Joyce Phipps, Esq. is the founder and director of Casa de Esperanza–a non-profit legal aid and social service organization in Bound Brook, New Jersey, created to serve immigrants and refugees. I met her last February at the vigil for immigrant detainees I described in an earlier post.
We met more or less by chance: lost in thought, I wandered away from the vigil to prowl around the perimeter of the facility, and poke at its edges; Joyce, who was doing the same thing, noticed me, and struck up a conversation. It took just a few minutes of conversation to convince me to invite her to Felician to talk about her work defending the rights of immigrants and refugees. It took less time for her to accept.
We finally set the date of her presentation for this past week, as part of a unit I’m doing with my Phil 380 class on immigration enforcement. ICE came by on Tuesday to represent the claims and interests of the government; Joyce came by on Thursday of the same week to represent the claims and interests of those on the receiving end of government action. It was an education for all of us. The Dean of Arts and Sciences called her a “badass,” no less.
The agents from ICE had given us a presentation that was relatively legalistic and narrowly focused: immigration is a complex legal process; those who enter this country or remain in it in violation of that process have violated federal law; it is ICE’s legal mandate to enforce the law by forcibly removing them. The bulk of their presentation aimed to demonstrate continuities in policy across presidential administrations, and to demonstrate the efficacy of ICE operations at deporting individuals who pose a danger to the community.
Joyce’s presentation took a broader view that might be summarized this way.
Would-be immigrants have to fit a relatively small set of narrowly-defined categories to apply for entry into the United States. A person who doesn’t fit such a category cannot legally enter, and is subject to removal if he does enter. The predictable result is a huge backlog of would-be immigrants who, despite being honest, hard-working, and desperate to enter the United States, lack any legal means of entry. Another predictable result is that huge numbers of such people either don’t try to enter (and languish or worse in their home countries), or enter illegally for lack of any better alternatives, putting themselves at risk of deportation upon discovery by ICE. The design of our immigration system incentivizes the illegal behavior that generates the widespread outrage against “illegal immigration.”What’s true of immigrants generally is particularly true of applicants for asylum. Applicants for asylum must provide “documentary evidence” of persecution in their home countries, persecution that must be governmental in nature and target the victim by race, religion, ethnicity, political affiliation, or membership in a specially targeted social group. (Domestic violence has now also been accepted on an ad hoc basis as grounds for asylum.)
But a great deal of persecution abroad takes other, private or quasi-private forms–or at any rate, forms that can’t easily be tied back to government action in any documentable way. Hondurans, for example, face clear-cutting of the Honduran rain forest on the part of private corporations in search of palm oil. Those who protest their actions face privatized persecution–up to and including murder–that does not qualify as grounds for asylum. I was struck by one story Joyce told, of protesters whose remains were scattered and put in the street for display; the tactic comes straight out of Machiavelli’s Prince. I’m embarrassed to say that I didn’t know who Berta Caceres was before Joyce’s talk, but I do now.
It’s obvious, or should be, that people only leave their homes and march thousands of miles to immigrate to a foreign country under conditions of duress and desperation. It behooves us (you’d think) to ask why they suffer under those conditions. Arguably, a large part of the explanation lies with American foreign policy toward Central America (or in the case of Syrian refugees, toward the Near East and Persian Gulf). If our policies causally explain why–or in significant measure explain why–refugees are leaving their countries en masse to come to ours, then it’s arguable that we owe them safe harbor from conditions we ourselves have imposed on them, or have at least helped impose.
At a minimum, we have an obligation to look into the facts to determine what responsibility we have for their situation, and if we are responsible, to temper our application of the black letter of the law accordingly. Our Constitution makes justice a part of the law (read the Preamble); if so, no flagrant injustice can ever be legal under our laws (slavery, internment, Jim Crow, the disenfranchisement of women…). The question then becomes how flagrant an injustice it is to put people in a condition of abject misery and keep them there indefinitely because one idiosyncratically partisan interpretation of immigration law demands it. It sounds pretty flagrant to me.Joyce’s presentation was more explicitly political than the one we’d gotten from ICE, and helped put the micro-level situation in a broader and more intelligible context. The migrant caravan, on Joyce’s view, is not an ad hoc assemblage of people who’ve inscrutably decided to wake up one day, and breach the Mexican or American borders; like the Syrians before them, they are the victims of an international refugee crisis produced by intolerable conditions at home. And like the Syrian crisis that preceded it, it’s arguable that our policies are the root cause (or one of the main causes) of the crisis they face–a fact obscured by our fixation on narrow legalisms (“they broke the law!”), as well as by our obsession with the micro-level optics of rock throwing and tear-gassing (whether of men, women, or children). The real question is not what’s happening at the border, but why so many people are headed there in the first place.
Having given us the broader context, Joyce offered some useful advice, legal and otherwise.
- The best thing you can do to help an undocumented immigrant is to guide them to a lawyer and to a reputable social service organization; it also helps to listen to their stories without feeling the need to give advice. (As she pointed out, the new pro-immigrant gubernatorial administration in New Jersey has dedicated some $2.1 million to legal aid for immigrant legal services.)
- Don’t trust non-lawyers for immigration advice of any kind, in particular public notaries (known in Spanish-speaking communities as “notarios“), well-known for their total ignorance of immigration law along with their tendency to scam the unwary.
- That said, familiarize yourself with the basics of immigration law, as described at the website of USCIS.
- If taken into custody by ICE (or any associated agency), a detainee should invoke and exercise her Fifth Amendment right to remain silent–a right everyone enjoys, regardless of immigration status. (That said, ICE often relies on biometric data, like fingerprinting, which is not protected by the Fifth Amendment right against self-incrimination. On the other hand, I was gratified to learn about the passage of these legal protections for immigrants, care of a previous guest speaker at Felician.)
I was surprised to hear her insist that immigrants have certain duties as well as rights, two of a negative character, one positive.
- Immigrants, she argued, have a duty not to use fake Social Security numbers, as their use is not “victimless,” and if discovered, guarantees deportation without hope of return.
- They have a duty not to use a fake driver’s license.
- They have a duty to pay state and federal income taxes, not only to avoid being a free rider on any services they may use, but to create a documentary record of one’s presence in the country. As she put it, the IRS doesn’t care about your immigration status; it only wants your money. Every immigrant, documented or not, should obtain a tax ID number and file a W7 form. The point is not to imply that tax payments are literally a path to citizenship (a common misconception), but that they help document one’s presence in the country so as to prove the right to legal residency.
High minded, to be sure, but it strikes me as a tough sell.She ended with a paean to the Statue of Liberty, and a peroration to immigration and immigrants. “Plan for a day trip,” she said, “and spend half of it at the Statue of Liberty, and the other half at Ellis Island.” And on immigration itself:
We’re all immigrants. On my father’s side, I’m a Finn. They came in 1909. On my mother’s side, I’m a mutt–circa 1709. But the point is, we’re all immigrants, and every single one of us has some kind of heritage that’s important to us. And that’s what you need to lock into–whether your ancestors came because they were fleeing persecution, or whether they were dragged here in chains, or whether they just came for a better life: every single one of us has a connection with that kind of immigrant past.
I guess the question she left us with is what we intend to do with it.
Thanks to Professor Lavina Sequeira for merging her Phil 250 class with my Phil 380 for both Joyce Phipps’s talk as well as the ICE presentation.
Thanks for sharing this. The ‘advice’ is especially informative.
I’m not sure about endorsing all of Phipps’ points, but it sounds like a good summary case for a view that strikes me as at least roughly right. I was surprised by the natural law style move: justice is part of the law, so no flagrant injustice — I think you have a typo there — can be legal. As a legal argument, I’d expect that sort of move to have limited traction, but it’s surely a point worth considering for your target audience especially, who I take to include, prominently, people who might consider working for ICE. ICE’s presentation, as you describe it, seems to say nothing much incompatible with Phipps’: here’s what we do, it’s enforcing federal law, the policies have been broadly continuous across administrations, everyone we deport is violating the law, and sometimes we’re deporting people who are dangerous in addition to having violated immigration law. Of course, it may well be that much of what ICE does is not in fact legal, or that the policies and laws it enforces are unconstitutional. But that’s for courts to decide; given what the courts currently say the law is, ICE is enforcing it, so consider coming to work for ICE. Phipps’ presentation could be taken as an argument against those claims: what ICE does is enforce unjust policies, injustice can’t be legal, so what ICE does is not in fact legal. But if we set aside the natural law move, we’re still left with a case for the injustice of these policies: sure, maybe what ICE does is legal, but if the policies it enforces are unjust, surely that should figure in the deliberation of anybody considering the possibility of going to work for ICE, and should figure quite negatively if it’s true. The importance difference is one, as you put it, of context.
I would not work for ICE, but I don’t think I’d mind being an immigration lawyer. I’m not qualified to do either, so it’s not a live question for me, but I gather it is for at least some of your students. Naturally, you can’t guarantee that they’ll think about these things wisely, but you’ve put them in a good position to be able to. Maybe not everything one could want in teaching, but pretty good.
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Thanks for noting the typo; fixed it. (Actually, there were a couple of others.)
I should probably emphasize that “the natural law move” (as phrased above) is Joyce’s point translated into my language. It’s not exactly the way she put the point. Readers of this blog (or at least, of my posts) assume the risks of an after-the-fact summary by a philosopher.
You’re right that bare appeals to justice have limited traction in the courts these days, for some of these reasons:
1. Many people in jurisprudence regard the Preamble of the Constitution as “mere verbiage” without legal force.
2. Even if they didn’t hold (1), judges are hesitant to appeal to conceptions of justice that lack explicit legal authorization, or appear “too philosophical.” (At least, this is what they claim–until they change their minds in ad hoc ways.)
3. Some of what the immigration authorities do (not just ICE but CBP, and CSIS) is presumptively beyond the reach of the courts, in which case, if appeals to justice have any traction at all, they do so by governing exercises of discretion by executive branch officials. (Incidentally, immigration courts aren’t ordinary courts; they’re more like administrative tribunals, so they blur the distinction between executive and judicial functions.)
But I tend to think that these claims actually underscore the need for appeals to natural law-type conceptions of justice in jurisprudence.
1*. The Preamble of the Constitution is as much a part of it as any other, and specifies the whole point of having a Constitution. If our laws literally subverted or flagrantly violated the claims of justice, they would undermine the point of having established the Constitution. But the subversion of the Constitution isn’t constitutional. The question is how flagrant or egregious the violation has to be to count as unconstitutional, but my view is, once you cross a certain moral threshold, you’re there.
2*. Judges are hesitant to appeal to substantive conceptions of justice that lack explicit legal authorization under that description, but they have no problem appealing to substantive conceptions of justice under other descriptions, then working overtime to conceal the fact that they’re doing so.
One example at random (of dozens I might have picked): The basic axiom of Fourth Amendment jurisprudence is that searches and seizures must be “reasonable” and must respect a strong “right of security.” The Courts have worked out an elaborate conception of procedural rights governing search and seizure based on what they call the “reasonable person” standard. But when all is said and done, the “reasonable person” standard is just an oblique way of making reference to substantive claims of justice. You would change nothing by calling it a “just person” standard, except to elicit the pointlessly nitpicking objection that the text of the Fourth Amendment makes reference to “reasonable” rather than “just”–as it does, but which happens to be beside the point.
Continuing with the Fourth Amendment example: just about every case in criminal procedure is an exercise in the application of some substantive conception of justice. You can’t even get through the “Exercises” section of a textbook on criminal procedure without being hit in the face with this fact. Standardly, textbooks will specify some legal doctrine, like the “reasonable suspicion” standard for stop and frisk, then present you with a series of hypothetical (or quasi-hypothetical) examples intended to apply the standard to particular cases, where each case differs slightly from the others. Students expect there to be one single, conclusive answer in every case, but there are only conclusive answers in the simplest cases. Above a certain level of complexity, the answers vary depending on one’s substantive moral assumptions. And by “vary,” I mean: one’s substantive conception of justice determines whether you stop and frisk someone or not, i.e., whether you implicitly subject them to the risk of death, or not.
On its own, minus substantive “natural law”-esque appeals to justice, “the law” is insufficiently determinate to decide any but the simplest textbook cases. In other words, left to the “letter of the law” sans substantive conception of justice, you would, in a huge number of real-life cases, be left without practical guidance of any kind about what to do, a point I made in an earlier post about the adjudication of a J-1 visa waiver:
So what did “the law” minus substantive appeal to justice tell us to do here–waive the J-1 visa requirement and allow her to stay, or demand adherence to it even if it killed her?
I could drag you through the whole text of the Constitution–from Article I until the last word of the last Amendment–and show you how and why the text of the Constitution requires this procedure. (Or drag you through a lot of case law to the same end.) I’ll spare you that, but that’s my view.
The basic rationale is simple, however: the Constitution protects a conception of rights that it leaves its readers to specify and spell out. My view is that the unspecified conception of rights in question is the conception that actually tracks the moral truth about rights, or approximates doing so. Since every rights claim is a claim of justice, and justice is one of the explicit aims of the Constitution, natural law-like appeals to justice are unavoidable in American law. Something like this is the traditional view of the Constitution held by jurist-historians like Edward Corwin and resurrected by people like Randy Barnett.
3*. Especially in immigration law, for the reasons given in (3) above, appeals to justice will tend not apply to judicial reasoning, but to the exercise of executive discretion. (And huge swatches of immigration/border protection law involves exercises of executive discretion.) Here I’d argue that justice plays a role somewhat similar to that played by “equity” or “decency” (to epeikes) in Aristotle’s ethics (Nicomachean Ethics, V.10). It either guides decisions that aren’t fully specified by law, or rectifies apparently law-adherent decisions that have led to significant injustice (and on my view, are not constitutional, hence not legal).
Sorry, I’m going on and on, but that only addresses one part of your comment. Let me address the other one separately.
I’m quite sympathetic to the natural law move. I do wonder, though, whether your points about its necessity don’t quite go far enough to justify the sort of claim you describe from Phipps, at least as I understand it. As I understand her claim, the idea is that the laws and policies enforced by ICE are unjust, and therefore not valid laws. Your points, however, focus on the need to appeal beyond the letter of the law to substantive notions of justice in order to form legal conclusions. So we’ve got two quite different claims: (i) a valid law must satisfy (at least some significant) standards of justice (conceived as not entirely dependent on positive law for its content) and (ii) good judicial decision-making must satisfy (at least some significant) standards of justice (conceived as not entirely dependent on positive law for its content). It’s easy enough to see why people often run these two together, but they’re quite distinct; one could, for instance, reject (i) but endorse (ii) (as, e.g., David Brink ‘Legal Positivism and Natural Law Reconsidered’). Perhaps if we think carefully enough about it we’ll see that they stand or fall together, but I’m not convinced that’s so.
But it hardly seems to matter for the more directly practical purposes of your two talks. Suppose we just adopt a hard line positivist view: Phipps is just making rhetorical gestures, and there is no serious question about some law’s failing to be valid because it is unjust. Nonetheless, it might still be unjust. An unjust law is still a law, sure, but its legal validity is no reason to treat it as though it were just. If the question is whether I should work for ICE or whether I should support attempts to change current immigration laws and policies, then I don’t even need to ask whether I still have an obligation to obey unjust laws, as the positivist ought not to be insisting anyway. I don’t need to ask that because my practical question is not whether to observe or violate those laws, but whether to go to work enforcing them, and perhaps whether to support efforts to revise them. If they’re unjust, then presumably that’s a pretty strong reason against my going to work to enforce them and a pretty strong reason to favor changing them. Whether it’s also a reason to think that I have no obligation to obey them, or that they’re not legally valid, aren’t questions that your students need to answer in order to give a conclusive verdict against working for ICE if Phipps is roughly right.
Well, that’s provided that justice is a virtue and that there are truths about justice independent of what a formal legal system prescribes or prohibits. I should know better than to assume that students, even at a Catholic school, will think so.
I tried hard to capture the common ground between the ICE presentation and Joyce’s presentation. And I’d want to insist that there is some common ground, however narrow it is.
Joyce went out of her way to repudiate the idea of “open borders” taken absolutely literally, and to insist that immigrants of any description have duties as well as rights. In the post, I happened to mention the particular duties that she happened to emphasize, but her general point is that immigrants have a duty not to engage in predation or rights-violative free riding on others. She also went out of her way to suggest that undocumented immigrants who engage in domestic violence should be deported or prevented from entering (singling this out because it apparently happens to be a big problem). The agents from ICE claimed to want to protect us against dangerous people within the jurisdiction of their agency. So there clearly is some overlap there.
That said, the difference between them is this. ICE tends to regard violation of the immigration laws on its own as indicative of “danger” and as a basis for deportation. It also tends to regard commission of extremely low-level offenses (e.g., traffic violations) as indicative of danger and a basis for deportation.
Joyce rejects this view as wildly disproportionate and unjust. For one thing, we are arguably responsible as a nation for the fact that so many people feel the need to flee Central America or the Middle East. To do this, then deny them entry or deport them on trivial grounds, is unjust.
Second, our immigration laws are too narrowly written to permit us to regard mere immigration law violators as doing something genuinely unjust. So it’s unjust to treat them as though they were.
And third, there is a gigantic double standard in the way we regard immigrant perpetrators of low-level offenses and non-immigrant ones. This isn’t her example, but consider the fact that just every town or city in the country has at least one NA or AA organization or drug rehab facility. What are these facilities but places of sanctuary and refuge for law breakers? Go to a meeting, and you’ll find people confessing openly to crimes–not just drug crimes but the crimes they committed in order to get drugs or as a result of being on them, from larceny to domestic abuse to child abandonment. No one, not even the far right (or especially not the far right), is suggesting that we induce the cops to stake out NA or rehab meetings and make mass arrests there. But arrests would skyrocket if we did. Meanwhile, many people regard deportation as an appropriate response to the commission of low level administrative offenses like like failure to stop at a stop sign or failure to yield. I’m the last one to trivialize moving violations, but deportation for speeding is insane.
What is objectionable about ICE is that it has weaponized the latter attitude with the sanction of the law and public opinion. I don’t know whether that means that ICE has to be abolished or merely has to be scaled back, but whichever thing happens to be true, the fact remains that ICE is a driver or agent of significant injustice in this country. How much of that is illegal or unconstitutional, I don’t know. But the Preamble’s invocation of justice entails that we all have an obligation to figure it out and respond accordingly–not just the courts but “the People” as well. The way you put things in the last few lines of your penultimate paragraph is exactly right.
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As it happens, last week I ended up discussing some aspects of this question with my class, which is currently reading Aquinas on natural law. In the first hour, I had been trying to show them that Aquinas’ views about disobedience to human law at least apparently conflict with Martin Luther King’s as expressed in the Letter from a Birmingham Jail, from which we’d listened to excerpts earlier in the week. To some extent, there are questions of interpretation in both cases, but on one plausible reading, it looks like Aquinas defends a broader endorsement of disobedience, while on another it looks narrower. It looks broader because Aquinas does not require, as King does, that we be willing to accept punishment or that we disobey in ways aimed at bringing injustice to light. But it could look much narrower because Aquinas does not tell us, as King does, that we have an obligation to disobey unjust laws, but only that we sometimes are not obligated to obey them; according to Aquinas, we should sometimes obey even unjust laws where disobedience would create “scandal or civil unrest,” whereas for King “civil unrest” is itself part of the whole point of civil disobedience. I thought I’d clearly set up a conflict between two apparently reasonable views issuing inconsistent verdicts on possible actions that my students themselves could consider taking in their own lives, but I got nothing out of them except some mumbling about how Aquinas is obviously wrong because he thinks we should be willing to die rather than worship idols, and that’s dumb because “I don’t believe in God.” It was as though I were trying to get them to participate in a dispute about the metaphysics of the trinity or something.
So when we went on break, I decided to grab some provocative discussion of unjust laws from recent American politics, and the first contemporary piece that popped up in my Google search for ‘unjust laws’ was a critical response to Jeff Sessions and Sarah Sanders’ invocation of biblical injunctions to obey the law as a defense of the child separation policy. The article critiqued their view severely, and I read it to my class in as indignant a tone as I could. I then pointed out that while the article must be encouraging us to break laws, it doesn’t tell us which laws, exactly, or what to do. This was something the class was willing to discuss actively, though mostly because one student was willing to defend the administration’s policy vociferously and the rest of them love to argue with him. But they very quickly got away from the question of whether we should think that civil disobedience is justified in this case, because they couldn’t agree about whether the policy was unjust, and agreement on that point was impossible because we did not have enough information. I reminded them that people who do have all the information there is to be had still disagree about it. The students at least appeared to reach a consensus that they needed to know more than any of us in the room knew before we could responsibly assess the justice of the policy (everyone agreed that family separation was non-ideal, but after a while there was a significant block of students unwilling to declare it unjust). In fact, I think there was at least an equally deep problem with many of the principles, or pseudo-principles, they were bandying about. But given how often people discussing immigration policy seem to have virtually no knowledge whatsoever of how it actually works, I was glad, at least, that they came to acknowledge that there are some facts beyond those available to just any person of common sense that matter a great deal.
I’m not sure we should follow Phipps on every point, but to my mind at least, cases like hers show sufficiently that the current system is hugely messed up and needs to be reformed in the direction of something that would fit the description that people on the right often mistakenly believe applies to it (where it is actually possible for decent people to immigrate legally), and so much of what I hear on this topic does not begin from even a rudimentary knowledge of the realities that it seems like a major contribution to civic discourse simply to get that rudimentary knowledge into people’s minds. I don’t take myself to have more than a rudimentary knowledge; I did not know everything you report from Phipps’ talk. I just wish I’d been able to read your report before I taught that class, because then I would have been in a better position to give students more of that rudimentary knowledge.
Re your students: I would have pressed the question of why they agree with King as against Aquinas (if they do) that we should accept punishment for breaking an unjust law. So they don’t believe in God, but they believe in turning the other cheek? If they have no position on it as far as what they would do, what position do they have regarding other people? Is everyone always obliged to accept punishment for breaking a law, no matter what their circumstances of oppression, and no matter how oppressive the law? What about the bad faith of those enforcing the law?
A related but not identical query: suppose you’re on the receiving end of police brutality up to and including sexual assault or rape. If you need not accept punishment (as per Aquinas), there appears to be no obstacle to your physically resisting an officer engaged in such an assault, unless engaging in self-defense causes the kind of scandal or civil unrest Aquinas has in mind, and wants to rule out. (Of course, the issue doesn’t really turn on “what he had in mind,” but what happens to be the case if we accept his principle ex hypothesi.)
The real problem is: if you’re obliged to accept punishment for breaking an unjust law (as per King), do you have a right of self-defense or a right to resist? King doesn’t address that, because he thinks that when faced with police brutality, we’re obliged to submit, and when we break the law, we’re obliged to accept the penalty. But he doesn’t deal squarely with the case where you break the law by resisting instead of submitting to brutality. Though the issue departs from the concerns of either text, I’d have gone there.
Think of the absurdity of King’s position as applied to the debate over immigration. What should illegal immigrants do on King’s view? Illegally immigrate, then turn themselves in to ICE to await the inevitable punishment of deportation? That subverts the whole point of immigrating. But would King have said that, given circumstances as they are, no Honduran or Guatemalan should try to immigrate here unless they satisfy the legal requirements for entry (“waiting in line” as people ridiculously describe it)? That position would put MLK on the far right of the political spectrum today.
It’s an obvious fact that everyone breaks the traffic laws all the time. Should we turn ourselves in every time we do, then accept the punishment?
Very true that the immigration debate takes off from a position of zero knowledge on the basics. But it’s not unique in that way. An unfortunate aspect of our discourse is that just about every issue is incompletely reported so that no one really knows what any controversial issue involves. Then you’re expected to adopt one of a handful of pre-accredited partisan positions so that everyone knows “where you stand on issue X.”
I have this fantasy picture of merging one of your classes with mine and team teaching them. Which I suppose could be done if we used Zoom or Google Video Chat. The sheer ludicrousness of the spectacle has something to recommend it. I actually am doing a Video Chat class on Thursday with a former student of mine, on immigration law. Anyway, something to think about for next semester, assuming it doesn’t get one or both of us fired.
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One of my weaknesses as a teacher – one that I have in part because I did not have to deal with the problem very much at all in my first ten years of teaching – is that when I don’t get any response at all to my first few lines of questioning, I begin to get frustrated and then can’t come up with more questions, even when they’re pretty obvious. This happens especially when I foolishly assume that they will surely have something to say about one or another of the first few lines of questioning.
I would not have come up with your questions in any case (which are excellent ones), but I’m not sure they would have provoked much response on that day. They do tend to respond more enthusiastically to ‘relevant’ material, but some days they’re apparently indifferent to the most topical stuff I can come up with, while on other days they engage seriously over questions that I would have expected them to find boring and trivial. At times the only common thread I can identify is that whatever my expectations are, they find a way to act contrary to them.
I do wonder whether police brutality and the like deserve a different sort of treatment, not just because it’s unclear to what extent and in what way someone who resists it is breaking a law, but simply because they’re so disanalogous to the kind of case King was considering. I have no views about King, but I’m not sure I want to generalize his remarks in the letter so readily. He was considering cases where we’re not breaking the law and we can choose to observe it without immediate harm to ourselves — after all, the laws most immediately relevant to his situation when writing were laws restricting public demonstrations. The letter is also more a piece of public rhetoric (in a non-pejorative sense) than a piece of philosophy; maybe the way to read it is as making the minimal case, conceding most to the opposition — look, we’re willing to accept the punishment, and our purpose in breaking these laws is to bring public attention to the injustice, not to gain some private benefit — even though a stronger case could be made. But of course nothing stops us from considering the view as articulated and asking whether it’s right. I think I’m firmly on Aquinas’ side there. His qualification about “scandal or civil unrest” is vague enough to lead to wildly different judgments, so his view in that article is not wholly adequate, but I think he’s quite right not to include some sort of condition about willingness to accept punishment or aiming at bringing attention to the injustice.
Probably true, but doesn’t matter. When a class doesn’t engage, one strategy is to act as though it doesn’t matter, and carry on a conversation with yourself–one that they can’t leave. Every now and then, I think it makes good pedagogical sense to treat the students as irrelevant to the class, especially when, intellectually speaking, they absent themselves from it.
Actually, Carrie-Ann used to have this sort of hilarious classroom technique that I’ve always wanted to try, but never have. If she found a class unprepared, she would simply leave class and tell them to come back when they were prepared. On her telling, they would appear at the next class, chastened and prepared, and pedagogical life would be good again. I don’t think this would work at Felician. If I left, they wouldn’t appear at the next meeting chastened and prepared. They wouldn’t appear at all. “You said to come back when we were prepared!”
Everything you say about MLK’s Letter is true, but as I see it, can safely be ignored for pedagogical purposes–at least as regards the decision to pose the questions I posed. If a class isn’t engaging, my strategy is to go anywhere I think they might engage. I regard myself as unconstrained by text, authorial intention, context, “what’s on the syllabus,” the requirements of Bloom’s Taxonomy, or even decency. At that moment, the question I’m pursuing is: is there any way to engage them by posing questions in the general vicinity of the original topic, or even outside of that vicinity but somehow connected to it by some consideration of relevance, however attenuated?
So: Does MLK’s Letter generalize to the context I brought up? Probably not, for all the reasons you give. But then, they should figure that out. Pedagogically, I’d sit there and let MLK look like a dumb ass for ten or fifteen minutes just to see what would happen. I mean, it’s not as though MLK is going to rise from the grave and claim to be unfairly treated. He’d probably be right if he did, but who cares? He’s irrevocably dead. It’s my class that needs intellectual CPR.
Anyway, while everything you say about MLK’s Letter is true, there is an open question about how charitably we should read such documents–or more neutrally, how we should read them–especially since people invoke them in a quasi-hagiographical spirit to justify all kinds of dumb ass things. Think about how ideologically common and convenient it is to demand that people only break the law if they’re prepared to accept punishment because, well, look at MLK. To which the response can involve one of the following disjuncts: we can invoke the reasons you’ve given to suggest that MLK’s Letter can’t be used that way, or we can say that MLK had some real blind spots, or that his Letter has some real blind spots, or that his Letter has some real limitations. So yes, it is piece of public rhetoric, but maybe it’s worth making explicit that there is a temptation to turn public rhetoric into public philosophy when it isn’t, and that there are potentially high costs to doing so.
At the end of the day, however, any teacher has to accept that there are limitations to any pedagogical technique, no matter how brilliant. In that respect, teaching is no different from therapy. Part of the burden rests with the students or the client. If they bring nothing to the table, nothing will materialize. The difference between Socrates and us isn’t so much that he had some brilliant technique that could even have worked on our students on a bad day. The difference is that it wasn’t a job for him, as it is for us. He had the freedom to walk away from a conversation gone bad. We don’t.
Though it isn’t centrally my point, I’m neither on King’s nor Aquinas’s side here. There are times when I think you should just break the law and leave it at that.
Come on, you knew this was coming:
I wish I could use Carrie-Ann’s technique. Maybe the closest thing I can do is to stop class and tell them to read on their own. One of my colleagues does that when students aren’t interested in discussion. But mine, like yours, would just not come back. Then again, most of the trouble I encounter stems from the semi-involuntary character of their presence in my class; though I’ve pointed out numerous times that nobody is in fact coercing them to be there rather than to drop out, earn a GED, and go to college — reminding them that I myself did not graduate from a legally recognized high school and so earned a GED, which posed no obstacle at all to getting a college degree — most of them plainly see their involvement in my class, at least on many days, as at best an Aristotelian mixed action determined by their parents’ will, and if they felt like they had the option not to be there, they wouldn’t be. That, I think, is the decisive fact about my pedagogical life these days.
To avoid giving the impression that they’re routinely checked out, though, I should reiterate that they sometimes have great discussions, and that on most days there are enough of them who have some intrinsic motivation to think philosophically that it’s at least eventually tolerable. Compared to a class of randomly selected 17-18 year old Americans, they might even be pretty good on the whole.
Ditto all that. What I do is give them open book reading quizzes that are written in such a way as to force you to do the reading beforehand and doublecheck it during the quiz to make sure that you’ve gotten it right (something you can’t do unless you’ve read it beforehand because you wouldn’t know where to look). It sort of works.
My 100 and 200 level courses are semi-involuntary, too; they’re General Educations Curriculum Commons courses, meaning that they belong to categories of required courses (with options within each category). But since I teach a class called “Making Moral Decisions,” and I have a very broad conception of “morality,” I have the luxury of teaching just about any topic I want, as long as it has some bearing on practical reasoning, aka “moral” reasoning. So I start the course by having them read Charles Murray on the pointlessness of the College BA, and have them respond to it online in a blog I’ve created for the class. (Next semester I’ll replace Murray with Bryan Caplan.)
That forces them to make explicit their sense that they’ve been “forced” into college. I then invite those who feel that way to withdraw on the spot. “The Registrar’s Office is two floors down.” It’s early enough in the semester, I say, to withdraw without financial penalty. No one’s forcing you to stay or go. And no one forced you to go to college, or go directly into the workforce. (Obviously, this is easier with college students than with high school students.)
The usual excuse they make is that they need the BA to get a job. So I point out that there are well-paying jobs for which one doesn’t need a BA. When they say that they want some other job that requires a BA–cop, teacher, nurse are the most common answers–I ask whether they think that a college BA is relevant to those jobs. The standard answer is that only courses “within my major” are relevant.
One line of inquiry is to ask why even those courses are relevant, within the major or outside of it. My favorite answer came from the budding police cadet who admitted that none of it was relevant, because the only knowledge relevant to policing is possessed exclusively by working police officers, and gotten on the job. I asked him what he thought about the court system, where attorneys, judges, and laypersons who are not cops judge the actions of cops on the basis of their knowledge of this thing called “the law.” He responded that he found the whole idea of a court system regrettable, along with lawyers, judges, jurors and the rest; ideally, courts would be replaced by on-the-spot decisions by cops. But the world is a corrupt place, so what can you do? This is not a position that can be reduced to absurdity. It’s already there.
But another is just to push them into lesser reductios, which is both easy to do and very amusing (for me). Can you be a cop and not know how to speak or write cogently? Not only is the answer “no,” but I can pull out a handy sheaf of incoherent police incident reports that I keep around just for this purpose and ask: anyone want to translate these into English? Next line of inquiry: where are you taught how to write/speak cogently, in English comp/communications or in CJ (assuming you ever learn)? Obvious answer. Of course, the sharper students will then say: OK, I’ll give you English comp. But why do we have to read fucking Shakespeare? At this point, it’s optional whether or not to make the case for the relevance of Macbeth or The Merchant of Venice to law enforcement. It depends on one’s stamina.
Can you be a nurse and not know statistics? The answer is “no,” even if many nursing students think the answer is “yes.” I guess you don’t need to know much math if your idea of nursing is to sit by someone’s bedside and pat their hand as they go through renal dialysis. But what if you want to figure out whether or not vaccines cause autism? (An amazing number of nursing students think they do.) In that case, you need to read the relevant medical literature. To do that, you need a basic understanding of statistics.
This comes as mind-blowing news to some of them. But even when you administer a medication, it also helps to know the difference between a dose of 0.3 mg and .03 mg. And where do you learn statistics, in math or in nursing courses? Another obvious gotcha. At this point, I get students who say: I need to know that shit to become a nurse? Fuck it, I’m going to become a med tech. Again, how to deal with this depends on how much stamina you have.
Can you do anything and not know how to think straight? (No.) And where, if anywhere, do you learn that? “Well, Socrates, I don’t believe they teach that in my major….”
One of the advantages of teaching at a small school is that I’ve actually audited some of the required classes they take, either for fun or as part of having to do peer review teaching observations–math, history, psychology, etc. I’m a student in the psych program myself. They can’t misrepresent what happens in these classes as “irrelevant” or “pointless,” as they love to do. I’ve taken them. I also have sustained relationships with people in law enforcement and medicine, and always make a point of talking to them about what they look for in job candidates. None of them say, “I look for job candidates lacking in basic skills, because my idea of job training is to impart those skills once they get here.”
My students try hard to bullshit me about their supposed knowledge of “the real world,” and about the non-book-learning required to get by in it, but at this point, I really can’t be bullshitted, at least not by the demographic I teach. I know that they have no idea what they’re talking about, and I put it to them just that way. This is the only pedagogical technique I know that really works. Half of them shut down when I do this, and half of them perk up. The first half just have to be written off as a sunk cost, but I get somewhere with the second–not as far as I’d like to, but somewhere.
If your students really think that education is a mixed action in the Aristotelian sense, they need to be induced, as close as possible, to take the cargo and throw some of it overboard. Or if the cargo is a package deal, to throw all of it overboard. This is, of course, a recipe for getting in trouble with Enrollment Management. “You’re persuading them to do what?” But to paraphrase Judas Priest, what’s the point in teaching, unless you’re teaching wild?
The reason I don’t use Carrie-Ann’s technique is that it forfeits an opportunity to turn my inner asshole on in the classroom–and with a “captive” audience. There’s a reason why I turn on my inner asshole, and she doesn’t. She doesn’t have one; I do. You’ve got to work with what you have.
I meant to mention this earlier: there is a brief, snappy discussion of civil disobedience in Huemer’s Problem of Political Authority that might be worth looking at for pedagogical purposes. Huemer discusses Rawls and MLK, and specifically takes them both to task on whether we should accept punishment for breaking the law. Huemer gives an emphatic “no.” It may or may not be a plus of Huemer’s discussion that he ignores Aquinas altogether.
Click to access ag-directive-2018-6.pdf
Just happened to notice this: Joyce is quoted in a New York Times article on the “criminal” workforce at Trump’s golf course here in New Jersey:
Read the whole thing:
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