatefully again without an attempt to learn from the offense committed.
While research continues to develop, the presence of police officers may negatively contribute in mediations and spaces intended to be civil, voluntary, and safe for students that are part of a typically marginalized community such as Black and brown students (Kahn, et al., 2016). While police officers may remain necessary for mediations in which an officer was called to address, and acted upon, an act of hate speech, recent demonstrations and debates around police armament at Cornell University have led representative bodies to advocate against armed and/or any police participation in breaches of the campus code of conduct (Maharishi and Stamm, 2020). The role between Cornel’s police department and Cornell’s Office of the Judicial Administrator suggests that even if universities create mediation spaces that they deem safe, students, especially students from marginalized communities, may refuse mediations with officers present. Universities looking to adapt or edit any model of mediation should remain conscious of the effects police officers may have in providing a civil, voluntary, and safe space for students to effectively engage in student mediations while also remaining cognizant of other cultural perspectives and norms that may surround campus communities. Guaranteeing a safe space for all student participants must occur for parties to thoroughly engage in the peer-to-peer mediations.
Civil, Voluntary, and Safe
Most crucially, the pillars of civility, voluntariness, and safety must all work in tandem with one another for the model to effectively bring together offenders and victims of hate speech. Although current research currently lacks in hate speech mediation, more investigative work should be conducted to determine how these three pillars could collide in unison.
The Model and Promotion
In creating this civil, voluntary, and safe space for victims of possible hate speech, one model cannot fit all scenarios. Universities have foreseen this predicament and thus not one university in the United States has created a system for students to address hate speech with one another through a peer mediation system. The potential for failure and further harm halts universities from taking broad approaches in this area and the negative implications for failed practice could detrimentally set back decades of work in bringing student mediation to more prominence. However, I hope that in presenting a possible model, and how to best utilize it, universities will encourage further research into the potential successes peer mediation could offer and more seriously contend student mediations as the answer to rising hate speech in American universities.
I present the Model for Mediating Hate Speech (MMHS). Most similarly, MMHS encompasses many of the same details found in a Facilitated Dialogue as found in Cornell’s mediation practices (Nobles, personal communication, 2020). MMHS remains entirely voluntary for both parties but may stem as a possible sanction from harassment violations in university codes of conduct; even if originating from a sanction, a sanction could only mandate that participants start the mediation but could still leave at any point if desired.
MMHS would also require more thorough training for student mediators, mirroring Syracuse’s model of extensive theoretical and researched topics (Palmadesso, 2017). The most concrete difference between MMHS’s training and Syracuse’s is ensuring that student mediators fully understand the theories, research, and possible outcomes pertaining to hate speech’s intricacies. Student mediators would ideally receive academic credit for their services and greater assist in the training of future mediators, combining Cornell’s and Syracuse’s structures together. These student mediators could come from anywhere within a university, regardless of internal colleges or level that regards undergraduate, graduate, or professional as at Cornell. Their extensive training would ensure that student mediators can create a safe space by being aware of resources for student participants whilst knowing when and how to suggest them.
MMHS’s success relies on not solely its trained student mediators, but that the community it serves knows that the process exists and can easily be obtained. Syracuse’s model currently offers first year students in the College of Arts and Sciences the opportunity to take a one-hour workshop but does not mandate all students partake (Palmadesso, 2017). I propose that a similar approach be taken through not necessarily a mandatory workshop, but by informing students throughout their orientations, student services, mental health providers, and other programs designed to assist students that mediation is a practical and available solution to conflict, especially regarding hate speech. MMHS would most likely succeed if fully understood by the community as to what the model aspires to be: a civil, voluntary, and safe space where hate speech can be addressed in a constructive and restorative manner.
Conclusion: Aspirations and Implementation
In this paper, I presented the dilemma universities in the United States face regarding hate speech and its recent increase on college campuses. While explaining anti-harassment policies and the vagueness generated in addressing hate speech, I argued that a modified version of student mediation can present a new, restorative alternative to a judicious and disciplinary process that does not promote learning for possible code of conduct violators and possible victims of hate speech. The MMHS model serves to unite two successful practices by two universities into one template that universities throughout the nation can modify and fit into their communities. MMHS’s success aspires to bridge the gap between freedom of speech and verbal harassment as well as the gap between punitive and restorative practices. Its implementation depends on the administrations and judicial officers of universities to train and trust student mediators to effectively mediate student conflict, to conduct further research for more effective models, and to share mediation’s potential and processes with their greater communities. The success of MMHS depends on all community members to accept that they can resolve conflict with one another in a manner that benefits all members and removes hate speech in university campuses through restorative means.
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