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2. Appeal of conduct violation decision

Dear Administrator,

I am appealing the finding of the administrative hearing which determined that I am responsible for harassment as defined by the code of conduct. I appeal on the grounds listed in part c that “the sanction is inappropriate or disproportionate given the details of the case and the student's prior conduct record.” Specifically, I believe that the finding of responsibility and conduct probation is inappropriate given the details of the case.

The hearing’s basis for its finding, that my actions “directly prevented [the candidate] from being able to participate” in ASWU and that “but for [my] claims at the November meeting, [the candidate]’s nomination would have been confirmed by the Senate in November,” is not accurate. The finding also does not establish that my actions meet the standard of “severe, persistent, or pervasive” behavior as required by the definition of harassment. Furthermore, the finding does not account for the role of the Senate in questioning nominees and keeping the [redacted] accountable to the interests of students. While I do not claim that the code of conduct totally ceases to apply in ASWU business, it is clear to me that political actions taken in a student political body by elected leaders with a conscientious imperative to represent their constituents must clear an exceptional standard to be rightly considered an actionable matter for the university. This finding does not meet that standard.

Critically, my actions do not constitute “severe, persistent, or pervasive” behavior. Only public information was brought up in the Senate meeting, and no comments were made outside the context of Senate business, including on any social media or publication that I control. I was deliberate and careful in the course of choosing which audience was appropriate for the concerns I raised—at no point did I make any public statements in any context or forum not strictly related to my evaluation of [the candidate]’s fitness as a nominee and my constituents’ interest in an equitable appointment. No contact outside the boundaries of Senate business was initiated with [the candidate] at any point. I did not use any other platform than a single auxiliary email and the Senate meetings themselves to make my objections known. When the matter was closed in February, I refrained from additional public comment. My statements could not have been severe, for all the reasons outlined throughout, they could not have been persistent, given their extremely limited time frame, and they could not have been pervasive, given the limited forms of communication used to make them. The basis for the finding notes severity in terms of denying an educational opportunity to [the candidate], but that determination is critically flawed.

The finding states that the determination was made with the goal of ensuring that “all of our students are also protected from harassment and that their educational and co-curricular opportunities are not taken away from them by another student without evidence to indicate fault or wrongdoing.” This statement reflects a fundamental misunderstanding of the nomination and confirmation process—nothing at all was taken away from [the candidate], because the position was never [their] right in the first place. [The candidate] was not denied an educational opportunity by my actions. All students as members of ASWU are allowed to sit in meetings, seek election from their peers, and [they] could have even obtained a Senate seat or Executive position if [they] chose to seek election, or participated in ASWU through the public comment process. What I spoke against actively providing to [the candidate] is a position of privilege and power [section redacted]. There are no specified bases for the choice to confirm or reject a nomination at all. This is not a matter of employment or academic participation being denied or any other similar case. There are no due process protections. This is a purely political question of confidence in a nominee—like any political election. Voters are empowered to vote based on their own conscience and to express the reasons for their decision. Indeed, my objection was entirely consistent with ASWU’s rules of order and procedure. Robert’s Rules of Order (the parliamentary authority of the Senate) advises that members of deliberative bodies ought to be as forthright as possible with their dissent, and should elaborate on their honest feelings on all matters. Most importantly, though, as one senator out of twenty, even if one accepted that [the candidate] was entitled to the position, I simply do not and did not have the authority to deny anything at all to [them]. The Senate makes these decisions on a two-thirds majority basis; the confirmation or lack thereof is a totally collective responsibility. [Section redacted].

If one finds that my grounds for objection or statements in the Senate must meet some criteria of reasonableness or fair treatment, then I believe that they clearly do—they were based on my conscientious beliefs about the nominee and [their] potential impact on my community. Although the basis for the hearing’s finding cites the fact that [the candidate] passed a conduct check, conduct checks cannot be the sole relevant basis by which a Senator may determine the fitness of a nominee. Not all students are comfortable submitting formal reports to the university, and beyond that there are many pernicious behaviors that are utterly permissible under the code of conduct—some of which (say, the freedom to protest on campus) are quite fairly not included in the code-—but that can nevertheless become the basis for an individual decision to approve or not approve a political nominee. Furthermore, although I have been exposed to many conjectures about [the candidate]’s behavior, none of those conjecture-based claims were repeated at the Senate meeting. I made no insinuation that [the candidate] had at all violated the code of conduct or any laws, or in any way materially defamed [them]. The claims made in the Senate meeting were that: 1) [the candidate] is an active [member] in a fascist organization, which is an ideological perspective shared by many academics and journalists in regard to the nature of the Republican Party, and 2) [the candidate]’s social media presence included elements that, in my opinion as a Jew affected by a culture of antisemitism, were/are antisemitic and revealing of [redacted] nationalism. Neither of those claims are judicable by the conduct process and could not have been considered in a different forum. They are entirely matters of opinion. They are, however, in my view, relevant to my evaluation of [the candidate] in the context of considering the merits of a student leader.

[Section redacted], my speech against [the candidate]’s nomination does not constitute harassment on the basis of [their] political creed—[their] personal feelings are ultimately irrelevant to any of my claims. Instead, the concern raised is in regards to [their] active position [redacted]. As of November, a student had been assaulted at the Capitol by people who would identify as very strong supporters of Republican leadership. The leader of the Republicans had recently undertook a brutal crackdown on dissent in the face of protests against a racist carceral and political system—another series of actions widely considered indeed fascist. It is my sincerely held view, and a view shared by many of the constituents I am called to represent, that the Republican Party in all of its manifestations is an enabler of fascist and racist violence that I hold to be incompatible with ASWU’s values. [The candidate]’s actions—not [their] creed, but [their] decision to [participate in] a group affiliated with those politicians who pose a grave threat to marginalized students—form some of the basis for my objection to [their] nomination. While it is possible that students who identify as Republicans may feel excluded by this line, my priority is the share of students—particularly those with marginalized identities—who are routinely excluded by Republicans in positions of power. If one finds that it is acceptable to vote in elections based on the extent to which one agrees or disagrees with the affiliation of the candidate, the same standard applies in all votes of conscience, which includes confirmations in the ASWU Senate.

In describing how I came to my conclusions on the antisemitic and [redacted] nationalist nature of [the candidate]’s social media presence, I find it crucial to note that, to wit, I am the only practicing Jew in the ASWU Senate, Judicial Branch, or Executive Council. Antisemitism is designed to be subtle and only noticed by those who are looking very closely for it. Many antisemitic symbols are extremely subtle—small hints like certain otherwise inoccuous numbers or emoji, or small snippets of quotations. These things are all individually small, almost meaningless signals. But to someone looking for a fellow, they’re exactly enough. Almost no antisemite, or racist of any kind, outwardly identifies as such. Explaining the pernicity of these signals that allow antisemites to locate each other and form complex associations and relationships is an extremely complex undertaking that is not obvious to those who have not experienced antisemitism. Regardless of an outsider’s opinion on the specific veracity of my feeling, my conclusions are sincerely and conscientiously held opinions that I have formed as a member of a targeted group. If one can accept that I honestly held the opinion that [the candidate] exhibited or at least abetted antisemitism and/or [redacted] nationalism, then it is, to my view, quite obvious why I would feel compelled to make that opinion and its basis known to the Senate. An ASWU Justice—for the sake of the welfare of the student government as a whole—cannot be even just perceived to hold oppressive biases. Although mere rumor was my first indication that antisemitism might have been present, it is the public material posted by [the candidate] confirms, to me, that suspicion. Even regardless of how [the candidate]’s truest, deepest feelings on the matter, the perception among my constituents—Jews that are not otherwise represented in the Senate—that [the candidate] would not be an equitable Justice for their needs is grounds enough for an objection. Jewish law requires that Jews be protective of and vigilant for their community, above and beyond the protections of civil law or other procedure. My personal judgement of [the candidate]’s actions is not subject to evidentiary standards that would apply in conduct procedures or a court of law. It is a matter of conscience, and I am called to vote and advocate in a manner consistent with my conscience. Neither grounds alone—[the candidate]’s position [in the Republican Party], nor the pattern of statements on the edge of antisemitism, would have caused me to so vocally object, but these together combined caused me to feel that I had no ethical choice but to make my concerns fully known.

Additionally, I expressed no negative feelings toward people of [redacted] descent—there was no harassment on the basis of [the candidate]’s national origin. I only condemned my estimation of [the candidate]’s [redacted] nationalism, not nationality—in exactly the same terms I condemn [redacted] nationalism, or any other nationalism. [Section redacted].

With the sanction of conduct probation imposed, the ASWU Senate and more importantly the students who elected me to be a senator and who rely on me to represent their interests are deprived of an advocate and a voice for marginalized students—particularly Jews. My removal from the Senate would leave an ASWU without a single Jewish voice, an especially concerning fate for a campus dominated by christonormativity. For the reasons described here I believe that to be a fundamentally unjust and unjustified outcome.

Thank you for your consideration,

Senator Ezekiel J. Druker.

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