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Viewpoint: On racism, UND President Kennedy fails first test

FARGO--As UND alumni, we sadly conclude that President Mark Kennedy has failed his first test when faced with the persistent problem of racist conduct at UND.

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FARGO-As UND alumni, we sadly conclude that President Mark Kennedy has failed his first test when faced with the persistent problem of racist conduct at UND.

We're referring to the students in the photo with the caption "Locked the black b**** out," and the students in blackface in the photo with the caption, "Black lives matter."

An investigation by the UND Office of Student Rights and Responsibilities concluded that the incidents did not violate the UND Code of Student Life because of "the constitutional protection of free speech."

Kennedy also used the "free speech" rationale to justify taking no action. But what does the code actually say?

The "Overview" section of the UND Code of Student Life indicates that the code is not intended to "limit or restrict the freedom of speech," but the actual policy sections of the code address student "conduct." For UND to claim that the only issue involved in these cases is "free speech" is to ignore the very policy the university claimed to invoke.
If UND decided that the code was the appropriate policy in these cases, then student conduct was the issue to be investigated. The question must be whether the conduct of the students violated the code.

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The section of the code that applies to these cases is the section on "Harassment." Harassment is defined in part by the code as "unwelcome and offensive conduct that is based upon an individual or group's membership in a protected class." In these two cases, the conduct was directed at African Americans, a protected class. There are other definitions of what constitutes "harassment," but the university is bound by the definition in the code and must follow it.

The code also states that "harassment is a violation of the code when it is objectively offensive and sufficiently severe, persistent or pervasive." On the first point, was the conduct "objectively offensive"? Kennedy issued a statement in the wake of the posting of these photos in which he said he was "appalled" by the postings of "photos with racially charged messages" and that this "behavior" was "not OK, and that, in fact, it is inexcusable" and "the two photos are painful to many individuals."

It appears that Kennedy found the photos to be "objectively offensive" by his own statements.

Next, was the conduct "sufficiently severe, persistent or pervasive"? The construction of this sentence indicates that any one of these conditions is sufficient.
One way to determine whether the conduct was severe is by the consequences. Could this conduct contribute to an unwelcoming or even hostile climate on the campus? Could this conduct lead to further harassment or intimidation of African Americans or other protected classes of students?

As reported, the student who was the target of one of the incidents has moved out of the residence hall because she does not feel comfortable there, and the student who exposed the blackface photo claims she has received death threats. These are direct consequences of the conduct in question and should also be investigated.

The code also states that "alleged misconduct that may result in a suspension includes ... bias-motivated offenses." In our opinion, the conduct was racist and bias-motivated and thus could lead to suspension.

Given the facts as reported about the student conduct and a clear and careful reading of the code, we find it difficult to understand how the university found that the students did not violate the code. The university can't claim that the students did not violate the code when it does not apply the code but instead uses an entirely different criteria, i.e., "free speech."
This makes us wonder if Kennedy brings a political agenda to his job as president.

It is clear that Kennedy failed his first test on the persistent and corrosive issue of racism that has damaged and even threatened the presidency of his predecessors, sullied the reputation of the institution for decades and caused pain to members of the university community for far too long. By not using the code to deal decisively with these incidents, Kennedy is ignoring the university's own policy and condoning racist conduct.

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Rice is a former dean of UND's College of Education and Human Development and a retired professor of educational leadership at UND. Phillips is a professor of social work at Minot State University. The opinions expressed here are their own and do not represent those of the universities where they are or have been employed.

Related Topics: MARK KENNEDY
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