Comments to Jeanne Curran
Latest draft uploaded: March 3, 1998.
Back to Table of Contents for Dear Habermas
The underlying theoretical perspective for this paper is drawn from Habermas' Between Facts and Norms, his 1996 work developing the idea that communicative action can result in a system of law that holds our only hope of legitimacy and ultimate peaceful existence. Although we have in fact been working with children already in the justice system, our primary focus has been on reconstructing the system to respond more effectively, and to hear the voices of the children in that reconstruction.
Children of the Night is a program that houses and works with children taken from the streets, most of whom are engaged at that point in prostitution as a means of survival. By the time they get to this program they are in the system. The program offers them shelter, training, social work services, and preparation for college and support for moving into college for those who so choose.
We have been intimately associated with the program since its inception, not as researchers, but as colleagues. Susan Takata was a student at CSUDH with Lois Lee, the program's founder. Both of them were in the Social Science Research Center, funded in association with the department for its students. The Center sponsored both Susan and Lois at their first professional meeting presentations. Both went on to obtain doctorates. Susan, to Chair the Sociology department at Wisconsin, Parkside, Lois to found and direct Children of the Night. And while the Center was still operative, Robert Christie served as Chair of the CSUDH department of sociology, and joined the Board of Lois' Children of the Night. Thus, the program we are describing here, and the theoretical approach we are developing, is one that we have seen up close and personal. That fact has certainly affected our theoretical perspective.
The Habermasian concept with which we approached this analysis was that of the right of every citizen to participate in discourse to the extent of having his/her validity claims heard in good faith. Habermas considers this essential to legitimacy. (Cite pages in Between Facts and Norms. We have translated this idea, in our relationship to Children of the Night, as one of giving voice to all who are governed by the rules. This is an unusual use of "voice" in a literature that has most often interpreted "voice" as a means of giving expression to ideas and persons who are normally not encouraged to express themselves. Thus Catharine MacKinnon speaks of the importance of recognizing as valid what women say in consciousness raising groups. Belensky et al. Speak of the culture of silence (as does Freire) in which women's voices are simply never heard and are discouraged from such hearing. We are using the term "voice" more in the sense of the right to be heard and the respect which guarantees that right at the "discourse table," at decision-making nodes in whatever social system is in authority where these voices might be able to express a validity claim different from those traditionally considered.. Thus we are looking more at the legitimacy demands, which require those who would claim such legitimacy to honor this right and aid those who have such validity claims to express them clearly in terms that might be grasped by the more traditionally oriented decision-makers.
We set out several years ago to include high school students in a university moot court program at CSUDH. Unlike the law school version of moot court, we designed this program to acquaint students and the community with the legal reasoning and procedure through participation in actual legal argument. Because the program was meant to give the broadest possible exposure to those who were contemplating future legal careers and those who would come into contact with the legal system in the normal course of everyday events, including legislating and managing for their own communities, the emphasis was on process. Students were provided with all the legal materials necessary: summaries of law; relevant cases, briefed with clear summaries of what the case stood for; a transcript to make real the sense of record, and briefs and arguments in which both sides of the argument were clearly developed. Although that is still a lot to master, the students were primarily asked to develop a facility for using the best arguments available to them, on their feet, before well known jurists. This was a task well within the purview of a single college course.
Within the first few years of experimentation we learned that students learned to readily spot a good, well founded legal argument. They could tell who had done their homework and who had not, and did not hesitate to tell us when an attorney was not well prepared. This was precisely the kind of skill we had been hoping to develop. We wanted them not to be intimidated by the legal language, by the fast repartee, by the authority of the lawyers and judges. We wanted them to think, and to trust their own thinking, through scary situations, like arguing in a full auditorium before famous judges.
Local high schools had meanwhile developed programs for their students who were interested in future careers in law. We invited them to visit our exhibition rounds, and to come specifically to the TV studio in which we taped the semi-final rounds. There, they had a chance to meet the judges and discuss the law briefly, since we had visited their classrooms and provided them with a much less-detailed set of materials on the argument. The high school students thrived on the attention, showed off happily to the judges, and wanted more. A change in the program at the local high school, and problems with affording buses for what had to be a "night" program prevented our carrying that experiment further.
But in the interim, we had begun to offer an abbreviated training program at Children of the Night. As we had done at the local high school, we provided the youngsters with a study guide, the story of the incident which led to the court case, and summaries of some of the law and the cases. As with the local high school, we invited them to our taped semi-finals. The following year, we trained more extensively, with CSUDH students joining faculty on the Children of the Night home. We repeated the invitation to Children of the Night, since buses were available to them, and they could more readily than the local students attend night sessions. By this time, in 1997, we had separated the community performance piece of the program into a separate performance, and invited enough jurists that every student who had qualified for argument was given an opportunity to argue. The high school students knew that we planned to allow them to argue before real judges and lawyers. They expressed intense disappointment, near outrage, that they had not been given the occasion to argue in the college rounds! This was the first validity claim that came to our discourse table.
Their first was question our legitimacy and the fairness of a system that invited them to play and then left them out. We were stunned. These were students who had dropped out of high school, were runaways, were contemptuous of a system that had done little but hurt them. We knew their potential. We respected it and listened to them with respect. But theirs were not the disciplined voices to argue with serious judicial panels. Or were they?
How does a validity claim, by someone in a group that is rarely if ever fairly represented get heard? Is it presented in the scholarly, disciplined language to which we are accustomed in appellate courts of law? Clearly not. As one of their teachers pointed out after one of our training sessions, these were children who saw no reason to use standard academic language. Four letter words sprinkled their ordinary language because that was the language of the streets from which they had been rescued.
As we gave them a chance to argue before faculty and students from CSUDH, we heard, "May it please the court, my name is _______. I' m here for . . ." "No, no, you're supposed to say, "I represent . . . what do you call Allwell, again?" "The plaintiff" came quickly in a stage whisper from another corner of the room. Then someone wanted to claim that the search was egregious, stopped mid-sentence to lean over and speak to another, and then announced with pride "egregious." We heard this stuff. We learned so much from it. We learned that we could bring the understanding we hoped for much more quickly by allowing the students to help each other. That rarely happens in the real court rooms. But we quickly adapted, "May it please the court, could I have a moment with my co-counsel?" One young woman who refused to argue, refused to stand up behind that podium, began by whispering the answers to the court's questions to her friend who was willing to argue. Before the argument was done, she was standing at the podium with her friend. Their teacher asked for a copy of the transcript so they could have more detailed answers to practice with. We should have known then that they were not going to sit quietly and listen to college students argue without presenting us with a new validity claim, their right to full participation.
This has been our experience of how validity claims are brought by those who are not skilled in the practice of bringing those claims:
In this case the trust came in part from our connection to the program. We came as trusted friends of their Director, not as outsiders. That helped. But we have found that similar trust can be created in a college classroom, as students share in projects such as this.
We believe the trust is essential to the student's willingness to present a validity claim, when they generally know that it isn't clothed in academic or professional respectability. (Our variation on "color of law.") Our students, and the children at Children of the Night have exhibited several different approaches to this recognition that they lack the color of authority:
Yes, it adds to confusion. But some of these issues, the mere fact of courtroom language, of legal reasoning, are threatening enough that many of us need the comfort of averting our eyes, of lurking, as the Internet would call it, of judging from a safe distance whether this topic, these tools can be trusted.
We were lucky. We had experienced validity claims brought by students before, and we were aware that it was hard to give them fair credence.
One of the first about which we wrote, a long time ago, was from a minority student who claimed that "white" faculty were never there when they were needed and that we just didn't appreciate their reasoning. It was Jeanne, who was on the phone collecting the student's data, and putting it on the computer, at about 10 o'clock on a weekend night. She is not ashamed to have snarled back something like, "Oh, so you've invented a new logic, have you." She recalls that scene everytime she reads about how you can't socially construct logic. Maybe she said it first? But this is a great example of what we mean by "understanding too quickly." (Andre Gide, Journals, "Je deteste ceux qui m'entendent trop vite.")
There were a number of things we figured out from those comments, once Jeanne was cool enough to listen. Minority males were not receiving adequate support in either the academic or the local community for their educational efforts. We derived that interpretation from their reference to the fact that we were never there even though we knew we were. One reasonable interpretation for that was that we weren't approachable in a way that they sensed but could not explain. Can we please argue Habermas' transcendental language here? Does anybody really know what means except that we somehow understand things we can't articulate. Based on our interpretation, we invited a number of minority attorneys to participate on our panels. Our young minority males honed in on them like aliens from outer space. They loved them. They were happy. We don't know why it made that kind of difference. But it did. And they didn't appreciate Jeanne, even though she was an attorney, and went out and found the ones they did love. But we don't think that's lack of appreciation. All these years later, I really believe that in rational discourse they would approve, they would speak of appreciation. Their validity claim just mattered more.
That would seem to mean that if any of us are going to actively attempt to create a discourse table at which these young people can participate, we're going to need to accept that it won't come wrapped up in the traditional formulae of academic approval. Those are our validity claims, not theirs.
The second case in which we saw this kind of claim was with the young student we write about in Playing with Habermas. She spoke in all seriousness about fifteen minutes a day to study. Our normal response as college professors in one of sheer horror. Our second response is to claim that today's students aren't serious and don't study. Here, we side with Andre Gide: Don't understand too quickly. That same student, given some laboratory assignments and a site from which to work on her own was seen in the lab a good two hours after the end of the normal class, with a classmate, with genuine questions that indicated the site was being fully digested. The fifteen minutes story was just that, the real story of what it felt like to her to try to eke out study time in a world that did not prioritize that activity. It's important data. It means we must find ways to help them find sensible and meaningful ways around the real demands they face. But it does not mean they are not serious, not trying, just trying to get by.
That is also true of the young people from Children of the Night. They could not have known the practice intensity to which the college students had learned to perform. They could not have known the intricacies of the formal legal jargon to which they would need to be privy if they were to adequately play the role of legal professionals. Consequently their ignorance of such criteria absolves them of a lack of seriousness as to their purpose. They did understand that to argue was to have a voice and to be heard in good faith and with dignity. That was an enormous and serious lesson, and they liked it. Points for our system.
The young people from Children of the Night told us they felt excluded by not being allowed to argue before real judges at college rounds. If we listen carefully the claim is one of exclusion, and of their not being part of the decision-making process. We decided they couldn't argue in college rounds. And that did exclude them from the process. Would it have helped if we had included them in planning the rounds? If we had included them in making up the qualifying rules? Legitimacy depends on every citizen bound by the rules having voice to be heard about those rules.
At those same rounds, one of our college students ran from the room. We gave her water, fond and supportive words, and sent her back fifteen minutes later. Her colleagues argued around her absence, made room for her when she returned, and she argued brilliantly. So brilliantly, in fact, that one of the judges later asked why she had left. "Because, Your Honor, I was about to faint I was so scared." One of the judges who has been with us for the last ten years wouldn't ask questions when she returned until she assured him that it was OK. And that achieved more than all the performances in our auditorium ever can. Our judges now realize how extensively our students have studied, and how much they can do, even when they're scared to death. We should have thought that scene alone would have frightened the Children of the Night from arguing. But it didn't. They just wanted their fair chance at the same process.
Because they trusted the discourse process they were willing to advance their validity claim without considering the niceties of language and argument the professionals were bound to consider. This is what leads us to conclude that those in authority, those who control the discourse table and the decisions that the community must make have a responsibility for empowering those whose claims would fail for want of sophistication. Faculty on the project can find professionally acceptable ways to provide performance time for the high school students. Their desire to perform can only benefit the community. It is our job, not theirs, to situate their claim into the real world in such a way that its validity be honored.
What was it that attracted us to work with Children of the Night? As pointed out earlier, this was not a traditional research relationship. All of us had special ties to this group. All of us were keenly aware of the extent to which the system does not take anywhere near adequate responsibility of children in this age group who as the result of many social factors not of their own doing (incest, remarriage, problems with other family members) find themselves unwanted and unprovided for at an age and level of training that does not prepare them to cope effectively. Many of us were involved in different aspects of trying to make the system more responsive to their plight. It seemed natural as we saw Habermasian discourse begin to work by creating discourse and legitimacy within our college classrooms to extend that to these young people. We were keenly aware of the extent to which such young people are often labeled disadvantaged as though the disadvantage were inherent to them instead of defined by society's infrastructure. (Cite Martha Minow, Making All the Difference: Inclusion and Exclusion in American Law). As we planned the first of our moot court sessions with them, a clerk in a private foundation that was helping with some of the expense informed us that anything such children could do would be remarkable. After all, one only needed to consider their background. We had, and we did. And most of them are bright and competent when given a chance to succeed from a safe haven. It is a part of our concern for legitimacy that leads us to consider their needs from the perspective of a system that has defined them out of existence, by seeing their plight as the product of their own behaviors, without consideration of the situational context.
Habermas considers the situational context. He considers legitimacy as requiring their participation, for no one really speaks for them. On the streets they represent themselves. And they liked doing so in the classroom, preparing arguments for legal professionals. Some of us are lawyers and can represent some part of their cause. But to ignore their voice, is to give far too much credence to our own validity claims. Freire would argue that to believe that we know what is best for them would be to fail as leaders of a revolution that would grant them and our system legitimacy.
Habermas argues against Luchmann's auto-poietic non-learning sub-systems, on the grounds that there can be no legitimacy in a system of law that does not consider in good faith the validity claims of those who are governed by its rules. It can be self-governing, for it can create procedures for writing new laws and perpetuating itself over time. It can provide for the enforcement of its laws. But when, in that enforcement, it does not take into account the valid claims of those for whom the laws or rules do not work, the system risks the perpetuation of institutional discrimination. (Joe Feagin, Discrimination, American Style) Habermas calls such a system autopoietic non-learning. Our schools, and the institutions through which we deal with young people such as we find in Children of the Night, often establish rules, establish the means of perpetuating the rules, and the committees who oversee the enforcement of the rules, all without hearing the anguish of those who are hurt by the rules. That is auto-poietic, self-perpetuating, and non-learning. No provision is made for the claims and needs of those the system does not fit to help us find ways that might help them fit.
We set out in our first work with Children of the Night to help them understand the system of law of which they had become a part. We had no idea whether they would care to learn legal argument and legal reasoning. We certainly never anticipated hearing them say, "May it please the court, my name is..." Only because we let them guide us did we learn that they liked legal reasoning. I suspect, for the sense of power it gave them to be able to manage that legal jargon in a safe environment.
The next step in this process is sitting down to work with their new teacher and with them. Our work is cut out for us. They have met and worked with lawyers and judges. They have proven to us that they can master legal jargon, and our bet is that they can master the limited amount of black letter law that is covered in our moot court program. But legitimacy requires now that we explain in better detail, now that we understand, what we hoped to achieve, so that they can add their expertise to ours. And that could take some time, because they aren't likely to say it the way we will.
Our goals:
The law and the system of law that Habermas seeks depends far more on ideas than on the elite qualities of language. How should we manage that in bringing a small local community to the understanding of the system of law? Would we not prefer solid reasoning and good faith hearing for all validity claims to uniformly elite language? Of course, as teachers, we would like both, please. But in the interest of Habermasian discourse, we believe that the local communities we hope to work with and the young people we are working with should have full hearing in that decision.
Because these young people are in the system, one of our concerns was changing the system labeling. Their participation in moot court has done this for us admirably. We have learned that if we wish to bring them revolutionary learning, we'd better be prepared for revolutionary questioning, right down to the legitimacy of our actions. Their learning interactions with us have deconstructed the set images we had of them. We no longer perceive what appear to be unsophisticated statements wholly within our grasp simply because of our formal learning. We have learned not to understand them so quickly.
In the next phase of this project we plan to bring together social workers, teachers, college teaching experts, law enforcement personnel, and legal system personnel, and the young people themselves, to plan the most effective way to deconstruct the set images others hold of them. This process is already well into the planning stage, and we hope to have some initial material ready by the end of this school year. Because of the students' enthusiasm and response level, and our attempts to incorporate that into our core program, we are running behind schedule on this. But that is what Freire would tell us to do. Slow down, and make sure that what we do is what they are asking for; no circles of certainty based on outside expertise. This year the students will have a chance to plan for participation. That means the college will have to plan for how to fit them in.
CSUDH is about 30 miles from Children of the Night's headquarters. That's not much in California's world, but it limits the time that faculty and students can spend with the young people. In the last two months we have worked at creating a Web site for the college program. Within the month we expect to add a site developed especially for communication with Children of the Night. We began this last year with an old site and old equipment. We and they loved it. Now that the department is putting up its new server, we hope to have some wonderful discussion groups. Maybe the Web will make discourse even easier. It is certainly going to alter access possibilities.