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California State University, Dominguez Hills
University of Wisconsin, Parkside
Created: June 3, 2004
Latest Update: June 3, 2004
jeannecurran@habermas.org
takata@uwp.edu

Learning to Argue Validity Claims

Recently, a justifiably frustrated, angry professor at a local college emailed all her colleagues to argue the injustice of recent happenings on the campus. Often when we are arguing real injustices, we are experiencing high affect (Silent Language, Edward T. Hall) at an informal level. This makes it even harder to adhere to the logic of argumentation. This is answerability in all its messiness. One has a voice. One has been harmed. Others have been harmed. One answers, in the midst of the anger, and the governance council or the court tries to make sense of it and rule. This is why one has professional social workers, health managers, lawyers. These professionals are expected to hear your answer, to listen in good faith, and to bring their skills to help you make an impressive argument for your validity claim. This is why you don't want to be your own lawyer or social worker; you want social distance and professional training to take over to present your claim most effectively.

See if you can listen in good faith to the message sent, and help the colleague present her case, strengthen her voice, take her argument before a governance council or court.

Practice in legal and governance argumentation is essential. We thought that some excerpts from that message would help to illustrate the importance of facts, law, facts, law to governance discourse, that is, discourse aimed at decision-making with a good faith hearing to all perspectives.

Original text of message is in violet. Comments are in blue.

Opening Statement:

We are coming to the end of the academic year. I have been here through each [administration]. through good times and bad. I can not remember a more insane year, one of absolute failed leadership, from faculty [governance]committee to the top echelons of the administration.

The message has already taken a definitive position. The use of value-laden words, such as "insane" and "absolute failed" indicates a confrontative argument with binary positions, such as good, bad. The group being confronted is clearly identified and may be overbroad in its inclusiveness, since membership in the faculty governance committee is not defined, nor is the extent of application to various levels of membership, and the same is true of the "top echelons." Notice this illustrates the legal contention of making overbroad statements.

We do get some idea of the identification of the group being taken to task by the status of the person to whom the message was identified. A second tier administrator on the campus itself. We are given some idea of the temporal status of the author, "through good times and bad," but no indication of a link to external time. In a governance council or in a court you would be expected to drop all value-laden references and to give a brief summary of the facts for which you can give evidence, and the relief you seek for the perceived injustice.

Facts:

"You came in as a group of outsiders and like a bull in a china closet, declared war on the faculty and staff who have given twenty to thirty-five years of their lives to building this university."

This first fact dallies with value-laden language in the pejorative "outsiders," but it does serve to tell us that there is an issue of insiders/outsiders, or as the next phrase indicates, long-time (25 - 30 years) membership opposing newcomers. This would suggest that the author has been at the location for 25 to 30 years, but you should confirm that by cross examination, since we are making an unstated assumption here. You should also determine by cross examination how long these "newcomers" or "outsiders" have been present at the location of the dispute.

The pejorative "bull in a china closet" indicates power and the use of that power in a bullying manner that serves tl destroy delicate infrastructure and inter-relationships without adequate care. China is delicate. A china closet is full of delicate china. A bull is rather large and cumbersome and used to the out of doors, not to a small space with delicate objects or people. (Think of the rodeo.) Think of the bull.

The term "declare war" suggests that this will be a confrontational exchange, if there is in fact an exchange, and that it is hostile, as well as pejorative, since one doesn't give a war with someone one expects could become a friend.

You failed in demonstrating good community based social skills, although you were clever in manipulating the [faculty governance committee] leadership to serve your ends by buying off leadership. But the stench from rewarding [faculty governance committee] leadership with an administrative position for carrying out your agenda to the detriment of faculty and staff will reek for years to come. The appointment is disgraceful, scandalous, and an affront to the university. It's like old style Chicago politics. In political science we would call it a conflict of interest. Can anyone now doubt that the [faculty governance committee] leadership was serving administrative ends?

The facts presented in this section of the message abound in pejorative terms: "failed," "clever" (connoting subterfuge and slickness rather than understanding), "buying off", "stench", "reek", "to the detriment of," "disgraceful," "scandalous," "old style Chicago politics" (cement blocks? and the mob?). In legal writing we would call this a string citation, in which many examples are strung together. You will encounter that frequently in governance and legal argument, but recall that you are requiring with a string citation that the reader supply his/her own interpretations of here, conclusionary adjectives, or if cases or cited, the appropriateness of the choice of the case.

But notice also that the conclusionary adjectives give us no factual detail on which we could decide whether we agree with the conclusion or not. For example, if the addressee "failed in demonstrating good community based social skills," what did he/she/they do or not do that produced this failure. When you fail to give the details of specific acts or omissions, I, the reader, am forced to accept your conclusion based almost solely on my assessment of your judgment. What community based skills were ignored or misused?

The message tells me that the addressee was "clever." How? Must I accept the writer's conclusion of cleverness, or could the writer share with me the detailed facts from which I could draw my own conclusion of cleverness? Is cleverness bad? Notice that "clever" is pejorative only in some of its connotations. So the detailed facts should let me know whether those pejorative connotations are appropriate and whether I can agree with them.

She tells me also that the addressee is guilty of "buying off the [faculty governance committee] leadership. And this time she gives me some detail as to how this was done: "by rewarding [faculty governance committee] leadership with an administrative position." "Buying off" has the connotation of something wrong or fraudulent:

"Verb1.buy off - pay someone with influence in order to receive a favor
pay off
crime, law-breaking - (criminal law) an act punishable by law; usually considered an evil act; "a long record of crimes"
bribe, grease one's palms, buy, corrupt - make illegal payments to in exchange for favors or influence; "This judge can be bought"

So, how do I feel about this particular kind of "buy off," asking a faculty leader to be an administrator, who serves at the pleasure of the President? MPP Policies and Programs says that "A Management Personnel Plan employee serves at the pleasure of the campus President or the Chancellor, as appropriate. A MPP employee shall not serve a probationary period and shall not receive permanent status."

Well, acsording to the CSY Policies and Programs, this newly appointed administrative position would serve directly at the pleasure of the President, creating a conflict if that same person is considered to represent the faculty sphere of governance. I guess I agree with the message writer, since if the person serves at the pleasure of the Campus President he/she would be unlikely to disagree with the President on behalf of the faculty, at least unless he/she was willing to be terminated. That doesn't sound too cool for faculty governance committee leadership.

I am, however, confused as to the conflict here for staff, since the faculty governance committee leadership would have no direct effect on staff. So I would expect you to provide more detail for the inclusion of staff in this statement. In the law, we must be very precise and not be overbroad in our generalization. This would be an example of a generalized that is overbroad based on the specific details given.

Law:

Now we have a single fact, the appointment of a faculty leader to an administrative position, with an apparent conflict between the duty of the faculty leader to fellow faculty and governance and that appointed person's duty to the appointing president, at whose pleasure he/she serves. There has been more discourse. Lots of pejorative conclusions. But the governance council or the court would not permit such an elaboration of this one fact. You would be told: We understand the fact, Counsel. How should governance principles or the law be applied to that fact?

Here's the form of governance argument being demanded. Facts, the law or principles that should apply to an understanding of and action on those facts. The rest of the pejorative language would simply be unacceptable in governance discourse or in a legal courtroom. It does not give us any further facts. But the message goes on to say "In political science we would call it a conflict of interest." In Moot Court we would call it a violation of the checks and balances of the governance system, and would consider that stronger than a mere conflict of interest. The US government is based on checks and balances represented by the different spheres of government: legislative, executive, and judicial (Habermas, Between Facts and Norms). Although our institutions are not set up in precisely the same manner as our constitutional government, dominant discourse and citizen expectations of justice expect similar checks against hegemony and nepotism to apply in our public institutions. Consequently we would argue this in moot court as a major violation against principles of justice in the governance of a public university. You'll notice that we have already moved into that by our examination of data that relate to both the principles and our constitutional values.

Is This a Fact?

So Can anyone now doubt that the [faculty governance committee] leadership was serving administrative ends?

Well, there is a small problem with overbroad generalization here. If I am going to agree, along with Habermas, that the sphere of law is that most likely to preserve social justice and legitimacy, I must base that agreement on what the facts show to have happened. But this statement does not give a very necessary time line. Did the faculty governance committee leadership receive the administrative position after having served in the faculty position for some time, so that the position may be considered a reward for past behavior to which the faculty sphere did object? Or was the position offered as an inducement to future behavior to which the faculty sphere might object?

We don't find those answers in the message because the message was sent to persons who were on the campus and aware of the transactions. But we in moot court would question to what extent the whole campus community, the whole faculty, especially since of the total number of instructional faculty of 912, only 286 are full time. I would expect moot court participants to question the extent to which the 626 part time faculty were aware of an in a position to give input to the faculty governance committee leadership. I would also expect you to notice that 86 percent of full time faculty have doctorates, and consequently would be likely to take offense at exclusion from the governance process. Data from CSU Dominguez Hills Common Data Set. Scroll down to about an inch from the end of the file. Only 24 % of the part time faculty have doctorates. So perhaps the issue is more complex than simply the faculty governance committee leadership, and must be extended to cover the issue of what extensive reliance on part time faculty does generally to the governance of the university. Especially since part of the job description and workload of full time faculty includes university governance work.

Fact:

Furthermore, you made decisions on academic issues in which you were totally ignorant.

"Decisions" is vague. The Governance Council or the court would insist upon more detail. Which decisions? Be precise and accurate. Then you have a stated a fact not in evidence: ignorance. That is a conclusionary statement because it does not give the court or the governance council enough information to decide if it agrees with you. How did you measure that ignorance? Then I can decide if I agree with your judgment. Be very careful of mixing up conclusionary statements of opinion with fact. The law is exacting, and the governance council should be exacting. The court is neither agreeing nor disagreeing with you. It is asking for enough detail to make its own judgment.

Fact:

"What possible benefit to the university has resulted by this madness? The result has been untold grief, anger, stress, and divisiveness. I have never witnessed faculty/staff morale so thoroughly trashed. Anywhere one goes around campus, one hears the same thing about your poor reputation. Faculty and staff ask, when is this madness ever going to end? How does this atmosphere benefit anyone? You have not been a probem solver, but a problem creator, and you have managed to create a negative culture.

At some point in this recital, the council or the court would have stopped you. "We understand, Counsel, that you are dismayed and perceive yourself and your colleagues to have been harmed by the administrations' actions. Do you have any further factual details to add? In order for the governance council and/or the court to act, they must have fact, principle, fact, law, fact, principle. You must translate the original story as told to you as a professional aiding with the presentation of the validity claim into a fact, law, fact, law format. It is important to know the affect behind the conflict. But that affect will not be played out in either the governing council or the court if things go properly.

Fact:

You have certainly accomplished one thing, numerous faculty are looking for other jobs, and others near retirement are gathering to head for the exit.

Here, you need to be alert to another fact, one that measures dissatisfaction of the faculty with the entire transaction being described. The measure of dissatisfaction is looking for other jobs, and/or planning to retire. What would the governance council or the court ask? How does the message writer know this fact? Is there data somewhere that would substantiate the claim? Notice that in governance, as in court, one does not merely accept unsupported claims. There must be evidence to persuade the trier of fact. While it is true that some people have such reputations that their word will be accepted without evidence, that is not a good priniciple for the operation of either governance councils or courts. Look at what happened when we took the President's word about Weapons of Mass Destruction in Iraq.

Principle:

At some point in here the council or court is going to ask again what prinicple is illustrated by this dissatisfaction of the faculty? Does that matter? And then you will have to argue the importance of the role of governance to faculty. For starters, go here for help with this argument: American Association of University Professors Governance. You will not be permitted to state your own conclusions without reference to some authority recognized by the governance council or the court.

Concluding Statement:

Your client will generally tell you what outcome she/he wants. It's important to listen carefully here to be sure that you are representing the client's interest and not your own.

Where does all this leave us? I would say, as [an Administrator] you have utterly failed as an effective leaader. In the best interest of the university, and putting aside your own personal ambition, you should resign. To the campus President I would say, you are ultimately responsible for this sorry state of affairs, you allowed it to occur and have not taken corective action. Your concept of university community has been destroyed, so where does that leave us.

In your professional conclusion to this validity argument you will be expected to keep value-laden adjectives out; to explain the relief your client seeks from the injustice as portrayed, and to summarize the strongest points made in your support of that relief.

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Site Copyright: Jeanne Curran and Susan R. Takata and Individual Authors, June 2004.
"Fair use" encouraged.