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THREE Ps OF ACADEMIC INTEGRITY

You may recall what have come to be called the three 'Ps' of academic integrity: policing, prevention, and promotion (Cole & Kiss, 2000; Lancaster, 2005). Policing and prevention, which more often than not involve a deter- rence orientation and advocacy of swift, sure, and severe sanctions, are instrumentalist in Tyler's sense. These ideas are part of what I earlier called the standard fare when academic integrity receives widespread attention, which is usually the result of a scandal such as the one currently brewing at Harvard. As you've no doubt surmised, I think there's much less promise in these ideas than their advocates do. But there is one element of the stan- dard fare on display in discussions of the Harvard case that has some pro- mise precisely because and to the extent that it is normative in Tyler's sense, namely, an honor code.

Traditional honor codes have a key virtue and a vice. The vice is the pairing of a single sanction and the duty to report, where failure to report cheating is taken to be as egregious a wrong as the cheating itself; the problem - the reason for speaking of a vice in this connection - is the extent to which this pairing tends to encourage a legalistic understanding and legalistic practice. I will return to this point. The virtue is that honor codes direct attention to something that can foster a sense of 'ownership,' in Tyler's parlance, an internalized sense of obligation and personal responsi- bility. What I have in mind are the values that the code was created to protect - here I should say that principles are normative devices for safe- guarding values - such as honesty, trust, fairness, responsibility, and respect, that is, what the International Center for Academic Integrity (ICAI) calls fundamental values (ICAI, 2014). In this regard an honor code is rather like a professional ethic. In both cases vitality depends on, so to say, the code's not blocking one's view of the values; put another way, com- mitment to the values the code is supposed to protect is the 'power source' of the code and keeping the battery fully charged can be a challenge. With both, efficacy is impaired as legalism in its understanding and administra- tion increase. In short, then, what's virtuous about an honor code is that it falls under the third 'P' of academic integrity: promotion, which is norma- tive rather than instrumentalist in Tyler's sense.

Please understand that I am not recommending that we abandon poli- cing (conscientious but non-invasive proctoring, for example) and preven- tion (by means of test design, or seating arrangements, for example), but as Tyler's research shows, what we're aiming at is more likely to be achieved if students embrace the norms of the academic enterprise and internalize the obligations they impose. Put another way, we're more likely to succeed if students recognize the ethical dimension of academic integrity - Ah, yes, the integrity word again.

So, to repeat, with an honor code, as with a professional ethic, vitality depends on, so to say, the code's not blocking one's view of the values the code is supposed to protect; these values are, as it were, the 'power source' of the code. With an honor code or professional ethic, efficacy ebbs as leg- alism in its understanding and administration increase. Put another way, the capacity of either to produce the desired effect decreases as its elements are understood and applied in a way that demands adherence to 'the letter of the law' while dismissing, as unprincipled and irresponsible, any appeal to values the principles being applied were created to protect, which, in jurisprudence, would be an appeal to 'the spirit of the law.' In the case of an honor code, as we noted earlier, such a loss of vitality is associated with the single sanction and the duty to report.

The difficulties associated with the duty to report point to some salient features of ethical problems. For instance, it becomes clear, often painfully clear, that one is situated. In an organization or institution such as a uni- versity, for example, one finds oneself situated in a cluster of relationships that enriches but also, and inevitably, makes things complicated rather than simple. The stakes are high in such relationships; the integrity of indi- viduals as well as the integrity of the thing larger than oneself of which one is a part are implicated - 'where one is and who one is with' are critical considerations - moreover, one confronts a genuine dilemma in such a case, the value or values associated with the duty to report conflict with values such as loyalty.

One danger here is that, using a geosyllogistic approach, which, by design, ignores such complications, one is likely to run up on the rocks, of zealotry in this case, though we should not forget that there are rocks on the other side of the narrow channel we find ourselves in, what I earlier called abdication.

You will recall that we first encountered what I call a geosyllogistic approach in discussing answers I received from students about the wrong- ness of dressing one's resume for success. The students answered by identify- ing a category of wrongs to which the proposed action belongs, for example, lying. We then discussed two other categories of wrongs found in honor codes, namely cheating and stealing. As we saw, putting the act into such a category set the stage for a syllogistic/mechanical handling of the case.

An example of such an approach, in the real world, which you may have heard about, occurred at a Burger King restaurant in Sunset Hills Missouri in 2009. 'Jennifer Frederich, her mother, and Frederich's 6-month-old daughter, Kaylin,' were asked to leave the restaurant because 6-month-old Kaylin, who was being held in Ms. Frederich's arms, was not wearing shoes. According to one report, the manager told Ms. Frederich that if she did not leave, he would call the police. You no doubt already have the syllogism in mind, as the no shirt, no shoes, no service rule at restaurants is familiar (Fox News, 2009).

No shirt, no shoes, no service The baby is not wearing shoes Therefore, no service.

Perhaps you think this is silly. Well, it is. But sadly, some advocates of principled decision making in both law and ethics advance something quite like it. Let's consider briefly, for example, the position staked out in Justice Antonin Scalia's most recent book, coauthored with Bryant Garner, Reading Law: The Interpretation of Legal Texts.

Scalia and Garner provide an example from case law of their recom- mended method of principled interpretation of law - textualism is the name they give it; I should say that it is simply mechanical jurisprudence, a cousin of what I have called geosyllogistic ethics, in another outfit - in the case, White City Shopping Center, LP v. PR Restaurants, LLC. PR Restaurants filed suit against the shopping center for a violation of its lease, which involved a promise by the shopping center not to lease space to any restaurant whose 'annual sales of sandwiches' might be expected to exceed 10% of sales. You see, the shopping center had leased space to a Mexican style restaurant that sold burritos, tacos, and quesadillas. Thus, according to Scalia and Garner, the critical question is whether burritos, tacos, or quesadillas fall into the category of sandwiches (there was no question whether the sale of burritos, tacos, and quesadillas by this business would exceed 10% of annual sales) (White City, 2006). Scalia and Garner first invite attention to a dictionary definition that appears in the court's opinion.

Sandwiches not being a defined term in the lease, the court sensibly relied on a reputable dictionary, which defined a sandwich as 'two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them' (Scalia & Garner, 2012).

They then report that the 'court found that these foods typically consist of a single tortilla stuffed with a choice filling of meat, rice, and beans.' Thus, they continue, the 'injunction was properly denied on grounds that no reasonable speaker of English would call a taco, a burrito, or a quesadilla a 'sandwich' (Scalia & Garner, 2012).

There are at least two significant problems here. First, the court's decision was not based on the dictionary definition and it did not, in the end involve a geosyllogistic or textualist approach. Here's what the court said:

PR has not proffered any evidence that the parties intended the term 'sandwiches' to include burritos, tacos, and quesadillas. As the drafter of the exclusivity clause, PR did not include a definition of 'sandwiches' in the lease nor communicate clearly to White City during lease negotiations that it intended to treat burritos, tacos, quesadillas, and sandwiches the same. [PR] was aware that Mexican-style restaurants near the Shopping Center existed which sold burritos, tacos, and quesadillas prior to the execution of the Lease yet, PR made no attempt to define, discuss, and clarify the parties' understanding of the term 'sandwiches.' (White City, 2006)

Moreover - this is the second point - as federal district court judge Richard Posner has noted, the definition of 'sandwich' Scalia and Garner point to is wrong (to be fair, the definition does appear in the court's deci- sion). A sandwich can have more than two slices of bread - a club sand- wich, for example, has three - or just one, the so called 'open-face' sandwich; neither the slices of bread nor what is between them, if there are two or more slices, need be thin; and, in fact, many reasonable speakers of English call hamburgers and hot dogs sandwiches, but neither the burger nor the sausage is surrounded by slices of bread (Posner, 2012).

Earlier in the book Scalia and Garner discuss an 'old chestnut,' found in the work of English legal philosopher H. L. A. Hart. Hart famously quer- ied whether an ordinance, 'No vehicles in the park,' applies to automobiles, airplanes, roller skates, bicycles, and toy automobiles. Scalia and Garner ask whether it would apply to an ambulance, among other things, and con- clude that, in the case of the ambulance, the answer is yes. Surely an ambu- lance is a vehicle. Moreover, if the city fathers wanted to make an exception for ambulances, well, then, they should have done so. They did not. Q.E.D.

Perhaps Scalia and Garner are right that at law one must accept absurd results, including unjust results, in the interest of objectivity. That is the clear implication of one of thirteen purported 'falsities exposed' in the book, namely, 'that the quest in statutory interpretation is to do justice.' (Another is that the spirit of the law should carry the day in a contest with its letter.) I doubt that this is so, but supporting my position on this matter is beyond the scope of this chapter. In any case, I can't accept the sugges- tion that this is true in ethics. To be sure, genuine ethical dilemmas involve conflicts of values and such a conflict has to be resolved; the choice one makes in such cases contributes in a large way to the making of one's self, to the achievement or maintenance of integrity, but absurdity cannot be allowed to carry the day here, even if it must, per Justice Scalia, be allowed at law. After all, to the extent that objectivity has the normative power to allow absurdity to carry the day, it is because and insofar as objectivity's hegemony promotes a larger value or cluster of values (perhaps trust, fairness/fair warning in the sense of no surprises, respect for the institution, i.e., the courts/judiciary). We ought to reject an understanding of law and most assuredly an understanding of ethics that would lead to its being convicted in what, in his famous 'The Case of the Speluncean Explorers,' legal philosopher Lon Fuller called the court of common sense (Fuller, 1949).

Scalia and Garner waffle - yes, I mean that pejoratively - they rock back and forth between the rigidity of textualism and the need for flex- ibility (Judge Posner speaks of this candidly as incoherence), dancing very fast to safeguard what, sadly, they do not recognize as an illusion (in Freud's sense), namely, that textualism (what Roscoe Pound called mechanical jurisprudence in another outfit) is the only way to achieve fidelity to law, to judge in a principled way. (The parallels with an alto- gether too common (mis)conception of ethics are clear: either you are principled in the way the theory demands or you are unprincipled, mak- ing relative or ad hoc self-serving decisions about what ought to be done. This last is surely a false dilemma.) Scalia and Garner contrast textualism with purposivism, which as they have it allows judges to pretty much do/find whatever they like in light of the purpose they believe the law ought to have. In their words: 'There is no basis for the choice except the interpreter's assessment of what the purpose ought to be' (Scalia & Garner, 2012). As they have it, then, purposivism is an unprincipled approach (as is jurisprudential consequentialism - deciding on the basis of likely results). They are mistaken about this - what they call purposi- vism is a straw man.

Yet, Scalia and Garner persist and in so doing they perpetuate an illu- sion. So, if they were to say, as I suspect they might, that their aim is to promote integrity in the judicial function, I should say they are not promot- ing it integritively. We do something very much like this, I fear, in teaching ethics, and in addressing what is commonly called academic integrity, which, I suggest, we would be better off calling integrity in the academy. The key, at any rate, is the integrity idea and that's what we have to promote aggressively and integritively.

 
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