Neuroethical Policy Design: A Lifetime’s Exploration of Public Policy and Human Brains (Studies in Brain and Mind, 20) 3030922871, 9783030922870

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Studies in Brain and Mind 20

Dana Lee Baker Raquel Lisette Baker

Neuroethical Policy Design A Lifetime’s Exploration of Public Policy and Human Brains

Studies in Brain and Mind Volume 20

Series Editor Gualtiero Piccinini, University of Missouri - St. Louis, St. Louis, MO, USA Editorial Board Members Berit Brogaard, University of Oslo, Norway, University of Miami, Coral Gables, FL, USA Carl Craver, Washington University, St. Louis, MO, USA Edouard Machery, University of Pittsburgh, Pittsburgh, PA, USA Oron Shagrir, The Hebrew University of Jerusalem, Jerusalem, Israel Mark Sprevak, University of Edinburgh, Scotland, UK

The series Studies in Brain and Mind provides a forum for philosophers and neuroscientists to discuss theoretical, foundational, methodological, and ethical aspects of neuroscience. It covers the following areas: • Philosophy of Mind • Philosophy of Neuroscience • Philosophy of Psychology • Philosophy of Psychiatry and Psychopathology • Neurophilosophy • Neuroethics The series aims for a high level of clarity, rigor, novelty, and scientific competence. Book proposals and complete manuscripts of 200 or more pages are welcome. Original monographs will be peer reviewed. Edited volumes and conference proceedings will be considered provided that the chapters are individually refereed. This book series is indexed in SCOPUS. Initial proposals can be sent to the Editor-in-Chief, prof. Gualtiero Piccinini, at [email protected]. Proposals should include: • A short synopsis of the work or the introduction chapter • The proposed Table of Contents • The CV of the lead author(s) • If available: one sample chapter We aim to make a first decision within 1 month of submission. In case of a positive first decision the work will be provisionally contracted: the final decision about publication will depend upon the result of the anonymous peer review of the complete manuscript. We aim to have the complete work peer-reviewed within 3 months of submission. For more information, please contact the Series Editor at [email protected].

More information about this series at https://link.springer.com/bookseries/6540

Dana Lee Baker • Raquel Lisette Baker

Neuroethical Policy Design A Lifetime’s Exploration of Public Policy and Human Brains

Dana Lee Baker Programs of Political Science and Global Studies California State University Channel Islands Camarillo, CA, USA

Raquel Lisette Baker Program of English California State University Channel Islands Camarillo, CA, USA

ISSN 1573-4536 ISSN 2468-399X (electronic) Studies in Brain and Mind ISBN 978-3-030-92287-0 ISBN 978-3-030-92289-4 (eBook) https://doi.org/10.1007/978-3-030-92289-4 © Springer Nature Switzerland AG 2022 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

For Arthur William Baker, thank you for being part of the story of my life and For Brian Iain Baker, who set me to thinking about justice

Acknowledgments

Dana Lee Baker Writing a book with both “neuro” and “lifetime” in the title at the beginning of the twenty-first century is, to borrow word applied to a goal set during the production of the first draft by my cousin Michelle Smith Wardle, “audacious.” The word “exploration” standing between these two pillars made the book possible and, it is hoped, palatable. A work describing ways in which we have misunderstood ourselves at the level of construction of democratic policy is audacious along lines similar to exploration of any unknown geography. In drafting the paper, I told my sister that the pace of neuroscience would date the text before it was really begun. Of course, as she pointed out, this serves to prove the point of the text. So be it. This book was a labor of love, more complicated and engrossing than I imagined possible when I first conceived of the project. My capacity to engage such a project came about in no small part as a result of having grown up in the family to which I was lucky enough to be born. My grandparents, Art and Winona Baker and Bob and Helenita Harvey, each created a life of honor, dignity, creativity, and community engagement providing important lessons in life and work. Don and Mary Baker, my parents, taught each of their children to pursue both excellence and joy, while tirelessly commit themselves to daily labors. Since my earliest day in college, colleagues have openly noted my capacity to persist, a capacity trained into me since my earliest days as their oldest child. My siblings, Cate (and her family including Jim, Madeline, and Ellie), Brian, and Alan Baker are each better versions of children of our parents than the author of this book. I am grateful to have been each of their older sister and friend. I am also very grateful for my aunts, uncles, and cousins, each of whom has enriched my life and challenged my thinking in their own ways. I am also tremendously grateful for my own small branch of the family tree. My son, Kalai Harvey Baker, was the child of my youth. Though his transition to adulthood has been a rocky journey for us both, I have no doubt in his fundamental

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kindness, depths of potential, and trueness of his heart. I look forward to the day when he has found his way in the world and look forward to knowing what that will look like. No one has ever known me better or been better able to make me smile. He taught me much about life and about ways of being outside the proverbial box. Dawn Mary Catherine Baker is the child of my middle age. Born to a mother right on the cusp of geriatric motherhood, she has a remarkable ability to dazzle all she encounters (in her mother’s unbiased opinion) and has a capacity for kindness well beyond her mother’s best efforts on her best days. My last-minute miracle baby Brianna Winona Helenita Baker appeared on the scene during final revisions, brightening this (and all other) experience. During the time of this writing we also shared our home for periods long and short with 16 children in foster care. We are grateful for the opportunity to love and care for you. In particular, Kameron Kunze-Fowler and his love of laughter and letters inspired Dana to keep at the work. This book has been a wholly collective endeavor. First, and foremost, I am grateful to my co-author Raquel Baker for her partnership in our project, for her friendship, for her generosity, and for her genius. As always, I am grateful to my faculty colleagues at CSUCI and former colleagues at both WSUV and MU for their wit, wisdom, support, and solidarity. I am also grateful to students, friends, and colleagues who have directly consulted on or contributed to the development of various elements of the book including Stevie Ray Acuña, Nicholas Alcantara, Stevenson Baker, Yolanda Barragan, Isabella Blue, Emily M. Boyd, Cynthia Cooper, Giselle Cruz, Laurie Drapela, Kevin Gordon, Cassandra Gulam, Miriam Janely Herrejón, Amandrea Horton, Adriana H. Huerta, Tiffany Kaufmann, Ryan Griffith, Nicole Hess, Audrey Miller, Ashmi Prasad, Samantha Rajaram, Madeline Rudolph, Justin Simons, Viktoria Szupiany, Michael Williams, Alex Van Ditter, Ruth Vazquez, and Jan Yochim. Finally, Brennen Hauser, Whitney Littlefield, and Melissa Diana Mercado lifted us up through the final stages of manuscript preparation, making a world of difference in and for the final project. THANK YOU one and all. Raquel Baker To the village of people who have supported my journey, just a few of whom I have the space to mention here: my mentor and friend Dana L. Baker, who had the audacious generosity to ask, Do you want to write short stories for my book? My writing teacher and dear friend Mary Webb, who teaches me how to write, and live, with fire. My colleague Georgina Guzman who welcomed me into my new intellectual community. I am fed by an intellectual community in which I get to work with, create, think through, struggle with, and teach stories. Thank you to my colleagues in the English program at California State University Channel Islands, who encourage and nurture interdisciplinary, collaborative, creative work. My colleague and friend Theresa Avila who helps me imagine the world the way I want it to be and create a weekly schedule to work toward that vision a little bit every day; my whole beautiful

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family, my grandmother Dora Mae Baker who is the matriarch, the survivor, the explorer of life, commitment, and faith; my grandmother, Kizzie Grant, who tucked me and my cousins in with stories of the talking lemon tree in her backyard; my beloved father, Arthur William Baker, who always encouraged me to write stories of my own; my mom, Charnette Baker, who had to hear all of these chapter openers again and again and who helped me reimagine and revise; and to my little brother, Khalid Baker, whose love, vision, and artistry gives me hope for the future.

Contents

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Brains in Society: Of the People, for the People, and by the People? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 What Is Neuroethics? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Why Neuroethics? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3 Bounding the Brain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4 Defining the Gaps . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.5 Book Roadmap . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Works Cited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 5 9 14 17 18

Early Childhood Education: Access Through 1990s Neuroscience . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Vanda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Issue History: Nature vs. Nurture and the Critical Period . . . . . 2.3 Orchids and Dandelions, Delay and Growth . . . . . . . . . . . . . . 2.4 Competitive Parenting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5 History of Early Childhood Education Policy . . . . . . . . . . . . . 2.6 Beliefs About Childhood . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7 Nature and Nurture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.8 Public Paternalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.9 Construction of Early Childhood Education Policies . . . . . . . . 2.10 Ethical Challenges for the Twenty-First Century . . . . . . . . . . . 2.11 Looking Ahead . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.12 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Works Cited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Bullying and the Eye of the Beholder . . . . . . . . . . . . . . . . . . . . . . 3.1 Jacob’s Story . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 The (Official) Story . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Aliyah’s Story . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 When Bullying Happens . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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3.5 Neuroethical Policy Divide . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6 Building a Bully . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.7 Minding the Gap . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Works Cited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Medicine and the Mind: Treating the Adolescent Brain . . . . . . . . . 4.1 Off Label: A Meditation on Tracks . . . . . . . . . . . . . . . . . . . . . . 4.2 Neuroethical Policy Divide . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 Ethics of Research and Off Label Application . . . . . . . . . . . . . . 4.4 The Man on the Bridge: Deinstitutionalization . . . . . . . . . . . . . 4.5 Parenting and the Gap . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.6 Politics of Mental Illness: A Counter Consideration . . . . . . . . . . 4.7 Concluding Thoughts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Works Cited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

69 69 72 73 75 78 84 85 85

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Ages of Consent and Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 Neuroethical Policy Divide: Individual Emergence in the Context of Uniform Policy Design . . . . . . . . . . . . . . . . 5.2 Example in Play: Age of (Sexual) Consent . . . . . . . . . . . . . . . 5.3 Minding the Gap: Relative Transitions . . . . . . . . . . . . . . . . . . Works Cited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Knowledge and Wisdom: High Stakes Testing and Learning Outcomes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1 Tools Masquerading as Truths . . . . . . . . . . . . . . . . . . . . . . . . 6.2 Neuroethical Policy Divide: The Quest for a Crystal Ball . . . . . 6.3 Origins of Contemporary High States Testing . . . . . . . . . . . . . 6.4 Understanding Wisdom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5 Wisdom, Strength, and Assessment . . . . . . . . . . . . . . . . . . . . 6.6 Closing the Gap: Wandering in Wisdom . . . . . . . . . . . . . . . . . Works Cited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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101 101 105 106 111 114 115 117

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Fairness and Bias: Discrimination in the Workplace . . . . . . . . . . . 7.1 Discriminating Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 Work and Play . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3 Working in the Twenty-First Century . . . . . . . . . . . . . . . . . . . 7.4 Progress in Play: The Discriminating Workplace . . . . . . . . . . . 7.5 Neuroscience, Management, and Bias . . . . . . . . . . . . . . . . . . . 7.6 Bridging the Gap: Making Best Use of the Neuroscience of Bias and Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Works Cited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Persistence of Memory: Bearing Witness and Serving on a Jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1 Voire Dire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2 Neuroethical Policy Divide . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3 History of Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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8.4 Memories in Flux . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 8.5 Just Bridges: Balancing Brains and Beliefs . . . . . . . . . . . . . . . . 153 Works Cited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 9

Happy Golden Years: Retirement Policy . . . . . . . . . . . . . . . . . . . . 9.1 The Waiting List . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2 Neuroethical Policy Divide . . . . . . . . . . . . . . . . . . . . . . . . . . 9.3 Conceiving Retirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.4 Building Bridges to Retirement . . . . . . . . . . . . . . . . . . . . . . . Works Cited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Will to Live and Living Will . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.1 At Times Regrettable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2 Role of Living Wills in Society . . . . . . . . . . . . . . . . . . . . . . . 10.3 Living Wills and Disability Politics . . . . . . . . . . . . . . . . . . . . 10.4 How Do People Make Decisions About Living Wills? . . . . . . . 10.5 Narrowing the Gap: Neuroethics and the End of Life . . . . . . . . Works Cited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Complexity is Our Responsibility: Concluding Thoughts and Moving Forward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 Works Cited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198

Chapter 1

Brains in Society: Of the People, for the People, and by the People?

Humans tend to identify the uniqueness of our brains as the cornerstone of human distinction from other animals (Chapman & Huffman, 2019). Our species has pondered what makes us us at least throughout recorded history. However, recent decades witnessed a quantum leap in capacity for real time empirical observation of living brains. At the same time, rigorous, organized, and collaborative analysis of scientific and clinical observations of human beings across the spectrum of human neurodiversity flourished (Ramachandran, 2012). Examining our brains in action allows for fascinating insights into humanity’s favorite subject; humanity itself. It also creates a profound and unprecedented responsibility for stewardship of our species alongside careful management of our impacts on environments. New scientific observations reveal traditional assumptions about human brains to be incomplete, misleading, or fundamentally incorrect. Furthermore, neuroscience, as with any science, is healthiest when in flux (Hossenfelder, 2018). Cutting-edge neuroscience captivating the contemporary popular imagination and, sometimes, implemented into public policy, always carries the risk of falsification over time (Howard-Jones, 2014). Given this circumstance, public policies created with the best intentions of being “of the people, by the people, for the people” can prove less than ideally suited to humanity in the fullness of time. On the other hand, policies once dismissed sometimes gain appeal following the specification of gaps between historically preferred policies and recently observed characteristics of human neurology. The responsibility of addressing dissonance between policy design assumptions and human neurological realities constitutes an urgent, collective responsibility. As with most collective action, this responsibility exists most acutely in democratic governance (Westheimer & Kahne, 2004; Biesta, 2015; Riddle & Apple, 2019). This book focuses on distances between assumptions about human brains woven into policy design and emerging contemporary knowledge of actual human brains. Such distances between policy and human neurology are called neuroethical policy gaps. The urgency of addressing neuroethical policy gaps will likely grow as the twenty-first century unfolds. One source of pressure to better incorporate neuroethics © Springer Nature Switzerland AG 2022 D. L. Baker, R. L. Baker, Neuroethical Policy Design, Studies in Brain and Mind 20, https://doi.org/10.1007/978-3-030-92289-4_1

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1 Brains in Society: Of the People, for the People, and by the People?

into governance originates in expanding accessibility of data and decreased cost of communicating interpretations of data (Zelenkauskaite & Bucy, 2016; Spires-Jones et al., 2016). Accurate rapid translation of scientific data for the general public can be hindered by reductionism, sensationalism, political or policy agendas, and economic inequality (McNie et al., 2016; White, 2016; Hossenfelder, 2018). Furthermore, challenges including scientific illiteracy, innumeracy, and media sensationalism can complicate political discourse for long periods following rapid translation of preliminary results. For example, communication of preliminary findings regarding a hypothetical connection between vaccines and growth of the prevalence or incidence of autism produced long-lasting political complications including marked reduction of vaccination rates in many nations decades later. More recently, statements regarding the lack of necessity of wearing masks in early 2020 on the part of public health officials including the Director of the National Institute of Allergy and Infectious Diseases in the United States, Dr. Anthony Fauci, was repeated by antimask proponents into the general public long after controverting scientific findings were communicated. Slowing communication of preliminary scientific results to the general public clashes with the expectations of the Information Age. People accustomed to quick access to new information tend to interpret the absence of reported scientific findings as evidence of a lack of results. In these circumstances, people become prey to those promoting less than scientifically rigorous observations masquerading as such. In coming years, both the public and public sector will adjust to substantially reduced costs associated with information delivery. Augmented public expectations for government responses to both well-confirmed scientific findings and to implications of contested scientific data result. Even if no popular call emerges in our fast-paced and distraction-filled era, both justice and economy depend on the shortest distance possible between human capacities and performance expectations built into our public infrastructures, beginning and ending with public policy. Human beings are clever. The more self-conscious identity comes to include real or perceived neurological awareness, the less tolerable neurological policy gaps become. Both brains and ethical systems use experiences as primary building materials (Giordano & Olds, 2010). Humans have long experience with human existence. This experience produced both intentional and unintentional thought experiments resulting in startlingly accurate representations of brain functioning long before the emergence of current scientific technologies and protocols (Lehrer, 2007). Nevertheless, our scientific observation of brains at work spans only in recent decades. This novelty can place scientists studying the brain into positions outside that of the honest broker of data focused on reasoned insight (Pielke, 2007; Racine et al., 2005). As Judy Illes and Stephanie Bird explained, “for a relatively young discipline, a surprisingly large number of neuroethics topics are the focus of social policy issues” (2006, 515). Novelty also tends to place policy makers and those working in public agencies in the position of working with unusually nascent data or interpretations of data. In such circumstances, human brains naturally tend toward construction of narratives as pneumonic devices.

1.1 What Is Neuroethics?

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Conscious use of stories and other narratives facilitate productive work with neuroethical policy gaps, especially as pressure for faster translation from data to implementation increases. The neuroscience of storytelling speaks to how humans build brains and societies dwell in and grow out of neuroethical policy gaps. Human brains construct stories to remember, communicate, and explore meaning beyond immediate events and foster intertemporal connection. As Johnathan Gottschall explains “we are, as a species, addicted to story. . .even when the body goes to sleep, the mind stays up all night telling itself stories” (2012, xiv). In keeping with this fundamental human characteristic, the awareness of “neuroethical policy gaps” includes narratives to help readers engage with the larger personal, emotional, and affective natures of the neuroethical policy gaps. These stories serve not only as pneumonic devices for elusive and wicked challenges but also bring to mind how essentially human these misguided institutional practices of policy design can be. In the absence of the stories, human brains could not fully understand the lived experiences that the neuroethical policy gaps impose on human beings and our efforts in democratic governance. Neuroethical policy gaps originate in policy infrastructures rather than the neuroscientific findings themselves. Progress in both science and public policy design depends on interactions between specialists more than the cultivation of jacks-of-alltrades. As such, the goal of this book is not to educate the reader about the latest developments in neuroscience. Emerging neuroscientific findings will (hopefully) render at least some of the brain science presented in this book obsolete. This book explores areas of public policy involving considerable distance between policy assumptions and perceived neurological realities of humans as a way to assist in the management of neuroethical policy gaps rather than to serve as the final word on any policy design. Furthermore, the notion that policy design can (or even should) ever be final tends to incur tyrannies of the past reflected in neuroethical policy gaps. That one generation should make permanent decisions regarding public policy dilemmas, especially those for which new scientific discoveries might shift perceptions or solutions, necessarily distances reality from democratic aims. The pages that follow also include analyses of existing policies surrounding the neuroethical policy gaps serving as empirical observation of contemporary use of brain-based arguments in the related policy areas. The neuroscience, narratives, policy theory, and analyses speak in tandem to open conversation about neuroethical policy gaps. Discussion of neuroethical policy divides provides a starting point for broader conversations about how to better design public policy for human beings based on the fundamental assumption that all policies are living documents.

1.1

What Is Neuroethics?

Defining the term “neuroethics” as distinct from bioethics or ethics in general precedes consideration of neuroethical policy gaps. The specific definition of neuroethics has been debated over time as the brain sciences have evolved. No

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universal agreement on the meaning of neuroethics exists. Given the novelty of the field, considerable risk of neologism exists. The rapid pace at which basic scientific information is becoming available for incorporation into philosophical models, and the tendency of essential questions about the human brain to attract attention from across a broad spectrum of individuals in terms of in training, expertise, experiences, and agendas each complicate agreement on the definition. Even so, many neuroethical questions spring from deep philosophical roots. Humanity has long placed particular emphasis on the distinction between sentient and (apparently) non-sentient life (Lovejoy & Stanlis, 2011; Nee, 2005). In particular, the exceptionality of the experience of living with a human brain or mind has been primarily understood as vitally distinctive. For example, in the Western tradition, the great chain of being conceived as all sentient beings as superior to non-sentient materials and considered human beings to be the penultimate form of moral life. As Sean Nee explained, “for centuries the ‘great chain of being’ held a central place in Western thought. . .this view saw the Universe as ordered in a linear sequence starting from the inanimate world of rocks. . .Plants came next, then animals, men, angles, and, finally, God” (2005, 429). Studies of the evolutionary roots of humans also suggest that neuroethical concerns are discovered rather than newly invented. Addressing neuroethical policy gaps explored in the following chapters involves consideration of both the historical reasons for current policy design and the more innovative findings of the brain sciences. Because of this, as is common in applied ethics, the observations presented in this book are drawn from a variety of traditional academic disciplines. The conceptualization of neuroethics employed is, therefore, not limited to any particular academic discipline. Modern, organized inquiry into the ethical challenges raised by research on the brain date back to the International Brain Research Organization, established through the United Nations Educational, Scientific, and Cultural Organization in 1969 (Illes & Bird, 2006). Use of the term “neuroethics” became more common starting in the 1980s (Illes & Raffin, 2002). In these early days, neuroethics was considered primarily with regard to intervention into medicinal practices or the delivery of education. In other words, the focal point was on how neuroscience might be brought to bear in the better distribution of efforts to make human life more rewarding and comfortable while still avoiding some of the tragic mistakes associated with the emergent understanding of genetics in the late nineteenth and early twentieth centuries. After all, “even scientists who appear themselves to be wellintentioned, and may at times even appear to be so to others, can start out on a course of action that imperceptible—to them—becomes completely unethical” (Illes & Bird, 2006, 513). Neuroethics serves to bend scientific possibilities toward moral responsibilities. When it comes to neuroethics, this principle applies across the sciences ranging from social sciences to biological sciences to engineers. According to a leading scholar in neuroethics Martha J. Farah, the modern and expansive sense of the term neuroethics “was coined by William Safire, a scholar of word history and meaning” at the beginning of the twenty-first century (2012, 571). Safire’s experiences as a presidential speechwriter, a columnist for The New York Times, and a recipient of the

1.2 Why Neuroethics?

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Presidential Medal of Freedom, make his distinctions in neuroethics from both bioethics and more traditional ethics of scholarship in philosophy more compelling because of his direct involvement in the application of ethics in public policy. Also in 2002, a conference entitled ‘Neuroethics: Mapping the Field’ was jointly sponsored by Stanford University and the Dana Foundation (Fukushi et al., 2007; Fukushi & Sakura, 2008). Shortly after that, the President’s Council on Bioethics began direct, specific consideration of neuroethics in the United States. Similar efforts also took place in England, Belgium, Italy, and Japan. By the end of the first decade of the twenty-first century, formal consideration of neuroethics as both a scholarly pursuit and an applied ethical concern was well underway. A sample of definitions of neuroethics employed in scholarship is shown in Table 1.1. For the purposes of this text, because making good policy requires understanding both the ethical implications of data collection and how findings are used in governance, neuroethics is considered to encompass study of the questions surrounding the responsible conduct of neuroscience and consideration of the broad social, legal, political, economic, and cultural questions connected to contemporary neurosciences. Both emphases are relevant to public policy design.

1.2

Why Neuroethics?

The increased presence of neuroethics in scholarship does not imply its universal acceptance as a separate field of ethics. For example, Neil Levy, of both the Florey Institute of Neuroscience and Mental Health and the Oxford Center for Neuroethics, points out that some claim neuroethics as more or less exclusively a subfield of philosophy best left to trained philosophers (2012). On the other hand, other scholars have argued that the neuroethics would be better understood as “neuromorality,” in part because the discussion cannot be fully incorporated into the traditional bounds of philosophy as an academic discipline (Giordano & Benedikter, 2012). Disciplines focusing on other elements of the human experience must also be involved in questions surrounding neuroethics. For example, failing to incorporate professionals with more experience in basic, or, clinical science can promote caution beyond reason. As Gareth Jones stated “the writings of many within the neuroethics domain have been dominated by fears about the consequences of intrusions into the brain, fears that are poorly grounded in clinical or scientific reality” (2008, 49). Furthermore, Martha J. Farah explained “like the field of genetics, neuroscience concerns the biological foundations of who we are, of our essence. . . the relation of self to brain is, if anything, more direct than that of self to genome. . . perhaps more important, neural interventions are generally more easily accomplished than genetic interventions” (2005, 35). A relative augmentation of such fears as compared to intrusions into the body reflect the conceptual separation of the human brain and body. The field of bioethics examines medical and biological research more generally. Some scholars and other philosophers working in bioethics claim distinction of neuroethics unnecessary, in part because of the tendency to thereby reinforce

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Table 1.1 Defining neuroethics Author (Year) Pontius (1973)

Safire (2002)

Roskies (2002)

Vernillo (2008)

Neuroethics (2011)

Farah (2012)

Shook and Giordano (2016)

Definition of neuroethics Early definitions of neuroethics In a critique of an experiment on accelerating early walking in infants, Pontius raised questions about the potential developmental effects on the central nervous system and brain of the infant, pointing to “a new and neglected area of ethical concern—neuro-ethics. In the present context, this concept stresses the importance of being aware of neurological facts and implications. . .” (p. 244). Often credited as the origin of modern definitions of neuroethics; given during an introductory speech on May 13, 2002 at the Neuroethics: Mapping the Field conference in San Francisco, California: “The examination of what is right and wrong, good and bad about the treatment of, perfection of, or unwelcome invasion of and worrisome manipulation of the human brain” (p. 5). Roskies divided the field of neuroethics into two broad categories: 1) “The ethics of neuroscience,” which is subdivided into: 1.1 “The ethics of practice;” or the ethical issues that arise in the formulation and execution of neuroscientific studies. 1.2 “The ethical implications of neuroscience;” or how to use the newly gained knowledge from these studies to affect societal structures (p. 21). 2) “The neuroscience of ethics,” which examines the philosophical understanding of ethical theory from the scientific perspective of activity in the brain (p. 21). Perspectives on the ethics of neuroscience “Neuroethics offers an effective and much needed counterpoise to the therapeutic advancements in neurology and technology that cross the blood-brain barrier. . . . Neuroethics serves society generally with a crucial reminder that the application of new and emerging technology must be tempered with wisdom and be ethically proportionate” (p. 58) “Neu-ro-eth-ics n. (used with a sing. verb) The branch of bioethics that deals with the ethical implications of prescribing psychotropic drugs, such as antidepressants or amphetamines, that alter thought, mood, or behavior, and of techniques that image the brain to reveal information about motive or intent.” (p. 1184) “[I]ssues associated with the enhancement of cognitive and socialaffective brain functions. By manipulating our intellects, personalities, and moods, are we distorting our own nature? Or are we expressing that very nature, as a species driven to innovate and improve our world and ourselves?” (p. 579). “Neuroethics focuses on ethical issues raised by our continually improving understanding of the brain, and by consequent improvements in our ability to monitor and influence brain function” (para. 1). “[W]e have recommended four guidelines to provoke the inauguration of a principled neuroethics. . . . They give more explicit regard to individual transformations prompted and achieved by the brain sciences, and to the civic contexts in which bioenhanced and (continued)

1.2 Why Neuroethics?

7

Table 1.1 (continued) Author (Year)

Definition of neuroethics

Shook and Giordano (2016), Cont.

neurotechnologically transformed people will reside. Our principles are as follows: 1) Self-creativity: The right of persons to re-create themselves to enrich their lives 2) Nonobsolescence: The duty to avoid the creation of obsolete people 3) Empowerment: The duty to increase the capabilities of people to live autonomous and fulfilling lives 4) Citizenship: The duty to promote free, equal, law-abiding, and participatory citizenship These ethical guidelines are recommended not as maximum limits but only as minimum expectations” (p. 122). Perspectives on the neuroscience of ethics “The discourses of philosophy about ethics and of science about the brain are, as it were, two populated shores of an unexplored continent. On one shore, there are centuries of rich philosophical and theological debates about human identity, choice, virtue, responsibility, and social justice; on the other shore, recent neurobiology has built an impressive world of scientific data and theory. . . . Can the terrain of the unknown continent linking ethics and science be opened to exploration?” (p. 116). “The new research on the nature of ethics is located at the interface of philosophy, jurisprudence, and many sciences—neuroscience, evolutionary biology, molecular biology, political science, anthropology, psychology, and ethology. These interdisciplinary inquiries will have profound, and rather unpredictable, social consequences, as people in general rethink their conventional ideas concerning the basis for moral standards and practices.” (p. 3). “Neuroethics is the area of bioethics that focuses on issues unique or especially relevant to neuroscience (p. 1310). . . . The concept has a long history: The tension between notions of free will and determinism and the seeming duality of the mind and body have been of substantial interest to ancient as well as modern philosophers and increasingly among neuroscientists themselves. . . .Thus while the term neuroethics is relatively new, the field that it names is not. Rather it is a long-standing area of interest given new life with a new name and new tools” (p. 1311). “Neuroethics is more than just bioethics for the brain.. . . I would define neuroethics as the examination of how we want to deal with the social issues of disease, normality, mortality, lifestyle, and the philosophy of living informed by our understanding of underlying brain mechanisms (Emphasis in original).” (p. XV) “Neuroscience thus touches upon fields traditionally reserved to psychology and philosophy, which has led to much discussion about methodological legitimacy. The fact is that over the past three decades neurological studies concerning higher mental functions have increased in number and quality, and even topics that had been the prerogative of disciplines such as ethics, theology, economy, and

Jonsen (2005)

Churchland (2006)

Bird (2005)

Gazzaniga (2006)

Sanguineti (2013)

(continued)

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Table 1.1 (continued) Author (Year) Sanguineti (2013), Cont.

Fukushi and Sakura (2008)

Lombera and Illes (2009)

Loveless and Giordano (2014)

Wolpe and Banja (2014)

Leefmann et al. (2016)

Definition of neuroethics aesthetics are often studied from the perspective of neuroscience under such labels as neuroethics, neurotheology, neuroeconomy, and so forth” (p. 1066). Multiple perspective definitions of neuroethics “Neuroethics is considered to encompass at least three subcategories, namely, professional ethics or procedural ethics regarding the conduct of neuroscience research; neurobiological basis of value systems, including moral and religious thought; and social implications of the outcomes of neuroscience research.” (p. 56) “Neuroethics seeks to give neuroscience what bioethics and the ethical, legal and social implication (ELSI) programs provided for the human genome project: a platform for scientists, lawyers, philosophers, sociologists, other scholars and the general public to interact and discuss the future of neuroscience” (p. 58). “Neuroethics. . . grounds ethico-legal discourse in (1) a naturalistic philosophy; (2) the current epistemological capital of neuroscience; (3) the moral issues, problems, and solutions arising in and from neuroscientific research and its applications; and (4) the use of neurocentric criteria to define and resolve ethical questions and decisions” (p. 164). “Neuroethics. . . encompasses both research and clinical applications of neurotechnology and social and policy issues attendant to their use. . . .A parallel line of neuroethical thought has focused on moral philosophy and the philosophy of mind and consciousness, as our understandings of the brain began to contribute to and sometimes challenge some of our philosophical assumptions about the nature of our mental lives.” (p. 2185) “An interdisciplinary endeavor connecting substantively and methodologically diverse scientific and philosophical approaches only in subsequence of the growing knowledge in neuroscience and the associated promise of linking the subjective and personal world of experience and thought to the objective world of scientific data” (p. 2).

fictional separations between the human mind and body inked back to seventeenth century work of René Descartes (Shorto, 2009). Parens and Johnston explain, some argue “the first problem is that keying ethical inquiries to apparently new and distinct lines of scientific investigation increases the risk of ‘reinventing the bioethical wheel’ and therefore squandering scarce resources” (2007, S61). Such concerns about the separate treatment of the brain have suggested that this denigrates the body and artificially localizes human consciousness (Fukushi et al., 2007). Furthermore, to the extent the separation of body and brain is imaginary, a distinction of neuroethics potentially becomes wasteful. Possibly even worse than this kind of waste is the possibility of increased adverse effects of misconceptions of human neurology on public policy design as a result of rarifying this distinction.

1.3 Bounding the Brain

9

The perspective of public policy, however, includes several responses to such worries. First, construction of the human brain as distinct from body remains deeply incorporated into most public infrastructures, including public policy and legal precedent. Whereas ethics can be considered without a given socio-cultural context, public policy becomes compromised if not adapted to fit a particular society at a given moment in history. As explained in a report produced by Columbia University’s Center for New Media Teaching and Learning: The brain holds a special status as the core of our selfhood and autonomy. . . manipulating the function of the brain is fundamentally different from manipulating the function of other organs like the heart or the kidney, and raises a number of distinct ethical issues. . . inevitably, with a deeper and more complex understanding of how the brain works, we will need to examine metaphysical questions of personhood, responsibility, and consciousness (Haberfield et al., 2007).

To the extent policy design includes an eye to ethics, best answers to current policy questions take policy history into account. Second, human brains seem unique in their capacity to contemplate themselves both in the process and in the abstract (Ramachandran, 2012). Neither human bodies nor the brains of other species appear to undertake these endeavors to anywhere close that degree. While this logic tends toward the circular, it highlights the necessity of an approach to policy design taking this distinctive characteristic into account. Finally, though resources for research into ethical concerns suffer persistent scarcity, very few bioethical or neuroethical questions have been sufficiently resolved to consider additional study extravagant. At the beginning of the twentyfirst century, the practice of science in every field has become compromised by reliance on competitive grant funding combined with a weak public tolerance for paying for replication of studies. While it is likely true that “even if the science and technology were not converging, the fundamental ethical questions—on enhancement, identity, safety, informed consent, access, or privacy—do not change from one technological or scientific context to another” (Parens & Johnston, 2007, S61), much ground level work to be done regarding interactions between public policy and humans remains incomplete. As Judy Illes and Eric Racine stated, “while the ethics of genetics provides a legitimate starting point—even a backbone—for tackling ethical issues in neuroimaging, they do not suffice” (2005, 5). Ultimately incorporation of bioethics and neuroethics into a cogent and shared ethical framework is desirable. However, for the time being, the assumption made in this book is “the central organ concerned with human decision-making, the brain, and its higher cognitive processes demand unique ethical consideration” (Sententia, 2004, 228).

1.3

Bounding the Brain

Debate remains as to whether human beings have what neurology accurately called a single brain, especially when it comes to the translation of basic scientific findings for public policy. For example, general impressions of substantial differences

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between the left and right side of the human brain exist. Colloquial distinctions extend beyond differences supported by scientific findings, particularly in the Western world (Davidson, 2011; Schechter, 2018). This awareness presumably does not necessarily imply a firm stance on the degree to which the two hemispheres of the human brain are two distinct organs. However, such a distinction, even if fuzzy in reality, occuasionally proves conceptually useful for public development, including policy design. Furthermore, the degree to which the central nervous system is part of human neurology is incompletely incorporated into how people think about their brains (or, more likely, minds). That the human gut also functions much like a separate brain is even less understood as being related to the human mind despite expressions such as “gut feeling” suggesting popular wisdom about a role of the gut in discernment. Finally, while the debate between nature (i.e. genetics) and nurture (i.e. environment) in human development rages with regard to child-rearing and human development, effectively and thoroughly distinguishing between genetics, neurology, and intentional actions of both the individual and the people who surround him or her eludes even the most accomplished neurologist, neuroscientist, and psychologists. Despite all of this, the design of policy assumes reasonable clarity on freedom of will. Respecting the individual becomes less possible when construction of human individuality is misunderstood (Illes & Bird, 2006). The exponential growth of understanding of our brains decreased the actual sense of understanding of our brains and minds. In a Socratic sense, we are starting to understand we know nothing, at least. Such awareness did not come from decreasing knowledge or education. Instead, this circumstance comes from factors such as increased (though still insufficient) insight into what we do not know amongst scientists and reduced exclusive reliance on religious texts as the source of completed knowledge on the part of the general public. For example, as discussed by R. Douglas Fields, in The Other Brain: From Dementia to Schizophrenia, How New Discoveries about the Brain are Revolutionizing Medicine and Science, early studies of our brains measured electricity and neurons operate electrically, neurons came to be understood as, essentially the brain cells. Glial cells, which make up the vast majority of the human brain and are not electrical in their operation were thought to be little more than binding material (Fields, 2009). The purpose and meaning of non-electrical neurological activities performed by glial cells remains largely unknown. Not only do we not yet understand where our brains physically begin and end, we do not fully understand what we mean by brain when we look at the materials within our skulls. Even so, we now know enough more about our brains to encumber responsibility to navigate public policy away from neuroethical policy gaps. Furthermore, many human beings habitually differentiate between the mind and the brain. Origin of the articulation of this distinction in Western thought is partly attributed to Rene Descartes (Shorto, 2009). “Dualists,” as Descartes followers are called, present distinction between mind and brain as an article of faith. However, as Farah explains “as neuroscience begins to reveal the mechanisms of personality, this interpretation becomes strained” (2005, 38). Neuroscience of the twenty-first century

1.3 Bounding the Brain

11

hovers around a consensus on understanding the mind as entirely a creation of the brain. In this conception, the mind exists because a brain thinks it does. This is not, however, an identical argument to describing the brain as the sole physical location of the mind in the human body, that is neuroessentialism (Racine et al., 2005). The relationship between the brain and the mind constitutes an ongoing source of passionate discussion (and, at times, resolute difference) involving stakeholders with divergent expertise in disciplines including neurology, psychology, religion, philosophy, and all forms of medicine. Positions in the debate range from the matter being one largely settled through empirical scientific testing to being largely settled as a mystery beyond human comprehension. Fundamentally the location of the human mind remains a mystery (Giordano, 2010). How to productively discuss the human mind is a pesky and wicked question for neuroscience to address. This book steps around this question. Given the focus on implications for public policy, the degree to which the mind and brain are separate is of less fundamental importance than is improved understanding of the mechanisms behind human thought and behavior (whether mind or brain or both). The discussion that follows considers the brain, neurons outside of the brain within the human body, and any other part of human beings involved in thinking, feeling, reasoning, and decisionmaking under the shorthand of “the brain.” After all, scientific measurement of the mind as distinct from the brain does not exist in a way that is influencing social and political discussion in the current era. As Farah explains, “by demonstrating the existence of physical correlates of our most important human qualities and experiences, neuroimaging has contributed to a fundamental change in how we think of ourselves and our fellow persons” (2012, 575). This change in observation of the brain is the driving force behind neuroethical policy gaps. Regardless of the fact that “current neuroscience informs that the relationships of brain, mind, and self are not linear or wholly deterministic” (Giordano, 2010, 90), the two can be responsibly confounded for the discussion of the policy issues presented in this text in contemporary democracies. Nevertheless, in contemplating the topics addressed in this book, it is important to avoid reductionism as much as possible given the goal of providing an overview of a broad spectrum of complex topics. Two primary types of reductionism affect thinking about neuroethical policy gaps. The first is the tendency to over interpret the meaning of preliminary findings. Results of fMRI studies, particularly when compiled in such as way so as to resemble a picture of a single human brain, too often enchant us into interpretations well beyond that which is supported by the existing data. fMRI is described as follows: Functional magnetic resonance imaging (fMRI) is a neuroimaging technique that creates activation “maps” to show which parts of the brain are involved in a particular mental process. When a particular brain area is more active, it consumes more oxygen, and to meet this increased demand, oxygenated blood flow increases to the active area. . . . Data can appear as a detailed image of the brain, highlighting the regions that are active during a certain mental function, and multiple images can be taken over time to show change throughout a specific period of time. The amount of change in oxygenated blood flow can also be determined (“Neuroimaging: Visualizing Brain Structure and Function”, 2007).

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fMRI is safer for use on humans than earlier imagining technologies. This presents distinct advantages not only for their use in medicine, but also for their use in research, especially research focused on social science inquiry. This increased use and openness to use does not imply that the science surrounding the interpretation of these images is as complete as other areas of social science rooted in longer-term observations analyzing much higher numbers of data points. According to Martha Farrah, “the public tends to view brain scans as more accurate and objective than in fact they are” (2005, 35). Scholars have long noted this tendency. For example, Racine et al. pointed out that when looking at the publicity inspired by their group’s studies, “among our observations about fMRI coverage in the popular and specialized press, we noted an overwhelming optimism for this technology” (Racine et al., 2005, 5). Furthermore, “from a scientific perspective, important methodological and technical assumptions guide fMRI research. . . however, from the public’s point of view, once research results are publicized, especially when they concern personality, self-identity and other social constructs, they are bound to interact with lay conceptions of these phenomena” (Racine et al., 2005, 159). Neuroscience is not the first area of study to have inspired humanity to anticipate an immanent ability to solve problems that have long vexed our species. As Parens and Johnston cautioned, “we would do well to remember how many smart and well-intentioned geneticists were caught up in hyperbolic claims about what genetics could tell us about ourselves” (2007, S62). Neuroscience’s moment is important and illuminating. However, even when this area of science has been much more fully explored, there will still be much humans do not know about themselves. Similarly, reductionism affects thinking about public policy, especially when a particular policy question is framed and considered in isolation of the myriad of human challenges and existing policy infrastructures and other social constructions. The modern scientific method hinges on the posing of research questions defined as narrowly and specifically as possible. Testing hypotheses relies on the ability to hold factors relevant to the system other than the ones examined in response to the question as constant as possible. This helps maximize objectivity given the expectation that “if a phenomenon is characterized as it is so as to vindicate a particular theory rather than to illuminate a problem that is specified independently of the theory, then it is unlikely that the specification will gain much purchase on what is actually going on in the world” (Shapiro, 2002, 601). While much policy research is done using a scientific approach, an even close to solid understanding of how to work fits within the highly variable environments of society, culture, politics, economies and human psychology requires specialized training and substantial experience. Furthermore, most experiments conducted in the policy sciences are natural experiments due to ethical concerns associated with systematic differences in interventions hypothesized to either hurt or advantage one group of people over another. At times policy expertise has been underestimated and undervalued by the so-called “hard” sciences. Reductionist thinking can also come about when engaging the public is misunderstood by scientists and other experts as exclusively seeking to provide education to the public (Burgess et al., 2008). In part this is because the role of the scientist in

1.3 Bounding the Brain

13

society is, first and foremost, that of an honest broker of information gained through as objective a process as possible. Sharing that information represents a core responsibility of this role. Another factor related to reductionism can involve a reaction to a sense that neuroscience is being policed by either social scientists or the general public in the name of neuroethics. These tensions are not new to the beginning of the twenty-first century. Rather, such tensions have become more evident and seemingly urgent. As Illes and her colleagues pointed out over a decade ago, “the interest of the public in the workings of the body and the human mind is an age-old phenomenon” (2005, 977). Furthermore, what neuroscientists experience as policing members of the general public (or policymakers) might consider reasonable limits to scientific inquiry hard won but well established as a result of well-known calamities of the twentieth century (e.g. eugenics, concentration camp experiments, the Tuskegee experiments). Pursuit of knowledge at any cost ends in tragedy. Some wonder whether too close examination of the human brain incurs too high a cost. According to Illes and Bird, “whereas some consider the pursuit of knowledge about human nature and the mind praiseworthy, others can consider the intimacy of the human mind to be outside the province of science” (2006, 514). Both the study of genetics and the study of neurology involve threats to human privacy (Farah, 2005). What is measured matters in no small part because measurement attracts attention (Wolf et al., 2010). Neuroscientific research will not be stopped in the foreseeable future for either good or bad reasons as time, interest and momentum are both too strong. However, the question of how far to take research inquiry is a perennial neuroethical question to be answered in ongoing discussions between the broad spectrum of stakeholders. Difficulties in detecting reductionism include the reality that the technologies of neuroscience are in their long infancy. Widespread ignorance of many aspects of the history of science and the fact that the contemporary science is as likely to contain errors and misplaced confidences as any other period of time exists (Hossenfelder, 2018). For example, brain imaging dates back to a technique developed in 1919 called pneumoencephalography, a procedure in which a physician temporarily replaced cerebrospinal fluid with air, oxygen, or helium in order to create clearer x-ray images (“Neuroimaging: Visualizing Brain Structure and Function”, 2007). This technique has been retired for decades because of the dangers it presented to patients. The existence of this early technology vanished from public memory. As Weisberg et al. stated, “because articles in both the popular press and scientific journals often focus on how neuroscientific findings can help explain human behavior, people’s fascination with cognitive neuroscience can be re-described as people’s fascination with explanations involving a neuropsychological component” (2008, 470). Both the definition of neuroethical policy gaps and neuroethics in general will shift in response to technological advances over time as well. The novelty of the technology can also create the impression of newness in ethical challenges that are, in fact, much more transcendent. It can also allow for blind spots preventing actors from perceiving ethical challenges. This is also true for public policy design. A central irony of both fields involves avoiding both undue expansionism and reductionism. Contemplation of neuroethical policy divides involves a high level of risk of

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both thinking errors. It is almost certainly true that these pervasive errors have left some traces on the pages that follow. Finally, the discussion in this book is biased towards human beings. This partiality is justified by the fact that humans make public policy. While policy can be made on behalf of the interests of other species and motivated by discoveries about their neurology, humans have yet to encounter a species that can directly participate in policy development and design on a conscious level that they can communicate back to humans. This does not mean that other forms of life do not matter. As Farah explained “its relevance to ethics rests on the relation between moral standing and the capacity for mental life, particularly the capacity to suffer. . .if a being is capable of suffering, then it deserves protection from suffering” (2008, 1). This responsibility could in fact imply the other forms of life matter more. Recent discoveries about the neurology of animals (and, to some degree, plants) have also raised questions regarding the potential for self- actualization of non-human beings and the attendant human responsibilities for assuring the existence of environments that allow for fullest possible development of nonhuman beings (Penn & Povinelli, 2007). These issues, while intriguing, are beyond the scope of this text. Excellence in public policy design is still humanist, to the degree that human suffering is considered with some level of priority. Generally manifesting this priority involves working with the interests of nonhuman beings, especially when fullness of time and breadth of human interests are taken into account. However, when the immediate and vital risks of human and nonhuman beings are in direct and real opposition, justifiable interests of human beings are favored, especially when it comes to life or death questions. Furthermore, the vast majority of public policy addresses either individual or collective human behavior. Though other beings appear to possess much more sentience than previously imagined (Chapman & Huffman, 2019), no credible calls for their direct participation in political processes exist in any contemporary democracies. While questions surrounding the policy design targeting, for instance, animals, and the realities of their neurological capacities are intriguing, the gaps explored in this book consider humans exclusively.

1.4

Defining the Gaps

Public policy often appears formulated around the whims of politicians or the preferences of the wealthy and the powerful who have invested in well-paid lobbyists. Those who provide substantial donations to candidates or sitting politicians appear to have more sway in the policy outcomes of contemporary democracies (Großer et al., 2013; McKay, 2012). Even so, policy design involves articulation of a coherent and at least somewhat convincing narrative connecting a specified problem to a preferred solution (Baumgartner & Jones, 2005). Furthermore, much of the work of the public sector and effect of government involvement in other sectors comes

1.4 Defining the Gaps

15

from decisions made by unelected professionals working in government agencies. Over time, the typical level of education of these professionals has on average, increased. Despite cynicism pointing to the contrary, public officials often do what they do owing to attempts to implement scholarly findings into administrative practice, irrespective of whether the practice reflects the intent or preferences of the scholar (Frederickson et al., 2018). Given this, how the public and the public sector understands both neuroscience and neuroethics matters. These thoughts shape not only the decisions made by governments and their agents, but the lived experiences of the populace of a nation. Given the intention to incorporate human knowledge into governance, neuroethical policy gaps depend largely on neuromyths for their formation. According to Paul Howard-Jones, “the first use of the term neuromyth has been attributed to Alan Crockard, who coined it in the 1980s when he referred to unscientific ideas about the brain in medical culture” (2014, 817). Howard-Jones goes on to explain that the definition of neuromyth was updated by the Brain and Learning Project and the Organization for Economic Co-operation and Development (OECD) in 2002. As Howard-Jones reports, the revised definition was “a misconception generated by a misunderstanding or misquoting of facts scientifically established by brain research to make a case for use of brain research in other contexts” (2014, 817). For the purposes of neuroethical policy gaps, the other contexts involved are in the legislative discourse and process that creates public policy and the myriad of contexts, both public and otherwise, in which public policy becomes implemented. Importantly, as Howard-Jones points out, neuromyths tend to include just enough of the structure of the original argument found in the scientific finding to appear convincing even when individuals are making a deliberate attempt to think critically about the information provided and the situation at hand. While it is tempting to believe that the purveyors of neuromyths commit deliberate fraud, in the context of complex public challenges, the far more difficult circumstances arise as a result of genuine belief in the misunderstanding (Howard-Jones, 2014). In addition to forming around neuromyths, neuroethical policy gaps can also exist as a result of more or less deliberate ignorance or outright rejection of neuroscientific findings. Motivations for this skepticism range from recognition that science is rooted in falsifiability and therefore often wrong even when well conducted to a preference for unscientific knowledge building rooted in, for example, religion (Gieryn, 1983; Hossenfelder, 2018). Governance is deeply conservative, not in the sense of the political ideologies called conservative at a given moment of history, but in the sense that practice of governance becomes easily affected by conservation bias (LaFond & Watts, 2008; Kuhnen & Knutson, 2011). In established democracies, there is much to be gained in terms of efficiency, effectiveness, and even equity and equality in circumstances in which the public sectors typically evolve relatively slowly. After all, in established democracies with reasonably stable economies much more is going right in that society than has been the case throughout much of human history. Given the scope of contemporary government infrastructures, rarely do changes in public policy happen without affecting other areas of the policy

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infrastructure. Negative externalities and unintended consequences occur in changes to public policy, regardless of how necessary the policy to address a public problem. This dynamic of public policy combined with skepticism about new science can result it extended support of public policy design involving neuroethical policy gaps. In such circumstances, a secondary ethical challenge exists around the question of what is referred to as Type I error in statistics—believing that a research hypothesis is an accurate representation of the facts when it is not. Researchers conducting studies employing statistical analysis select a level of risk of making a Type I error and cannot know whether or not they have found untrue results with absolutely certainty so long as statistical analyses are employed. Acceptance levels of risk vary by discipline, but are generally no higher than 5% in modern science. Whether or not the level of risk is ethical, especially in the absence of replication, is not often questioned in the practice of modern research. Consideration of this question can only be done in understanding that waiting until science is absolutely certain is almost always impossible. First, and foremost, waiting until the science is absolutely certain an oxymoron. The intent of science as such is to build knowledge through the testing of hypotheses inspired by previous research or observation, even if the inspiration for the particular hypothesis is based on previous research that is somehow mistaken. Science can never be completed as there are—as far as we as human beings know—always new questions. Second, while science is anticipated to continue indefinitely, or at least as long as there are sentient beings left to engage it, the challenges facing human beings unfold in much shorter time frames. Costs, pain, and suffering result in the delay of science with the capacity to make lives better. Just as it is possible to act too quickly on tenuous findings, it is possible to incur great risk while waiting too long. Engaging this dynamic is particularly important in the public sector, especially when the science has to do with anticipating a loss. Human brains react to loss similarly to how they react to pain. If, for example, scientific research has resulted in the development of a test able to determine that an individual home has a 95% chance of burning down in the next year, waiting until there is more certain science could certainly be understood as taking unjust chances with the fates of those who own the homes in question, especially if they do happen to burn down and the public becomes aware of the test. Of course, it is vital to remember that the public has not agreed to be fair about science. Instead, it is incumbent on stakeholders involved professionally in the public sector to incur the consequences of Type I errors and the wrath of the public when risk plays against the desired outcomes. All such stakeholders should be trained to understand discontent as the engine of democracy (Baker & Stokes, 2007). Working proactively with the communication of science, the punctuated equilibrium of public policy, the wickedness of the public problems remaining to be addressed in a mature democracy, and the diversity of stakeholders across every imaginable dimension is fundamental to work in public policy design involving neuroethical policy gaps. This book serves as a primer for some of the more uniformly experienced gaps in contemporary North America.

1.5 Book Roadmap

1.5

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Book Roadmap

Moving toward more neurologically appropriate policy will take decades. Bringing policy and neurology into a more synchronous relationship requires a commitment to prolonged effort involving the largely unrecognized reality of entrenched neurological interests as well as understanding the gaps between the brains around which policies were designed and real human neurology. Many stakeholders benefit from maintaining the status quo of assumptions about human brains as embedded in current policy. Some understand exactly how they benefit and will seek to maintain that privilege. Others do not understand, even in part, and will first have to be convinced that neuroethical policy gaps even exist. These are two rather distinct political exercises. Both are best undertaken with the benefit of insight into the history, dynamics, and status quo of the policy subsystems in which specific neuroethical policy gaps exist. This book is intended to serve both as a tool for those already engaging neuroethical policy gaps and a call to action and interest for those not yet involved in this vital pursuit. Quality of modern policy design turns on understanding neuroethics, neurodiversity, and the ways in which public policy has been designed in response to misunderstanding of the human brain. In recent years, inquiry into neuroethics expanded well beyond its initial roots as an offshoot of bioethics and comprehensions of diversity have begun to expand to more regularly include capacity differences, including neurological diversity and neurointersectionality. These developments hold profound importance for us all. Broader discussion of neuroethical policy gaps is an urgent, global need assuming a democratic desire for human-friendly public policy. Each chapter that follows considers an area of public policy particularly relevant to a different stage of human life—from early childhood education policy, to policies for higher education and the workplace, to end of life decisions in living wills and advance directives. The selection of the topics in chapters is not intended to be fully inclusive of all neuroethical policy gaps. Rather the selection of chapters is intended to demonstrate how every stage of life is currently affected by such gaps. Given the nascent state of much of contemporary neuroscience, it is probable that some of policy suggestions made in this text will someday be shown to include neuroethical policy divide design elements as well. Such an outcome is not only inevitable but should be celebrated as progress. Of course, awareness of the potential for creation of such divides and the expectation that checks for errors in assumptions about neurology underlying policy design should be undertaken as a matter of course in any policy innovations or reauthorizations. The concluding chapter provides a summary of insights for improved policy design. It also explores what still needs to be discovered about our brains in order to best accomplish the fundamentally democratic goal of creating policy for the people. Finally, long term strategies likely to create a more productive and ethical relationship between developments in neuroscience and public policy are explored.

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The roadmap itself (the last section) was the strongest part of the chapter from my perspective. I would recommend cutting most of the rest of the chapter and focusing on the roadmap. You could either keep this chapter to a short 10 pages, or you could bulk up the roadmap by being more specific about the thesis you advance in the book and following it with a chapter overview that precisely outlines your argument in each chapter with a summary. In general, I would recommend spending less time on what you don’t cover. If you feel the need to address what does not interest you, you could move that content to footnotes. The points you do want to cover could then get more time and space in this chapter.

Works Cited Baker, D. L., & Stokes, S. (2007). Brain politics: Aspects of administration in the comparative issue definition of autism-related policy. Public Administration Review, 67, 757–767. https://doi.org/ 10.1111/j.1540-6210.2007.00758 Baumgartner, F. R., & Jones, B. D. (2005). The politics of attention: Problem definition and the course of public policy in America. University of Chicago Press. Biesta, G. J. J. (2015). Beyond learning: Democratic education for a human future. Routledge. Bird, S. J. (2005). Neuroethics in Mitcham C. (a cura di). Encyclopedia of science, Technology and Ethics. Burgess, M., O’Doherty, K., & Secko, D. (2008). Biobanking in British Columbia: Discussions of the future of personalized medicine through deliberative public engagement. Personalized Medicine, 5(3), 285–296. Chapman, C. A., & Huffman, M. A. (2019). Refining thoughts about human/nonhuman differences. Animal Sentience, 3(23), 48. Churchland, P. S. (2006). Moral decision-making and the brain. In J. Illes (Ed.), Neuroethics: Defining the issues in theory, practice, and policy (pp. 3–16). Oxford University Press. Davidson, C. N. (2011). Now you see it: How the brain science of attention will transform the way we live, work, and learn. Viking Publishing. Farah, M. J. (2005). Neuroethics: The practical and philosophical. Trends in Cognitive Sciences, 9(1), 34–40. Farah, M. J. (2012). Neuroethics: The ethical, legal, and societal impact of neuroscience. Annual Review of Psychology, 63, 571–591. Fields, R. D. (2009). The other brain: From dementia to schizophrenia, how new discoveries about the brain are revolutionizing medicine and science. Simon and Schuster. Frederickson, H. G., Smith, K. B., Larimer, C. W., & Licari, M. (2018). The public administration theory primer. Westview Press. Fukushi, T., & Sakura, O. (2008). Exploring the origin of neuroethics: From the viewpoints of expression and concepts. The American Journal of Bioethics, 8(1), 56–57. Fukushi, T., Sakura, O., & Koizumi, H. (2007). Ethical considerations of neuroscience research: The perspectives on neuroethics in Japan. Neuroscience Research, 57(1), 10–16. Gazzaniga, M. S. (2006). The ethical brain: The science of our moral dilemmas. Harper Perennial. Gieryn, T. (1983). Boundary-work and the demarcation of science from non-science: Strains and interests in professional ideologies of scientists. American Sociological Review, 48(6), 781–795. Giordano, J. (2010). The neuroscience of pain, and a neuroethics of pain care. Neuroethics, 3(1), 89–94. Giordano, J., & Benedikter, R. (2012). An early-and necessary-flight of the owl of Minerva: Neuroscience, neurotechnology, human socio-cultural boundaries, and the importance of neuroethics. Journal of Evolution and Technology, 22(1), 14–25.

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Giordano, J., & Olds, J. (2010). On the interfluence of neuroscience, neuroethics and legal and social issues: The need for (N)ELSI. AJOB Neuroscience, 2(2), 13–15. Gottschall, J. (2012). The storytelling animal: How stories make us human. Houghton Mifflin Harcourt. Großer, J., Reuben, E., & Tymula, A. (2013). Political quid pro quo agreements: An experimental study. American Journal of Political Science, 57(3), 582–597. Haberfield, E., et al. (2007). Neuroimaging: Visualizing brain structure and function. Foundation Text, 2007. http://ccnmtl.columbia.edu/projects/neuroethics/module1/foundationtext/index. html Hossenfelder, S. (2018). Lost in math: How beauty leads physics astray. Basic Books. Howard-Jones, P. A. (2014). Neuroscience and education: Myths and messages. Nature Reviews, 15, 817–824. Illes, J., & Bird, S. J. (2006). Neuroethics: A modern context for ethics in neuroscience. Trends in Neurosciences, 29(9), 511–517. Illes, J., & Raffin, T. (2002). Neuroethics: An emerging new discipline in the study of brain and cognition. Brain and Cognition, 50, 341–344. Illes, J., Blakemore, C., Hansson, M. G., Hensch, T. K., Leshner, A., Maestre, G., Quirion, R., & Strata, P. (2005). International perspectives on engaging the public in neuroethics. Nature Reviews Neuroscience, 6(12), 977–982. https://doi.org/10.1038/nrn1808 Jones, G. (2008). Neuroethics: Adrift from a clinical base. The American Journal of Bioethics, 8(1), 49–50. https://doi.org/10.1080/15265160701828469 Jonsen, A. R. (2005). Bioethics beyond the headlines: Who lives? who dies? who decides? Rowan and Littlefield Publishers, Inc. Kuhnen, C., & Knutson, B. (2011). The influence of affect on beliefs, preferences, and financial decisions. The Journal of Financial and Quantitative Analysis, 46(3), 605–626. LaFond, R., & Watts, R. (2008). The information role of conservatism. The Accounting Review, 83(2), 447–478. Leefmann, J., Levallois, C., & Hildt, E. (2016). Neuroethics 1995–2012. A bibliometric analysis of the guiding themes of an emerging research field. Frontiers in Human Neuroscience, 10, 336. Lehrer, J. (2007). Proust was a neuroscientist. Houghton Mifflin. Levy, N. (2007). Neuroethics: Challenges for the 21st century. Cambridge University Press. Levy, N. (2012). Neuroethics. Wiley Interdisciplinary Reviews: Cognitive Science, 3, 143–151. https://doi.org/10.1002/wcs.1157 Lombera, S., & Illes, J. (2009). The international dimensions of neuroethics. Developing World Bioethics, 9(2), 57–64. Lovejoy, A. O., & Stanlis, P. J. (2011). The great chain of being: A study of the history of an idea. Transaction Publishers. Loveless, S. E., & Giordano, J. (2014). Neuroethics, painience, and neurocentric criteria for the moral treatment of animals. Cambridge Quarterly of Healthcare Ethics, 23(2), 163–172. McKay, A. (2012). Buying policy? The effects of Lobbyists’ resources on their policy success. Political Research Quarterly, 65(4), 908–923. McNie, E. C., Parris, A., & Sarewitz, D. (2016). Improving the public value of science: A typology to inform discussion, design and implementation of research. Research Policy, 45(4), 884–895. Nee, S. (2005). The great chain of being. Nature, 435(26), 429. Neuroethics [Def. 1]. (2008). The American heritage medical dictionary. Houghton Mifflin Harcourt Press. Neuroethics. (n.d.) American Heritage1 Dictionary of the English Language, Fifth Edition. (2011). Retrieved January 12 2022 from https://www.thefreedictionary.com/neuroethics Parens, E., & Johnston, J. (2007). Does it make sense to speak of neuroethics? EMBO Reports, 8(S1), S61–S64. Penn, D., & Povinelli, D. (2007). On the lack of evidence that non-human animals possess anything remotely resembling a ‘theory of mind’. Philosophical Transactions: Biological Sciences, 362(1480), 731–744.

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Pielke, R. A. (2007). The honest broker: Making sense of science in policy and politics. Cambridge University Press. Pontius, A. A. (1973). Neuro-ethics of “walking” in the newborn. Perceptual and Motor Skills, 37(1), 235–245. Racine, E., Bar-Ilan, O., & Illes, J. (2005). fMRI in the public eye. Nature Reviews Neuroscience, 6(2), 159–164. Ramachandran, V. S. (2012). The tell-tale brain: A neuroscientist’s quest for what makes us human. WW Norton & Company. Riddle, S., & Apple, M. W. (Eds.). (2019). Re-imagining education for democracy. Routledge. Roskies, A. (2002). Neuroethics for the new millennium. Neuron, 35(1), 21–23. Safire, W. (2002). Mapping the field conference, San Francisco, CA. Retrieved from http://ccnmtl. columbia.edu/projects/neuroethics/#ref02 Sanguineti, J. J. (2013). Neuroscience, philosophical relevance of. In New Catholic encyclopedia supplement 2012–2013: Ethics and philosophy (pp. 1065–1068). Gale. Schechter, E. (2018). Self-consciousness and “split” brains: The minds’ I. Oxford University Press. Sententia, W. (2004). Neuroethical considerations: Cognitive liberty and converging technologies for improving human cognition. Annals of the New York Academy of Sciences, 1013(1), 221–228. Shapiro, I. (2002). Problems, methods, and theories in the study of politics, or what’s wrong with political science and what to do about it. Political Theory, 30(4), 596–619. Shook, J. R., & Giordano, J. (2016). Neuroethics beyond normal: Performance enablement and selftransformative technologies. Cambridge Quarterly of Healthcare Ethics, 25(1), 121–140. Shorto, R. (2009). Descartes bones: A skeletal history of the conflict between faith and reason. Vintage Books. Spires-Jones, T. L., Poirazi, P., & Grubb, M. S. (2016). Opening up: Open access publishing, data sharing, and how they can influence your neuroscience career. European Journal of Neuroscience, 43(11), 1413–1419. Vernillo, A. (2008). Neuroethics is not hyperbole. The American Journal of Bioethics, 8(1), 57–59. Weisberg, D. S., Keil, F. C., Goodstein, J., Rawson, E., & Gray, J. R. (2008). The seductive allure of neuroscience explanations. Journal of Cognitive Neuroscience, 20(3), 470–477. Westheimer, J., & Kahne, J. (2004). Educating the “good” citizen: Political choices and pedagogical goals. P.S.: Political Science an Politics, 37(2), 241–247. White, K. M. (2016). The science of translation and major frameworks. In Translation of evidence into nursing and health care. Springer. Wolf, L., Bouley, T., & McCulloch, C. (2010). Genetic research with stored biological materials: Ethics and practice. IRB: Ethics & Human Research, 32(2), 7–18. Zelenkauskaite, A., & Bucy, E. P. (2016). A scholarly divide: Social media, big data, and unattainable scholarship. First Monday, 21(5).

Chapter 2

Early Childhood Education: Access Through 1990s Neuroscience

2.1

Vanda

Inside the public library’s mother’s milk neuroenhancement lounge, Paloma sits upright in response to her baby, Vanda, who is making a surprisingly guttural, ancient, animal sound—not ecstatic and high-pitched as you might expect of a threemonth old. Paloma looks down at the neurobit on her wrist, tries not to focus on the numbers that have displayed in red ever since two hours after Vanda’s first breath, which was also the first time she cried. Paloma thinks the numbers in red, which display the interpretation of a model—the mean distribution of the brain activity in three-month olds compared to the activity in her own daughter’s brain—are quantifying her daughter’s missed opportunities, her downward mobility. For a moment, Paloma imagines Vanda’s somatosensory cortex as a flashing red strip running from ear to ear over the top of her head and thinks of the first image she saw of her newborn’s brain activity when she was just one-day old; her somatosensory cortex a grainy strip of purple dissipating wildly into shocks of blue, reminded her of a Vanda orchid—lustrous dark-blue blossoms with lavender undertones, petals faintly textured with white tendrils running through—the geometry of her newborn’s brain scan a language, a secret destiny Paloma tried to interpret like a fortune teller reading a palm. A new reminder flashes on the screen but Paloma looks instead into Vanda’s eyes, which are squeezed tightly shut, the thumb of her left hand curled in under her first three fingers as if hiding from the mouth’s wailing. Paloma hesitates to touch Vanda and instead speaks to her neurobit, “Start listening. Read reminder.” “July 15, 2 p.m., 4-month check up with Dr. Jabori.” Tomorrow is Vanda’s 4-month check-in with her developmental neurobiologist, and Paloma hopes perhaps one last neuroenhancement session will help Vanda meet normal developmental benchmarks. Paloma follows the arch of Vanda’s rising sound to the lounge’s light-blue ceiling, curved at the edges, dotted with grey irregularly-shaped hexagons whose tips web out into tendrils connecting them to other shapes with white, swirling © Springer Nature Switzerland AG 2022 D. L. Baker, R. L. Baker, Neuroethical Policy Design, Studies in Brain and Mind 20, https://doi.org/10.1007/978-3-030-92289-4_2

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centers. Paloma stares up, unsure whether this is a representation of brain cells or galaxies—geometries or destinies. She worries Dr. Jabori will recommend some treatment she cannot afford, one not available at the public library—like RNS therapy, which calls for embedding a NeuroRace Responsive Neurostimulation System in her baby’s still-developing brain—uses her thumb to stop playback of Marguerite Duras’s The Lover, the abrupt halting of the playback makes it sound like “It was already too late when I was eight—.” And Paloma winces, a little bit— afraid as she turns her body to the left and tries to understand the synaptic density readings gradually scrolling down the screen of Vanda’s Koala Kove: 30 green dots tracing an unsure line, meandering upward. She’ll be done by the time she is six, my Vanda, my little Orchid blossom. Paloma stands to walk to the elevator to take Vanda outside, pushes the Koala Kove with one hand, with the other unzips Vanda’s onesie, tries to calm her down by placing her palm flat and firm against the skin of her baby’s stomach, which feels taunt, sucked in, to better motor her cries. The touch doesn’t settle her, seems to upset her even more. Paloma pulls her hand away and zips the baby back in, tries to enhance Vanda’s neurogenesis by looking into her eyes, connecting with her. Vanda’s chin motions up—as if to get the eyes out of the way of that direct gaze. Her bottom lip turns down. Paloma braces herself for that sound. In the hallway Paloma pushes the down button for the elevator, takes her eyes away from Vanda’s for a moment to read the number flashing on the neurobit:10; if Orchid loses 10 billion more bundle connections, she will not qualify for the free, state-sponsored pre-K program in 4 years 8 months, when Vanda turns 5. Waiting for the elevator, Paloma leans into the sound; picks Vanda up—it’s not yet too late, it’s not yet too late—sways against the noise, oxytocin flooding her brain. She tries to imitate walking a maze, shifting the weight of her body from side to side as Vanda’s own body goes taut, tonic in the concaveness between Paloma’s neck and chest. As the elevator doors open, it’s suddenly quiet, though Vanda hasn’t stop crying—it’s just the silent part as she sucks air in—and then her sound comes like a warning to the mother rounding the corner, turning into the hallway, running now to make the open elevator doors, pushing her baby tucked snuggly in his Koala Kove Pro—the latest model with the paper-thin screen bending over the child on all sides, projecting a holographic image of a green sapling unfurling to catch a glistening drop of dew. When Pro Mom arrives at the open elevator doors, she pauses—and oh! the screen is responsive; reacting to Vanda’s sound, the sapling stops unfurling, the clouds in the holographic sky darken. Pro Mom watches Paloma board the elevator with Vanda tucked in her chest and, pulling the super-enhanced Koala Kove back further still from the open elevator doors, moves her eyes down a bit to Vanda, grimacing, pressing a brown button on her Kove’s handle to change the immersion display to virtual reality mode so it is as if her own child is on the shore of a great ocean, his neurons being bathed in negative ions, drowning out Vanda’s mangled sounds, as if her crying were a disease Pro Mom can save her own boy from. Paloma steps into the elevator bouncing Vanda, pulling last-year’s model stroller behind her, with Vanda’s deep-moaned grumbling in her ears, and the neurobit registering nothing, unable to register lost opportunities, the 10 billion

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bundles that never will develop. The closing elevator door is interrupted by Vanda’s ecstatic screaming. In response, the floor numbers light up brilliantly and then extinguish—10, 9, 8 . . .—as Vanda and Paloma descend. Children develop. Although human beings continually change, modern humanity invests particular interest in childhood development as a unique and special aspect of human experience. Given that, policy designed to address the health, welfare, and education of children holds particular salience owing to the assumption of children’s particular potential for improvement. Paloma and Vanda’s story reflects a deeply held goal of adroitly managing the opportunities for development of small children through careful monitoring and constant access to information. Their experience also speaks to how elusive success in this endeavor might be given the depth and breadth of human experience. During the last decades of the twentieth century, interest in early childhood development intertwined with understandings of neurogenesis and neuroplasticity. A sense of urgency emerged from new insights into the ways in which human brains create new neurons and how the use of those neurons can be reshaped over time. In particular, the belief that neurogenesis ceases in mature humans catalyzed increased concern regarding experiences of young children. This chapter explores a neuroethical policy divide around the education of very small children. This particular gap has had far flung ramifications—from training of foster parents and day care providers to formation of criminal justice systems to adult education protocols. The focus of this chapter is the neuromyth of time-limited neurogenesis and, more generally, a paucity of later in life brain development and the fusion of such outdated brain science with design of early childhood education policy. As the experiences of Vanda and Paloma demonstrate, the early childhood neuroethical policy divide can form in any context of rationed access to resources, services, and opportunities. If it were true that people become incapable of creating new neurons around the age of three and consistently experience neuronal death and, furthermore, neurons left unused tend to die faster than those in service, then stimulating the brains of young children would gain substantial exigence. This would be especially if selection of which children to focus on is a (perceived) necessity. Of course, this sense of emergency also depends on the assumption that, when it comes to neurons, more is always better and that glia cells contribute little to brain performance (Fields, 2009). The sense of emergency can also be augmented by assumption that neurons cannot be repurposed, resulting in irrevocably reduced brain flexibility (i.e. neuroplasticity) after early childhood. Like with Paloma, prevailing wisdom about brain development has taught many to expect children are blessed or doomed exclusively by their early childhood brain development. This understanding of human brain development implies that access to education must begin prior to the permanent loss of ability to acquire specific types of knowledge and skills. As a result of this understanding of brain development, popular wisdom emerged around the notion that after age three, children lose the ability to efficiently learn

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certain skills and absorb information.1 This assumption about neurology provided crucial moral support for early childhood education policies already supported by issue stakeholders and policy makers. This is hardly surprising. Policy makers in a democratic setting are—at least in principle—assumed interested in ensuring improved equality of opportunity. Even those less interested in equality of opportunity would likely hope to reduce the costs imposed on society by those who did not receive well-timed education. As it turns out, we appear to have been at least somewhat wrong about this right time, at least when the conception of right time transforms to only time. Human beings usually retain capacity to make new neurons throughout their lives. As Fred Gage stated, “a milestone is marked in our understanding of the brain with the recent acceptance, contrary to early dogma, that the adult nervous system can generate new neurons” (2002, 612). Furthermore, even the oldest of brains appear much more plastic than previously imagined. Neurogenesis appears more limited in adults than children and appears at least less common in some parts of the human brain than other parts during adulthood. Both aging and stress also appear to negatively affect the pace of adult neurogenesis (Zhao et al., 2008). Even so, such relative limitations do not imply doors to neurological development of particular skills close completely after early childhood. As a result of the distinction between presumed and actual potential for neurogenesis, policies designed to assist those with less privilege based on a theory of missed opportunities can lose their core linkage between problem and solution while nevertheless contributing to social good. The existence of adult brain development potential does not render efforts to engage development of young children unimportant. Limited duration of human lives firmly establishes otherwise, especially in complex societies where there is much to learn and great perceived benefit from being more skilled and knowledgeable. Time passes irrecoverably. Nevertheless, stakeholders in early childhood education policy face the ethical challenge of continuing to promote a solution for which the articulated problem rests on a misunderstanding of ourselves, at least at the level of interpretation of the implications of rapid brain development during childhood. A neuroethical policy gap exists between an understanding of the human brain based on very limited brain development after childhood and new findings in neuroscience supportive of ongoing brain development throughout the human lifespan. Awareness of the early childhood education neuroethical policy gap dates back over two decades. A report entitled From Neurons to Neighborhood by Shonkoff and Philips stated, “early experiences clearly affect the development of the brain. . . yet the recent focus on ‘zero to three’ as a critical or particularly sensitive period is highly problematic, not because this isn’t an important period for the developing brain, but simply because the disproportionate attention to the period from birth to

1

Questions exist as to whether this belief was based on what neuroscientists actually theorized or how their theories were, in fact, understood by the public. In either case, the belief about neuroscience created a neuroethical policy gap.

2.2 Issue History: Nature vs. Nurture and the Critical Period

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3 years begins too late and ends too soon” (2000, 7). The essence of this neuroethical policy gap boils down to how to negotiate policy processes when a desirable policy solution is based on overenthusiastic interpretation of antiquated science. Teasing out insights into human development involves an extraordinary number of intervening variables. Figuring out how to minimize or moderate human capacity differences based on the understood potential during a selected part of the lifespan through public programs represents a wicked challenge. Furthermore, children traditionally belong to their parents. The last two centuries saw movement away from the exclusive ownership model of child rearing (Frost, 2017). Even so, involvement of others in the management of young children creates tensions with impressions of parenthood especially when combined with a sense of sanctity of the nuclear family. Garnering broad support for state intervention requires a persuasive, uncontroversial, and intractable argument of harm in the home rather than exclusively the promise of an expected benefit from outside involvement in the child’s life (Hacsi, 2017). Permanently compromising potential neurological development and life opportunities by ignoring time-limited neuroplasticity would constitute this kind of harm to a child. As a result, to the extent that opportunities for complete brain development eclipse after early childhood, public provision of early childhood education becomes a moral imperative, especially in a democratic and capitalist context. Contemporary neuroscience characterizes the effects of early childhood education as more anticipated than definitive. Some research suggests comparative brain benefits of early childhood education are time-limited, and become vanishingly small by the end of elementary education, assuming common access to formal primary education. Obviously, such neuroscientific findings can be useful than earlier understandings to a policy entrepreneur’s goal of promoting the public provision of early childhood education. To the extent that access to early childhood education is desirable or beneficial regardless of the existence of a neuro emergency, the value of once cutting-edge neuroscience likely outlives its accuracy. Space between policy considered desirable and neuroscientific explanations in support of the policy widens the gap.

2.2

Issue History: Nature vs. Nurture and the Critical Period

Roots of the neuroplasticity assumptions in in early childhood education policy date back millennia. According to Shonkoff and Phillips, “from ancient Platonic and Confucian philosophy to the present, the dichotomy between inherited capabilities and environmental incentives and pressures has guided human self-understanding in Western and Eastern thought” (2000, 40). As theories of evolution gained popularity in the Western world, questions regarding differences in human development became more pressing and boiled down to the trope of nature versus nurture. Debate

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regarding degree to which an individual’s inherited characteristics or childhood environments manifest distinctions in behaviors, experiences, and fate encountered over the course of a lifetime has raged for decades. A full discussion of the history of this debate is beyond the scope of this text and, to some degree at least, falls more precisely into the realm of genetics than neuroscience. This nature versus nurture debate has long been all but resolved in the scientific world. As pointed out two decades ago (and not for the first time): It is impossible to think of gene expression apart from the multiple environments in which it occurs. It is impossible to think of the manifestation of hereditary potential independently of the hierarchy of the environments that shape its appearance. It is impossible to think of an organism that interacts with the environmental without considering the genotypical uniqueness of that individual. It is impossible, in short, to consider nature apart from nurture (Shonkoff & Phillips, 2000, 40).

Despite consensus on the interrelationship between nature and nurture, the desire to between understand the exact nature of the relationship(s) lives on. Furthermore, discoveries in epigenetics during the early twenty-first century redirected the debate, breathing life back into long-rejected ideas about the effect of environment on the genetics of progeny. Within the context of the early education neuroethical policy gap, preformed construction differs from permanent construction. Early Childhood Education invests much against preformation. Rooted in the belief in the potential of all children, the fundamental goals of these public programs include the aim to expand educational opportunities to those who might otherwise not be so successful in formal education. Potential unrelated to experience renders access to this program less necessary since, in the extreme interpretation at least, the success or failure of the individual child in formal education would be unaffected by participation in early childhood education other than, possibly, reaching that potential slightly later in life. The question of permanence of the effect of experience on brain development plays a nuanced role in the divide. In particular, the long-term effects of neglect, trauma, and otherwise missed or delayed opportunities, both individually and in combination of the critical period of early childhood brain development, add complexity to debates surrounding early childhood education. Critical period theory posits humans acquire specific knowledge, skills or abilities at designated points in the human life span. The belief holds that if a critical period is missed, acquisition of the part of brain development becomes exceptionally difficult, if not impossible. Much historical bias regarding who could learn what and when exists in considerations of critical periods, if not human development more generally. For example, during the nineteenth century, some considered formal education inherently dangerous for girls and women. In support of this notion, Harvard professor Edward Clark once wrote “a woman’s body could only handle a limited number of developmental tasks at one time—that girls who spent too much energy developing their minds during puberty would end up with undeveloped or diseased reproductive systems” (Geiling, 2013). Existence of critical periods for humans has been debated for decades. For example, in 1964 Victor Denenberg wrote:

2.2 Issue History: Nature vs. Nurture and the Critical Period

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experiments, using rats and mice, do not support the critical period hypothesis that there are certain limited time periods in infancy during which a particular class of stimuli will have profound effects upon subsequent behavior. . . where findings are consistent with the hypothesis, further research has shown that the ‘critical period’ is a complex function of the amount of infantile stimulation (335).

Even so, brains vary over lifetimes and (if appears) tend to specialize in acquisition of certain skills and tasks more readily at some periods of life than at others. Some abilities, such as vocalizations not found in a child’s native tongue, appear to fade relatively completely after early life (Swingley, 2008; Ferguson & Garnica, 2014). However, finding the line between difficult and impossible remains challenging, especially when higher level and social skills are considered. The current state of technology remains quite a distance further than often imagined from the technology described in the story opening this chapter. While general consensus remains learning varies over the course of a human life, some neurologists and neuroscientists argue that extrapolations of early findings on brain development in animals may extended too far into interpretations of human brain development (Clancy et al., 2007). Furthermore, it is important to distinguish between what more or less typically happens as a person develops from what can happen at different stages of life. For example, while most people gain the knowledge necessary to graduate from high school around the age of 18, it is demonstrably not impossible for a person to acquire this knowledge much later in life. In 2013 for example, 537,387 people completed high school through the General Educational Development (GED) examinations, with a mean age of 26.5 and 42.6 percent more than 25 years old (GED Testing Service, 2013). Similarly, in Canada, of the 6239 people who passed the exam in 2013, the mean age for 30.9 and approximately 59.4% of those who received the GED were over the age of 25 (GED Testing Service, 2013). Humans understand less about human development under healthy, well-nourished, and safe conditions than we should. After all, many parts of the world are generally safer and wealthier than ever in recorded human history. We simply lack the experience and information about our lifetime potential because historically so many humans have been systematically or accidentally excluded from thriving. Human brains do not all learn or retain information, skills, and abilities identically (Green & Bavelier, 2008). Results derived from neuroscientific studies showings specific locations on the human brain employed in specific tasks illustrate only what is shown on average, not necessarily what is found for each individual person’s neurological processes or even each time a given individual completed a given task. Multi-colored illustrations of fMRI findings can communicate that use of a particular part of the brain for given tasks is as common and universal as use of feet for walking or, even, stomachs for digesting food. Research into both neuroplasticity and, to some degree, neuroscience in general, suggests more differences in operation of brains across individuals than such parallels imply (Mueller et al., 2013). Particular activities do not always require the use of the same part of the brain in every person. Most strikingly, individuals have been found upon autopsy or medical examination

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to be missing parts of the brain assumed necessary to nevertheless demonstrated capacities (Stafford, 2014). Construction of programs in response to a developmental neuro emergency presumes existence of critical periods during which specific parts of the human brain uniquely develop. As Paul Howard-Jones points out about critical periods, “the myth has helped to promote the genuine importance of preschool experiences as fundamental for later learning, but it is an oversimplification that has also led to misunderstandings. . .these include a sense that adults are in a race against time to provide stimulation to their infants before their synapses are lost” (2014, 820). Parents of all socioeconomic and cultural backgrounds tend to be concerned about their children’s development and potential, broadly speaking. Absent a neuro emergency of early childhood development, the case for public funding for early childhood education (as opposed to access to education later in childhood or life) weakens in the eyes of those less inclined to provide for others. Furthermore, arguments for other policy priorities can become relatively stronger as a result. For example, for more politically conservative stakeholders in North America, one such concern involves a strong preference to keep young children primarily in their homes and out environments assumed to be negatively influenced by society at large. Absence of an early childhood education neuro-emergency does not disprove benefits of early childhood education. For example, it appears generally more expensive and time-consuming to teach people skills usually acquired in childhood later in life (Green & Bavelier, 2008). The costs connected to later life learning could be innately connected to human neurological development. However, these costs could also result from external infrastructures such as: the economy (particularly economies of scale when later learning is rarer); social expectations regarding how individuals spend their time (children in modern democracies rarely have full-time job obligations getting in the way of learning a primary language and other basic skills); or bias against later life learning creating less than optimal programs and subtle dissuasion of later life learners. Belief in the neuro emergency of early childhood education works against the effective incorporation of the factors affecting these relative costs into education policy design in North America. Importantly, belief in critical periods can also work against the production of research into other relationships between early brain development and children’s environments. For example, as Racine et al. reports about ongoing research, “reporting of what we could call ‘critical-period mythology’ can narrow childcare and nurturing to certain aspects of brain development, largely leaving out the importance of nutrition and ongoing plasticity” (Racine et al., 2005, 161). In other words, critical periods assume one-time limited intervention applies in all circumstances or all individuals. Enhancing neurodiversity depends on flexible understandings of the pace of child development as well as multi-faceted consideration of the relationship between an individual’s innate capacities, experiences, and outcomes. Coping with the emergence of a neuroethical policy gap between (at least partially) still appreciated policy practice and seemingly misplaced conceptions of human brain development will

2.3 Orchids and Dandelions, Delay and Growth

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involve delicate work in policy recreation. Doing so, is, nevertheless, an ethical obligation of good governance.

2.3

Orchids and Dandelions, Delay and Growth

Barring evidence of safe removal of existing early childhood education policy, application of the precautionary principle would suggest maintaining support for programs since critical periods and slowed or ceasing neurogenesis should be assumed at least as likely to vary as much as all other human characteristics (Steel, 2015). Diversity across these capacities supports a sense of emergency for early childhood education, even if only a minority of the population experiences substantial learning limitations beyond early childhood. Furthermore, control of the later costs associated with permanent limitations for a minority of the population is likely both morally and economically worthwhile, even if it means providing for early childhood education for a population at large that does not, on the whole, tend to experience critical periods. Of course, such arguments hold only if no harm is experienced by exposing children to education earlier in their lives. In North America, perceptions of the potential for such harm are rare, especially as compared to other societies. Prevailing moral sentiment rests with public provision of early childhood education, potentially even in the absence of universality of critical periods. Even so, it is vital to note that some formal education strategies—such as those limiting movement and play and forcing early reading—may actually detrimentally affect brain development. Tendency to experience critical periods may be connected to variance in individual reactivity. The Orchid Hypothesis of childhood development distinguishes between development of children who are highly reactive as opposed to those who are less innately reactive (Cain, 2012). Cain describes reactivity as a genetic characteristic making children more or less affected by their environments, especially negative experiences. More reactive children are described as orchids, and those less reactive are described as dandelions. Importantly, the hypothesis posits that highly reactive children are both more positively and more negatively affected by the circumstances and events. Full consideration of implications of the Orchid Hypothesis on management of neuroethical policy gap of early childhood education depends on a reliable estimate of the proportion of dandelions versus orchids in a given population of children. Like many binary taxonomies, children likely fall on a continuum ranging from orchid to dandelion and every imaginable position between these two extremes. Furthermore, effective consideration of the hypothesis requires contemplating what is possible as compared to what would be ideal for both individual children and society at large. As the United States Supreme Court rulings on, for example, provisions of special education under the Individuals with Disabilities Education Act, have demonstrated,

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public responsibility for investment in the development of children falls short of best. Even for children with diagnosed disabilities who, rather uniquely, have a right to free and appropriate public education in the United States, appropriate is not defined as that which fully maximizes their potential development as human beings (Baker, 2017). When it comes to the general population, investment in education involves consideration of the economic costs and benefits, including the opportunity cost of public resources. Entanglement of effects of trauma and critical periods complicate their contemplation. Abuse, neglect, or extreme poverty manifested in hunger or other physical challenges can make learning more difficult (Foster et al., 2016). The cumulative effect of these factors interacts with the innate resilience of the individual child (Kim & Kim, 2017). Increased incidences of adverse childhood experiences can delay the learning of most children, regardless of where they fall on the Orchid Hypothesis continuum. Well-funded, licensed preschools are almost never locations of ongoing contemporary abuse. Furthermore, young children attending preschool become more visible in their communities. This does not make visible all abuse in homes, and all too frequently brings up accusations of abuse which are unfounded, rooted only in misunderstanding or disagreement regarding how to live life without harm. However, public preschool increases the opportunity for detection of abuse, especially in the context of mandated reporting (Palusci et al., 2016). Involvement with a healthy educational environment also increases the potential for positive peer effects; either parents or guardians learning by example or deciding to moderate behavior known to be objectionable to better conform to community standards and avoid the potential hassles associated with failure to assimilate. Trauma can have long-term effects, including reduced potential for neurological development. Educational opportunities are not known to cure or alleviate symptoms of Post-Traumatic Stress Disorder (PTSD) in and of themselves (Van de Kolk & Pratt, 2015). It is also true that many young children enduring trauma as young children will still be in situations of trauma during their preschool years. Foster care systems focused on reuinification and the time involved in ascertaining the veracity of abuse claims results in less than instantaneous cessation of situations involving abuse (Chambers et al., 2018). People also experience post traumatic growth. Potential for such growth can be expected stronger in a dandelion than an orchid. One precept of positive psychology is that traditional psychology focuses too much attention on pathology at the expense of understanding health (Seligman & Csikszentmihalyi, 2014). Health, or positive psychology, is understood as different from rather than the opposite of illness, or psychology rooted in the diagnosis of harming difference. Positive psychology has suggested that human beings gain knowledge, skills, and abilities routed in resilience as a result of adversity. Deliberately cutting off formal education in order to ensure that children at risk continue to experience adversity because of the expected benefits in resilience is obviously unethical and more than likely counterproductive. However, the fact that post traumatic flourishing exists creates a chink in in the armor of neuroscientific emergency-based arguments for publicly provided or supported early childhood education.

2.4 Competitive Parenting

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Competitive Parenting

The first decades of the twenty-first century augmented an additional wrinkle to the dynamic of the emergency of early childhood education. Parenting expectations changed substantially during the decades surrounding the turn of the millennium (Craig et al., 2014). Despite repeated and empirically validated improvements in the overall safety of children in both the United States and Canada, social norms regarding level of expected parental effort necessary to protect children increased dramatically (Bristow, 2014). Owing in part to advent and expansion of the internet, the very real trauma and danger experienced by some children became interpreted as increased risk to all children. This inspired fear responses focused on short term goals tangential to immediate survival as opposed to excellence in long-term planning for many parents, communities, and, arguably, societies at large. One way of addressing short term fears focusing resources on immediate and short-term solutions to the perceived danger. Attending to the fear of disaster during early childhood at a time and place where children are particularly likely to survive to see their fifth birthdays includes investing more in formal education for children at a much younger age than ever in the past (Darmstadt et al., 2018). Expenses associated with preschool programs are not exclusively economic. As education becomes more formal, expected investment of parental attention, energy, and effort into the school’s operations also tends to increase, resulting in a parental feeling of having worked even harder to alleviate danger to the child. Furthermore, gaining social control over other people’s children is a double-edged sword from this point of view: while the socializing effect of preschool education on children (generally unfairly) understood as more likely to present danger might be expected to decrease perceived danger, exposure to the same children would (equally unfairly) be also likely understood as associated with increased danger resulting from peer interactions. Competitive parenting sharpened in recent decades (Murphy et al., 2016). While by no means new to the new century, perceived escalation of this completion became more pervasive, particularly in popular culture. For example, a commercial for the infant formula Similac, which began airing in 2015, centered on the theme of not judging parenting choices made by other mothers. While obviously primarily designed to counter the growing tendency to judge mothers who do not (exclusively) breastfeed their infants, the underlying message was that mothers in particular generally engage in competitive parenting. Later in the same year, a book entitled Primates of Park Avenue: A Memoir was released with considerable fanfare. Though set in a rarified and extreme social environment, a core theme of the text was that the wives of the wealthiest men in New York actively engage high stakes competitive parenting. This version of parenting focuses almost entirely on the (perceived) success of one’s own children, without much regard for the welfare or experiences of other children. While in part embracing the argument of critical periods and the Orchid versus Dandelion hypothesis, this type of parenting concentrates the consideration of the degree to which these effects or distinctions matter on the particular

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needs of an individual child viewed through the ego centered lens of that particular child’s parent. This dynamic of rising expectations for parenting and conflicting options on how to nurture children undermines the creation of uniform early childhood education policy. In considering the existence of a neuroemergency in early childhood education, interests of all children can be difficult to define and disentangle from prevailing parenting practices.

2.5

History of Early Childhood Education Policy

Publicly provided education expanded tremendously over the course of the nineteenth and twentieth centuries. In the United States, education was historically considered the purview of local governments. Though not overlapping with local governments, school districts connect to local communities and the attendant identity of the community in question. Funding for public schools historically drew heavily from local tax bases, especially property taxes. Since state and provincial governments define and authorize local governments, an advisory role for the state was also woven into the initial design of public education schools. States became gradually more accepted leaders of education policy including curriculum and assessment during the twentieth century, in part as a mainstay against centralization of education in the national government in spite of the creation of a department of education in the national government. In Canada, education is similarly administered at the provincial level with regard to curriculum and policies. Acceptance of a role for the national government in education is even less in Canada than in the United States. Over time, concern about disparities in quality of public education grew. A series of court cases in both Canada and the United States ruled in favor of forced increases in efforts to decrease systematic disparities in education. Furthermore, as national identities and the role of the national governments evolved, national education policy subsystems emerged and expanded. For example, the national government of the United States has included a Department of Education since 1979 (an earlier Department of Education existed for a brief time during the Reconstruction Era after the American Civil War). In 2019, the mission of this department as published on the Department of Education website is, “our mission is to promote student achievement and preparation for global competitiveness by fostering educational excellence and ensuring equal access” (“Overview and Mission Statement of the U.S. Department of Education”, n.d.). Head Start, an early childhood education program targeting children holding less economic privilege, was initiated in 1965 as part of President Lyndon Baines Johnson’s ‘War on Poverty.’ President Johnson was deeply motivated by his experiences with poverty as a child and young adult in Texas. His first-person experience

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with the transformational effects of formal education motivated a life-long commitment to the enhancement and expansion of formal education programs. Persuasive anecdotes such as the lived experience of the most powerful person on the planet combined with the existing predisposition to prefer stories of those able to pull themselves out of extreme circumstances as go on to great success. Even though it was (and is) widely expected in the United States in particular that success is most nobly won by those who pull themselves up by their own bootstraps, statistical analyses routinely demonstrate that “children who started school with disadvantaged families had worse average performance that other children even if their parents’ situation improved subsequently” (Currie, 2001, 16). Making best use of access to public education systems became a part of the common narrative of self-made success. Head Start policies cemented early childhood education into the public education policy subsystem, including both programs provided specifically under this policy initiative and other programs. Early childhood education programs did not long go unquestioned, however. Great Society Programs were among the first to be examined through modern policy analysis techniques. The implementation of this ambitious set of policies coincided with both broader access to computers and scholars working specifically in policy analysis (as opposed to political science or public administration). A key disciplinary concern of policy analysis involved the relationship between the causal model underlying policy design and the results observed as a result of having implemented said policy. Scholars such as Aaron Wildavsky and Jeffrey Pressman studied the implementation of Great Society programs in Oakland and declared themselves amazed that federal programs with ambitious goals were implemented at all. Wellcrafted analyses searching for population level impacts of programs seeking to create fundamental change in the lives of individual children and families have difficulty finding these effects given the number of variables influencing the development of a child. Evidence that early childhood education programs may not work has proven difficult to accurately interpret. Studies have suggested that after the first few grades of schools, higher standardized test scores initially achieved by those who attended Head Start programs as compared to those children experiencing similar socioeconomic conditions vanish by the end of elementary school. This may result from overwhelming influence of variables such as ongoing stress and trauma as well as entry into less well implemented education programs present in some public elementary schools. However, it is also true that scores on standardized tests should not be confounded with brain development or potential for development. Analysis of what standardized tests actually measure demonstrate that they serve better as proxies for the socio-economic environment or cultural environment in which a child lives than intelligence per se. Acceptance of standardized tests as proxies for benefits derived from quality education programs is tied more firmly to the belief structures of issue stakeholders than they are to demonstrated validity of the testing instruments themselves.

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Beliefs About Childhood

Childhood development involves belief in selected articles of faith. When parents discuss choices made in the raising of their children, these choices tend to be articulated as a matter of belief (Skenazy, 2009). Diversity of belief characterizes twenty-first century America. Movement toward consensuses to reflexively take advice of scientific experts or religious leaders has faltered, especially since the advent of the internet. While always rather popular in North America, dissenting opinions from those of the experts gained power with the introduction of lower cost, higher access publishing and communication platforms. Celebrity preferences for some theories—even when hardily discredited through scientific study—become amplified through electronic communication. Theories about neurological development in early childhood are vulnerable to transmission of less solidly founded beliefs. Of particular notoriety are theories about negative effects of vaccinations on neurological development in children, especially that autism results from early childhood education in some children (Kata, 2010). Notable proponents of these anti-vaccination beliefs included Jenny McCarthy and Robert F. Kennedy, who encouraged parents to question the need for vaccines, resulting in declines in vaccination rates across North America and, for example, vaccine refusal during the Covid-19 pandemic. Typical policy proposals to work with those who oppose vaccinations—increased investment in educating the general public about the interpretation of reality supported by the current weight of scientific evidence—makes a type III error in answering the wrong question (Kata, 2010). When it comes to the influence of neuroscience on the general public’s understanding of the development of children’s brains, belief (if not myth) often dominates and is, potentially at least, strengthened as opposed to diminished by fervent articulation of the scientific evidence. This tendency is discussed as extremely recent in both scholarship and the popular press. However, it has been developing for decades. In 1978, Quine and Ullian wrote “we are in an age when it is popular to distrust whatever is seen as the established view or the Establishment, and it is no wonder that anti-rational attitudes and doctrines are mustering so much support” (4). Part of this tendency involves rational reaction to other overly enthusiastic interpretation of scientific claims later either disproven or reinterpreted. Governments in democracies have experimented with science-based policies, too often without full consideration of the harm that the population or individuals incurred as a result of the enthusiastic implementations of these policies. For example, in the United States nascent understandings of genetics were used to justify forced sterilizations of those who were expected to produce children fully destined to become undesirable members of society. The right of governments to decide who may not procreate was challenged all the way up to the United States Supreme Court. The decision in 1927 in Buck v. Bell upheld states’ ability to enforce compulsory sterilization of those determined to be not worthy of contributing to the future gene pool of the human race, in particular those whose neurological development as children or young adults was observed as being

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substandard. The neuroethical policy divide of early childhood education retains enduring marks of this devastating state intervention in the reproductive decisions of families. These marks range from an increased enthusiasm for public demonstration of eagerness to make sure a child’s development is on track through especially active participation in publicly provided or regulated early childhood education programs to utter avoidance of government participation/observation of a child’s unfolding development. Several decades have passed since public officials made these decisions. Several decades constitute several generations of scientific discovery and, as a result, scientists become quite comfortable with dismissing and forgetting scientific results of that era (Hossenfelder, 2018). Both human history and policy development move more slowly, however. Harm caused by a friend or family member two or three generations back is within human lived memory. Forgiving the source of the harm, generalized as the scientific community, might be expected to be difficult at best (Skloot, 2011). Caution about statements and sentiments from experts’ rates rational from this perspective. It is also part and parcel of the scientific process rooted in positivist hypothesis testing. The neuroethical policy divide surrounding arguments about early childhood education on the basis of the neuroscience of critical periods revolves around the complicated relationship between tenacity of belief and the tenuousness of scientific findings as interpreted and applied in a maturing democracy. Management of doubt also connects to human neurological limitations. Humans are the only known species to build knowledge consciously through falsifiable scientific experiments gradually building reliable insight over periods in excess of any of our lifetimes. However, we struggle to understand that contemporary knowledge is as fallible as the knowledge of the past (Klosterman, 2016). Furthermore, our brains appear to have a greater capacity to conduct than to fully comprehend building of knowledge (and, possibly, wisdom) using the scientific method. For example, human brains struggle with even the most fundamental questions of probability unless we take the time to express the situation using learned mathematical equations and have the proper training to interpret the results. Once written in the language of mathematics our brains become more able to correctly understand situations, even if belief-based doubt remains. One of the most famous examples of this challenge involves the scenario in which a game show contestant is given the opportunity to choose from three closed doors, only one of which has a prize behind it. In the scenario, after the initial selection of a door, the game show host opens one of the losing doors. The contestant then has the opportunity to stay with his or her original selection or change doors. Even though the mathematics of probability clearly tell us that the originally unselected door has a 1 in 2 chance of being the prize winning door as compared to the 1 in 3 chance of the originally selected door (given that the host is aware of which door is the winning door and is always going to open a losing door). Human brains simultaneously understand that a 50% chance of winning is much better than a 33% chance of being successful in our endeavor and changing doors leads to this kind of advantage is spooky at best (Taleb, 2010).

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Even so, people rarely take the time to express situations using the language of mathematics beyond simple arithmetic, even when they have received sufficient mathematical education to do so. Our brains are challenged by counter-probability biases such as the availability bias (our tendency to judge the likelihood of something happening based on our ability to think of an example of it occurring) and our failure to consider base rates when comparing multiple probabilities (Novella, 2013). Updates of these probabilities resulting from new experience or information contributes to certainty of belief. Furthermore, as Quine and Ullian stated decades ago, “it is important to distinguish between disbelief and nonbelief—between believing a sentence false and merely not believing it is true” (Quine & Ullian, 1978, 12). In the context of publicly provided early childhood education the relative pace of scientific versus a given child’s development and the sheer number of programs and individuals affected by nationally directed education policy create a credibility advantage from gut feeling, tradition and belief, even if that belief rests in questionable and dated neuroscience. Beliefs in this context become difficult to express in welldefined probabilities, even if a person were willing and able to do so.

2.7

Nature and Nurture

Belief about neurological development in humans involves taking an at least tacit position on the nature versus nurture (so-called) debate. Positions in this conversation connect to understanding of human intelligence and, by extension, neuroscience. Beliefs about the relative effects of nature and nurture also influence preferences regarding publicly provided or regulated early childhood education policy. In this debate, existence or absence of sufficient neuroplasticity for ongoing individual improvement becomes a twenty-first century version of articulation of this question. The debate of the relative influence of nature and nurture did not originate in the twenty-first century. Genetic heritability of traits was not understood in the scientific sense prior to the invention of genetics initiated through the experiments of Gregor Mendel and was brought to an uneasy sense of fruition through the mapping of the human genome a century and a half later. Nevertheless, some version of the importance of parentage has long been obvious to human beings. Selective breeding of animals resulting in the creation of numerous breeds of both plants and animals proved centuries of evidence of the simple fact that selection of parents results in differentiation of offspring. Most famously, the human domestication of dogs is pointed to as an example of intentional breeding for traits in which humans engaged long before Mendel. This does not mean that the mechanism by which inheritance takes place has long been understood. It is something of a stretch to argue that we understand it now, particularly given more recent findings about epigenetics finding changes to the genomes of humans not connected to natural selection such as epigenetic impacts on the grandchildren of Holocaust survivors (Kellermann,

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2013; Thomson, 2015) and to the descendants of individuals exposed to chemicals (Nilsson & Skinner, 2015; Rissman & Adli, 2014). The nature versus nurture debate creates a falsely limiting binary. This sort of logical fallacy proves relatively common in human thought (Novella, 2013). This thinking error introduces artificially created mutual exclusivity of two causes into a reality likely governed by both factors and, in addition, separate effects of their interaction. Both nature and nurture affect how organisms develop; throughout childhood and beyond. As Shonkoff and Phillips explain “the long-standing debate about the importance of nature versus nurture, considered as independent influences, is overly simplistic and scientifically obsolete. . . scientists have shifted their focus to take account of the fact that genetic and environmental influences work together in dynamic ways over the course of development” (2000, 6). At the very least, nature and nurture interact dynamically with highly variable degrees and hardly in a fashion permitting fully deliberate manipulation of such interactions. Interactions of choice and chance underlying any blame-oriented response render impossible any coherent understanding of the logic behind this blame. These dynamics also powerfully affect willingness to promote early childhood education policies. Furthermore, cutting edge findings about human genetics strongly suggest that the nature component of our design as human beings is far less immutable than once imagined. Traditional understandings of genetics considered the individual’s genetic composition more or less fixed, particularly in the version of science typically taught to the general public. Genetics are bequeathed by an organisms’ parent(s) and then transmitted to any offspring, period. In this traditional understanding of genetics, dramatic changes in genetic legacies emerge from mutations—errors in the replication of genetic materials—result from random events and could take generations to have a detectable influence on the population of the species in question. New findings regarding epigenetic influences fundamentally transform these frameworks (Kellermann, 2013; Nilsson & Skinner, 2015; Rissman & Adli, 2014). For example, research on the inherited characteristics rooted in the lived experiences of grandmothers reconstitute our understanding of the genetic effect of nurturing, extending it far further into the past than a person’s lifetime and involving more than only the family members with which an individual directly interacts. Of course, distinguishing between physiological and psychological influences of these legacies would be difficult at best given current technology, health care, and rights-based, privacy-oriented governance (Bezo & Maggi, 2015). The presence of non-homo sapiens genetic information in the human genome also serves to demonstrate potential slippage in the genetic legacy brought about through human breeding. These findings emphasize that human procreation has been generally less simple or intentional than we have traditionally wished to believe after the fact. As the general public has been consciously aware for at least the past several decades, nurturing also begins prior to birth. Prenatal experiences have been demonstrated to affect childhood brain development, including the capacity for ongoing neurogenesis (see for example Bruton, 2013; Zheng et al., 2015). However, the implications of these exposures on lifetime potential remains somewhat ambiguous but also been vastly exaggerated in public discourse. Mostly notably the so called

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and disproven “crack baby” phenomenon (Reel & Athan, 2015; Workman et al., 2015) did not include reliable data on how much exposure specifically affects brain development. While prenatal exposure to a variety of both legal and illegal substances can be detrimental to brain development, neuroscience alone has not been able to fully evaluate how these experiences impact brain development on all individuals given the large number of confounding variables affecting individual experiences. The foregone conclusion of the universally serious effects that drove public policy proposals and design especially as part of the War on Drugs have not come to pass (Alexander, 2020; Hari, 2015). In relation to both the ethics of testing drug exposures and larger issues around our understanding of brain chemistry and development. Whereas parents, especially mothers, have been strongly encouraged (if not legally required) to begin nurturing children they intend to bring into this world while before their births through both positive actions and risk avoidance, the long-term implications of these decisions are often less well established scientifically than socially. Nature and nurture not only work together but ultimately come down very much to two parts of the same whole. Genetic legacies can be altered by experience and experience is altered by genetic legacies. Nurturing extends well beyond the individual, in the moment decisions of one parent working with one child. For example, use of lead in paint decades ago may hinder the brain development of a toddler born in the twenty-first century (Neuwirth et al., 2020). By the same token genetics are altered much more immediately than once believed. This history of these findings is both long enough to support hardily entrenched, intractable belief and short enough to warrant suspicion and confusion. The weight of current scientific evidence across fields ranging from psychology to endocrinology suggest that the debate between nature and nurture as the dominant force affecting human development will perpetually volley between these two so long as there is insistence that one must dominate the other. Nature and nurture work together in a myriad of entwined ways. Negotiating the neuroethical policy divide tied to new findings about human neurogenesis will have to work around rather than depend on a settling of this issue in either public or scientific discourse.

2.8

Public Paternalism

Public provision or regulation of early childhood education depends on social concern for children extending beyond the children in own’s one family. This interest may be rooted in a variety of core values, ranging from a sense of moral obligation to humanity to a desire to save public funds in the long run. Regardless of motivation, early childhood education policy becomes easily entangled with paternalism. A key ethical question nicely phrased in the Stanford Encyclopedia of Philosophy in this paternalism is: “What is the trade-off, if any, between regard for the welfare of another and respect for their right to make their own decisions?” (Dworkin, 2002). This question is complicated by the existence of at least two actors

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with agency in virtually any question involving the rights of a child, the child, and his or her parent. Parenthood includes the presumption that the parent speaks for the child in most circumstances. Public education policies deliberately supplant part of this presumption by determining what children should learn with often quite minimal input from parents. Making such decisions creates state paternalism. Dworkin distinguishes between soft paternalism and hard partneralism. According to this taxonomy, “soft paternalism is the view that the only conditions under which state paternalism is justified is when it is necessary to determine whether the person being interfered with is acting voluntarily and knowledgeably” (Dworkin, 2002). If the people interfered with in regard to early childhood education policy includes the parent in addition to the child, the question for early childhood neuroethical policy divide becomes even more firmly centered on the degree to which the neuroscience used to argue for the policy reflects the weight of current scientific consensus. Of course, a child attending formal education is being interfered with only if participation alters what the family otherwise planned. Given that a large percentage of children in contemporary societies do not have family members available to stay at home with them throughout the day, potential for interference could be considered either less relevant given existing regulations. However, families relying exclusively on parent (or family) care for young children tend to understand the choice to stay at home as at least partly a sacrifice, articulated in either economic terms or in the professional development of the parent (s). Some mothers have been especially vocal on this point, sometimes to the point of degradation of other parenting choices (Skenazy, 2009). Even so, such differences in parenting choices reflect that the social fiber of North American societies includes, for most parents, active decisions about preschool attendance. The neuroethical policy divide surrounding early childhood education generally rests outside of the parameters of soft paternalism for all but neglectful parents in both Canada and the United States. Dworkin’s conception that “a strong paternalist believes that people may have mistaken, confused or irrational ends and it is legitimate to interfere to prevent them from achieving those ends” (Dworkin, 2002). This paternalism involves the justification that “sometimes the individual’s (long-run) autonomy is advanced by restricting his autonomy (short-run)” (Dworkin, 2002). Dependence on neuroscience regarding critical periods during early childhood in order to curry support for expansion of early childhood education can be motivated and supported by strong paternalism, especially when advocates consider themselves advocates for the child before (or over) the parents. This is considered especially necessary when a parent is making bad decisions before the child is able to make decisions independently. Dworkin explains this attitude as New or Libertarian, which holds that “since people were such bad decision makers we should nudge them in the direction of their own desired goals by orchestrating their choices so that they were more likely to do what achieves their ends” (Dworkin, 2002). Nudging people toward decisions might therefore involve employing a persuasive useful construct even if weight of scientific evidence no longer supports the initial construction. Policy design involves

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organization of arguments supported by a variety of stakeholders including, but not limited to those supporting design elements inspired by cutting edge science.

2.9

Construction of Early Childhood Education Policies

Early childhood education has been defined as education for children between the ages of six weeks and eight years (Valentine, 2014). Mandatory education does not begin in kindergarten in many districts in North America. Early childhood education involves not only cognitive development but also social, physical and emotional development. Early childhood education can be confounded with day care, especially since the two can be co-located and because many professional day care providers also include at least some educational opportunities for children in their care. For the purposes of this book, early childhood education is formal and deliberate efforts engaged prior to the start of kindergarten including at least some government regulation or provision. In the United States and Canada, publicly provided early childhood education is also sometimes referred to as pre-Kindergarten. The work of Jean Piaget (1896–1980), a Swiss philosopher focused on the psychology of child development, strongly influenced the design of early childhood education in North America. Piaget’s theory of childhood development described early childhood as a time where children should be allowed to construct rational and logical thought over time with minimal intervention (Stipek, 2013). During the 1960s and 1970s research into the learning capacities of children ran in tension with this understanding of the best approach to assisting young children with learning. Structurally similar to the nature versus nurture debate, debates with regard to the level of guidance/interference necessary to help children learn raged and resulted in multiple changes and reversals. This conception of early childhood development exists in modern articulation of policy. For example, state resources about early childhood education policies in Minnesota describe: Young children are capable and competent. Development occurs in predictable patterns. Children are individuals who develop at different rates. Many factors influence a child’s development. Children exhibit a range of skills and competencies within any domain of development. Expectations for children must be guided by knowledge of child growth and development. Young children learn through play, interaction with others, and active exploration of their environment. Families are children’s first and most important caregivers and educators (Backer, 2005, 3).

As is discussed above, developmental domains of early childhood interrelate and interact with a plethora of experiences and environmental factors. Realization of this somewhat contradicts notions of neuroemergency of early childhood education. Programmatic information on government websites also reflected this aspect of early childhood. For example, information from the Illinois State Board of Education stated as follows:

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Regardless of children’s backgrounds and experiences, teachers are intentional in matching goals and experiences to children’s learning and development and in providing challenging experiences to promote each child’s progress and interest. There should be high expectations for all young children so that teachers help them to reach their fullest potential. Children are individuals who develop at different rates. Each child is unique. Each grows and develops skills and competencies at his or her own pace (“Illinois Early Learning and Development Standards”, 2013).

A similar statement from the State of Virginia Department of Education reads “the linkage between nurturing early experiences and cognitive development has been strongly confirmed by recent research on the infant’s developing brain, thereby stressing the importance of healthy, safe, and supportive environments that foster children’s ability to reach their fullest potential” (“Milestones of Childhood Development”, 2013). While this description does not directly state a child becomes unable to reach their potential in the absence of high-quality preschool, it certainly communicates a strong sense of urgency with regard to state intervention in the environments experienced by young children. Furthermore, the state of Illinois also communicates that a failure to provide or access early childhood education has adverse economic consequences. As described on the State government website: Research shows that children with a solid educational foundation in their first five years are significantly more likely to be successful in school, college, career and life. Governor Quinn created the Office of Early Childhood Development in 2009 to focus the state’s efforts and maximize its investment in early learning programs. Quality, early childhood education is a cost-effective strategy to promote growth. Every dollar invested in early education saves $7 in special education, public assistance, corrections and lost taxes (“About Us”, 2019).

It is worth noting that this statement does not assert any connection to the neurological development of the child. In this case, the economic argument, especially the potential for increased public cost drives if defined as a problem deserving public attention and investment. However, state and provincial government websites examined in the second decades of the twenty-first century were also found to include position statements on early childhood brain development. These statements reflect the belief that brain development should be factored into the design of policy formulating provision of early childhood education. For example, Washington State’s website reads, “extensive research shows the first five years of life greatly influence one’s eventual selfconcept, ability to trust and relate to others, healthy brain development, and success in school” (Washington State Department of Early Learning Staff, 2013). In another document from September 2010, the Washington State Early Learning Plan, the Executive Summary states: Research tells us that development of the brain is the most intense from birth through age 3, and that a child’s brain builds itself in response to children’s experiences. Brain circuits that the child uses in daily life are strengthened. Those not used fade away. A crucial factor in building the child’s brain is the nurturing the child receives, and responsive relationships with parents and caregivers (2010, 3–4).

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Similarly, the Council on Children and Families from New York State states “recent research proves what we’ve known for a long time: early childhood matters! Brain research has shown that 75% of brain growth and 85% of intellect, as well as personality and social skills develop before age five; and at age four, a child’s ability to pay attention and complete a task strongly predicts the likelihood of graduating from college by age 25” (Early Childhood Advisory Council, n.d.). Another statement from a New York state document reads, “whereas, research in human development and neuroscience indicates that ninety percent of brain development occurs during the first five years of life, making it crucial that children be provided high quality learning experiences in the early years, so they can grow healthy, productive, contributing members of society” (“Provider Appreciation Day”, 2014). Similarly, information available on a Yukon website states “healthy development is really all about the brain. . . between birth and age 4, the brain triples in size, and about 700 connections between brain cells are being made every second. . . the formation and pruning of connections is shaped by the child’s environment and experiences. . . the early shaping of the brain’s architecture shapes the child’s future” (Hanley, 2013). While not referencing critical period theory directly, the implication of such statements is that without early childhood education, children do not grow up to fulfill their potential as members of the society or participants in the economy. Yukon’s website also asserts, however: We can’t say enough about the importance of the first 3 years of life in terms of brain development and setting the stage for learning, social r elationships, and health throughout life. When we get it “right” during the first few years, we pave the way for a brighter future and build resiliency that helps kids bounce back from setbacks, disappointments and adversity (“Healthy Babies, Healthy Brains”, 2019).

A document entitled Report of the Expect Panel on the 18 Month Well Baby Visit data from September 2005, but still available to the general public from the Ontario Ministry of Children and Youth Services in the fall of 2016, emphatically asserts critical periods using citations from the late 1990s. The document states: Iin fact, brain development in the first three years sets the base of competence, and will affect learning, behaviour and health throughout life (McCain & Mustard, 1999). Child development is one of the determinants of health. . . There are critical periods when young children need appropriate nutrition and stimulation to establish the neural pathways in the brain required for optimal development—that is, for them to be all they can be and achieve their full potential. Many of these critical periods are over or waning by the time a child is six years old (Geiling, 2005).

While it is perhaps reasonable to expect that readers in the general public would not take note of the date of publication, this report was in no way marked archival or made available only for the purposes of transparency. More fuzzy notions of a critical period suggestive of strong foundation in the neursoscience were found on other state and provincial websites as well. For example, on the Department of Education website for the State of Massachusetts development of the human brain was explained by means of the analogy as follows:

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Ethical Challenges for the Twenty-First Century

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The latest science shows that these early experiences actually build the architecture of the developing brain; much like a house is built from the bottom up. Children’s earliest experiences are especially important because building the human brain begins even before birth; a strong foundation in early years greatly increases the chance of long-term positive outcomes (“Early Education and Care”, 2014).

A document from Prince Edward Island communicated a longer critical period, but held on to the bleak notion of missed period in stating “research shows that who and what a child becomes is mainly determined from birth to age 8” (Naomee, 2013, 158). Information provided by governments also shed light on more recent neuroscience connecting to less time limited potential. For example, information avialable on the wesite for British Columbia states, “New discoveries in brain science tell us that the human brain is ‘plastic’ (able to be shaped and to change) throughout our lives, and especially in our early years” (Safe Babies Program, 2011). Such statements better reflect how balancing our understanding of the implications of rapid neurological development in early childhood with the potential for brain development throughout life is an ongoing challenge in neuroscience and the design of early childhood educaiton policy.

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Ethical Challenges for the Twenty-First Century

Neuroscientists did not long generally hypothesize a limited and brief period of human neuroplasiticity or neurogenesis. Even during the 1990s, skeptics pointed out that brain development was being mischaracterized, especially through examination through a reductionist lense (Bruer, 1999). However, the belief has been difficult to dislodge from public conscious and remains present in publicly provided information. Influence of a given intrepretation of science is not necessarily correlated to duration of acceptance by the scientific community. Birth to Three Programs continue to claim that 90% of brain development happens before age three and to communicate a neuroemergency of early childhood solved best through formal education. Science builds on error whereas the public steadfastly determined to misunderstand this. As demonstrated by public responses to the Covid-19 pandemic worldwide, many also lack patience for the gradual progress of science. As Shonkoff and Phillips wrote at the beginning of the twenty-first century, “one of the distinctive features of the science of early childhood development is the extent to which it evolves under the anxious and eager eyes of millions of families, policy makers, and service providers who seek authorative guidances they address the challenges of promoting the health and well-being of young children” (2000, 1). In public policy development, it is possible to be right about an effect while misunderstanding the cause. As previously discussed with regard to Head Start Programs, the evidence is mixed. Some evidence of long-term positive effects of early childhood education exists. A 2011 article in Science examining 1400 young adults in Chicago twenty-five years after they completed preschool whose family of

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origin found that especially young men with parents who did not graduate from high school achieved markedly more success in young adulthood if they had attended preschool (Reynolds et al., 2011). Significant health improvements for, especially males, in their 30s have also been linked to participation in preschool as children (Campbell et al., 2014). This does not mean, however, the positive effect came about as a result of being taught skills and information at a particular and unique stage of brain development. In other words, in this particular case, 1990s policy design may be proven successful despite being designed in response to disproven neuroscience. Early childhood education helps, but not because of a neuroemergency surrounding missed critical periods. The neuroethical policy gap surrounding the belief in a neuroemergency in early childhood education surrounds the ethical challenge employing a useful policy frame once the evidence supporting that framing weakens. Reframing policy debates can be incredibly costly, especially in a context where there is an expectation of two (and only two) positions in play on any given issue. When the solution has proven useful and beneficial, tolerance for correction of framing in response to still incomplete science wobbles given positive program outcomes. Laying aside the flawed assertion that every political discourse is best framed from a perspective of two, diametrically opposed sides, this perspective does not serve conversations about science well at all. Presenting scientific questions as two sided debates communicates the message that both sides of the discussion are pursuing knowledge using similar scientific protocols. Modern science is based on the principle of falsification. Scientific knowledge builds out on the basis of interpretations of observations that have not been proven wrong. In other words, no interpretation, regardless of how broadly it is accepted is understood as unasailably true (an article of faith). Those pursuing scientific knowledge have the responsibility to work as hard as they are able to prove the asserted claim could be false. Claims are expected to be as conservative, cautious, and open to skepticism as possible. Unfortunately, situations in which two opposing sides of a scientific debate are being presented in public forums often do not include two viewpoints coming from a scientific perspective as defined by scientists. Instead, one side of the debate is presented by an indvidual or individuals committed to an understanding of reality rooted in an article of faith (Novella, 2013). In the case of early childhood development, tying early childhood education to critical periods has become a faith-based proposition. There are other ways of understanding the importance of early childhood education, less overtly dependent on neurology. Advantages to starting earlier simply because the person has more time to develop skills and increase knowledge arguably exist. While this approach can be overdone when the brain is insufficiently developed to actually acquire the abilities in question—it presumably does little good to attempt to teach an infant calculus or ballet—the basic skills and knowledge necessary for many activities can be initiated at quite early ages. A child that starts kindergarten having spent significant time learning basic literacy skills will generally outperform a child who comes to kindergarten without having exposure to such activities. Even in this, however, a tipping point exists since play activities forgone

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Looking Ahead

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may also hamper development. As the neuroscientific certainty fades away, so does the rigidity of the policy solution. Flexibility of access could potentially provide for early education while not characterizing children who do not engage in such education as lost causes.

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Looking Ahead

Enhanced attention to children serves the greater good. Engagement with children both within and beyond the individual’s family creates opportunities earlier, reinforces collective infrastructures and positions a population to maximize social capital. As pointed out in, for example, the literature of servant leadership, care has become increasingly coordinated and delivered through national and subnational governments over time. Care of the vulnerable has become a national—if not even global—responsibility no longer considered the exclusive province of the family. A focus on prevention of misfortune also nurtures the strength of spirit of a society. Human beings thrive in agency. They resist powerlessness through behaviors ranging from the self-destructive to disengaged distraction to the outright revolutionary. Collective responsibility for care implies a similarly collective culpability for undesirable outcomes. In both the United States and Canada, awareness of these responsibilities creates broad tensions between collective and individual rights. For example, on April 16, 2013, Rick Santorum posted commentary on his website entitled “Children Belong to Parents Not Government,” including a photograph of President Obama high fiving a young student inside a classroom. The commentary stated: In 2005, I wrote a book, called “It Takes a Family,” about the importance of a strong family in raising children and imparting virtue. The title was in contrast to a well-known book Hillary Clinton wrote, “It Takes a Village,” which offered a very different approach to raising children. She believes, as many on the left do, that the family is secondary to institutions and governments when it comes to looking after the interests of children. Karen and I disagree (Santorum, 2013).

On the other side of the political spectrum on September 12, 2013, Melissa HarrisPerry posted on the MSNBC website a commentary entitled “Why Caring for Children is Not Just a Parent’s Job,” a response to criticism she had received for stating that children are a collective responsibility. Her commentary read in part: My inbox began filling with hateful, personal attacks on Monday, apparently as a result of conservative reactions to a recent “Lean Forward” advertisement now airing on MSNBC, which you can view above. What I thought was an uncontroversial comment on my desire for Americans to see children as everyone’s responsibility has created a bit of a tempest in the right’s teapot. Allow me to double down. . . . One thing is for sure: I have no intention of apologizing for saying that our children, all of our children, are part of more than our households, they are part of our communities and deserve to have the care, attention, resources, respect and opportunities of those communities (Harris-Perry, 2013).

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Setting aside the problematic issue of “ownership” of human beings and recognizing if children belong to anyone it is ultimately to themselves, the essential debate present is the foundational tension surrounding the neuroethical policy divide discussed in this chapter. Since no consensus exists as to whether or not the state has a cause or right to obligate early childhood education, the focus becomes instead providing rational, largely economic reasons underscoring a state interest in investing in early childhood education due to the cost associated with widespread delays or stunting of neurological development in children resulting from too-late exposure to formal education. Contemplation of opportunity cost differs from contemplation of return on investment. In the microeconomic framework, opportunity cost refers to the difference in economic advantage of one type of investment as compared to the next best available option for investment. This calculation lends itself well to a circumstance of limited time opportunity to invest toward a crucial social and economic good such as the ability of a child to fully develop to his or her intellectual potential. If a critical period existed after which a child could no longer create the brain capacity necessary to function in a knowledge economy, the opportunity cost of not investing in universal early childhood education is indeed quite high. If, however, the brain potential of a child is fully recoverable at any point in life, then doubts about the opportunity cost emerge. Return on investment considers, instead, the amount of economic benefit received for a given level of economic investment. Presentation of the results of such estimations occurs frequently on the (more or less) frustrated margins of discourse regarding the investment in education. Owing perhaps to the seemingly tenuous connection between the promise returned and the purported cause, the persuasiveness of these arguments had been historically rather limited. This is especially true when considered from the perspective of the elected official. After all, the time between now and the next election never matches the time it takes for a child to move from preschool to adult employment. However, return on investment could be calculated using even a shorter horizon. There are, for example, efficiencies to be gained from having most children similarly educated by the time they reach kindergarten. While it is all too likely true that the North American emphasis on early childhood academic achievement does not pay the dividends anticipated in the long run, persuading more privileged and educated members of American society to avoid formal education for their preschool aged children constitutes a supremely unlikely prospect. Given that children of the privilege will arrive at kindergarten having had access to formal education, efficient and effective education of the general populace rooted in an approach tied to chronological age, would tend to follow from provision of early childhood education to the general population. Consideration of the question of early childhood education runs the risk of creating a false dichotomy. Quality of education is typically understood as highly varied. Quality of education provided to groups of people is difficult to evaluate in the moment. Factors such as the period of time a teacher waits in any given moment for students to offer an answer to a posed question, the blend between lecture and discussion, and the instructor’s chosen proximity from students appearing to not pay

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Conclusion

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attention have been demonstrated to affect quality of instruction. These factors prove difficult to both observe and describe. Also, because many of these behaviors become habitual in experienced, successful instructors, even those delivering the education may be largely unconscious of their use in teaching. Consideration of the counter factual also becomes important. Supportable arguments for preschool education may have less to do with the benefit of providing education at a time when it is absolutely necessary to do so without running the risk of losing forever the opportunity to communicate a given set of knowledge, skills or abilities to a particular child. Children not enrolled in preschool education may be involved in activities less likely to be beneficial to their development located all too frequently less stimulating environments than the idealized family home. Whether or not this makes a difference, particularly a negative one, is debatable. However, consideration of this dynamic potentially lends support to arguments for early childhood education. Consideration of this dynamic must, however, be taken in the absence of neurological myth to the fullest extent possible. After all, success with contriving stimulating environments has been far from perfect. Some evidence suggests that students from nations delaying the onset of formal education tend to outperform North American nations on standardized testing at the secondary level of education despite (and some would say because) of less time spent in formal education. Pushing entry into formal education earlier into the life course of the general population remains a complicated question. Luckily one lesson of contemporary neursoscience is that the impacts of less than perfectly designed experiences in early childhood are not invariably lifelong.

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Conclusion

In an analysis of categories of Francis X. Shen describes as “neurolegislation” proposed between 1992 and 2009 in state legislatures of the United States Shen found that 4% focused on early childhood, 9% focused on education, and 3% special education (2017). As Shen explained about these pieces of legislation sometime called neurolaws by other scholars, “one of the largest and most diverse categories of brain bills concerned education. Many of the bills at the end of the 1990s reflect a movement, which at the time did not provide entirely successful, to improve early childhood interventions on the basis of brain research” (2017, 511). Early childhood education remains highly desirable given its understood connection to social justice. Closing the neuroethical policy cap surrounding the neuroemergency runs some risk of reduction of support for early childhood education. Reduction of support could realistically most adversely affect children living in poverty or representing historical oppression. This harm is balanced against the harm incurred as children grow from creating an impression that human potential is time limited. Investing in the very young is, after all, no excuse or substitute for the choices regarding the opportunities provided to all young people.

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As discussed in this chapter, a gap in early education policy design does not mean that policy designers used bad science to formulate and promote desired policy ends. Neither science nor public policy is made for once and for all. Neureothical policy gaps extant in policy linkages depending on limited, evolving science cannot be ethically closed. In fact, if stakeholders perceive such a gap as finally, permanently closed, the problem could become worse. Instead, policies using brain science to provide for a well-established social need that might otherwise be neglected should be designed flexibly and with overt focus on the civil and human rights of those receiving services at least as much as the perceived long term economic value believed connected to investing in the neurological development of the populace.

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Shen, F. X. (2017). Minority Mens Rea: Racial bias and criminal mental states. Hastings LJ, 68(5), 1007–1084. Shonkoff, J. P., & Phillips, D. A. (2000). From neurons to neighborhoods: The science of early childhood development. National Academy Press. Skenazy, L. (2009). Free range kids: Giving our children the freedom we had without going nuts with worry. Jossey-Bass. Skloot, R. (2011). The immortal life of Henrietta Lacks. Broadway Books. Stafford, T. (2014). Can you live a normal life with half a brain? BBC. Retrieved from: http://www. bbc.com/future/story/20141216-can-you-live-with-half-a-brain Steel, D. (2015). Philosophy and the precautionary principle. Cambridge University Press. Stipek, D. (2013). Mathematics in early childhood education: Revolution or evolution? Early Education and Development, 24(4), 431–435. Swingley, D. (2008). The roots of the early vocabulary in infants’ learning from speech. Current Directions in Psychological Science, 17(5), 308–311. Taleb, N. N. (2010). The Black Swan: The impact of the highly improbable. Random House. Thomson, H. (2015). Study of Holocaust survivors finds trauma passed on to children’s genes. The Guardian. Valentine, D. S. (2014). Blythe Farb Hinitz, ed. The hidden history of early childhood education. New York: Routledge, 2013. p. 282. History of Education Quarterly, 54(1), 107–110. Van de Kolk, B., & Pratt, S. (2015). The body keeps the score: Mind, brain, and body transformation of trauma. Penguin Books. Washington State Department of Early Learning Staff. (2013). Gov. inslee declares parent education week. Retrieved from http://www.seattleschild.com/Gov-Inslee-Declares-Parent-Educa tion-Week/ “Washington State Early Learning Plan: Executive Summary.” (2010). Retrieved from https:// www.dcyf.wa.gov/sites/default/files/pdf/ELP_Exec.pdf Workman, J. L., Raineki, C., Weinberg, J., & Galea, L. A. (2015). Alcohol and pregnancy: Effects on maternal care, HPA axis function, and hippocampal neurogenesis in adult females. Psychoneuroendocrinology, 57, 37–50. Yu, F., Jiang, Q.-j., Sun, X.-y., & Zhang, R.-w. (2014). A new case of complete primary cerebellar agenesis: Clinical and imaging findings in a living patient. Brain: A Journal of Neurology. Retrieved from http://brain.oxfordjournals.org/content/brain/early/2014/08/22/brain.awu239. full.pdf Zhao, C., Deng, W., & Gage, F. H. (2008). Mechanisms and functional implications of adult neurogensis. Cell, 132(4), 645–660. Zheng, A., Li, H., Cao, K., Xu, J., Zou, X., Li, Y., Chen, C., Liu, J., & Feng, Z. (2015). Maternal hydroxytyrosol administration improves neurogenesis and cognitive function in prenatally stressed offspring. The Journal of Nutritional Biochemistry, 26(2), 190–199.

Chapter 3

Bullying and the Eye of the Beholder

3.1

Jacob’s Story

You can’t believe she just pulled a knife on you. You lean toward her face, the whites of her eyes are all watery, like she’s gonna cry. She looks like a big, fat, beached whale. “You feeling hangry today, Orca? You gonna cut me?” You take a step toward her, the plastic knife shaky in her fist, not steady like when Dad holds his woodenhandled knife. Mrs. Henley crosses the classroom in two strides and grabs Orca’s arm. “Aliyah, what are you doing?” “I can’t believe she just pulled a knife on me, Mrs. Henley. I wasn’t doing nothing. I was just trying to get to my coat,” you say but you don’t back up, daring her with your eyes.

3.2

The (Official) Story BULLYING INCIDENT REPORT FORM

Date of Incident: 9/28/2012 Type of Incident: ASSAULT Repeat infraction? NO Location of Incident: 6TH GRADE CLASSROOM Name of victim(s): JACOB FIELD BATEMAN

Name of student(s) bullying: ALIYAH

© Springer Nature Switzerland AG 2022 D. L. Baker, R. L. Baker, Neuroethical Policy Design, Studies in Brain and Mind 20, https://doi.org/10.1007/978-3-030-92289-4_3

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Name(s) of witnesses/bystanders: NONE Type of Bullying: PHYSICAL Result in injury? NO Reported to School Nurse? NO Reported to Police? YES Bullying Behaviors: THREATENED WITH A WEAPON Reported to school by: MRS. HENLEY, 6TH GRADE TEACHER Describe the incident: ALIYAH HAD MY PERMISSION TO EAT HER LUNCH IN THE CLASSROOM . I WENT TO USE THE BATHROOM, AND WHEN I RETURNED I OBSERVED ALIYAH BRANDISHING A KNIFE AT JACOB. JACOB REPORTED HE WAS GETTING HIS JACKET OUT OF THE CLASS ROOM. HE WALKED PAST ALIYAH AND ASKED HER ABOUT HER LUNCH. ALIYAH PULLED OUT A KNIFE AND USED PROFANITY. Physical Evidence? WEAPON WAS CONFISCATED. Actions Taken (see Protocol for Guidelines): Consequences: 5-DAY SUSPENSION Remediation: PARENT CONFERENCE WITH ALIYAH’S MOTHER, LOSS OF SCHOOL PRIVILEGES FOR ONE WEEK, EXCLUSION FROM SCHOOL-SP ONSORED ACTIVITIES FOR ONE WEEK Referral for additional support services: BEHAVIORAL AND MENTAL HEALTH EVALUATION Parent Contact: Date: 10/12/12 Time: 3:30 PM Person making contact: MRS. HENLEY Result: MRS. BATEMAN REPORTED THAT SHE PUT THE KNIFE IN ALIYAH’S LUNCH WITHOUT ALIYAH’S KNOWLEDGE AND THAT SHE WAS AWARE THAT KNIFES WERE NOT ALLOWED IN SCHOOL BUT THAT SHE WAS NOT AWARE THIS RULE INCLUDED PLASTIC KNIFES. SHE REPORTED THAT ALIYAH HAS BEEN TEASED FOR HER WEIGHT AND THAT SHE AND ALIYAH DECIDED ON AN APPLE AND PEANUT BUTTER FOR LUNCH AND THAT BEFORE SHE LEFT FOR WORK SHE ADDED THE KNIFE TO THE LUNCH BAG SO ALIYAH COULD CUT THE APPLE AND ADD THE PEANUT BUTTER WITHOUT A MESS. MRS. BATEMAN ASKED IF PERHAPS JACOB WAS ONE OF THE PEOPLE WHO HAS BEEN TEASING ALIYAH. I REPORTED THAT JACOB SAID HE WAS ONLY GETTING HIS JACKET AND ONLY ASKED ALIYAH HOW HER LUNCH WAS. MRS. BATEMAN DECLINED THE BEHAVIORAL AND

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MENTAL HEALTH EVALUATION REFERRAL AND WAS ADAMANT THAT HER DAUGHTER WAS NOT THE PROBLEM AND THAT SHE MUST HAVE BEEN PROVOKED TO ENGAGE IN SUCH EXTREME BEHAVIOR. I SUG GESTED THAT PERHAPS ALIYAH OVERREACTED IF SHE HAS BEEN BEING TEASED. I REMINDED MRS. BATEMAN THAT ALIYAH’S BEHAVIOR IS NOT ACCEPTABLE UNDER ANY CIRCUMSTANCES AND THAT NO KNIFES—NOT EVEN PLASTIC ONES—ARE ALLOWED ON SCHOOL PREMISES. I TOLD MRS. BATEMAN THAT I WOULD MAKE AN ANNOU NCEMENT TO THE CLASS THAT THE SCHOOL HAS A ZERO TOLER ANCE FOR BULLYING AND THAT INCLUDES TEASING PEOPLE ABOUT THEIR WEIGHT. Today’s Date: 10/12/12 Reported by: MRS. HENLEY Signature:

3.3

Aliyah’s Story

“Whales don’t eat apples,” you said. Long after the suspension is over I still hear your words. And the day before that, “You’re so ugly, you don’t even have to lose weight because nobody would like you anyway.” And my mom said, “People can be jealous, honey. Just ignore them.” And the day before that, “Go kill yourself,” and I told my mom, “It’s just one boy, mom, and, I don’t think he’s jealous.” And the day before that, “Ew! Smells like blubber over here.” I don’t know if you are why I don’t eat apples anymore or know the smell of an halfdigested meal swirling down the toilet bowl better than I know the smell of my own skin or why I always sit in the back of the seventh grade classroom and never look boys or thin girls in the eye or why I hate myself just because I’m not a size 9 or 12 or 14 or why I still see that plastic knife shutting up your bully mouth and why I never trust adults, especially when they are just trying to help. Bullying consists of deliberate, sustained, relational aggression. Forms of violence in bullying ranges from emotional anguish to serious physical harm or death. Bullying often involves targeting centered on a distinguishing characteristic. Undertaken by self-aware individuals seeking to fill a need expressed as harming others without due concern for the other person and, ultimately, devoid of empathy, bullying involves conscious decision making on the part of the aggressor and a sense of helplessness on the part of the target (Coloroso, 2005; Moore & Woodcook, 2017). As such, stereotypical images of and anecdotes about bullies involve clear-cut encounters in

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which one actor or group chooses the interactions and its tenor and the other actor seeks only to avoid them. Bullying gets portrayed as an essential characteristic. In other words, individuals are described as “bullies” rather than a person potentially exhibiting bullying behavior at a given moment in time (Williams et al., 2016). This role-obvious image of bullying reinforces the perception that bullying is a clear-cut relationship as opposed to a social dynamic. Role-obvious conceptions of bullying establish firm roles for specific members of social groups or other communities. Bullying so conceived also assumes a singular power dynamic transcending situations, organizational environments, and time. At a neurological level, this interpretation of bullying reflects the human tendency to automatically build narratives about circumstances regardless of the amount of information available about the events in question (Klosterman, 2016; Baumgartner & Jones, 2005). This approach to creating narratives around bullying runs several risks of cognitive biases and, more simply, data collection errors (Pielke, 2007). First, in the reporting of bullying, one interpretation of events is generally told prior to and in different circumstances from any response made by the individual named as bullying. In addition to potential for confirmation bias, this type of narrative building runs the risk of ignoring the ever-changing dynamics involved in all human relationships, perhaps especially with those involving children. Whereas one child may, in fact, be acting as a bully against another child at school lunch, he or she might become the victim of the original target’s bullying in that afternoon’s music class. Both events might be problematic and evidence of a pattern of behavior. Or both could be better corrected through the prolonged engagement of effort to enhance moral development that is teaching or raising a child (Harris, 2012). Real-world bullying roles are fluid and bullying can even occur in the absence of a bully, per se. Zero Tolerance policies, as widely adopted management and intervention techniques for bullying in institutional settings, serve to select which aspects of events are considered consequential without necessarily creating well thought out procedures for sifting through all social interactions, even in a single environment. A neuroethical policy divide exists between what neuroscientific findings suggest about the human predilection for creation of narratives and the design of Zero Tolerance policies. Though bullying involves complex, diverse, and ancient social behaviors to which societies have responded in various ways, the misunderstood capacity for implementation of Zero Tolerance policy creates a particularly wide neuroethical policy gap, especially in political systems emphasizing individual rights.

3.4

When Bullying Happens

Bullying is frequently described as a predominantly immature human activity. According to the U.S. Department of Health and Human Services, “bullying is unwanted, aggressive behavior among school aged children that involves a real or

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perceived power imbalance. . .the behavior is repeated, or has the potential to be repeated, over time. . .both kids who are bullied and who bully others may have serious, lasting problems” (“What is Bullying”, 2019). The website goes on to describe three types of bullying, “verbal bullying is saying or writing mean things. . . . social bullying, sometimes referred to as relational bullying, involves hurting someone’s reputation or relationships. . .physical bullying involves hurting a person’s body or possessions” (“What is Bullying”, 2019). While this description focuses exclusively on children and youth, other contemplations of bullying are more age inclusive. For example, workplace bullying has been documented in both the media and in scholarship, which obviously predominantly involves adults (Bartlett, 2016). Bullying has been documented even in homes for the elderly (Andresen & Buchanan, 2017). Even so, the focus of this chapter is on bullying involving children and youth as (purported) culprits. This focus should not be mistaken as suggesting that bullying is exclusively a problem of childhood. Rather it is an indication of the most common time of life during which people fall subject to Zero Tolerance (and other strict antibullying) policies. Furthermore, the intent of this chapter is not to dismiss or minimize hurt caused by bullying. Rather, the exploration in this chapter seeks to present how narrative formation in humans being renders handling of bullying inherently more complex than assumed in Zero Tolerance policy design. Finally, the chapter also considers how the understanding of the long-term ramifications of bullying also involves, at least tangentially, the tendency of much of both neuroscience and psychology to focus on negative implications of negative experiences as opposed to the benefits to be gleaned in resilience developed through adversity. In other words, while human suffering is justly minimized in most contexts, some discomforts prove useful for productive human learning. Awkward, clunky, and— potentially—even some cruel interactions during childhood can serve to build human resilience, emotionality fortitude, and capacity to care for others so long as the individual does not become adversely traumatized (Seligman & Csikszentmihalyi, 2014).

3.5

Neuroethical Policy Divide

Zero Tolerance (and other similar designs hereinafter referred to as Zero Tolerance) policies assume ability to detect a pattern of interactions between individuals as a result of witnessing (or even hearing about) a single event. Furthermore, the name of said policies itself proclaims the appropriate response to an event correctly identified as part of a pattern of bullying is immediate exclusion of the aggressor from the social environment, implicitly permanently. The design of this policy rests on the assumption that human beings have the neurological capacity to quickly draw accurate conclusions about the intentions of another human being and the nature of events unfolding in a group in real time. It also presumes general accuracy of first formed narratives combined with an ability to shift the narrative correctly in

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response to newly uncovered information. Contemporary neuroscience suggests, instead, that human beings generally overestimate the quality of their observations along with a pronounced tendency to greatly overestimate the integrity of their interpretations (Wegner & Gray, 2016). Our minds change slowly and cling to stories once formed (Gottschall, 2012). Unfortunately, these characteristics appear more pronounced in emotional situations understood as involving danger. The essence of this neuroethical policy gap is between what human beings can truly discern though first impressions and the design of public policy created in the intention of minimizing the long-term ramifications of social suffering left unaddressed.

3.6

Building a Bully

Bullying can be considered a social disease. The Center for Disease Control of the United States defines bullying as follows: The Centers for Disease Control and Prevention (CDC) defines bullying as any unwanted aggressive behavior(s) by another youth or group of youths who are not siblings or current dating partners that involves an observed or perceived power imbalance and is repeated multiple times or is highly likely to be repeated. Bullying may inflict harm or distress on the targeted youth including physical, psychological, social, or educational harm. A young person can be a perpetrator, a victim, or both (also known as “bully/victim”) (“Preventing Bullying”, 2019).

As this definition suggests, status of as a bully lacks permanence and does not exclude simultaneous experience as a victim of bullying. Even so, the definition employs the noun, rather than the verb, when describing young people’s interactions. Furthermore, the statement regarding likelihood of repetition involves formation and judgement of a narrative involving the specified child. Relational aggression has long been known to be complex. In June 1995, Nicki Crick and Jennifer Grotpeter examined relational aggression of girls in third through sixth grade. The results of this oft-cited study demonstrated that relational aggression exists and is different from other forms of aggression, including physical aggression. As Putallaz and her co-authors explain: More recently, conceptualizations of aggression and victimization have been broadened to include more “relational” forms of aggression such as negative gossip, ostracism, or manipulation of social relationships. Whether these forms of aggression are referred to as indirect, social, or relational aggression, all capture to some degree behaviors that are intended to harm another’s reputation, social relationships, or feelings of inclusion by the peer group (2007, 523).

Children begin to commit relational aggression while still in toddlerhood. The damage caused by emotional violence involves neurological consequences and, at this point in time, largely unknown in nature (Seligman & Csikszentmihalyi, 2014). In recent years, acceptance of the potentially serious nature of this damage has been

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demonstrated to the point that parents are now cautioned by some scholars to avoid using disciplinary techniques based on emotional isolation such as time outs. Bullying can also be considered a social emergency. The Canadian Red Cross defines bullying as, “a form of aggression where there is a power imbalance; the person doing the bullying has power over the person being victimized” (“Definitions of Bullying and Harassment”, 2019). This sense of power tends to communicate emergency or at least urgency of action in addressing the circumstances and individuals contributing to bullying. Furthermore, as parents, teachers, administrators and other adult stakeholders are made increasingly aware of potential long-term effects of bullying, they can be reasonably expected to become increasingly averse to their children’s sustained exposure to bullying. Whether or not this constitutes a realistic goal in the interaction of children, pressure builds in such circumstances to deal immediately with perceived bullying and systems risk punishment for perceived delays. Bullying involves othering of another human being. Othering is a human tendency defined in psychology as the decision to consider someone as not one of “us.” Othering is not believed to have developed only out of irrationality of those employing the category. As explained on a website entitled “There Are No Others”: This psychological tactic may have had its uses in our tribal past. Group cohesion was crucially important in the early days of human civilization, and required strong demarcation between our allies and our enemies. To thrive, we needed to be part of a close-knit tribe who’d look out for us, in exchange for knowing that we’d help to look out for them in kind. People in your tribe, who live in the same community as you, are more likely to be closely related to you and consequently share your genes (“Othering 101: What is Othering”, 2011).

Neuroscientists caution against over extension from the field of evolutionary psychology (Novella, 2013). Even so, when it comes to othering, the benefits of this practice, especially in the deep past, appear much more immediate and obvious than the costs. Othering permits cruelty against the other with limited or no empathy. When faced with cruelty in progress, every human being has a choice of whether to identify with the aggressor or the victim or society at large, whose norms could be aligned with either of the first two parties depending on whether the bully or the victim is understood as having compromised or violated a social norm. The myth of the innocent bystander pervades. The fantasy of this innocence fails to capture both the emotional world and the expressed agency of witnesses. Modern research into bystanders demonstrates that there is no such thing as an innocent bystander, the decision not to act is a behavioral decision (Coloroso, 2005; Padgett & Nortar, 2013). Neurological studies of people in the process of making decisions sometimes show that the impulse to take action may measurably precedes the conscious decision to take action, meaning that the conscious decision making available to human beings could depend free-won’t rather than free will (Obhi & Haggard, 2004). Neuroscientists continue to collect evidence and debate the underlying realities of human decision-making (Miller & Schwartz, 2014). Furthermore, the flight-flight-or freeze mechanism of human neurology is known to routinely limit human choices during moments of crisis. Even so the extent that human beings are

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fundamentally compassionate, innocent bystanders may be guilty of a deliberate decision not to act, assuming they are not themselves in a state of panic. This culpability does not, of course, withdraw responsibility from the child or youth directly causing the harm to another. It does suggest Zero Tolerance policy design relies on use of overly simplistic narratives and near cartoonish depictions of human social interactions. Human beings also succumb to compassion fatigue more quickly than often presumed. Conceptions of compassion fatigue originate in the context of professionals working in environments including frequent exposure to trauma, a set of circumstances where such responses are also known as vicarious traumatization. The term compassion fatigue was first used in a 1992 study of the experience of burnout in nurses (Ray et al., 2013). Though use of the term is still most commonly employed regarding health care providers, use expanded to include a broader spectrum of human interactions. Essentially the term refers to situations outside the provision of health care, including a broad spectrum of situations in which individuals find themselves repeatedly witnessing trauma inflicted on another individual or group. Compassion fatigue is defined as the avoidance, repression, or numbing of natural arousal responses that would normally accompany seeing another person suffering (Ray et al., 2013). Ray et al. distinguish compassion fatigue from both burnout and compassion satisfaction, which is defined as the benefits a person incurs a result of having acted with compassion. Compassion fatigue can also occur in day-to-day life of the general population (Moeller, 2018). While distinct from bullying, compassion fatigue constitutes a necessary condition for prolonged bullying and for tolerance of incomplete responses to the suffering manifest in circumstances of bullying. Interplay between compassion fatigue and Zero Tolerance policies is inherently complex and even the actors involved may not know which behavior they are truly exhibiting at a given moment in time. On the one hand, compassion fatigue for the individual understood as the victim contributes for the argument for this and related policy designs. Under this line of thinking, Zero Tolerance policies salve wounds to the agency of actors such as teachers and administrators by forcing them to act beyond and after the point at which they might otherwise become numb to ongoing bullying in their environments. Removing the choice of whether or not to take decisive action dissolves the need to muster up the potential energy necessary to take action. On the other hand, compassion fatigue could also contribute to the ruthless application of Zero Tolerance policies evident in the stories about these policies exemplified in Aliyah’s experience in the opening story of this chapter. After all, existence of such policies excuses professionals from employing compassionate professional judgement when taken literally. Bullying as a public issue gained increased salience around the turn of the twenty first century. Google Trends data for searches of “Zero Tolerance school policy” indicates that interest in the subject as demonstrated by searches on google peaked in June 2004, declined to 50% of this peak by December 2004 and remained below this threshold for more than a decade. Widely reported horrifically violent acts such as mass school shootings, torture, intentional drowning, and suicides contributed to

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priming of narratives but cannot fully explain these patterns of interest given the absence of peak interest coinciding with the most infamous of these events. For example, the Sandy Hook massacre of December 2012 coincided with a relatively low level of search interest as did the mass shooting in Parkland, Florida in February 2018. Notably, relative peaks for the term “bullying” did coincide with both of these events. Distinguishing instances of bullying from other tragic human interactions rests on the identification of a planned relational harm motivated by either disgust or an attempt to establish dominance. As the opening story demonstrates much opacity surrounds observation of interactions between others, especially in the context of institutional and socio-cultural power differences. Recasting of activities once considered typical of childhood aims to create kinder, more just societies. Dismissing hurtful actions as fundamental to stages or places in life is—overtly at least—limits the human potential of aggressors and can result in long lasting negative implications for victims. Even so, casting humans as one or the other also carries cost and potential for long term harm. All aggression is not bullying per se. Zero Tolerance seeks to prevent bullying by having interventions follow first instances of aggression believed to signal the start of patterns of aggression. Two fundamental challenges complicate this approach. First, human beings have strong emotions not always naturally coordinated with complex social environments. Learning to regulate emotion in the context of social environments requires practice with a substantial amount of failure along the way. Children routinely commit small aggressions against one another in their efforts to learn proper social behavior (Hong et al., 2015). Some of those instances will result in injury. This does not imply that the intent of was to enjoy injuring another. Assuming children deliberately kept from the knowledge or equipment necessary to cause serious injury, that vast majority of these instances are best handled through repeated correction in context. Second, children tire faster than current demands for their time and attention afford, resulting in reduced potential for sustained selfcontrol and excellence in decision making. According to Holiday, stoic philosophy involves the decision to never let a crisis go to waste (2014). Our experience-built brains can only develop in circumstances of tensions including experience of harm and recovery from that harm. It also involves the experience of having caused harm and the learned response to avoid causing harm because of the repercussions (including negative emotions such as guilt and shame) experience as a result. Zero Tolerance policies ignore the potential growth from harm for both the victim and the perpetrator if handled as an opportunity for development and rebalancing of environments surrounding all children. It makes little sense to project the history of known offenders onto the unfolding experiences of all children as this projects the rarer experience of failure to properly socialize onto the more common experience of generally successful socialization. Given such projections, Zero Tolerance policies can pathologize normal behaviors in, especially, young children. Examples of very young children being expelled from school on infractions interpreted as bullying or sexual harassment in the clear absence of any such intent have peppered the popular press in recent years. Such

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media reporting can also lead to an exaggerated sense of the pervasiveness of Zero Tolerance policies. As Chris Curran explains, Zero Tolerance policies are much less common across the United States than are mandatory expulsion policies for a subset of identified behaviors. However, even though as Curran’s study demonstrates, fewer than 1 in 7 districts employed Zero Tolerance policies as of 2013, use of such policies was found to be more common in school districts serving a higher proportion of non-White students (Curran, 2017). A second, more wicked, problem, surrounds accurate identification of aggressors. Contemporary neuroscience demonstrates humans observe far fewer surrounding environmental factors present at any moment of time than is routinely assumed. Furthermore, as is discussed later in the book, memory is far less complete and unchangeable than historically believed to be the case. Various forms of neurological bias shape all human thought. As a result, perceptions of aggressors made in human minds can be terribly inaccurate. Zero Tolerance policies, including mandatory exclusion policies, can enhance and expand opportunities to bully. If a student, parent, educator, or other stakeholder with aggressive intent attains sufficient knowledge of Zero Tolerance policies, using these policies to victimize others becomes fairly straightforward. Furthermore, this behavior—like other forms of relational aggression—cannot easily be detected or controlled (Gangel et al., 2017). For example, in negative interactions between children, it is not unusual for all children involved have failed to exhibit consistently prosocial behaviors. One child might cut in line, the next might use his or her elbow to express discontent for the first action and then the first child might push back. All of these actions could easily take place in a matter of seconds. If one of these children or his or her parent communicates wrongs more quickly or with greater effectiveness to authorities, their child becomes less likely to be deemed the aggressor. If the child not deemed the bully was, for whatever reasons, at risk of exhibiting genuinely bullying behavior, he or she could easily repeat this pattern of reporting bullying committed by others, either against the same or a series of equally vulnerable peers. Essentially in context of a Zero Tolerance (and other foregone conclusion) policies increased pressure to construct narratives exacerbate existing human neurological tendencies to quickly create simple stories. The implications for the child deemed the bully would be significant and, potentially, life altering. In such circumstances, the real effect of the Zero Tolerance policies would be the exact opposite of the intended one as the narrative leads behavior rather than vice versa. Third, experiencing bullying involves accurate application of the theory of mind. It is at least possible to experience bullying at the neurological level without any intention of bullying on the part of another person. People have different approaches to socializing. This difference is to be considered a productive and valued aspect in societies celebrating neurodiversity (Baker, 2017; Baker & Leonard, 2016). However, neurodiversity leads to, for instance, circumstances where the behaviors of distraction, social anxiety, or face blindness could be interpreted as shunning. Modern lives often include multiple spheres of social interaction, even in the lives of young children, each with different social conventions. For example, verbal interaction is understood as necessary to polite company at closer proximity in a

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hallway than in an elevator. Differences in approach to personal space can be both interpreted and experienced as deliberate aggression and, even, stalking. Experiencing bullying in the absence of an actual bullying can take place even in circumstances of neuro-homogeneity. Social media platforms bring information about people’s daily lives to a wider than ever set of social contacts in real time across wide space. Tone and intent proves difficult to communicate electronically. This can result in perceptions of exclusion or bullying artificially created into lived experience in the absence of any such intent on the part of the supposed bully. For example, the supposed bully might be taken a trip to the zoo and include a few friends in the social outing. The composition of the children invited could come about for a wide variety of reasons ranging from the simple convenience of who the child and family interacted with most recently to the fact that the children invited all swim on the same swim team. Another child in friendship with the child hosting the event might learn of the trip. Especially if that child, or parent, preferred to socialize primarily or even exclusively with a small group of friends, then the other child can experience exclusionary bullying genuinely without any such action or intent. In some circumstances, the parent of the child might even voice this perception, sometimes quite publicly and within the child’s sphere of awareness. Depending on the persuasiveness of the communication and the patience of the audience for hearing out the full story, the first child could be unfairly portrayed as a bully even though they were in fact the one at risk of having their choices unjustly controlled by a peer. Finally, Zero Tolerance policies, like all known forms of organized discipline in formal settings serving children, assume that the adults in the environment are always either positive or neutral actors. These conditions should exist. However, adults are not always fully mature human beings and even those with maturity experience less successful days. Adults can be drawn into the dynamics of bullying, particularly in cases involving exclusively relational aggression. In fact, becoming involved in these dynamics from a position of power potentially serves to allow adults to relive and recast bullying dynamics experienced in their own childhoods, perhaps with themselves cast as bully where they were once the victim. Adults are also prone to bias and favoritism, leading them in some circumstances to solidarity with some children through the othering of other young people. Furthermore, modern neuroscience suggests that emotional self-regulation and willpower—key components of exercising emotional maturity—not only develops with practice, but can also become exhausted with use. When an individual’s child is injured or otherwise harmed, it can be reasonably expected that their baseline emotional maturity will be challenged and likely exhausted. Even the best-case scenario of implementation of Zero Tolerance policy implementation requires involvement of a parent, teaching and administrators experiencing situationally declined emotional maturity as a result of stress and pressure. The more likely scenario is that the at least some of the adults involved will lack emotional maturity. Lastly, some pathologies might lead an adult to experience satisfaction or pleasure in bullying circumstances, potentially even to the point that they involve themselves in the construction of a dynamic of bullying. The school to prison pipeline has becomes one of the most

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consequential locations of this bullying by adults over the past several decades, particularly in the United States (Alexander, 2012). Zero Tolerance policies also assume a clear dichotomy between the bully and the victim and that both are easily identifiable using readily available evidence. Of course, there are circumstances in which a bullying dynamic is more than selfevident to all concerned, especially when one party has substantially less capacities than the other as a result of, for instance, differences in age or abilities or socioeconomic privilege. Interactions between human beings also include repeated interactions, especially in setting such as schools. The innate sociability of children requires much refinement over time, even for those children with especially high levels of social skills. Small cruelties are more routinely (or at least much more subtly) passed back and forth between children than appears to be the case in multigenerational or exclusively adult groups. As result, mistaking bullying for simply catching the latest volley in which one child happens to be at fault in the interaction with another child is likely, especially when the ratio of children to supervising adults is high. Furthermore, adults engaged in the supervision of children are as much at risk of operating under bias as are any other people. Children embodying characteristics unfairly understood as being associated with aggression in a given culture are, therefore, more likely to be identified as aggressors in otherwise ambiguous negative interactions between children. Finally, as mentioned above, particularly sophisticated children and adolescents can in some cases successfully determine how to use the Zero Tolerance policies themselves as a form of bullying, perhaps by provoking the victim to a self-defensive action executed at a time and place where it was observed by the authorities and defined as abuse. The design of Zero Tolerance policies neither demands or permits discernment in the application of consequence for action, thereby assuming the structure of all observed actions to be the same. Changes in disciplinary approaches in the school systems, including the creation of Zero Tolerance policies, result in the criminalization of behaviors for which discipline was once handled internally by schools. While to some degree this is potentially less dramatic of a problem than it seems at first glance because juvenile records can often be sealed, interaction with the juvenile justice system increases likelihood of adult arrest. Furthermore, even if the courts seal the records, media outlets sometimes keep very public records of arrests of juveniles. Especially when these records are routinely put on the internet, these records can be easily located by anyone. One newspaper engaging in this practice is The Columbian¸ which serves Clark County, Washington. According to the newspaper’s website, “The Columbian’s policy is to publish all Clark County Superior Court felony sentencings, as provided by the Clark County Clerk’s Office.” The article then goes onto list the name of the child, the age of the child, and the address of the child, along with the crime for which the child was in court and the sentence received. These messages are not, it seems, routinely removed from the website as records were found dating back several years. In addition to the ongoing shaming of a person for actions committed while they were still a child, there is the obvious problem of leaving the address in a public space, thereby at the very least attempting to shame

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the entire family if they still live at that address, including any (presumably innocent) siblings who could very well be much younger than the child who committed the acts. In some countries actions committed by a combination of the media and search engines have lead some policymakers to propose laws providing for “the right to be forgotten.” In other words, assuming that a person should be punished for all time by making sure evidence of their mistakes live on for perpetuity. Having a criminal record dramatically reduces the ability of a person to gain employment, especially since it has become quick and easy for employers to run background checks on potential employees. Zero Tolerance policy design contributes to the augmentation of the proportion of the population with criminal records. Especially since having a criminal record resulting from juvenile behaviors common to all youth intersects with historical oppression (e.g. black boys are more likely to be arrested for the same behaviors than are white boys), such policy designs serve to reinforce systemic discrimination while potentially doing very little to effectively address bullying itself (Baker et al., 2020).

3.7

Minding the Gap

The zenith of popularity of Zero Tolerance (and similar) policy design appears to have passed at this point in time. As attention to diversity and trauma both grew and diffused during the early decades of the twenty first century, popularity of blunt force policy designs waivered. Emerging hesitancy to limit professional discernment from implementation of public programs serving youth reflects growth out of a dark political period. For example, in the national political arena in the United States of the 1990s, highly visible political figures felt perfectly comfortable referring to a proportion of the nation’s youth as “super-predators” and an even greater number as at-risk of joining this group. Widespread popular support for the blunt force policy design of Zero Tolerance (and related) policies turns on fear that the only way to address use of force on the part of the supposedly unapologetically cruel is to act quickly, decisively, and with minimal opportunity for the professionals to fail to act out of their own fear or cooptation. Without a doubt, use of Zero Tolerance policies addressed bullying and prevented ongoing harm for some young people. Existence of beneficiaries of thoughtless policy decisions neither dismisses their benefit nor supports continuance of a policy design known to harm others owing to a neuroethical policy gap. Contemporary neuroscience suggests humans do not have the neurological capacity to justly practice Zero Tolerance policies. Given this limitation, minding this neuroethical policy gap involves avoidance of new implementations of this policy design and replacement of such policies—perhaps especially popular policies—currently in place. Movement away from blunt force policy design serves to narrow the neuroethical policy gap between Zero Tolerance policies and human beings. From that perspective, this example of a neuroethical policy gap might be considered an example of success in working with emergent understandings of the human brain. After all, one

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version of history this neuroethical policy gap tracks closely to the ideal unfolding history of science over time. Recent political history suggests extreme caution regarding this interpretation of this neuroethical policy gap however. Particularly in the United States, attraction to blunt force policy instruments amongst some political elites and populist movements appears in ascension. Minding this neuroethical policy gap involves highlighting the potential of and responsibility for experimental policy learning and ongoing translation of basic research into policy development.

Works Cited Alexander, M. (2012). The new Jim Crow: Mass incarceration in an age of color blindness. The New Press. Andresen, F. J., & Buchanan, J. A. (2017). Bullying in senior living facilities: Perspectives of long term care staff. Journal of Gerontological Nursing, 43(7), 34–41. Baker, D. L. (Ed.). (2017). Disability and U.S. politics: Participation, policy, and controversy. Praeger. Baker, D. L., & Leonard, B. (2016). Neuroethics in higher education policy. Springer. Baker, D. L., Drapela, L. A., & Littlefield, W. (2020). Law and neurodiversity: Youth with autism and juvenile justice system in Canada and the United States. UBC Press. Bartlett, J. A. (2016). Workplace bullying: A silent epidemic. Library Leadership & Management, 31(1), 1–4. Baumgartner, F. R., & Jones, B. D. (2005). The politics of attention: Problem definition and the course of public policy in America. University of Chicago Press. Coloroso, B. (2005). A bully’s bystanders are never innocent. The Education Digest, 70(8), 49. Crick, N., & Grotpeter, J. (1995). Relational aggression, gender, and social-psychological adjustment. Child Development, 66(3), 710–722. Curran, F. C. (2017). The law, policy, and portrayal of zero tolerance school discipline: Examining prevalence and characteristics across levels of governance and school districts. Educational Policy, 1–39. https://doi.org/10.1177/0895904817691840 “Definitions of Bullying and Harassment.” (2019). Canadian Red Cross. Last Modified on August 15, 2019. Retrieved from https://www.redcross.ca Gangel, M. J., Keane, S. P., Calkins, S. D., Shanahan, L., & O’Brien, M. (2017). The association between relational aggression and perceived popularity in early adolescence: A test of competing hypotheses. The Journal of Early Adolescence, 37(8), 1078–1092. Gottschall, J. (2012). The storytelling animal: How stories make us human. Houghton Mifflin Harcourt. Harris, P. L. (2012). Trusting what you’re told: How children learn from others. The Belknap Press of Harvard University Press. Holiday, R., & Ferriss, T. (2014). The obstacle is the way: The timeless art of turning trials into triumph. Portfolio Publisher. Hong, J. S., Tilman, R., & Luby, J. L. (2015). Disruptive behavior in preschool children: Distinguishing normal misbehavior from markers of current and later childhood conduct disorder. The Journal of Pediatrics, 166(3), 723–730. Klosterman, C. (2016). But what if we’re wrong?: Thinking about the present as if it were the past. Blue Rider Press. Miller, J., & Schwarz, W. (2014). Brain signals do not demonstrate unconscious decision making: An interpretation based on graded conscious awareness. Consciousness and Cognition, 24, 12–21.

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Moeller, S. D. (2018). Compassion fatigue. In Visual global politics (pp. 75–80). Routledge. Moore, B., & Woodcock, S. (2017). Resilience to bullying: Towards an alternative to the antibullying approach. Educational Psychology in Practice, 33(1), 65–80. Novella, S. (2013). Your deceptive mind: A scientific guide to critical thinking skills. Great Courses. Obhi, S., & Haggard, P. (2004). Free will and free won’t: Motor activity in the brain precedes our awareness of the intention to move, so how is it that we perceive control? American Scientist, 92(4), 358–365. Retrieved from http://www.jstor.org/stable/27858425 “Othering 101: What is Othering.” (2011, December 28). There are no others. Retrieved from https://therearenoothers.wordpress.com/2011/12/28/othering-101-what-is-othering/ Padgett, S., & Notar, C. E. (2013). Bystanders are the key to stopping bullying. Universal Journal of Educational Research, 1(2), 33–41. Pielke, R. A. (2007). The honest broker: Making sense of science in policy and politics. Cambridge University Press. “Preventing Bullying.” (2019). Centers of Disease Control and Prevention. Last modified on March 12, 2019. Retrieved from https://www.cdc.gov/violenceprevention/youthviolence/ bullyingresearch Putallaz, M., Grimes, C. L., Foster, K. J., Kupersmidt, J. B., Coie, J. D., & Dearinga, K. (2007). Overt and relational aggression and victimization: Multiple perspectives within the school setting. Journal of School Psychology, 45(5), 523–547. Ray, S. L., Wong, C., White, D., & Heaslip, K. (2013). Compassion satisfaction, compassion fatigue, work-life conditions and burnout among front-line mental health care professionals. Traumatology, 19(4), 256–267. Seligman, M. E., & Csikszentmihalyi, M. (2014). Positive psychology: An introduction. In Flow and the foundations of positive psychology (pp. 279–298). Springer Netherlands. Wegner, D. M., & Gray, K. (2016). The mind club: Who thinks, what feels, and why it matters. Viking. “What is Bullying.” (2019). United States Department of Health and Human Services. Last modified May 30, 2019. Retrieved from https://www.stopbullying.gov/what-is-bullying/index. html Williams, A. J., Smith, D., & Winters, R. (2016). Applying Ol Weus’ conceptualization of bullying to early childhood. In Contemporary perspectives on research on bullying and victimization in early childhood education (p. 87).

Chapter 4

Medicine and the Mind: Treating the Adolescent Brain

4.1

Off Label: A Meditation on Tracks

I grab Mom’s wrist roughly, pulling her past the narrow bed toward the door, and then let go. When I, a little apart from myself, watch myself wince, I know the Zyprexa is working. She is gaining weight. I cross that worry off the insistent list in my mind that grows with each new med we add to ease the anxiety of eating, to treat her depressed mood, to ease the anxiety of gaining weight, to treat the anxious condition of having a body. Keep her on all the meds and there’s the risk of a serious cardiac event, the increased risk of her trying to commit suicide. Take her off one or more of the meds and there’s the risk of her dying of starvation, dying from an electrolyte imbalance, dying from heart failure, dying from successfully killing herself—the meds could stop her heart or she could stop her own. Sometimes it seems like all the tracks lead to same destination. But this mark on my arm is her going in a different direction, coming back to herself a little. She has enough weight to hurt me, to pull me, to leave a mark. “Jackie, I need to check. I’ll leave once you show me you aren’t cutting yourself.” In the silence, Mom and I watch blood pool under her skin in the places where my index, middle, ring, and pinky fingers pressed deeply into the meat of her arm. The pattern sorta looks like trolley tracks. My breathing is gentle when she lets go of my arm, finally, and my skin breathes in violent colors. I just think like this sometimes; sometimes it makes it better somehow. The violence is more poetic when it’s colors breathing in my skin, but I know it’s not. It’s just blood pooling there, blooming into tracks. It’s funny. It’s like the blood is going on a trip, going somewhere else on violet broken veins. Yes, the mark is just exactly the shape of trolley tracks. “What are you smiling at? I said get out of my room, Mom!” “Jackie, you need to show me you aren’t cutting yourself.”

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It’s not like I want to hurt her. It’s just a temporary violence that takes me away from this body. I have to eat, and I can’t cut, and it’s like I can’t not hurt her. Mom looks down at her arm like she’s trying to keep the tracks right there, fix them, fix me, fix my body, control it, control me, turn me into this one thing—this abusive daughter, leaving trolley tracks on her arm—writing the disaster of my body on her skin. As in any science, trial and error defines the history of psychiatry. Tragic notes of this saga include warehousing those diagnosed with mental illnesses in squalid conditions, pervasive homelessness following the widespread closure of institutions, and use of treatments ranging from highly experimental to quintessentially ad-hoc too often doing more harm than good (Trent, 2016; Baker, 2017). Furthermore, scientific protocols for human subjects unfolded over time. Medical experimentation and sale of untested treatments and medications during the nineteenth and the first half of the twentieth centuries inspired the creation of strict protocols for risk management, quality control, and market access in the United States and around the world (Greenwald, 2013). Similarly, mid-twentieth century atrocities made possible by Eugenics and biological racism more generally inspired formulation of public policies designed to protect the rights of humans and other sentient beings subjected to scientific experimentation (Kendi, 2019). As a result of these and other historical trends connected to the expansion of human and civil rights, by the beginning of the twenty first century, regulation of medical interventions was commonplace. Typical components of this regulatory infrastructure range from monitoring development of new pharmaceuticals and devices to reconsideration of use after reports of adverse effects (Carpenter, 2014). Double-blind testing of inventions against use of a placebo in otherwise similar patients is held standard (Vance, 2016). In order to bring a treatment or medication to market, those proposing to do so—often a for-profit company in the United States— must provide evidence of safety to government officials (Greenwald, 2013). While the specific regulatory policies and decisions vary internationally, the regulatory policy design exemplified by the Food and Drug Administration (FDA) ranks at the top of the institutional exports from the United States in the past several decades. It also serves as a source of confidence for Jackie and her mother desperately would hope to feel in the face of severe mental health challenges described in the story above. As amply demonstrated by some responses to vaccines for Covid-19, cultivating this confidence is a daunting enterprise at best. Furthermore, developing and testing interventions for adolescents experiencing mental health difficulties involves particular complications. First, adolescent bodies and brains exist in rapid transformation. While still legally children and neurologically immature, adolescent bodies develop erratically into maturity. Discerning between mental health challenges and typical adolescence has proven challenging, especially as legal childhood (and the coincident deferments of agency and responsibility) extended to better reflect human neurological development. Second, confluence between risk management and the quest for evidence of efficacy creates a high entry threshold for the development of psychiatric

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medications for children and adolescents (Lindell-Osuagwu et al., 2009). Children, at least in theory, are considered precious. Harming children in the experimentation required to adhere to regularly policy protocols proves both unpalatable and politically unpopular in most contemporary circumstances. Partly as a result, off-label prescribing of psychiatric medications happens frequently with children, adolescents, and youth (Carton et al., 2015). In addition, the behavior-based diagnosis protocols central to management of mental health can be confounded with the variance in behaviors often observed during adolescence. Finally, long-term effects of newer medications are, by definition, unknown, and of most prolonged relevance for those with more of their predicted lifespan left. Managing symptoms (attributed to) mental illness in adolescents often involves use of medications and interventions for conditions not originally included in the regulatory studies with little to certain information about what long term benefits and costs particular choices of medical interventions involve (Carton et al., 2015). Neurological differences are not exclusively chemical or unhealthy (Baker & Leonard, 2016). Even when unhealthy divergences in feelings, affect, judgement, or behavior are presumed biochemical in origin, the chemical processes remain opaquely understood at best. Current limitations to comprehension of the nature and cause of illnesses restrict straightforward efforts to balance brain chemistry per se (Le Fanu, 2014). Use of the construct of balancing brain chemistry in marketing materials for pharmaceuticals at times extends beyond scientific support for these hypothetical explanation of observed distress (Leo & LeCasse, 2016). Furthermore, medications are often prescribed using a best-guess, and wait and see, approach where patients and their families must wait periods of weeks to determine whether or not the medication will prove effective, even while enduring highly problematic behaviors. Especially given the modern (justifiable!) preference for communitybased management of mental illness, a functional gap exists between the timing of intervention and scientific support for a given intervention and the timing of effect doing little to address many of the interim hardships experienced by adolescents, their families, and the communities in which they live. Resource and access pressures in the face of extreme behaviors and attendant familial stress co-create conditions in which simple metaphors become alluring. Comprehension of mental illness lags behind our understanding of understood as physical. Conflict also exists around the designation of illness, especially around conditions connected more to neurodivergence than deterioration (Baker et al., 2020). Blaming still gains traction when it comes to brain difficulties or differences, especially when they are not immediately attributable to a known physical trauma (Trent, 2016). Though curse or witchcraft explanations for mental illness have declined in popularity in the modern era, structurally equivalent explanations remain disconcertingly common. In particular, members of the general public routinely explain presence of mental illness in an adolescent through mythological beliefs about parenting (van de Sanden et al., 2015). Whether the presumed parenting error is action or lack of action, promotion of these myths involves mining (or creating) history of parental mistakes to which others can remotely attribute the mental illness. In response to public tragedies, doxing abounds.

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Public processing of mental illness ignores that multitudes of young people sharing such histories appear healthy. At a minimum, developing a mental illness as such appears to involve a vulnerability beyond simply lived experience as well as social construction of public infrastructures intolerant of select behaviors. After all, reactions to negative events include the full spectrum from post-traumatic disorder to post traumatic flourishing. Similarly, reactions to positive events include the full spectrum from flourishing to the development of weakness given insufficient exposure to adversity (Seligman & Csikszentmihalyi, 2014). Despite widespread awareness of these dynamics and, usually, an opportunity for individuals to directly observe different people reacting to experiences differentially, the modern era depends much on causal explanations associated with parenting practices and choices. This habit of mind reinforces implications of the neuroethical policy divide between presumed and actual level of certainty of causal explanations for mental illness in adolescents, leaving adolescents, their families, and their communities at greater than necessary risk. This risk becomes especially poignant when such public narratives push families toward historically favored approaches contemporary sciences have demonstrated either ineffective or potentially traumatic in and of themselves. A neuroethical policy gap forms between the human neurological need to metaphorically explain the incomprehensible and the realistic potential of policy solutions applied to insufficiently understood challenges.

4.2

Neuroethical Policy Divide

As would be expected in a brain rooted in comparison, one key way we summarize and communicate information about how our brains operate is through the use of illustrative models. In the modern era, dominant images of the brain loosely followed technological development, from mechanical machines to electronic communication networks. In seeking to understand our comparison driven neurology, human beings have habitually compared brains to cutting-edge science and technologies. This tendency is by no means limited to our efforts to explain the brain. Metaphorical descriptions of other complex topics (such as the nature of the universe) have also followed this pattern (Hossenfelder, 2018). During the last decade of the twentieth century, brain chemistry became a dominant model of human neurology. Mental illness became, as a result, widely understood as a matter of imbalance in brain chemistry, in many cases replacing old models rooted in the supernatural. Chemistry is a science of equations rooted in elements outlined on a neatly configured periodic table. Rectifying imbalances in chemical equations involves the (conceptually) simple task of adding the proper elements to the equation. In practice this can be difficult of course, but the path to solution seems clear. Find the right chemistry, solve the problem. By extension, the brain chemistry metaphor encourages perception of mental health difficulties as straightforward problems best solved through the location and administration of a chemical modification.

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However, contemporary research suggests brain chemistry balancing is largely a myth. Specific mental illnesses have largely not been decisively, scientifically linked to specific, and localized chemical imbalances. Recent neuroscience suggests that challenges with mental health involve, at least, multiple dimensions of differences both internal and external to the brain and body of the human in question. Of course, discerning causality proves challenging. For example, when examining implications of structural difference in brains, the question remains: does the structure cause the difference or the difference cause a structural distinction? Furthermore, in considering mental illness, separating elements of disease from distressed reactions to external circumstances proves elusive. As explored by Johann Hari in Lost Connections, factors ranging from expanding economic inequalities, to crumbling job security, to widespread social disconnection could substantially contribute to considerable, notable, and ongoing distress in a growing proportion of the population of many nations (2018). In considering policies surrounding the medication of adolescents diagnosed with mental illness, a neuroethical policy gap forms between straightforward problem definitions and a still mysterious and complicated public challenge. This neuroethical policy gap involves the necessity of admitting that a wicked problem involves even more complexity than assumed in the design of current policies. Strong resistance to enhancement of complexity given metaphorical simplicity tends to exist, especially when piecemeal policies are designed into single policy arenas such as housing, health care, or education. Furthermore, re-introducing the questions of structure and environments raises specters old and extremely harmful histories. For example, even the relatively simple question of whether brain structure contributes to mental illness invokes phrenology, an old and racist practice in which assumptions about human beings and their potential were measured through discredited practices involving the comparison of individuals’ head shapes against norms rooted in rampant xenophobia. Embracing additional complications and invoking the specter of a historical oppressions introduces even more stigma into an experience still beset with harmful prejudice and misplaced shame. Finally, concern exists that expanding the question of causality in mental illness involves potential to do more harm than good in the short run despite the promise of greatly improved policy and practice in the long run. Given these circumstances, rogue behavior in the face of lived experience of tremendous challenges in accessing (or even finding) effective medications are hardly surprising. In this chapter, the case of off-label prescription of medication is employed as a case study of this kind of wicked challenge-simple problem definition neuroethical policy gap.

4.3

Ethics of Research and Off Label Application

Introductory philosophy courses routinely include a thought experiment involving a trolley. Specific details given vary but approximate the following tale outlined in 1967 by Philippa Foot. A person is described as standing on a bridge above a trolley

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(or train) track about to divide into two separate rails. Controls directing the trolley to switch rails are within reach. A trolley is said to be headed toward five people on the tracks who cannot be warned or are not able to move in time to avoid certain death. The other track, to which the trolley might be switched in time, has one person on it. This person is not currently in danger, but would die if the tracks were switched. Students are asked whether or not the person standing on the bridge should switch the track. In a follow up scenario, the same distribution of people are on the tracks. However, this time there is no switching device. Instead an overweight individual is standing in front of the person. Though themselves too physically small to bodily stop the trolley, if the person on the bridge pushed the overweight individual onto the track, then the trolley would be stopped. The five people endangered on the track in the absence of any intervening action would be saved. Students are asked to weigh both scenarios involving causing the death of one person to save the lives of five others. Students are generally reported as more comfortable imagining using the track switch than pushing another person. The brain chemistry model shifts narratives explaining adverse treatment outcomes in parallel with the trolley problem. Side effects—even deadly ones statistically predicted to kill some people—accompany even the most useful of medicines. The assumed existence of carefully gathered and routinely re-examined evidence of efficacy in balancing brain chemistry and benefit in mental health found to consistently be in substantial excess of cost and loss measured across the population at large renders prescriptions palatable despite adverse effects bourn by unlucky individuals. In other words, the brain chemistry model encourages thinking about medication (or other interventions) and mental health to be structurally similar to a solution to the trolley problem in which the track is switched from the larger group of people hurt by the existence of a serious mental health problems present endangering groups to a much smaller group of people who will be hurt or killed at a fully understood and transparent rate by side effects. Furthermore, in a departure from the classic trolley problem, because a person experiencing a mental health crisis is simultaneously understood to be both amongst the group of people definitely harmed by an unaddressed mental health crisis and only at risk of being one of the very small group of people harmed by the medication itself, augmented tension exists around the morality of choice in medication compliance. Formal approval of use of a pharmaceutical intervention requires double blind tests proving efficacy for a given formal diagnosis for a given population. As described by the Federal Food and Drug Administration in the United States: Drug companies seeking approval to sell a drug in the United States must test it. First, the drug company or sponsor performs laboratory and animal tests to discover how the drug works and whether it’s likely to be safe and work well in humans. Next, a series of tests in humans is begun to determine whether the drug is safe when used to treat a disease and whether it provides a real health benefit. The company then sends FDA’s Center for Drug Evaluation and Research (CDER) the data from these tests to prove the drug is safe and effective for its intended use. A team of CDER physicians, statisticians, chemists, pharmacologists, and other scientists reviews the company’s data and proposed labeling. If this review establishes that a drug’s health benefits outweigh its known risks, the drug is approved for sale (“Approved Drugs: Questions and Answers” 2016).

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Similarly, in regards to drug testing in Canada, Health Canada states, “prior to being given market authorization, a manufacturer must present substantive scientific evidence of a product’s safety, efficacy and quality as required by the Food and Drugs Act and Regulations” (“Drug Products”, 2018). Even so, health practitioner prescription of medications off label occurs far from rarely in psychiatric treatment of adolescents. This results in part from the difficulties incumbent to carrying out experiments necessary to gain approval for a specific medication for the express purpose of using the medication with adolescents in crisis. Importantly, physicians prescribing off label medications depend on evidence-based assurances in their consideration of use of medications with adolescents demonstrably experiencing too often life-threatening distress. The practitioners are, even so, frequently left in the clouded moral space of semi-tested and promising medications of potential help in immediate crises. In consideration of the population of adolescents with serious mental illnesses, switching the track through such prescription is understood as reducing overall suffering and death. Children like Jackie are asked to take medications harboring unknown risk, despite the fact that it means potentially stepping alone onto the less occupied track. The neuroethical policy gap between the desire for a simple solution rooted in the brain chemistry metaphor and the neuroscience of mental illness is widened by the differences in flow of time for science as compared to that of individual children’s lives.

4.4

The Man on the Bridge: Deinstitutionalization

The neuroethical policy gap between the brain chemistry metaphor and the reality of the neuroscience of mental illness does not require wholehearted belief in the literal interpretation of the model. Instead, the model creates a dependency on the overall truth of the model. The history of diversity, arguably especially as it relates to disability history, includes transcendent exclusion combined with a quest for causality all too frequency tied to supernatural explanations. Because neurological difference and mental illness have oft been (and remain) understood as a sign of godly or otherwise supernatural disfavor, a common response to neurological difference and mental illness has been to ritual exclusion of those understood as harboring the effects of supernatural disfavor. The brain chemistry model incontrovertibly ascribes the cause of distress to natural, as opposed to supernatural, causes. Even if it is reductive, it can, therefore, prove alluring. Consciously modern and science-oriented societies aim to avoid supernatural terror. Despite this, the urge to remove and isolate people with neurological and physical capacity differences from that temporally defined as typical persists. Modern history of disability includes widespread institutionalization, a practice common well into the twentieth century and far from vanished even into the twenty-first (Trent, 2016). Removal of those whose mental health challenges exceed those perceived acceptable by the surrounding society dates back centuries (Michel, 1961). The locations to which people were confined to receive treatment for mental

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health problems were all too frequently incompatible with long term human survival, let alone conducive to improved mental health. Furthermore, treatments designed to assist in the recovery of mental health have involved a high degree of guessing, experimentation and application of myth. In short, the asylums and institutions created at least as much suffering as they were designed to prevent. Given this history of complexity, confusion, and entrapment, a straightforward model such as rebalancing brain chemistry becomes understandably appealing. During the second half of the twentieth century, the Disability Rights Movement grew in both the United States and Canada. Though initially dominated by those interested in physical disability, the Disability Rights movement came to include neurodivergence including mental health challenges. Pop culture artifacts such as One Flew Over the Cuckoo’s Nest (1975) also helped to spread awareness of the conditions present in institutions. At the same time, because mental illness spans other socially and politically relevant elements of human diversity, a broader spectrum of families encountered real operations of institutions. Expulsion of mental illness through long term social exclusion of those with mental illness became evermore clearly an incomplete solution to the wicked challenge motivating the effort. As Michel Foucault articulated in Madness and Civilization (1961), the policy solution of removal on the basis of mental illness began during the self-described Age of Reason and persisted alongside cultural developments consciously focused on building both participatory civil institutions and empirical science. Once the policy problem defined as the destructive presence of the mad linked to the policy solution of their removal and sterilization became unpalatable owing to emergent conceptions of disability as an element of diversity, a new policy design was wanted. The Disability Rights Movement asserted that disability was largely a construction of the environment surrounding the individual. According to the theory of social construction of disability, belief in the existence of a typical human being is a dangerous and deadly myth. Instead, all human beings are understood as properly unique. In most contexts, most differences go unnoticed because either the flexibility of the individual’s capacities or the flexibility of the potentially disabling infrastructure allows for performance in keeping with expectations established by social norms (Baker, 2011). For example, a person might have pain creating tangible difference in the ability to move for long period of time. Assuming they can move enough to accomplish a level of acceptable social, political, and economic participation, they are not considered to have a disability despite real distress. Deinstitutionalization aimed to reframe the tipping point of disability to a reflection of a society’s limited capacity for infrastructure flexibility. Confinement to an institution moved individuals away from participation thereby augmenting rather than decreasing discrimination on the basis of capacity. Deinstitutionalization brought disremembered peoples back into public spaces and family homes. The shift lay aside solutions oriented toward separation by replacing so-called madness into communities. Social construction theory situates primary responsibility for addressing exclusion with society and its responsibility to maximize flexibility. Using tactics often

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paralleling those employed in civil rights movements of other oppressed groups, disabled people and people with disabilities fought for changes to exclusionary infrastructures. For a myriad of reasons, the disability rights movement tends to be less well known amongst the general population than these other more or less contemporaneous efforts. Despite limited awareness, over the course of the last few decades of the twentieth century through both court decisions and changes in policy design, disability rights policy expanded to include provisions such as legally guaranteed access to the public education system, accommodations on airplanes, accessible telecommunications, sign language interpreters present at public meetings, and the requirement that physical infrastructures be built or modified to allow for greater flexibility with regard to the physical capacities necessary to negotiate them (such as ramps, curb cuts, and signs in Braille). Changes associated with the Disability Rights Movement also included negative rights such as regulations against using disability as a sole reason for making adverse employment decisions. Rights of individuals in a democratic society forbid being held against one’s will without just cause. Detention in institutions and asylums was often long term by default. Managing the danger to public safety assumed present in mental illness was understood as predicated upon isolation of individuals with mental health challenges from the general population, despite the cost associated with such an endeavor. Even abusive and impoverished facilities involved significant state cost. During the early part of the twentieth century, administrators of state institutions also enjoyed strong political connections and powerful lobbying capacities in most sub-national governments. Not inconsequentially, institutions designed to serve the needs of those experiencing mental illness became leading employers in surrounding communities, many of which were rural and lacking in sufficient employment options. Aversion to the high concentration of power, too often in the absence of therapeutically helpful and restorative interventions and combined with the high public cost of running institutions, augmented pressure for deinstitutionalization. The imagined alternative to institutions envisioned effective and secure community-based provision of mental health care. This infrastructure never adequately materialized, particularly in rural communities where existence of mental health care options remains seriously constrained or nonexistent. In many locations in both Canada and the United States, the policy solution of diffuse care structures appeared in the form a cruel jest in that clients trained in rights to agency, selfadvocacy, and the opportunity to negotiate personal risk through deinstitutionalization found themselves thrown into circumstances devoid of assistance. When such circumstances combined with new optimism regarding pharmaceutical interventions following early (perceived) development of so-called miracle drugs, disconnects between a simple problem definition directed at a wicked policy challenge reorganized around the brain chemistry model of mental health and illness (Roth, 2018). Off-label prescription of medications for adolescents experiencing serious mental distress inflects space into this policy gap between the human brain’s preference for a simple story as a guiding light through difficult terrain and the real limitations of the underlying reality of the metaphor in question.

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Parenting and the Gap

As one of the quintessential human experiences transmitted intergenerationally, metaphors shaped parenting knowledge. Humans learn how to parent (or not to parent) from long-term observation of the parenting they experience. Furthermore, despite resoundingly increased probability of early childhood survival in many parts of the world, parenting remains terrifying (Skenazy, 2009). As mentioned above, as has been traditionally the case regarding many disabilities, one mechanism by which humans negotiate observed tragedies in parenting is through the assumption of negligence or ignorance on the part of those who experienced the misfortune. Parent blaming pervades public responses to lived tragedies involving mental illness. Of course, neglect and abuse exist. Failure to provide for the safety and security needs or directly injuring a child can cause distress and lay the foundation for mental illness. The fact that a very high proportion of children in foster care carrying diagnoses of mental illness is important and part of the wicked challenge surrounding extreme mental distress in adolescents. However, translating these tragic observations into the notion that mental distress can alone serve as evidence of parental neglect or abuse contributes to the drastic oversimplification of a wicked policy problem while simultaneously adding to the hurting family members of individuals with mental illnesses. Knowing that, deinstitutionalization sought to reconstruct families torn asunder by policies of routine institutionalization. This movement protected many people. Nevertheless, parents (and other family members) have also been endangered by deinstitutionalization. The study of parental abuse is both all too often unwelcome and in its infancy. As was discussed above, a strong tendency exists in both the United States and Canada to lean toward nurture-based explanations for extreme mental health difficulties in adolescents. Furthermore, professionals often have a pronounced failure of imagination or willful ignorance when considering the difficulties of living day to day with someone experiencing mental health difficulties while simultaneously attempting to parent, especially as a child’s body becomes adult sized. Furthermore, familial circumstances surrounding serious mental illness in adolescents also incur risk of use of more harsh or violent actions on the part of a parent seeking compliance. As the opening story tells, presence of mental illness can escalate interpersonal interactions inside the home. While deinstitutionalization stands as one of the crowning achievements of the Disability Rights Movement, reintroduction of extraordinarily emotionally labile adolescents into home also set the stage for instances of domestic violence. The brain chemistry model leaves room for deflection of this association by leaning into the idea that such tragedies could be avoided entirely if only the right medicates were introduced and reliably taken. Furthermore, a strong bias also exists that extreme difficulties in adolescence can be attributed to insufficiency of parenting attempts given fated circumstances. In reality, raising a child with neurodivergence, including mental health difficulties, requires on average much more sustained effort and specialized expertise than parenting a typical child (Baker & Drapela, 2010; Bristow, 2014; Hung et al.,

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2011). Professionals working with children with mental health care needs risk forgetting the difference between professional employments (Ray et al., 2013). After all, professional stakeholders more reliably enjoy both time between working with the person with the difficulties and for a life separate from living with mental illness. Muddled contemplation of these factors underscores situations in which the institutional environment—be it a day school or treatment facility—finds the adolescent too difficult to work in a controlled environment and obligates the parent to take the child home, often with minimal or no external support. Finally, insurers urge the quick return of the adolescent to the community. While recent changes to laws (especially in the United States) reduced the capacity of treatment facilities to declare children well at the end of a pre-established period set by insurance companies, detection of this behavior at a distance proves difficult. The course of most mental health conditions varies dramatically by individual person. In the end, parents are simply expected to provide well-organized family environments while waiting out the period during which efficacy of a selected medication is revealed (Baker & Drapela, 2010; Levesque, 2014; Robinson et al., 2004). Stabilization of effects of psychiatric medications typically take some time. Furthermore, changes occurring rarely promise to be sudden. Tinkering with doses will often be necessary. For adolescent brains the dosing challenge can be especially pronounced and dynamic. After all, a brain chemistry model rests on the assumption that efficacy of medications is sensitive to the hormonal environment in the body. Dosage can also be highly dependent on the weight of the individual taking the medication. Both of these tend to change particularly rapidly in adolescents. The common wait period of six weeks might seem like a relatively short period of time in the abstract. It can be a very long time in the lived experience of both the adolescent and their family. Parents and other guardians are routinely sent home with an unstable child taking medications with unknown effects and potentially dangerous side effects. Women are at disproportionate risk for finding themselves alone in this situation given the higher frequency of single mothers than single fathers in all populations, especially in the population of children with special needs (Baker & Drapela, 2010). While certainly not true of all fathers and potentially tied to social construction of gender roles rather than innate capacities, fathers faced with parenting children with special needs disproportionately discontinue living in the same home as their children (Craig et al., 2014). Particularly in the circumstances involving a lone female parent or guardian and growing adolescent male pairing, substantial physical risks result when side effects of newly introduced medications include, for example, aggression and irritability. Deaths and injuries have occurred in all family compositions, however (Roth, 2018). The potential for underreporting exists as well because of the complexities surrounding social perceptions of parenting including the parents themselves, who can also engage the narrative of neglect or otherwise faulty nurturing. After all, embracing this narrative of responsibility at least puts a degree of control regarding unfortunate outcomes in the hands of the parents, if no only way through their past actions over which they had, at some point, a measure of control. Furthermore, parents with other children may worry that drawing attention

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to the circumstances of violence in their homes may result in the removal of all children by Child Protective Services. Mothers (or parents) injured by their children do not readily encounter socially constructed narratives to facilitate comprehension and management of their experiences. They much more easily encounter narratives of heroic pursuit of effective medical interventions despite the odds, rendering a tireless quest for the right antidote to brain mis-chemistry alluring. Contemporary societies tend to respond unsympathetically to abuse of parents, especially when the parents in question do not evidently have compromised capacities resulting from age or disability (Hung et al., 2011). Research into violence or emotional harm systematically conducted by adolescents against their parents is limited by comparison to research into other forms of abuse (Levesque, 2014). As Robinson and his co-authors explained, “in comparison to child and spouse abuse, the issue of parents being abused by their adolescent children has received very little attention from the mental health profession even though its prevalence is comparable” (2004, 58). Importantly, even proposing to undertake sure research risks perpetuation of harm against the disabled and people with disabilities, who despite historical stereotypes are by in large are much more likely to become victims of abuse than perpetrators of harm. Robinson also explains that parent abuse includes any deliberate action conducted by the child intended to cause physical, psychological or financial harm, generally including the intention to gain power over the parent (2004). The financial harm aspect might be especially surprising to those less familiar with the behavior. However, it is a particularly powerful weapon given the increased financial liability legally assigned to parents for the behavior of their children in recent decades. Put simply, parents are routinely responsible for the court (including public defender), incarceration, and restorative costs levied against adolescents for their criminal actions, regardless of whether realistic capacity for preventing these behaviors existed. Parents have lost jobs (and thereby the capacity to support their children) as a result of requirements placed upon them as consequences for their adolescent’s criminal behaviors. Adolescent to parent violence may not even be considered domestic abuse by either scholars or a society systematically increasing the legal obligations of parents with regard to the behavior of their children in recent decades (Hunter & Piper, 2012). As Amanda Holt explained, “parent abuse is a hidden but prevalent problem which presents a number of challenges to practitioners who work on the frontline in the field of social care, criminal justice, education and health” (2012, 91). A search of the website of the United States’ Center for Disease Control and Prevention conducted on March 20, 2015 for the keywords “parent abuse” returned first twelve references to child abuse. Only in the thirteenth did the topic shift to the abuse of parents, and in that case the topic was specifically elder abuse. The website for Health Canada included material relating specifically to parent abuse by the third hit, however it was only in an encyclopedic and difficult to negotiate format, much less accessible than the information about child abuse returned in the search. Parents experiencing abuse at the hands of their vulnerable children with severe mental illnesses have little cause to believe that the benefits of going public about harm at the hands of their children will outweigh the long-term reputational risks to their

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children (and families). Furthermore, the brain chemistry model urges toward thinking about the problems as temporary, needing only the right chemical solution to the unbalanced brain chemistry. Problems related to parent abuse may be fundamentally different from those associated with other forms of abuse. For example, in an article posted on the website of the United States’ National Institutes of Health, Kennair and Mellor state, “while parent abuse falls under the umbrella of family violence, it appears to be qualitatively different from other forms of intra-family abuse” (2007, 203). Most obviously, parents retain legal responsibility for not only the actions, but also the welfare of their abusers, at least until the child reaches the age of majority. In a sociological study of adolescent abuse against their parents, Jun Song Hung and co-authors found that risk factors for parental mix were complicated and not easily connected to particular parenting or disciplinary strategies (though domestic violence and child maltreatment increased risk) (2011). A go-to solution for when ongoing abuse, especially violent abuse, has not ceased after interventions is to legally sever family ties (Levesque, 2014). The fact that the known potential side effects of prescribed medications for mental illness might drive or increase this risk of such harm attracts a disproportionately small degree of attention in this already truncated discourse. Another parental risk frequently underestimated or ignored in circumstances in which adolescents are experimentally prescribed medications is the increased likelihood that the parent will acquire mental health challenges over time resulting from the challenges associated with parenting a child in crisis experiencing less than fully understood side effects or struggling to secure care from inadequate and poorly designed mental health care systems more generally. In some cases, parents were similarly genetically predisposed to these difficulties as their children. In other cases, long term parental history of mental health challenges are more than evidence and, in some circumstances, exacerbate the onset of mental health difficulties in the child. However, even in the absence of such predispositions, the stress and trauma of parenting a child with mental illness can be distressing. Though focused on a neurological rather than explicitly mental health challenge, stress levels of parents of children with autism have been measured as similar to those of people experiencing battlefield conditions. This level of stress has well documented effects on the mental health of a substantial minority of those who experience them; sometimes turning into lifelong disabling conditions such as post-traumatic stress disorder. Untangling the history of acquisition of mental health challenges may not be necessary to help individual families at the point at which both the child and the adult exhibit difficulties. Both neuroscience and post-Freudian psychiatry call into question the necessity of discerning original cause when it comes to helping people emerge from mental illness. However, understanding the distinction between acquired and existing mental distress in family members living with an individual experiencing serious mental illness is foundational to prevention-oriented initiatives targeting the general population. A model of balancing brain chemistry in a single patient insufficiently accounts for the environmental influences on mental health of groups as a whole.

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Furthermore, extrapolating to the inner worlds of adolescents on the basis of their observed behaviors is never straightforward. Experimentation defines adolescence. Human beings are much worse than they imagine at accurately interpreting the meaning associated with the observed behaviors of others. The fundamental attribution error shapes much of our interpretation of the motives and meaning of other human’s behaviors. In essence, when human beings act, especially in an unusual or destructive way, they tend to attribute the cause of that behavior to something outside of themselves. For instance, when a person behaves in a short- tempered manner while in public, they tend to understand the reason for the behavior as having an external causality such as the music being played too loudly in the environment or hunger resulting from a delayed lunch. On the other hand, when the same person observes a similar behavior by another human being, they are far more likely to interpret the crabbiness as resulting from a personality characteristic of the other individual. In examining the behavior of adolescents to discern mental illness, complications arise surrounding both the understanding the seriousness of a given experimental behavior and inter-generational tendencies to attribute the observed behavior of adolescents to fundamental character flaws rather than comprehensible reactions to temporary circumstances. Adolescents with mental illnesses are adolescents first and despite any diagnosis. Finding the line between behavior that challenges and behavior of concern proves difficult in any context. Augmenting factors such as side effects of medications and an absence of discernable social or political constructions of parent abuse complicates this discernment even more. Teenagers have a baseline reputation for being unbalanced, rendering distinctions between mental health and mental illness more complex and complicating any specific formulation of a brain chemistry model awaiting balance. Human beings coping with mental health emergencies tend to behave strangely (Roth, 2018). Without a doubt, potential causes of unusual behavior include that they are symptoms of mental illness. However, causes also include rational responses to extreme circumstances. For instance, a parent of an adolescent refusing to participate in family therapy might do so for a broad spectrum of reasons including flaws in character, their own mental illness, socio-economic constraints or previous attempts producing more harm than help. Professionals observing the family, especially those with a mandated professional responsibility to provide services to the family under, for example, well intentioned social or restorative justice policy designs will, given the fundamental attribution error, be at particular risk of understanding the refusal to participate as evidence of a serious character flaw. Professionals may seek out evidence of more external causes of refusal to participate in services. One such cause for refusal by parents or guardians grows from the likelihood that the intervention had been previously attempted without success and, in some circumstances, with the unhappy results. For example, the guided interactions present in family therapy sessions can create opportunities to lie about or abuse other family members, resulting in additional harm incurred by the person not considered the patient by the professionals involved. Furthermore,

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professionals in contemporary societies are too rarely afforded sufficient time to contemplate such complexities in specific cases, especially when working for the public sector Patterns of refusal to participate in treatment options previously demonstrated to be at best ineffectual and at worst outright harmful fosters arguments for increased reliance on prescriptions. This in turn further restricts potential for measured consideration of side effects of, especially, off-label prescriptions, thereby reinforcing the neuroethical policy gap between the brain chemistry model and the complexities of mental health. Finally, keeping those who experience mental illness in their homes makes sense only to the extent that this placement in the short term does not predictably contribute to risk of homelessness in the long term. Failures of solutions can and does create circumstances under which families emerge less equipped to live with a child with a mental health challenge than prior to participation in services. Especially once an adolescent reaches the age of majority, family members may find it impossible to continue to allow the now adult offspring to live in the family home. In the absence of a means of self-support, such circumstances easily result in homelessness. Jails, too, become locations heavily populated by adults experiencing mental health challenges while homeless (Roth, 2018). For families of adolescents experiencing mental illness to be able to routinely manage mental illness in their homes, it is important to close the gap between the perception of understanding of mental health challenges and the actual status of neuroscience in this area. As discussed early, substantial complication exists in the constructed necessity of prescribing off label including pressures on (usually) for profit developers of medications to strategically manage the construction of evidence surrounding efficacies and risks of pharmaceuticals. Transcendent attraction to easy stories tends to grow in stressful circumstances. Working with this neuroethical policy gap involves courage in the face of restrained conviction. As Don Miguel Ruiz wrote in The Fifth Agreement, “We are not in a hurry, but we have no time to lose” (Ruiz et al., 2011, np). Acting quickly in the context of complexity requires flexible, incremental policy design with built in provisions for diversity of preference or experience and attention to course correction. In such contexts, common use of more than one metaphor supports more broadly sustained attention to underlying complexity. Acting quickly does not necessarily imply rash, colossal, or everlasting policy designs. Making progress with the parenting elements of this neuroethical policy gap surrounding mental health and adolescents depends upon cooperation between areas of policy often handled relatively independently. The specific case of off-label prescribing requires careful and ongoing consideration of contexts of prescription, enhanced support and observation of families undergoing transitions in medications, and reconsideration of existing profit motives present in the development, approval, and distribution protocols for pharmaceutics in market economies. Finally, directly addressing this neuroethical policy gaps depends on informed active resistance of dependence on simple stories on the part of a broad spectrum of issue stakeholders. Speaking truth to the power of these stories initially turns on the heroic efforts of those who were given no choice but to know better.

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Politics of Mental Illness: A Counter Consideration

One danger of selecting a specific case to explore a neuroethical policy gap formed in over-simplification through stories involves direct contribution to the spread of another story of over-simplification. One such story casts a triumvirate of profitgreedy pharmaceutical companies, corrupt regulatory agencies, and inattentive medical professionals opposite noble parents in desperate search for treatments for the severe mental distress of their children. Working effectively with wicked problems intentionally avoids simplistic story replacement. In an attempt to manage this concern, an examination of brain-based arguments used in a counter to this kind of narrative was conducted by Ruth Vasquez for inclusion in this book. In her study, Vasquez explored brain-based arguments used by stakeholders considering emergent non-heterosexual identity as mental illness. Sexualities and mental illness share a complicated and tragic history. Sexuality and religion intertwined dynamically throughout known human history. In cultures entwined with Judeo-Christian Biblical teachings, repression of sexual desires outside of heterosexual, male dominated experiences have been pervasively oppressed, if not deliberately exterminated. Contemporary democracies remain forcibly affected by the sexual preferences of traditional patriarchy. For example, as Sara Angevine and Matthew Mendez Garcia found in an analysis of bill sponsorship in the United States, LBG members of Congress are more likely to sponsor bills inclusive of gender identity than those who identify as heterosexual (2021). Some who favor discrimination on the basis of sexual orientation and gender identity consider both mental illnesses and therefore consider treatment and medication as appropriate responses to the perceived problem. Examining how brain based arguments are employed in the consideration of use of medication in such circumstances prove revealing. In the fall of 2018, Ruth Vasquez examined a sample of 24 public documents pertaining to the use of psychotropic medicine in children and adolescents. Vasquez was particularly interested in looking at the degree to which politicized values were referenced in discourse regarding the necessity of enhanced use of psychotropic medication with adolescents. In locating and classifying use of brain-based arguments for public policy focused on access to medications designed to (re)balance the brains of young people experiencing serious mental health challenges, she located a range of reasons given in policy arguments focusing on increasing the agency of young people connecting to an attempt to acknowledge adolescent emergence of identities potentially in conflict with parents and guardians. Essentially, Vasquez’s study suggests that one policy reaction potentially connected to a move away from overly simplistic policy solutions has been to make more complex provisions for access to medications by adolescents. Historical (and, still, contemporary) discrimination on the part of elders with regard to sexual and gender identities likely inspired states to lower and make more nuanced the age of majority with regard to psychiatric treatments.

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Concluding Thoughts

Karl Popper describes two different types of problems, clock problems and cloud problems. Problems fitting the clock description are those that can be taken apart and fixed bit by bit and then put back together to create a working whole. Problems fitting the cloud description cannot be taken apart and so fixed, at least with any hope of reconstituting the cloud into its original form. It much be managed as a whole and, often, with great delicacy as the problem will reshape itself dramatically in response to simple forces or even the passage of time. Fixing the problem of adolescent mental health crisis eludes clockwork like repairs. Public policy design tends to involve specification of the public problem into as few policy subsystems as possible, if for no other reason to permit identification of the public bureaucracy responsible for the implementation of programs associated with the policy. Having too many agencies understood as having lead responsibility for the administration of a program, either directly, through leadership of multiple stakeholders or through contracting out to parties outside of government, invites either chaos or stagnation. Policy designs regarding mental illness have too long relied on metaphorical oversimplification. Human brains are quick to formulate narratives and reluctant to abandon narratives once taken to heart. As Susan C. Hawthorne explored in Accidental Intolerance (2013), once a narrative surrounding a particular neurological difference such as ADHD has become understood as clock problems, a broad spectrum of path dependent policy choices can follow regardless of whether the underlying neuroscience remains accepted. Addressing the neuroethical policy divide between the attractively simple model of brain chemistry imbalance and the complex reality of mental illness coincident with a phase of life during which neurological (and physiological) transition peaks demands sustained focus on complexity. It also requires reconsideration of the balance between rights and risk to better account for the realities of both for-profit health care and the changing expectations of parents. Negotiating fairness in challenges related to mental illness presents a long-term and fraught challenge for which the best hope remains errorriddled lunching towards justice. While this reality is undoubtedly less immediately appealing for many stakeholders than would be widespread adoption of a series of simplistic metaphors, embracing complexity constitutes the only genuine approach to negotiating progress toward the goal of narrowing (then closing) this neuroethical policy gap to the fullest degree possible.

Works Cited “Approved Drugs: Questions and Answers”. Food and Drug Administration. Online. Last updated November 1, 2016 on http://www.fda.gov/Drugs/ResourcesForYou/Consumers/ucm0 54420.htm Angevine, S., & Garcia, M. M. (2021). Legislating inclusion: Sponsorship of gender identity bills in the U.S. congress. Presented at the Western Political Science Association conference, March 2021.

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Baker, D. L. (2011). The politics of neurodiversity: Why public policy matters. Lynne Rienner Publishers. Baker, D. L. (Ed.). (2017). Disability and U.S. politics: Participation, policy, and controversy. Praeger. Baker, D. L., & Drapela, L. A. (2010). Mostly the mother: Concentration of adverse employment effects on mothers of children with autism. The Social Science Journal, 47(3), 578–592. Baker, D. L., & Leonard, B. (2016). Neuroethics in higher education policy. Springer. Baker, D. L., Drapela, L. A., & Littlefield, W. (2020). Inculpable intentions: Youth with autism and the criminal justice systems in Canada and the United States. UBC Press. Bristow, J. (2014). The double bind of parenting culture: Helicopter parents and cotton wool kids. In Parenting Culture Studies (pp. 200–215). Palgrave Macmillan. Carpenter, D. (2014). Reputation and power: Organizational image and pharmaceutical regulation at the FDA. Princeton University Press. Carton, L., Cottencin, O., Lapeyre-Mestre, M., Geoffroy, P. A., Favre, J., Simon, N., Bordet, R., & Rolland, B. (2015). Off-label prescribing of antipsychotics in adults, children and elderly individuals: A systematic review of recent prescription trends. Current Pharmaceutical Design, 21(23), 3280–3297. Craig, L., Powell, A., & Smyth C. (2014). Towards intensive parenting? Changes in the composition and determinants of mothers’ and fathers’ time with children 1992–2006. The British Journal of Sociology, 65(3), 555–579. “Drug Products”. Government of Canada. Online. Last updated on February 26, 2018. http://www. hc-sc.gc.ca/dhp-mps/prodpharma/index-eng.php Greenwald, R. A. (Ed.). (2013). Human subjects research: A handbook for institutional review boards. Springer. Hari, J. (2018). Lost connections: Why you’re depressed and how to find hope. Bloomsbury. Hawthorne, S. C. C. (2013). Accidental intolerance: How we stigmatize ADHD and how we can stop. Oxford University Press. Hossenfelder, S. (2018). Lost in math: How beauty leads physics astray. Basic Books. Hung, J. S., Kral, M. J., Espe, D. L., & Allen-Meares, P. (2011). The social-ecology of adolescentinitiated parent abuse. Child Psychiatry and Human Development, 43(3), 431–454. Hunter, C., & Piper, C. (2012). Parent abuse: Can law be the answer? Social Policy & Society, 11(2), 217–227. Kendi, I. (2019). How to be an anti-racist. Random House. Kennair, N., & Mellor, D. (2007). Parent abuse: A review. Child Psychiatry and Human Development, 38(3), 203–219. Le Fanu, J. (2014). The rise and fall of biological psychiatry. Brain, 137(6), 1850–1852. https://doi. org/10.1093/brain/awu085 Leo, J., & Lacasse, J. R. (2016). Antidepressants and the chemical imbalance theory of depression. The Behavior Therapist, 38(7), 206. Levesque, R. J. R. (2014). Parent abuse. Springer. Lindell-Osuagwu, L., Korhonen, M. J., Saano, S., Helin-Tanninen, M., Naaranlahti, T., & Kokki, H. (2009). Off-label and unlicensed drug prescribing in three pediatric wards in Finland and review of the international literature. Journal of Clinical Pharmacy and Therapeutics, 34(3), 277–287. Michel, F. (1961). Madness and civilization: A history of insanity in the age of reason. Librairie Pion. Ray, S. L., Wong, C., White, D., & Heaslip, K. (2013). Compassion satisfaction, compassion fatigue, work-life conditions and burnout among front-line mental health care professionals. Traumatology, 19(4), 256–267. Robinson, P. W., Davidson, L. J., & Drebot, M. E. (2004). Parent abuse on the rise: A historical review. American Association of Behavioral Social Science Online Journal, 7, 58–67. Roth, A. (2018). Insane: America’s criminal treatment of mental illness. Basic Books.

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Ruiz, D. M., Ruiz, D. J., & Mills, J. (2011). The fifth agreement. Hay House. Excerpted and adapted from The Fifth Agreement © Miguel Angel Ruiz, M.D., Jose Luis Ruiz and Janet Mills. Reprinted by permission of Amber-Allen Publishing, Inc. November 19: See Don Miguel Ruiz in Vancouver. Musical guest Kuba Oms. Unity of Vancouver, 5840 Oak St. Tickets at www. kubaoms.eventbrite.com Seligman, M. E., & Csikszentmihalyi, M. (2014). Positive psychology: An introduction. In Flow and the foundations of positive psychology (pp. 279–298). Springer. Skenazy, L. (2009). Free range kids: Giving our children the freedom we had without going nuts with worry. Jossey-Bass. Trent, J. W. (2016). Inventing the feeble mind: A history of intellectual disability in the United States. Oxford University Press. van der Sanden, R. L., Bos, A. E., Stutterheim, S. E., Pryor, J. B., & Kok, G. (2015). Stigma by association among family members of people with a mental illness: A qualitative analysis. Journal of Community & Applied Social Psychology, 25(5), 400–417. Vance, E. (2016). Suggestible you: The curious science of your brain’s ability to deceive, transform, and heal. National Geographic.

Chapter 5

Ages of Consent and Majority

eMErgent: A Spoken Word Cloud on Adolescence What if adolescence is not an age but connecvity? Not a but a relaon a moment learn from experiences not my being physiologically capable not an age not purely a but a vibraon the crisp screen—simply liquid response to electrical shudder—a willingness a adolescence is not an age is my generaon realies? Which inequalies Which are we amplifying? complex inequalies will we

a game space a kind of developmental capacity through which i can Adolescence own not the state of a scene of learning from me neurological capacity a need image on an LED crystals moving in a scale fields—a kind of a lease seeing? What if but an algorithm? How A seed. experiencing our are we reproducing? And which of these transform as we become?

Generaon z we online constantly we test anxiety we recession detainees Wii demand connecvity we gender non-binary we they and she and he we climate changed we be we no futurity we cling to who we be we Generaon Z

Most contemporary humans distinguish adulthood from childhood. Historical conceptions of these two states have varied across time and place. Understanding past approaches to majority takes in the reality that for much of human history, a large proportion of children did not survive until adulthood. Cultures around the world once created definite transitions into adulthood for children fortunate enough to survive childhood. Once the fragility of children weighed less heavily on the collective human consciousness, consideration of the distinction between child and adult became more nuanced. Many cultural traditions surrounding transition to adulthood remain in contemporary practice. However, as adult life became more complicated, access to adult privileges and assumption of adult responsibilities © Springer Nature Switzerland AG 2022 D. L. Baker, R. L. Baker, Neuroethical Policy Design, Studies in Brain and Mind 20, https://doi.org/10.1007/978-3-030-92289-4_5

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became more staggered. Furthermore, determining whether or not a particular individual has transitioned to adulthood became less clear and absolute in most contemporary societies. Humans take an extraordinarily long time to mature relative to typical lifespan, as compared to the known population of living beings. The complexity of human neurology contributes in no small measure to this reality, starting with the timing of our births vis a vis our maturation. Furthermore, the variety and number of responsibilities assigned to adult humans in contemporary societies also outpaces all known species. Adult behaviors include both an extraordinary number of task types, but also expected mastery of multiple social contexts, and, generally speaking, at least a handful of often disparate roles. Whereas becoming an adult was once a matter of survival, age, and ceremony, adulting now involves performance of diffuse and clouded obligations. Human brains build out through experience. New information is perpetually compared against stored memories. Both the meaning and content of memories are updated upon recall allowing the individual to draw ever new lessons and meanings from memories already stored. Ideally this creates capacity for ever more nuanced judgments available to guide responses to similar situations encountered in the future. As societies becomes more complex, the circumstances an individual will have to negotiate in adulthood can diversify dramatically. Though not always celebrated when observed in daily life, such enhanced complexity of adult roles underscores an expectation that it may take longer for children to mature into functioning adulthood. It is worth noting the strangeness of dividing human lives into but two major phases. Findings from neuroscience demonstrate development over time marking several (at least partially) distinct phases in adulthood. The middle-aged brain (defined in this case as someone between the ages of about 40 and 70) differs from the young adult brain as certainly as it does from that of a child, young adult, or older adult. Part of the difficulty in understanding the differences in phases of adulthood relate to challenges in differentiating the effects of nature, experience, health, and environment. While much of the discussion of nature versus nurture considers childhood development, the effect of experiences and choices focuses on childhood development, the relative effects of these two factors shapes development over the course of a lifetime. As people age, they continually make choices about their development as a human being, even in oppressive environments. In contexts understood as aiming for freedom, contemporary adults make copious choices on a daily basis. The success rate of making long-term plan-oriented choices remains incompletely understood, however. For example, failure rates on New Year’s resolutions and diet plans are notoriously high. However, most adults persist in getting their basic needs met. Legal majority is therefore generally afforded to those considered adults by virtue of chronological age, unless and until persuasive evidence of compromised capacity exists and is formally submitted to legal proceedings designed to restrict rights (and, to some degree, responsibilities) associated with adulthood in a small minority of individuals.

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Modernity both formalized and complicated adulthood. First, the transition to adulthood does not take place at a single point of time for most people in North America in the twenty first century. In the United States and much of Canada, young people can drive at sixteen, vote, serve on juries, stand trial as an adult, marry around eighteen, drink alcoholic beverages at nineteen or twenty-one, and rent a car in their mid-twenties. Ability to incur other adult responsibilities, such as taking on long term debt, depend on the successful performance of adult actions, such as the responsible management of other financial contracts. These conceptions of adulthood confound age of majority and age of license; the first being the age at which a person gains full responsibility for his or her person and decisions in terms of human and civil rights and the second being designated ages at which an individual gains the right to participate in other privileges from which children are restricted. Other transitions to adulthood, such as marriage, children, and securing long term, full time employment increasingly happen even later in life, if at all. Whether human maturity depends on achieving the stakes of conformity is not the subject of this chapter, though there is substantial neuroscientific work both necessary and in progress to better understand the role of neurology in differential success in timely transition to culturally identifiable adulthood. Instead, this chapter focuses on discordant articulations of adult expectations in public policy applied at stages of life where humans typically have yet to develop the necessary neurological capacities.

5.1

Neuroethical Policy Divide: Individual Emergence in the Context of Uniform Policy Design

Transition to adulthood occurs in defined, successive stages in contemporary democracies. The gradual expansion of rights and privileges reflects understanding of multifaceted human maturity wherein some elements of the adult’s form emerge (such as sexual maturity) before other elements (such as long-term thinking). Evidence collected in brain sciences continually reflects staged emergence of brain maturity, including a long period of emerging adulthood after adolescence (Arnett & Tanner, 2016). This evidence proves difficult to collect with reasonable control for the influence of exogenous factors given the necessity of protecting human rights. Even so, a fundamental discontent inherently exists in policy design specifying chronological ages (nearly) universally applied to neurodiverse and intersectional populations. Public management of such challenges involves active response to emergent science combined with deliberate decisions regarding the timing of application of adult responsibilities with regard to the proportion of the population anticipated to experience premature onset of specific social expectations. In contemporary societies, eighteen-year olds often gain access to rights and responsibilities associated with long-term thinking and the ability to imagine the internal world of another person, colloquially known as putting oneself in another’s

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shoes and also commonly described as the theory of the mind. The specific designation of the age eighteen is arguably more uniform in the minds of the general population that in actual policy design. For example, several Canadian provinces and states in the United States define nineteen as the age of majority. Furthermore, Mississippi’s age of majority is twenty-one, despite the onset of adult responsibilities at earlier ages (such as voting as defined under the 26th Amendment of the United States Constitution). Despite the widespread use of the (around) age eighteen as the dividing line between lack and existence of such transcendent contemplation of human experience, findings in the brain-based sciences suggest the neurological capacities assumed in this policy design may not be present when individuals are eighteen or even for several years afterward (Hall, 2011; Howard-Jones, 2014). Despite this staggering in policy design, in contemporary contexts, late teens (usually eighteen) hold visceral association with the earliest moments of adulthood. In some respects, age eighteen can seem too late for onset of rights and responsibilities associated with adulthood. Prior to the general (though, importantly, not globally universal) expansion of the human life span and increased childhood survival associated with advances in science and medicine during the last two centuries, marriage and parenthood at earlier ages often appeared advisable. Widespread economic insecurity and devastating dislocations experienced during the centuries of European invasion and colonization of other continents and subsequent Industrial Revolutions combined with rendered formal employment necessary for most children and adolescents. Furthermore, the history of policy infrastructures shaping age of majority has been malformed by forces denying adulthood to women, the disabled, and, often, racial, ethnic, sexuality, or religious minority group members. In the United States, for example, women could not apply for most financial credit programs until the 1974 Equal Opportunity Credit Act. Similarly, in both those deemed white excluded others from mortgages to buy houses or other real property, a practice that echoes to this day and which continues to exacerbate inequities (Wilkerson, 2020). Given this, early modern adulthood was simultaneously earlier onset and, in some respects, denied regardless of age in early modern societies. In contemporary societies, economic hardship, stricken families of origin, and other intersectional circumstances carry this reality into the twenty first century. Freedom of action carries consequences. With limited exceptions, humans have developing capacity to learn from mistakes since the moment of birth. Formally defined consequences, up to an including fines or imprisonment for crimes, are not a direct payment for the harm resulting from the behavior in many contemporary contexts. Instead, public consequences exist as mechanisms by which people might learn to do better (Baker et al., 2020). Intended learners include not only the person who has transgressed, but also others who might be inclined to undertake similar behaviors. The juvenile justice system employs less severe punishments for reasons including: young people cannot effectively think in the long term (and therefore stand to learn as much from lighter punishments); full comprehension of the consequences of actions tends to elude younger minds; and the hope that the maturation process alone tens to move humans from anti-social behavior. Miscomprehension of the intention of juvenile justice systems can occur owing to

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(historical) expectations that the harm caused by the individual through his or her actions should be directly balanced with an equal harm directed against them (the “eye for an eye” mentality) and because of a failure to fully appreciate the genuinely limited neurological capacities of teenagers. Long term thinking includes specific concern about the potential for long term ramifications. In other words, when people engaging long term thinking make decisions, they consider such factors as the delay of gratification and the implications extending over the course of years, if not decades or longer. Lacking adult capacities for long-term thought and a matured capacity for theory of mind (that is, understanding the genuine existence of other minds) compromises appropriate manifestation of public will in a broad spectrum of policy subsystems. For example, while working young adults receive encouragement from financial institutions, governments, and sometimes, employers to invest in retirement accounts early in life in order to take advantage of compounding interest gains, voluntary enrollment rates in such programs remain low. In part, this is due to the relatively low wages in contemporary economies as compared to the timing of these programs’ creation. In addition to the limiting economic prospects young workers faced during the late twentieth and early twenty-first centuries no doubt limiting the realistic capacity of young workers to commit to savings, the nascent capacities of young workers to contemplate the longer term serves to reduce likelihood of investment. In instances where policy design assumptions include reality-based long-term thinking present in humans not yet likely to have developed neurology sufficient to support such contemplation, a neuroethical policy gap gapes. The criminal justice policy subsystem has (in)famously grappled with the question of emergence of adult capacities and responsibilities. After all, in democratic systems, intent of the perpetrator matters in formal responses to potentially criminal acts (Baker et al., 2020). Acts with even the most heinous of consequences, such as causing the death of others, are judged as criminal only if mens rea, or knowledge of the act as criminal, exists. Scholars and issue stakeholders have long been aware of this challenge. For example, in 1932 Frances Bowes Sayre wrote in the Harvard Law Review, “no problem of criminal law is of more fundamental importance or has proved more baffling through the centuries than the determination of the precise mental element or mens rea necessary for crime” (974). Tragedy, blame, and crime are not synonymous. For example, in the United States, toddlers shoot people every year. Though the toddlers are the direct cause of these tragic injuries and deaths, the children firing these guns are not understood as having committed a crime because they do not understand cause and effect (or death) well enough to commit crimes. Whereas ignorance of the law an individual has the capacity to understand is not considered an excuse, if a person is incapable of understanding a law or the consequences of having been caught breaking a law, then expecting them to follow the law is considered unethical. The degree to which such willfulness is under the direct control of any individual is often an open question relevant to court proceedings. Age is noted as a direct indicator of the likelihood that an individual will understand the law and legal proceedings. Despite some reversal around the end of

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the twentieth century, age of legal culpability has generally increased over time in modern democratic societies. Growing up depends on learning from mistakes. Young children employ the scientific method, testing hypotheses after hypotheses, experiencing far more failures than successes. Experimental learning from failure generally means that the individual doing the learning experiences adverse consequences such as the usually minor pain involved in falling while attempting to learn to walk as a toddler. Considering learning from failure is free constitutes a logical fallacy; people will bear personal costs for their mistakes (Holiday & Ferriss, 2014). Even with very young children testing these hypotheses sometimes run the risk of extremely high costs to themselves or others. A child who attempts to take steps next to a swimming pool runs the risk of death unless protected against the consequence of his or her decisions by an outside actor or force. Some mistakes involve consequences so serious that, especially in modern democracies of the information age, the polis increasingly resists allowing for the opportunity to learn from mistakes, resulting in ever increasing expectations for those caring for children (Skenazy, 2009; Lukianoff & Haidt, 2018). When it comes to actions with extraordinarily harmful effects for others, loss of life either through the death penalty or from long prison sentences are generally ascribed for the culprit, at least in the United States. Even so, use of these consequences with those considered to have yet to achieve adulthood is usually considered unacceptable, and, even then, only palatable to a minority of stakeholders less versed in the realities of child development. Less than mature humans incur truncated or displaced consequences for their actions because error signifies an attempt to learn how to be human, even when the consequences prove disastrous. Conceptions of majority anticipate that individuals can learn from evidence of bad outcomes attributed to the mistakes made by others. For example, young people training for their driver’s licenses learn of driving mistakes with grisly outcomes experienced by age peers engaging in risky driving behaviors because this practice results in reduced uptake of those behaviors (Lanning et al., 2018). In the criminal justice context, the consequences and punishment inflicted on others who have made mistakes aims not only to administer consequences to those found to have violated a law, but also to inspire others at risk of committing the same error to avoid making similar errors (Harris, 2012). Learning by proxy and example depends on a sufficiently developed theory of the mind and a mature sense of empathy. Furthermore, policies rooted in this understanding of deterrence experience limited effectiveness even in mature adults owing to several cognitive biases such the fundamental attribution error and confirmation bias leading people to cognitively distance their own selves and experiences from those of people who have experienced adverse outcomes. Even if the individual understands similarity of circumstances or situations, people (and especially young people) tend to selectively focus on factors creating similarities with the lucky and dissimilar with the unfortunate. Contemplating age of majority also requires appreciation of the fact that individual human development proceeds at a variety of paces. In addition to the now-discredited provisions once artificially limiting the potential for actualized

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adulthood in non-males and those racial or ethnic minority descent, other provisions for delaying (or advancing) the onset of majority have long existed in Canada and the United States. In contemporary North America, a contested area of policy design for age of majority involves health care decisions. Parents and guardians of young children have authority in their health care decisions, including (limited) authority to reject health care deemed appropriate by medical professional such as the administration of vaccines. As children age, this authority diminishes, especially in circumstances of access to services related to sexual activity and to accessing care against the wishes of parents who, for whatever reason, oppose generally accepted medical care. According to the United States’ Institutes of Medicine, allowances for minor medical consent vary by state and tend to take into a variety of factors such as educational attainment, age, marital status, and discerned medical capacity to make an informed decision about the care. Involving marital status in such determinations reflects ongoing consideration of the family as the central social and political unit of analysis as opposed to individual rights. For example, in some communities of immigrants from the former Soviet Union, no person is considered an adult until marriage. In this context, majority depends largely on the consent (or at least actions) of another person, as well as the opportunity to find a compatible mate in the first place. In Canada, chronological age has been more completely replaced by “maturity as determined by individual physicians has replaced age as a determining factor for minor consent in all provinces and territories except for Quebec which requires the patient to be age fourteen or older. The mature minor rule states that a child who is capable of understanding the impacts or accepting or denying treatment are able to decide what treatment to receive (“Can a Child Provide Consent”, 2016). Because medical decisions involve relationships, conditional dynamics, and artistic application of a scientific evidence, nuanced and temporal decisions about majority make sense while still incurring risk of ex post facto judgements of misattribution of majority in individual cases. Despite the variety and scope of status transitions involved in becoming an adult, age of consent in day to day conversation refers most frequently to the legal right to engage in sexual activity with a consenting partner. Of course, consent matters only when the individual in question is considered to have agency by other members of society. Human brains react to and process information about entities understood as having agency differently than they do those considered to be without the potential to act with volition in response to free will. As mentioned above, for much of human history in all parts of the world and, to a much more than routinely observed degree in the modern world, agency was not afforded to all humans. Women, children, people from different heritages or religious backgrounds, or those with disabilities were routinely understood as not only having a different level of rights, but were considered to have less or no agency than more dominant members of society. Decisions about sex with them were made by those considered to have agency with little or no regard to the preferences of those not afforded agency. Until an individual or group is understood as having agency, consideration of their consent remains an oxymoron. In more extreme cases, even the possibility of harm becomes defined out of existence given the supposed absence of agency.

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Historically, an absence of agency has often co-existed with a minimization of the reality of the pain experienced by those deemed less than truly human. When a non-agent suffers, the role of the society is to serve as proxy agents, ideally with their best interests in mind but from a sympathetic (at best) rather than empathetic standpoint. Even so-called best interest can include actions that the individual might themselves consider harmful if presented with free choice with recognized agency. Historical difficulties surrounding protection of agency despite capacity for mature judgement complicate formulating justice associated with staggered and diverse emergence of adult capacities. This differentiation necessarily falls short of universal human access to all agency regardless of (anticipated) capacities since, for example, infants are limited in the capacity for communication of preferences and the contemplation of complex situations. Neuroscientific data constitutes a contemporary source of evidence of choice as it is hoped to transcend legacies of historical biases still constructed into public spaces. However, available data remains both limited and conflicting apart from the emerging consensus that maturity develops diversely and unevenly in human beings. A neuroethical policy divide emerges between lived capacity to design and administer intricate policies in real time and the precision of the neuroscientific data available to inform age of majority policy design. Delicate work requires well-made tools and skilled operators. Crafting policy tools well involves ongoing application of new human knowledge likely to continually reshape understanding of human and civil rights. The policy infrastructure surrounding legal adulthood builds up from ancient foundations and builds into complicated, contested spaces. Echoes of surrounding interactions between cultures, especially historical oppression, appropriation, and competitive tribalism, pervade these policies and complicate conversations surrounding their recreation. As a result, scientific evidence on the operations of the living human brain may be used highly selective. In such circumstances, policy designers and issue stakeholders tend to operate in confirmation bias rather than from a place of openness to emerging insights. As Francis X. Shen found in a study of use of brain science arguments used in legislation “we do not know if neuroscience is simply window dressing on most policy proposals. . .neuroscience does not yet appear to be revolutionary in the sense that it persuades large numbers of legislators to change previously established policy positions” (2016, 498). Updating ageless policy infrastructures in response to improved understanding of human neurology requires both skill and will. In the complicated construction of policies surrounding age of majority, the distance between capacity and desire reinforces and expands age of majority neuroethical policy gaps.

5.2

Example in Play: Age of (Sexual) Consent

Like most aspects of the human experience, sexuality develops gradually and unevenly in human beings. As mentioned above, in contemporary democracies, no universal event, ritual, or characteristic (or lack thereof) is considered the definitive

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experience of transition to adulthood. Even so, sexual activity involving adult partners fits no legal definitions of childhood and is almost universally considered contemptuous. Though real experiences of abuse run a horrifying gamut, especially in cross-national or cross-cultural contacts, a child does not even have to be physically present with an adult for sexual abuse to occur on the exclusive basis of the child’s status as a minor invoked into sexual activity in question. For example, even the use of drawn images of children for sexual pleasure generally serves as evidence of harm to children. The sense of violation and contempt both grow out of a firm, broadly held believe that adult sexual experiences never justly or appropriately include children. Reasons for the existence of sexual minority—a designated period of life during which sexual activity with (adult) partners is legally prohibited—extend beyond a social moral preference. Contemporary evidence drawn from both neuroscience and psychology supports the conclusion that sexual activity between children and adults contributes to long-term distress. Children brought into sexual activity with adults experience high rates of neurological distress connected to trauma even if the experience was not immediately physically painful at the time of the activity (Alaggia & Csiernik, 2017). Part of the explanation for this is, importantly, physical pain, discomfort, and terror occurring as part of the sexual encounter(s) either by designed intention to commit cruelty or because of the lack of physical readiness for the activity in question. In situations involving abuse, neglectful caregivers, trafficking, or violent predation, additional components of distress generally exist confounding and compounding the potential long-term negative effects of the sexual interactions. Even when a child has developed physically, long term distress can occur when children engage in sexual activities with adults. In part, this distress reflects the fact that young people have yet to develop capacities for long term thinking or theory of the mind. When it comes to sexual activity, regardless of the bodily maturity of the child involved, the child understands neither the potential long-term effects of sexual activity nor that the adult partner’s point of view on the activity necessarily involves pleasure in exploitation given the anti-social nature of joint activity. Realizations of such harm over the long term create potential for distress later in life, often rendering subsequent sustained performance of pro-social behaviors challenging for the person who experienced the abuse (Allagia & Csiernik, 2017; Baker et al., 2020). Given this preponderance of harmful outcomes and a stage of neurological development generally inconsistent with handling ramifications of sexual activity, defining age of sexual consent ideally involves consideration of relevant findings from the contemporary brain sciences. Children experience sexual desire. Importantly, this basic reality was absent, misunderstood, or mis-represented in the Western cannon produced in the social sciences, the humanities, moral philosophy, and the law. The lack of encouragement or active discouragement of healthy sexual development harms children and can stymie full maturation of adults. Cognitive distance between the reality-based need of gradual entry into sexual maturation with the reality based need to define and protect against sexual abuse widens the neuroethical policy gap between adulthood established through neurology (or cognitive capacity) and current science.

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Public policies articulating the age at which someone can freely consent to sexual activity with any partner also past the age of consent are largely articulated at the state level in the United States and Canada. In a research project cataloguing the age of consents practiced across North America over the past two centuries conducted for this book, Miriam Janely Herrejón and Giselle Cruz found wide variation in the timing of age of consent for sexual contact with adults up to and including no minimum age. Different decisions about the age of consent, like all policies mapping transition to adulthood, aim to serve both contemporary knowledge and traditional preferences and attitudes. Use of brain-based arguments in the discourse or policy design reflects subnational distinctions in the balance between science and tradition. However, in their review of policy history, Herrejón and Cruz found minimal use of brain-based arguments in policy texts. When present, the brain-based arguments were found to be employed as described by Shen in his analysis of neuro legislation, that is more or less exclusively to support a position by an elected official or issue stakeholder rather than as framing evidence of policy design or linkages between public problems and political solutions (Shen, 2016). These distinctions widen of the age of majority neuroethical policy divide. When evidence drawn from the brain sciences is used selectively to serve (traditional) preferences regarding age of majority policy design, science can become a tool deployed in service of a premade decision and established power differential. Investment in well-funded public higher education that includes time for unrestricted research in all faculty contracts counteract the politicization of science. Support for this system both depends on and contributes to scientific literacy in the general population. Restoring and refining truth in media regulations also serves to reduce potential for politicization in democratic systems attentive to human rights and diversity. This misuse of science has, of course, occurred in other policy subsystems, sometimes resulting in the role of scientist as honest broker becoming nearly defined out of existence, at least in the popular imagination (Pielke, 2007). Climate change policy development (and lack of development) reflects substantial influence of this perception of science and, tangentially, incurs some risk of scientists stepping out of the honest broker role in response to fears including that documented problems and modeled risks will not be addressed in time. While the #MeToo movement, initially coined in 2006 by Tarana Burke and escalated rapidly after Ashley Judd initiated a series of complaints against Harvey Weinstein in late 2017, energized broad based and multi-faceted debate surrounding sexual consent, scientific evidence surrounding the age of majority was not central a central element of the discussion.

5.3

Minding the Gap: Relative Transitions

Transitioning to adulthood takes time. While the process of becoming a human adult remains less completely understood at the neurological level than in the determination of secondary sex characteristics associated with adulthood, available evidence

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confirms the view that any exact distinction between childhood and adulthood is inescapably artificial. Minding the neuroethical policy gap between the evident human need to protect and guide children and adolescents through (near) universally applied and specifically defined chronological transition timings and the gradual, wavering, and uneven distinctions between mature and immature neurological capacities requires operating systems infused with respect, relativism, and a scientifically informed emphasis on relationships as much as rights. Neuroethical policy gaps associated with transitions to adulthood have been historically created and widened with the denial of agency of the majority of human beings. As discussed above, as agency became more universally recognized and articulated through human and civil rights policy, specification of more or less universally applied chronical ages became a common element of policy design adopted to both protect minors and permit less exclusive access to adult privileges and responsibilities. This approach produced substantial and vital social (and political) progress improving the lives of many. However, as has been found to be a common in across the spectrum of policies and practices rooted in western democratic philosophy and legal traditions, ceilings on the potential for fit with the human experience exist and ultimately stunt the growth of human potential given the reduced role of essential relationships in the proceedings. Restorative justice frameworks emphasize the role of relationships in all human dynamics, especially those meant to assist in social and generalized recovery from harm (Baker et al., 2020). They can also be employed to help human beings collectively learn to reduce and avoid overall harm through scientifically and culturally informed practice of community-based nurturing of healthy relationships. Responsibility is both practiced and earned. Large, complex societies will, at least for the foreseeable future bound by contemporary policy infrastructures and tolerated levels of resource investments in public programs, continue to need at least skeleton of age of majority policies tied to chronological age. Working with the neuroethical policy gap associated with human transitions to adulthood involves building on and around that skeleton so as to narrow the gap through using neuroscientific findings to avoid building disease into societies associating with the hardening of taxonomies. Such flexibility represents an earned adult responsibility of a mature society and polis practicing effective interpretation of new knowledge about the neuroscience of human maturation. Minding the neuroehtical policy gap around age of majority is best practiced in the application of the precautionary principle with a decided bias toward the protection of positive human right. This will always involve active negotiation of threats to civil liberties. As was discussed in Chap. 1, to paraphrase the variously attributed saying, minding this gap involves having experts (in this case neuroscientists) on tap rather than on top. Human maturity is a diverse and context driven experience. Ethical application of neuroscientific findings necessarily involves cautious, active contemplation of linkages between definitions of policy problems newly found in tension with what we learn about our neurology and our diverse, varied, and increasingly complex policy solutions.

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Works Cited Alaggia, R., & Csiernik, R. (2017). Coming home: Rediscovering the family in addiction treatment in Canada. In Responding to the oppression of addiction: Canadian social work perspectives (p. 76). Canadian Scholars Press. Arnett, J. J., & Tanner, J. L. (2016). The emergence of emerging adulthood: The new life stage between adolescence and young adulthood. In Routledge handbook of youth and young adulthood (pp. 50–56). Routledge. Baker, D. L., Drapela, L. A., & Littlefield, W. (2020). Law and neurodiversity: Youth with Autism and the criminal justice systems in Canada and the United States. UBC Press. “Can a Child Provide Consent.” The Canadian Medical Protective Association. Revised June 2016. Online at https://www.cmpa-acpm.ca/en/advice-publications/browse-articles/2014/can-a-childprovide-consent Hall, S. S. (2011). Wisdom: From philosophy to neuroscience. Vintage Books. Harris, P. L. (2012). Trusting what you’re told: How children learn from others. The Belknap Press of Harvard University Press. Holiday, R., & Ferriss, T. (2014). The obstacle is the way: The timeless art of turning trials into triumph. Portfolio Publisher. Howard-Jones, P. A. (2014). Neuroscience and education: Myths and messages. Nature Reviews, 15, 817–824. Lanning, B. A., Melton, K., & Abel, N. (2018). The impact of a supplemental drivers’ education program on teenage risk perception and driving behaviors. Transportation Research Part F: Traffic Psychology and Behaviour, 58, 442–451. Lukianoff, G., & Haidt, J. (2018). The coddling of the American mind: How good intentions and bad ideas are setting up a generation for failure. Penguin Press. Pielke, R. A. (2007). The honest broker: Making sense of science in policy and politics. Cambridge University Press. Sayre, F. B. (1932). Mens rea. Harvard Law Review, 45(6), 974–1026. Shen, F. X. (2016). Neurolegislation: How U.S. legislators are using brain science. Harvard Journal of Law and Technology, 29(2), 495–526. Skenazy, L. (2009). Free range kids: Giving our children the freedom we had without going nuts with worry. Jossey-Bass. Wilkerson, I. (2020). Caste: The origins of our discontents. Random House.

Chapter 6

Knowledge and Wisdom: High Stakes Testing and Learning Outcomes

6.1

Tools Masquerading as Truths

It was August before my mother finally discovered that “the free online SAT test prep” my younger sister, Wei, claimed she was doing was actually just her playing Minecraft, so Mom promptly enrolled her in a face-to-face prep class that cost all the money Wei had been saving for a used Toyota Corolla—and of course Mom made Wei use her own money because she lied. Barely able to even say the word “test” after my first year at The University of Iowa, I said I would drive Wei myself just to give Wei and Mom a little break. On a beautiful summer afternoon, definitely hot but definitely beautiful, I drove Wei to Universal Testing Services, UTS for short. That morning, Mom gave Wei and me a very long lecture about how we are not only the neurology we are born with but also the choices we make and that bad choices eventually catch up with you and that “we” are very smart girls and the sky is the limit if “we” would only just apply ourselves. Then she called me into her bedroom to give me the car key and some very clear final instructions: drive to the class, wait in the office to make sure Wei stays, and drive straight back home—there was to be no “lollygagging,” no “stopping anywhere else” or “leaving early,” and “absolutely no boys in the car.” Walking to the car with her fingers tapping and her eyes glued to her phone, Wei asked me what the secret meeting was about, and when I told her all she did was stop tapping long enough to slip her headphones on and say, uhhh, she’s so heteronorm. Inside the UTS office, I sat in a brown chair on top of a green carpet pushed against a white wall and stared at the words stenciled in golden cursive lettering in front of me:

Wisdom equals intelligence.

.

“Look, Wei, it’s like your name, W E I, wisdom equals intelligence,” but Wei was already gone, back in the tutoring area. Although the air conditioning did take all the bite out of the 98-degree day, the thought of spending my last four weeks of summer in a UTS waiting room was © Springer Nature Switzerland AG 2022 D. L. Baker, R. L. Baker, Neuroethical Policy Design, Studies in Brain and Mind 20, https://doi.org/10.1007/978-3-030-92289-4_6

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definitely notfeeling wise. I didn’t want to wait in the car—it was too hot outside for that, and I didn’t want to drive around and then have to deal with Mom checking the odometer and freaking out, so while I was waiting for Wei, I decided to take a stroll around the strip mall parking lot. As I rounded the corner at the back of the UTS building, I saw Wei sitting on the curb hunched over her iPhone. Wei! I called out to her, but she didn’t hear me because of her state-of-the art noise-cancelling headset. “Wei!” I grabbed the headphones from her ears, “Your prep session isn’t even over for like an hour,” I said, checking the time on my Fitbit. “How did you even get out here?” “There’s a back door,” Wei said, snatching her headphones from my hands without looking at my face, “I’m not wasting my time in those sessions.” “Why’re they a waste of time?” I said pulling my skirt down to shield the back of my knees from the cracked cement. “It’s like Stepford Wives in there.” “What’s Stepford wives?” “You know AI. Not The Matrix kind but the really old-school ones that stare and repeat dumb stuff.” “OK, Wei, what are you talking about?” “They can’t measure intelligence with those tests; you know that, right, Sage?” “But why not?” “Because, first of all, intelligence doesn’t--it isn’t even one thing,” Wei said pressing her phone. “If the test really measured what it says it does, test prep wouldn’t even work. You’re intelligent or you’re not. If you can take a class to get intelligent and then be ‘career ready,’ or whatever,” she said talking to her phone screen and busily pushing buttons, “why don’t they just teach us that stuff in school so we can all be intelligent or whatever? UTS might be on that ‘Wisdom is universal. The universe is measurable Therefore, wisdom is measurable.’ Stepford Wives line, but yeah no,” and then Wei put the headphones back on and seemed to sink into the warming cement. “Why didn’t you say this to Mom? Maybe you wouldn’t have to take this class if you just explained to her the problem with testing instead of --” “No, no, no, no, no, no, no!” The screen pressing stopped “What happened?” “The block caught fire,” Wei stared at the screen shaking her head slowly. I obviously didn’t think that one through,” she raised her arm to let me read the screen without looking up at me or at the real sky. The words You died! Were centered on the screen. Underneath were two grey rectangles: Respawn and Main Menu

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And a scrolling chat: The Rooster: aaaaaaaaaaaaaa, that was my favorite character faruk: good morning players! kellylong: way-out are you playing during your sat prep class? Adblocker: aw man alvarez25: lmao Lisayao: hi Tim3.9: sup Wei brought the screen back down and huddled over it, “If they really wanted to measure intelligence, they’d create an SAT version for this game because it’s unpredictable, just like life. You can’t create a formula to predict what will be intelligent—and that’s not even talking about actual wisdom—but you could build an environment and see how people interact and see whose interactions end up being intelligent.” “You mean like a multiplayer test?” “Even in a single-player game mode you can see real-time consequences—like my character dying.” Wei shoved her phone screen into my face again. All it looked like to me was a wall-less structure floating in blue sky. I walked around behind her, leaned over her shoulder, and saw her hacking squares with an axe. “So, basically you’re saying playing this game right now is more helpful than the prep class?” “Actually,” she said while taking pickaxe to a brown block whose whirling center radiated cracks and then exploded, “this game, it’s like building with tiny intelligence blocks. It’s not just deciding between a comma and a semi-colon or something useless,” she said, sliding her right palm although the sweat collecting on her forehead while looking past me into the sky’s sky blue. “This game has changed the way I create stuff IRL.” “What’s IRL?” “Geez, Sage, all that college is rotting your brain —in real life. I’m just saying you can’t judge intelligence from a stupid, one-dimensional test,” she said, her thumb to hitting the same spot on the screen over and over, “This thing is so slow today; I gotta change the particle rending distance,” and then for the first time in I can’t remember how long, Wei looked at me and stopped to consider my face, “Hey, you aren’t going to tell Mom I’m not going to the classes are you?” “If you were intelligent t,” I said, touching the sheen of her forehead with my own, “you’d know the answer.” I was just trying to keep her eyes on me. Turning to lean her whole body into me, Wei kept right on playing. I wondered how long we could stay like that before the heat broke us. Public education centers societies, economies, and polities. As a formal practice, public education defines modernity in the minds of many. Formal education aims to refine innate traits and augment knowledge, skills, abilities, and habits developed through exploration and interactions with family and friends. Public education

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works. Educational attainment correlates with better health, greater wealth, longer life, decreased participation in criminal activity, higher levels of home ownership, and increased engagement with the democratic process (Baker & Leonard, 2016). Societies providing quality public education reap benefits such as higher literacy rates, improved employment conditions, and generally improved social, economic, and political stability (Berliner & Glass, 2014). That public education works wonders constitutes one of the most robust findings in social science writ large. And yet, we doubt. Public discourse about public education, especially in the United States, tends to highlight failures and a lack of sufficient fiscal commitment to achieve goals. Enthusiastic reporting of missteps, the rare occurrence of professional malfeasance, and union demands perceived excessive reflect a habit of viewing educators with suspicion. Furthermore, expertise about teaching is much more broadly asserted than is actual teaching experience. Perhaps because most contemporary adults spent years as students, regardless of whether or not lived experience includes so much as led an hour-long workshop, many reflexively claim to know how to fix schools. This unfounded sense of expertise predisposes some toward reflexively standing in judgement of educator. This sense of expertise also leads many stakeholders of public education policy and programs to reflect more on failures observed in educational systems rather than the successes, especially as compared to historical levels of education. Even so, widespread experience with missteps and gaps formal education inspires justified concern regarding systemic inequalities plaguing modern public education systems. Standardized tests were created in part to detect and counteract such disparities and failures. Their creation was in part inspired by a desire to measure human potential for excellence despite substantial differences in education provided to students attending different schools. Nevertheless, discord surrounding standardized tests emerges from divergent goals. In North America, standardized tests are used to examine both teaching and learning of uniform content in an effort to produce data independent of front-line stakeholder impressions of quality of instruction a student receives or the student’s command of the topical area. In other words, standardized tests are now expected to measure teaching, learning, and potential (sometimes simultaneously). Potential for cognitive dissonance exists when standardized tests designed to evaluate one side of the student-teacher dichotomy are interpreted against expectations of the other side of that dichotomy, even if by accident. Lived experiences such as improved scholastic aptitude scores following a preparatory course confound fair interpretation of test results. However, standardized tests, especially as tools to make high stakes decisions about education, have historically involved considerable limitations in both design and implementation. A neuroethical policy divide forms between lived experience with standardized tests and the democratic wish for tools that equitably measure intelligence or merit above and beyond that which can be discerned from grades or other subjective evaluations made by professional educators.

6.2 Neuroethical Policy Divide: The Quest for a Crystal Ball

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Neuroethical Policy Divide: The Quest for a Crystal Ball

Public opinion on education policy changes slowly if at all (Henderson et al., 2015). At least since the time of Immanuel Kant (1724–1804), a goal of the social sciences has been to create formulas that display and predict how social phenomena unfold (Dormehl, 2014). A desired outcome of the use of algorithms and statistics is the reduction of bias. One motive for the development of standardized tests was to allow measurement of relative qualities of the individual candidates quickly and efficiently while reducing the role of patronage and personal connections in the distribution of opportunities (Saekie et al., 2018). For example, until the Progressive Era (approximately 1890–1920), government employment opportunities were distributed primarily through the personal connections between the applicant and powerful people, even in democratic societies. One fundamental assumption of this practice was that breeding and connection accurately signaled human merit despite obvious evidence to the contrary (Wilkerson, 2020). Expanding use of statistics and changing social perceptions of human differences dented this perception early in practice of public administration in democratic contexts. Also, high social tensions resulting from making decisions on the basis of personal connections inspired violence—including the assassination of a President of the United States. Such history provoked interest in less personal and emotional approaches to making decisions between candidates. Creation of Civil Service Exams and Army Alpha and Beta Tests represented concerted, organized efforts to use scientific judgment rather than personal knowledge to search for the best candidates across as deliberately expanded proportion of the population than those represented by personal connections, even as racism and casteism distorted the scientific processes employed. Standardized tests are fundamentally algorithms; structured decisions in which human discernment is restricted to the development of the instrument of measurement rather than the specifics of a given case to which the test is applied. In theory, pre-specification of decision criteria discriminates between candidates only along desired characteristics legitimately affecting performance and not those associated with historical oppression or contemporary exclusion in a given society. However, as Luke Dormehl points out in The Formula: How Algorithms Solve Our Problems. . .and Create More, algorithms can enhance bias as easily as control it. Algorithms dispassionately apply rules. To the extent that those who design algorithms are influenced by biases external to the fundamental quality difference the algorithm seeks to detect, design of the algorithm tend to incorporates these biases. Dormehl points out that bias in execution is different from bias in coding. Coding reflects decisions using humans designed coding schemes. Decisions relying on algorithms create conditions under which one biased designer of a coding scheme can potentially inflict bias on legions of others, especially under conditions in which the base algorithms are proprietary and the scoring of raw data done by mechanistically. Because most people using or taking standardized tests are not permitted access algorithm specifics, the effect of bias incorporated into algorithms can be

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difficult to detect and easily misunderstood as anecdote, excuse, or disappointment. Philosophers and computer scientists have long considered the nexus of artificial intelligence and ethics. As John McCarthy wrote in 1996, “artificial intelligence and philosophy have more in common than a science usually has with the philosophy of that science. . .This is because human level artificial intelligence requires equipping a computer program with some philosophical attitudes, especially epistemological” (1). This attention and concern has deepened into what Emre Kazim and Adriano Koshiyama describe as the “wider field of digital ethics” (2020, 1). A neuroethical policy gap forms whenever policies dependent on the assumption that use of algorithms enhance justice over human discernment. Particularly when such decision-making attempts to predict the future, the outcomes of the application of the algorithm (such as admission to a university) results in self-fulfilling prophecy that can be difficult to detect or counter given ongoing confusions between merit and privilege. This remarkably malleable neuroethical policy gap perpetually stalks standardized testing. Public concern that standardized tests can reinforce bias percolates despite widespread compliance with and performed faith in the exams. Furthermore, academic publications raising concerns about tests’ connections to underlying realities date back over a century. For example, in 1918 use of a vocabulary test as a standardized measure of intelligence in students was criticized as mismeasurement through using an instrument measuring skill to make distinctions about capacity (Terman et al., 1918). More recent scientific findings support these reservations, differentiating this neuroethical policy gap from the one in early childhood education discussed in Chap. 2. In addition, neuroscience raises additional concerns about use of standardized testing such as that the high stress environments created alongside emphasis on standardized testing interferes with higher cognitive memory function (Willis, 2007; Saekie et al., 2018) and the system’s ability to measure how children actually learn (Rushton & Juola-Rushton, 2008). These scientific results rest in tension with ongoing scientific efforts striving (and, to a degree, succeeding) to bring standardized tests closer to the scientifically rooted proxy for what they are intended to measure (Appiah, 2008). Even so, use of standardized tests in the making of a broad spectrum of decisions about schools, academic programs, and individual students remains largely unchallenged. Neuroethical governance requires balancing the malleability of standardized tests with any realized benefits from improved standardized testing when used appropriately and in service of socially just goals (Sherry, 2019; Steele, 2015).

6.3

Origins of Contemporary High States Testing

High stakes testing intends to equalize opportunity and measure teaching success. During the Progressive Era, proponents of standardized testing did so largely in the belief that administering the same exam in controlled conditions across a population would directly reduce the tendency to provide opportunities through patronage and

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personal connections. As mentioned above, by the end of the nineteenth century, observed costs of filling non-elected public positions through the system of patronage had become quite high, including the assassination of James A. Garfield in 1881 by the so-called disappointed office seeker Charles Guitneau. Although subsequent examination of the attack suggest a more complex actual motive for the assassination, for observers at the time, refusal of appointment by an elected official asked to render such a favor was widely understood as a motive for murder. Harm emanating from opportunity entrenched in elite fondness turned progressive social architects toward selection strategies believed dispassionate. Standardized testing was adopted as high stakes testing in educational systems. According to The Glossary of Education Reform created by the Great Schools Partnership, a non-profit organization based in Portland, Oregon, high stakes testing is defined as: A test used to make important decisions about students, educators, schools, or districts, most commonly for the purpose of accountability—i.e., the attempt by federal, state, or local government agencies and school administrators to ensure that students are enrolled in effective schools and being taught by effective teachers. In general, “high stakes” means that test scores are used to determine punishments (such as sanctions, penalties, funding reductions, negative publicity), accolades (awards, public celebration, positive publicity), advancement (grade promotion or graduation for students), or compensation (salary increases or bonuses for administrators and teachers) (2014).

Standardized tests rarely contribute to student course grades, at least overtly. Often tests not directly connected to courses are designated higher stakes in that results of these exams contribute autonomously to academic records and opportunities. While some stakeholders might object to the characterization of exams contributing to course grades as low stakes, regardless of the only grade for a given course is affected. In contemporary North America, standardized tests of students, teachers, schools or curriculums themselves exist. In North America, standardized tests are generally not designed, managed, or scored by working teachers. As explained by the Office of Educational Research and Improvement of the U.S. Department of Education in 1993 in a document entitled Helping Your Child Improve in Test-Taking: Most of the tests your child will take are “teacher-made.” That is, teachers design them. These tests are associated with the grades on report cards. They help measure a student’s progress—telling the teacher and the student whether he or she is keeping up with the class, needs extra help, or, perhaps, is far ahead of other students. . .Now and then your child will take “standardized” tests. These use the same standards to measure student performance across the country. Everyone takes the same test according to the same rules. This makes it possible to measure each student’s performance against that of others. The group with whom a student’s performance is compared is a “norm group” and consists of many students of the same age or grade who took the same test (“Helping Your Child Improve in Test-Taking”, 1993).

Since this report, the presence of high stakes tests in classrooms intensified in the United States following the 2001 re-authorization of the Federal Emergency and Secondary Education Act national requirements for standardized tests became required for all schools in states accepting federal funding for public education. As

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Helen Ladd explained, “the federal government required all states to test every student annually in Grades 3 through 8 and once in high school in math and reading and to set annual achievement goals so that 100 percent of the students would be on track to achieve proficiency by 2013/2014” (2017, 461). The policy also augmented requirements for the academic preparation of teachers and created a series of adverse consequences for districts, teachers, and schools not determined to have not met yearly progress goals. Though ambitious and well-intentioned in its goals, No Child Left Behind proved administratively cumbersome and unpopular with both parents and educators. In 2015, the Every Student Succeeds Act replaced No Child Left Behind. While overtly less punitive and more consciously civil rights in orientation, the Every Student Succeeds Act retained substantial focus on performance on standardized tests as measures of educational success. First created in 1926, the Scholastic Aptitude Test (SAT) ranks among the most well-known standardized exams. The SAT is administered to high school students in the United States (and around the globe) for use in admittance decisions into universities and colleges. The SAT evolved out of a desire to evaluate preparedness for higher education beyond information gleaned from course grades, recommendations, and other artifacts connected to personality and identity. According to the College Board, the nonprofit organization administering the SAT: In the late 1800s, a group of leading American universities was concerned about not having a universal way to determine if students were prepared for college-level course work. They formed the College Entrance Examination Board, and working together they administered the first standardized exam in 1901. . .For the first time, students could take one entrance exam for several universities instead of taking a separate exam for each university to which they applied (“Free SAT Practice”, 2019).

The College Board also administers other well-known exams such as Advanced Placement (AP) test, intended to determine if a student should receive college credit for work completed in high school, and the Graduate Record Examination (GRE), which serves a similar function as the SAT for admission into graduate programs upon completion of an undergraduate degree. School district personnel routinely encourage students to focus on standardized tests as a mechanism for self-improvement and pathway to expanded opportunities. For example, in the United States, the Preliminary SAT/National Merit Scholarship Qualifying Test (PSAT/NMSQT) serves to prepare students for the SAT. In addition, the National Merit Scholarship Program first evaluates about 1.5 million students each year through their scores on this test to reduce the number of qualified program applicants to approximately 50,000 rising high school seniors. Designation as a National Merit Scholar involves not only financial assistance with higher education expenses by presupposes potential for lifelong access to greater opportunities (at least at the margins) for having been recognized as unusually intelligent. Students might be (selectively) encouraged to take the PSAT both to improve test taking skills prior to taking the SAT and to potentially gain access to scholarship programs. Available evidence rejects the hypothesis that performance on standardized test robustly controls for intervening factors. Students can and routinely do improve their

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scores through training on test taking. Environmental factors are also connected to performance. For example, pressure to perform has been demonstrated to raise average group scores on high stakes exams (Nichols et al., 2012). Schools routinely send home advice to parents and students regarding strategies for improving performance. Performance on high stakes tests is clearly malleable. The meaning of malleability of scores depends on the degree to which performance on high stakes testing constitutes a central goal of education. This kind of strong performance suits rigid systems well, especially if the goal is to make sure stakeholders avoid use of human creativity in performance of duties and tasks. When used to evaluate instruction, actions based on the results of high stakes tests during the early twenty-first century tended toward Taylorism, or other scientific management theories (Au, 2011). As Au explains, “based upon research evidence from the modern-day era of high-stakes testing in US public education, the fundamental logics guiding scientific management have resurfaced 100 years later, as teachers’ classroom practices are increasingly standardized by high-stakes testing and scripted curriculum” (2011, 45). Such approaches assume lack of novel or personal teacher expertise and that perfected teaching moments can be replicated through rigid application of standard rules. In reality, teaching involves dynamic work with course content responding to the student needs, existing knowledge, interests, relationships, and capacities. Scripted teaching mutes professional expertise and truncates educational benefits derived from productive relationships between students and teachers. Additional costs manifest. Stakeholders and scholars have expressed concern that the administration of high stakes testing itself adversely affects the educational environment well beyond the period of time required to administer the tests. Students (and their families) report escalation of stress owing to exams. Schools send letters advising self-care and stress-management in an effort to proactively address the damage experienced in testing. Teachers required to deliver test results aggregated at the classroom level respond diversely and not always pro-socially to pressure. A few educators in the United States have been caught cheating on behalf of the students, especially at the height of negative consequence-oriented policy designs under No Child Left Behind and the Every Child Succeeds Act. Standardized tests are weakened by limited content and a focus on choreographed application of skills. Making use of knowledge in life and work involves dynamic application of varied content applied experimentally and iteratively in unstable conditions. As Thomas Kuhn pointed out in A Theory of Scientific Revolutions, fundamental changes in our collective understanding—paradigm shifts—often originate in the newcomer’s application of structural thinking or observations from one content area to another content area in which the person has taken new interest. Standardized tests are not designed to take notice of the genius of unexpected solutions. Rather, such tests interpret whatever has been stated beyond the expected as error or less than proficient content mastery. While the challenge of recognizing truth beyond correctness pervades more of formal education than simply standardized tests, the risk of misunderstanding successful conformity for intelligence or content mastery is exacerbated by standardized, high stakes testing. Such enforcement of standardized thinking becomes especially potent if children are introduced

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to the tests at very young ages by teachers whose own professional survival depends on reinforcing expressions of norms. In the United States and Canada, introduction of high stakes testing into colleges and universities has been slower and less complete. There are tests designed to serve as gateways into graduate education programs such as the LSAT for law school and the MCAT for medical school. Select professions also require passing a standardized test in order to practice the profession. The professions requiring standardized tests are typically those that involve discerning application of a significant amount of specialized content such as law (not public policy), medicine, accounting, construction, and engineering. For professions more dependent on creative activities and critical thinking about disciplinary (or interdisciplinary) content, standardized tests are less common and more limited in use. Formal assessment of courses across sections and of entire academic programs incorporate some light standardization through the development of common learning outcomes and, at times, identical exams or assignments evaluated using a rubric applied to all students. According to a History of Assessment presented by the Office of Assessment Services at Northern Illinois University, “the assessment movement began with an external influence on education and has grown into an internal force: Improvement as accountability. . .over time, it has become clear that the best way for institutions to be accountable to any audience is to incorporate the evaluation of student learning into the way they operate on a regular basis” (2016, n.p.). For the most part, however, these tools leave room for professors (or at least academic departments) to customize content delivery and for faculty to directly participate in the development of evaluation tools and protocols. Such measures seek to balance the goals of justice across classrooms through standardization of education with the recognition that as questions become less exclusively the purview of expert application of knowledge, expertise and excellence depend more on creative direction of wisdom. Furthermore, as with younger children, concern arises that the stress involved in participation in standardized tests turned high-stakes barriers to progression tends to compromise human capacity for higher order thinking. Higher educational attainment has been shown to be correlated with an astonishing set of benefits to both individuals and members of a given society including, but not limited to, improved wealth, health, happiness, family stability, across both space and time in a variety of settings (Baker & Leonard, 2016). While legitimate concern about direction of the causality exists due to the selection bias for participation in higher education, the finding of correlation has been robust as access to higher education has expanded. In such circumstances, formal evaluation such as assessments would generally be expected to be highly process oriented, comparing the operationalization of the task at a given institution against long proven strategies for the delivery of higher education. However, especially in recent decades, assessment has become much more oriented (at least in intent) toward outcomes analysis. The question of whether or not higher education works has been revived and become the focus of considerable time, attention, and resources within the academic institutions in Canada and the United States.

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In the United States, higher education assessment purposes and protocols began to change during the latter half of the twentieth century. However, roots of the change in tone of assessment existed in the scientific management theories which gained popularity in the early decades of the twentieth century and focused on continuous monitoring, analysis, and improvement of the set of actions or behaviors applied toward an identified goal (Ewell, 2002). In theory, scientific management correctly administered could produce an understanding of the best way to undertake each task contributing to the goals of an organization that was consistent across time and between organizations. Higher education also became more conceptually tied to employment, social advancement, and the enhancement of diversity. During the last few decades of the twentieth century, employers increasingly routinely claimed colleges and universities did not sufficiently prepare graduates for workplaces. While some recognition of a distinction between training and education was generally maintained, concern about the role of higher education in preparing people for professional work extended beyond programs providing professional degrees and expanded to the point of calling into question the utility of majors not explicitly connected to employment. While factors such as the ongoing concentration of wealth generated by standardized tests motivate their continued use, elements of the racial caste system remain in both education and economics throughout North America (Wilkerson, 2020). Motivation for ignoring neuroscience can be multifaceted. The neuroethical policy divide involving the malleability of belief in standardized testing forms in the space between the twin goals of enhancing effective transmission of hard-won human knowledge and encouraging students to practice wisdom.

6.4

Understanding Wisdom

Wisdom begins in knowing wisdom is discernable from knowledge. As Stephen Hall explains, “one of the hallmarks of wisdom, what distinguishes it sharply from ‘mere’ intelligence, is the ability to exercise good judgment in the face of imperfect knowledge. . .in short, do the right thing—ethically, socially, familiarly, personally” (2011, 4). Wisdom is multifaceted, including “knowledge of life, pro-social values, self-understanding, acknowledgment of uncertainty, emotional homeostasis, tolerance, openness, spirituality, and a sense of humor” (Bangen et al., 2013, 1254). For the most part, contemporary education perceives itself as aiming to nurture wise habits through measured exposure to specialized information. Current neuroscience of wisdom suggests that areas and mechanisms of the human brain involving wisdom are managed differently than those involving specific knowledge. Acting wise in a given moment also involves expending more energy (and burning more calories) than habitual application of knowledge appropriate to a given circumstance. In contemplating wisdom, therefore, avoiding snobbery with regard to, especially, technical and circumstantial knowledge lays at the foundation of success at the individual, group, community, and society levels.

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Though easily and often tipped into harmful parody, the concern that contemporary North America has allowed for too much discrimination against knowledge in the service of promoting equity and self-actualization exists. Wisdom involves content and builds from knowledge. According to Michael L. Thomas, Katherine J. Bangen, Monika Ardelt, and Dilip V. Jest, “wisdom is thought to be a multidimensional characteristic with the whole being greater than the sum of its parts” (2017, 71). Wisdom originates in discernment in the face of a solid understanding of one’s individual circumstances, opportunities, barriers, and limitations. Sometimes referred to as the Socratic Paradox, the stance that “I know that I know nothing” and “I know one thing: that I know nothing” constitutes one foundation of wisdom. Clearly the philosopher—whether Socrates or an acolyte— and the multitude who have since repeated the phrase did not mean to imply humans benefit from a lack of command of basic facts. In many versions of the origin of this phrase, Socrates is responding to a report from his friend Chaereophon that the oracle of Delphi stated that no human was wiser than Socrates. Traditional interpretations of this paradox revolve around the theme that Socrates was wise because he understood that human insight is limited and that there is no way for a human being to incorporate all facts known by all humans. Humility and openness to new information are starting points of wisdom. Wisdom involves no point of completion or, for that matter, mastery. In the human experience wisdom constitutes capacity to glean insights from the information brought to us through our senses over time and across experiences. No consensus definition of wisdom has been universally accepted (Thomas et al., 2017). According to Stephen Hall, “wisdom begins with awareness, of the self and the world outside of the self; it deepens with our awareness of the inherent tension between the inner ‘I’ and the outer world” (2011, 9). As was discussed in the chapters of this text focuses on childhood development, the outer world shapes the development of the human brain from the moment of birth. Wisdom flourishes in context. The contextual fluidity of wisdom matters. Knowledge is often context independent unless specifically about a context (for example, knowledge of local tax structures involves context). At the very least, knowledge includes a full articulation of the contextual elements that shape the relevance of a particular fact. Wisdom, on the other hand, depends on the synthesis of contextual elements, which humans often engage at least partly subconsciously. Wisdom developed in one setting translates incompletely to other social environments. Articulating (or defending) the basis of wisdom can be challenging, especially across cultural distance (Guzmán, 2019). Wisdom can be more difficult than knowledge to record, catalog, and transmit from person to person. However, wisdom can be paradoxically transcendent. Comparisons of conceptualizations of wisdoms across cultures and over time suggest many common themes including “rational decision making based on general knowledge of life; prosocial behaviors involving empathy, compassion, and altruism; emotional stability; insight or self-reflection; decisiveness in the face of uncertainty; and tolerance of divergent value systems” (Jeste & Harris, 2010, 1602). Since wisdom involves disciplined reflection and discernment, strategies of attaining wisdom

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appear more easily taught than wisdom itself. Furthermore, wisdom, when memorized, packaged, and generalized becomes akin to knowledge. Still useful, of course, but a tool rather than a skill. Wisdom of children has been diversely considered in human history. Some interpretations of wisdom hold that the innocence, relative lack of self-regulation, and perceived uncomplicatedness of young people’s approach to life represents a form of wisdom lost over time. Other interpretations reserve wisdom to later life, affording all elders in a society presumption of wisdom. As Jeste and Harris explain, “many cultures view older individuals as wiser, although results from empirical studies are mixed. . .while at times a child may seem wiser than an adult, the accumulation of life experiences would seem to favor increased wisdom with age” (2010, 1603). Of course, at present neurological diseases associated with advanced age reduce the practical wisdom of many people toward the end of their lives (Haber, 2013). Both wisdom and knowledge are considered divisible across domains. Knowledge and wisdom exist on continuums rather than appearing completely present or absent in an individual (Jeste & Harris, 2010). Individuals can specialize in a particular discipline, tradition, or domain by engaging relevant trainings or studying selected literatures. Similarly, each individual’s experiences contribute to the development of their wisdom. Experiences vary and, in most societies, involve a degree of specialization either chosen or assigned by socio-cultural context (or both). Individuals can be exceedingly wise in some aspects of the human experience and ignorant of others. Nevertheless, during the first decades of the twenty-first century standardized tests for wisdom in adults, such as the Three-Dimensional Wisdom Scale, have been developed (Thomas et al., 2017) from the perspective that detectable habits of mind transcend domains of wisdom. Correlation of measures of such habits of the mind with observed quality of wisdom appear to exist. Statistics courses emphasize that correlation is not causality (Sowell, 1996). In other words, the observations that two phenomena appear to change together does not imply a relationship. This caution is often most especially stressed with regard to examining change over time (time series data), in part because it is usually impossible to gather another sample once history has passed. Sowell argues, however, that despite this being one of the earliest of statistical lessons, it is also the first lesson ignored by those using statistics beyond the classroom. Since Sowell’s writing, this problem been aggravated as a result of the dramatic reduction of (economic) cost of running additional analysis of a data set in hand. Many statistical analyses of even relatively large data sets do not even require purchase of special statistical software as they can be run in widely available spreadsheet software or, in many cases, freely online. Habitual data mining enacted with ease rather than a deliberate decision requiring at least the level of effort to create the code necessary to run an analysis also contributes to the temptation to seek knowledge of statistical relationships in a given data set without full consideration of the wisdom supporting choices made in the creation of a model. Well-crafted statistical analyses can help manage the malleability of standardized tests in play, but only if driven by theory informed by advancements in neuroscience. Narrowing this neuroethical policy gap requires

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abandoning mythical beliefs about one rigidity and robustness of measurement through tests. Ultimately, while high stakes tests may be empirical and, to some extent, generalizable, their standardization appears at least partially incompatible with human neurology.

6.5

Wisdom, Strength, and Assessment

Evaluation educational systems presents ongoing challenges for societies. One source of these challenges involves faltering public confidence in the delivery of education. When such faltering rises fundamental questions about appropriateness of existing educational infrastructures bourgeon. Such questions reflect something of an existential crisis resulting from circumstances in which positive outcomes are observed without a full comprehension of the exact processes by which success was manifest or evaluated, resulting in a diminished sense of procedural justice (Page et al., 2015). What we know about teaching is more limited than we believe. One popular belief tied to antiquated brain science—that different people have different learning styles—has been recently demonstrated to be at least questionable (Riener & Willingham, 2010). In fact, people are not even very skilled at identifying the best way that they have personally learned information. Evaluation of even one’s own learning appears elusive, at least from the outsider’s perspective. Obvious threats to collection of data of this capacity include the fact that in public contexts of selfevaluation, honesty may incur costs and exaggeration might incur otherwise unearned gains. Such difficulty pinpointing how, when, and if learning takes place shakes the foundation of the notion that standardized tests can be either valid or reliable measures of knowledge, let alone wisdom. Even so, development of standardized tests has shown some evidence of arcing in the right direction over the course of time. As sciences including neuroscience, psychology, philosophy, and sociology converge upon the finding that merit is anything but uniform, conversations about the goals and utility of standardized tests have deepened. The neuroethical policy divide surrounding use of standardized tests exists in a common dilemma of public governance—the diversity/efficiency dilemma. While some might argue that efficiency is different from ethics, all measurements of efficiency involve a normative judgement of both focus and units included in the measurement, often on the basis of racism and casteism in North America (Balfour et al. 2019; Steele, 2015; Wikerson, 2020). The essential malleability of standardized tests as tools makes room for concerted management of the dilemma to the extent that honest and data driven conversations about the specific mechanisms by which the underlying algorithms contribute to bias against characteristics and to the confinement of capacity to detect wisdom. Such conversations would also require openness to rebalancing between diversity and efficiency in response to observed outcomes and changing social norms. Brain science data might be expected to consistently contribute to the conversation. Success in the discourse depends heavily on the reduction of social tolerance for innumeracy in the

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otherwise educated (i.e. putting innumeracy on pay with illiteracy) and on the related skills of discerning between anecdotal/personal experience and generalizable findings.

6.6

Closing the Gap: Wandering in Wisdom

Working with the neuroethical policy gap of use of standardized testing for high stakes decisions in formal education systems requires focus on matching the malleability of standardized tests with the flexibility necessary for the useful long-term collection of data relevant to complex, multifaceted policy subsystems such as education. As discussed above, two major dimensions by which mismatches between the test as designed and the intention occur are with regard to the unit of analysis (e.g. student, teacher, or school) and whether the test measures content acquired or the capacity to wisely use information attained in working with novel and unknown scenarios. Pursuit of a universal standardized test constitutes a quixotic quest in which meaning and learning are best derived in observation of the quest itself rather than of the goals of the quest itself. As Thomas et al. described with regard to developing a standardized test called 3D-WS-12 designed to measure wisdom, “we recognized that brevity would come at the expense of precision” (Thomas et al., 2017, 78). Since effective management of the standardized tests neuroethical policy gap in contemporary North America should involve reducing the number and duration of standardized tests encountered by recent generations of children, flexible application of tests for dynamic purposes could be most effectively manifest through the greater decentralization of decisions regarding standardized tests and testing. Reducing the number of tests encountered by students through decentralization involves augmenting practiced trust in working educators. Habitual denouncement of the professional capacities of teachers has been an all too common response to failures and inequalities more directly attributable to unequal and insufficient investment in public education on the part of many school systems. Extending more faith to practicing educators does not imply a lack of accountability or professional selfmonitoring for incompetent practitioners or bad actors. It does, however, allow better reaping of the benefits available to practices long-established as beneficial. Managing the neuroethical policy divide surrounding standardizing testing more adeptly could involve developing a more expansive catalog of standardized tests allowing for choice between those tests to be taken by street-level bureaucrats. Algorithms should be made public allowing local stakeholders to openly discuss any potential for bias, the limits of the test, and the full meaning of results. Reducing the number of tests taken while increasing options for educators and community members makes room for greater certainty in the face of malleability continually nourished by new neuroscientific findings. Formal education works. And yet we wonder. And we must wander. Working with this neuroethical policy divide allows us to collectively and actively use our

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curiosity to protect and enhance the benefits realized from public provision of formal education. At present, standardized testing design tends to confuse complicated with complex. Complicated problems include many components. However, these components remain in the constant state. Solving a complicated problem involves discerning how elements of the system work and interrelate with each other. Pieces of the system can be separated from the whole, studied, improved, and then replaced into the system with a predictable even on the system once all dynamics in play have been studied with sufficient care. Complex systems, on the other hand, involve interdependence and, often, active agency exercised by the components of the system. Dynamics in complex systems change in response to environmental factors and a continue flow of decisions made by the stakeholders in the system. Managing such systems involves appreciation of diversity, a focus on service, presumption of competence, goodwill, and substantial slack for creative, skilled practitioners exercised within a mutually understood institutional structure. Standardized tests, especially as originally designed, seek proxies for intelligence and potential of test takers. Validation of test questions (even when only theoretical) assumed that the reliability of questions and protocols exist independently of the actions of stakeholders, at least in any matter of consequence. The obvious existence of mechanisms by which individual test takers could improve scores inspired less reflection on the essential nature of the tests. At the end of the second decade of the twenty first century, arrest and prosecution of wealthy, high profile parents such as Felicity Huffman and Lori Loughlin for falsification of application materials for university admission on behalf of otherwise potentially less-than qualified children spurred national conversation about admission protocols at competitive university. Despite the existence of cheating on standardized tests as one of the mechanisms by which parents falsified academic records, fundamental belief in the use of standardized tests themselves remained relatively uncontested. To the extent that standardized tests fell out of favor, concern about the cumulative costs of tests and applications appeared to outpace concern about implications of the flawed assumptions underlying test design. Distinctions between equal protection and equitable provision both influence and haunt public programs aiming to address historical oppressions and contemporary privileges (Page et al., 2015). The malleability of standardized tests can be recast in service of social, economic, and political justice so long as their use in in informed conversation of similarly justice-oriented brain sciences. To avoid serious costs associated with promoting the most popular or most wealthy while instead seeking out those with temporally useful wisdom, policies and programs must perpetually seek to press new insights into service against group think and dominant logic. Procedural justice in education requires that all stakeholders know processes to be both fair and transparent (Page et al., 2015). Bridging the neuroethical policy gap of inherent malleability of standardized tests unavoidably existing in a context of evolving and dynamic definitions of intelligence involves critical approaches to design combined with all due caution about interpretation. Perhaps above all else, standardized tests can no longer be understood as tools which might serve to reach a different, opposing conclusion than all other available data without thorough, deliberate, and just contemplation.

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Works Cited Abbott, S. (Ed.). (2014). The Glossary of Education Reform. Retrieved from http://ed.glossary.org/ hidden-cirriculum Appiah, K. A. (2008). Experiments in ethics. Harvard University Press. Au, W. (2011). Teaching under the new Taylorism: High-stakes testing and the standardization of the 21st-century curriculum. Journal of Curriculum Studies, 43(1), 25–45. Baker, D. L., & Leonard, B. (2016). Neuroethics in higher education policy. Springer. Balfour, D. L., Adams, G. B., & Nickels, A. (2019). Unmasking administrative evil (5th ed.). Routledge. Bangen, K. J., Meeks, T. W., & Jeste, D. V. (2013). Defining and assessing wisdom: A review of the literature. The American Journal of Geriatric Psychiatry, 21(12), 1254–1266. Berliner, D. C., & Glass, G. V. (2014). 50 myths and lies that threaten America’s public schools: The real crisis in education. Teachers College Press. Dormehl, L. (2014). The formula: How algorithms solve all our problems. . .and create more. Perigree Books. Ewell, P. T. (2002). An emerging scholarship: A brief history of assessment. Building a Scholarship of Assessment, 3–25. Ferrari, M., & Weststrate, N. M. (2013). The scientific study of personal wisdom. In M. Ferrari & N. Weststrate (Eds.), The scientific study of personal wisdom. Springer. “Free SAT Practice.” (2019). Collage board. Retrieved from: https://sat.collegeboard.org/abouttests/history-of-the-tests Guzmán, G. (2019). Learning to value cultural wealth through service learning: Farmworker families’ and Latina/o University students’ mutual empowerment via Freirean and Feminist Chicana/oLatina/o literature reading circles. https://reflectionsjournal.net/wpcontent/ uploads/2019/18.2/18n2guzman.pdf Haber, D. (2013). Health promotion and aging: Practical applications for health professionals. Springer. Hall, S. S. (2011). Wisdom: From philosophy to neuroscience. Vintage Books USA. “Help Your Child Improve in Test-Taking.” (1993, April). U.S. Department of Education. Retrieved from: https://www2.ed.gov/pubs/parents/TestTaking/index.html Henderson, M. B., Peterson, P. E., & West, M. R. (2015). No common opinion on the common core. Education Next, 15(1). Jeste, D. V., & Harris, J. C. (2010). Wisdom—A neuroscience perspective. JAMA, 304(14), 1602–1603. Kazim, E., & Koshiyama, A. (2020, May 24). A high-level overview of AI ethics. Available at SSRN: https://ssrn.com/abstract¼3609292 or https://doi.org/10.2139/ssrn.3609292 Ladd, H. F. (2017). No child left behind: A deeply flawed federal policy. Journal of Policy Analysis and Management, 36(2), 461–469. McCarthy, J. (1996). What has AI in common with philosophy? https://www.cp.eng.chula.ac.th/ ~prabhas/teaching/cbs-it-seminar/2012/aiphil-mccarthy.pdf Nichols, S., Glass, G., & Beliner, D. (2012). High-stakes testing and student achievement: Updated analyses with NAEP data. Education Policy Analysis Archives, 20, 20. Page, S. B., Stone, M. M., Bryson, J. M., & Crosby, B. C. (2015). Public value creation by crosssector collaborations: A framework and challenges of assessment. Public Administration, 93(3), 715–732. Riener, C., & Willingham, D. (2010). The myth of learning styles. Change: The Magazine of Higher Learning, 42(5), 32–35. Rushton, S., & Juola-Rushton, A. (2008). Classroom learning environment, brain research and the no child left behind initiative: 6 years later. Early Childhood Education Journal, 38, 87. Retrieved from: http://link.springer.com/article/10.1007/s10643-008-0244-5

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Saeki, E., Segool, N., Pendergast, L., & von der Embse, N. (2018). The influence of test-based accountability policies on early elementary teachers: School climate, environmental stress, and teacher stress. Psychology in the Schools, 55(4), 391–403. Sherry, R. (2019). Ethics in psychometric testing for pilot selection. In Pilot selection (pp. 277–294). CRC Press. Sowell, T. (1996). The vision of the anointed: Self-congratulation as a basis for social policy. Basic Books. Steele, S. (2015). Shame: How America’s past sins have polarized our country. Basic Books. Terman, L. M., Kohs, S. C., Chamberlain, M. B., Anderson, M., & Henry, B. (1918). The vocabulary test as a measure of intelligence. Journal of Educational Psychology, 9(8), 452–466. https://doi.org/10.1037/h0070343 Thomas, M. L., Bangen, K. J., Ardelt, M., & Jeste, D. V. (2017). Development of a 12-item abbreviated three-dimensional wisdom scale (3D-WS-12) item selection and psychometric properties. Assessment, 24(1), 71–82. Wilkerson, I. (2020). Caste: The origins of our discontents. Random House. Willis, J. (2007). The Neuroscience of Joyful education. Educational Leadership, 64. Retrieved from: http://www.district287.org/uploaded/A_Better_Way/ME_ PrereadingJudyWillisEdLeadArt.pdf “Wisdom.” (2019). Retrieved online on https://www.merriam-webster.com/dictionary/wisdom

Chapter 7

Fairness and Bias: Discrimination in the Workplace

7.1

Discriminating Work

Your unit has recommended to retain you. Oh good. I’m so relieved. I’m very, very pleased. You were worried? Please have a seat. You thought it might go another way? Would you like something to drink? Well, you never know with these things. With these evaluation processes. There are stories, but of course I know I have tried to reach, I have tried to go beyond just attaining, I have really tried to excel, to go above and beyond with each of the outcomes for my project. And you’ve done so well. And have indeed excelled in the performance of one of your outcomes. Can I get you a water or tea? Coffee please. With a cream and a sugar. Here you go. And would you like a cookie? We have graham crackers, chocolate chip cookies, granola bars. Can I get you a snack? Which one? Your choice. Which one would you like? Oh, yes, I’ll take a granola bar. I was asking which outcome did I excel in? Oh yes. Well, let’s begin this feedback session. We’ll begin by reviewing the entire process. Then I will provide you with qualitative feedback. Then I will provide you with quantitative feedback. Then we will set the outcome objectives for your next review cycle. Then I will suggest some specific practices to meet your next goal. Then I will ask if you have any questions. Then we will debrief on the process as a whole and discuss how the process went for you. Does that sound OK? Yes. That all sounds good. Here you go. There are a couple different kinds. Oh, I like dark chocolate and almond, too. Great. Let’s get started. Yes. Oh, before we get started, let me get rid of this. Is there a trash can for the wrapper? © Springer Nature Switzerland AG 2022 D. L. Baker, R. L. Baker, Neuroethical Policy Design, Studies in Brain and Mind 20, https://doi.org/10.1007/978-3-030-92289-4_7

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You can just put it there on the desk, and the secretary will grab it after the meeting. Oh, I can just.. . . I see the trash can there by the door. I’ll just pop it in there. Alright, I’m ready. Shoot. We just held a workshop on biased and unconsciously discriminatory language, and I wouldn’t want to use such a violent expression that trivializes the struggles of your . . . of people of color. But, yes, we’ll begin. As you know, we are invested in your success and aim to use this formal yearly evaluation process as a way to provide you with valuable, evidence-based feedback about your performance. The review includes your self-evaluation, a behavioral checklist, your manager’s report about your work performance and growth of your technical skill set, reports on your character and leadership skills from your peers and non-direct supervisors— I actually have a question about that. I’m a little unclear on this part of the process as I never received copies of any of these character evaluations, so I was wondering if— In order for the evaluation process to be fair and consistent I need to complete it the same way each time. I’m sure you understand, so I will finish laying out the entire process and then I’m happy to respond to your question. So, as I was saying, after reviewing the peer reports we will create some specific, feasible goals and create a timeline for their completion. These goals will be the focus of next year’s review. So, you see, this process is crafted with you as the driver. You create the goals and decide when each will be completed. Except the peer reviews. That’s just one component. I can see this is causing you quite a bit of anxiety, so why don’t we start there. You see I am trying to be flexible and work with your needs here. So your peer comments suggest some areas of development you may want to focus on in setting next year’s benchmark goals. You— Which peers and non-departmental supervisors submitted evaluations? Will I get a copy of them? Yes, the comments will all be placed in your file after our meeting today and you can see them. The comments suggest that your peers sometimes find that your tone of voice is, well, like right now, you seem to be angry. No, I’m not angry. I’d just like some clarity about the process. l am happy to show you all of the documents I reviewed in preparing for today’s review. And as far as the supervisor-level evaluation, it really only takes a moment, so I stopped by your office because the person assigned to your review, Kenneth Felker, hadn’t submitted his, and I didn’t want to hold up your review any further, so I just completed an evaluation myself. That was a review when you stopped by last week? Well, I apologize if I was abrupt. It was just that you walked in during a meeting, and I was just a bit surprised. OK, so you will get some feedback on your ability to be graceful when you are surprised. We all get flustered. Nobody’s perfect. Developing your ability to perform well under pressure will only help you.

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I— For example, right now the larger context is that you are being retained, and yet you seem to be stuck on—for the life of me I can’t actually understand what it is you are so angry—concerned about. Your peers would just like to give you some feedback, which you seem quite reluctant to take, about your combative attitude as a way to help you move to the next level. You know strong relationships are so important in excelling. Strong relationships require reciprocity, trust, and transparency, Mrs. Field. Well, that is quite a strong accusation, Mrs. Bateman. Are you saying that your peers, or the process, or I—I am not trustworthy? No. What I’m trying to communicate—without being contentious—is that—It’s just that it’s difficult to trust in a process that I’m in the dark about. That’s what I mean by transparency. I wasn’t aware that any peer, or you, had submitted reviews about me. I would imagine that a peer review would require a peer to review me with my knowledge. We simply ask peers in your unit to provide comments about your work and about what it’s like to work with you. That’s how we’ve always done it. I’ve never— Just give me a second while I write this down—now what were you saying? I was just saying that I’ve never been asked to provide a peer review. It just seems a bit mysterious, that’s all. OK, Mrs. Bateman, I’ve added your objections about the process to your file. Let me reiterate where we began: Your unit has recommended to retain you. And, let’s just cut to the chase here, Mrs. Bateman. Human Resources is not planning to deny this recommendation. So, might I suggest that you take yes for an answer and see this as the win that it is for you and for the company. Yes. Of course. Many human resources protocols build around on old assumption that adults in the workplace must be treated like (proverbial) children who would otherwise drift toward aimless play. Such practices root in the belief that successful production involves maximization of the number of moments an individual spends focused on work-related tasks, generally involving at least forty hours of work for a full-time position. Contemporary neuroscience, on the other hand, suggests quite a different understanding of the relationship between enjoyment, learning, and labor (Gocen, 2021). Humans naturally enjoy work, work more productively for shorter periods than the standard work week, and thrive under conditions in which they can apply their creativity to complete engaging tasks for which they are reasonably held personally accountable (Rock, 2009; Wang, 2019). While such observations about human beings at work have long been sporadically made, sustained focus on creating less time consuming, creative, and engaging jobs have not been the commonly favored stance of those in charge of workplace policies in modern North America. Those directing human resources can also view jobs as activities requiring strict adherence to control of enjoyment in the workplace and as prolonged as possible maintenance of stylized task performance at the worksite. Furthermore, in part, because human beings can experience pleasure

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despite circumstances, and, in part, because the potential for misinterpretation of intent in the context of joviality, workplace policy designs often orient toward discipline and dourness. As a result, a neuroethical policy divide forms as employees are treated as (proverbial) children requiring training and consistent discipline far into their adult, professional lives. Design of policy contributes to disengagement and mediocrity even as it aims to promote excellence in the workplace.

7.2

Work and Play

Human beings are playful. Play constitutes activities undertaken primarily or exclusively for entertainment or enjoyment. Social conditioning distinguishes play from work, with play being enjoyable activities associated predominantly with childhood or, less immediately, leisure during adulthood. Work associates less naturally with pleasure. Gainful employment is understood as a pro-social pursuit necessary for survival, lifestyle support, and reputational advantage. While some people are considered fortunate enough to find joy in their work, such fortune falls outside expected lived experience of many people (Duffy et al., 2018; Rock, 2009). Traditional management practices hold these basic principles in suspicion, if not contempt. First, conventional management practices tie back to stratified understandings of the value and potential of human beings, quite often rooted in stereotypes associated with racism, ethnocentrism, ableism, sexism, and other forms of unjust characteristic based discrimination. Second, the ethos of traditionally favored management practices portrayed most people as lazy by default. In other words, management practices assumed individuals work only when forced to do so. Third, especially in contemporary capitalist systems, the economic benefit of work assigned to employees directly opposes the economic benefit of work secured by owners. Owners select managers in part owing to their ability to tip the balance of economic benefit evermore in favor of the owners. The neuroethical policy gap surronding the treatement of workers as children has been widened by the fact that conventional microeconomic theory posits that people work to maximize their earnings. Formal analyses of income related decision use models employing money as a proxy for happiness because happiness cannot be measured directly. The most basic version of the theory also rests on the assumption that rational people decide how much to work using the monetary value assigned to their time. Management undertaken under these assumptions creates motives to pay employees as little as possible and then set up competitive reward systems which award as small as feasible economic rewards for performance evaluated through tightly defined data systems as superior (Wang, 2019). Somewhat ironically, psychological studies have suggested that human beings generally have strong potential for feeling obligated to each other (Baker et al., 2021). As a result, especially when work is not understood as inherently a repeated game between individuals free to make other choices about their place of employment and employers free to

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reasonably easily find new employees in the event of employee turnover, even quite small economic rewards can be marshalled to motivate individuals to work harder. This, however, in turn rests on the assumption that workplaces benefit from tirelessly encouraging those deemed to be the highest performers to work even harder. Such approaches treat workers like children in competition rather than adults engaged in a joint quest. The neuroethical policy gap widens in the resulting cognitive dissonance. In the case of rewards, the effect on self-esteem of those who do not win competition or receive recognitions as higher performing employees can be disastrous. Award protocols generally depend heavily on nominations making the process vulnerable to biased and clique-based choices. Such processes can also prove susceptible to optics, with individuals or groups succumbing to temptation to consider immutable characteristics or other features unrelated to performance in selection. Human beings demonstrate the highest capacity for sustained engagement when given agency and purpose (Zak, 2017). A neuroethical policy divide occurs in the creation of workplace policies intended to maximize both efficiency and diversity based on assumptions about performance which likely reduce both in contemporary workplaces.

7.3

Working in the Twenty-First Century

Of course, in contemporary societies, the timing of entry into the workplace varies. People also leave and reenter the workforce over the course of their lives. As with all the chapters in this text, individual experiences with the neuroethical policy gap described as taking place over the course of the life time may happen in a different order than the chapters in this book. Furthermore, positions vary, particularly in contemporary workplaces. Variations between positions extend beyond the type of tasks undertaken. For example, one primary distinction involves salaried versus hourly positions. Hourly positions measure work effort primarily as the amount of time spent in the workplace. Defining characteristics of such positions include timecards (or other highly specific measurements of workplace entry and exit) and fully directed tasks often assuming little meaningful differences in quality resulting from the specific worker. Part time employment often involves strict guidelines such as regulation of breaks and stringent restrictions on any and all activities considered part of the employee’s life conducted during work hours. In the United States, workers in such positions are entitled to a fifteen-minute break for each half day worked and generally must conform to rules such as a banning of personal calls at work as more or less reasonable. In addition, the rise of the gig economy has produced a class of highly regulated workers whose immediate supervisors are algorithms timing period for completion and, sometimes, tracking physical location of the worker during the task. Hourly workers can expect compensation at a higher rate for time beyond full time employment worked in a given week. In recent decades hourly employees in the United States are routinely employed at less than

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full time given the employer’s preference to avoid paying benefits required of fulltime employees such as employer provider health care and retirement benefits. Salaried positions, on the other hand, measure work effort primarily in reference to outcomes, or, at least, measured outputs of job performance. In essence this means the amount of time an employee devotes to their work holds much less meaning than the quality of work completed. Employees capable of well completing a full-time salaried position with less than 40 hours of effort per week are (at least in theory) considered to have appropriately carried out their duties. However, in many cases, salaried positions take more than 40 hours of work per week, especially in recent decades. In recent decades as organizations became leaner, more focused on electronic document keeping, and, particularly in the public sector, more constrained with regard to the availability of resources, those in salaried position found themselves often expected to accomplish tasks beyond those that can be reasonably accomplished in a 40-hour work week. Both the existence of too many tasks and the timing of tasks tend to extend beyond a standard work week. Flexibility supports focus and engagement. Traditional assumptions about the workplace run counter to this reality. Modern personnel management strategies formed around constraints of the machinery of the industrial revolution. In essence these jobs required that human beings adapt to work as seamlessly as possible alongside inflexible machinery. Scientific management theory born of this impulse aimed to break down and understand all aspects of the human-machine coordination of work so as to maximize efficiency. Scientific management required repetitive tasks completed in a set manner at a given pace. Real time judgements of workers hold little value in this world view. Instead, scientific management depends on a highly structured work culture where employees report at a designated time, take breaks when told to, and leave at shift’s end. Though initially developed to meet the needs of assembly line labor, scientific management theory posited these highly structured workplace strategies as appropriate for all workplaces. In essence the goal was to break down all necessary work into the smallest component tasks possible, determine the most efficient way to accomplish each task, and then sequence the resulting processes so as to complete the work. In this context employees were understood as perpetually replaceable since the measures of competence and quality were displaced from the person or people completing the work process created using the theory. Figuring out how to make people focus their attention on work in modern work systems has been a source of scholarly attention and direct employer interest for some time. In the early twentieth century, Mary Parker Follett noted that employees do not like to be watched, but appreciate human interaction and engagement. Her research was groundbreaking in the class-conscious world in which she conducted her study despite its focus on the most basic of human gestures such as providing sympathy when a worker lost family members (Follett & Metcalf, 2003). Results from the famous Hawthorne experiments, conducted at by Elton Mayo and Fritz Roethlisberger, have been used to support the conclusion that workers work harder because when observed (Wickström & Bendix, 2000). These experiments were designed to figure out which working environments produced the greatest level of

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production from the workforce. In essence the experiments found that regardless of how conditions changed, the productivity of the workers increased on the whole. One conclusion drawn from these finding is the belief that workers work better (or only) if they are very closely observed. This conclusion rests on the assumption that human beings are generally lazy and will avoid work when at all possible. However, this conclusion underestimates the agency and desire for engagement of the employees conducting the work. In the case of the Hawthorne experiments, the employees were aware that the efforts were being made on the part of the organization they served to increase productivity. Engagement, lighting, a clean workspace and the ability to work in teams resulted in the best production (Wickström & Bendix, 2000). The employees likely also experienced benefits from challengestress. As Paul Zak explained, such beneficial stress occurs: When a manager assigns a team a difficult but achievable job, the moderate stress of the task releases neurochemicals, including oxytocin and adrenocorticotropin, that intensify people’s focus and strengthen social connections. When team members need to work together to reach a goal, brain activity coordinates their behaviors efficiently. But this works only if challenges are attainable and have a concrete end point; vague or impossible goals cause people to give up before they even start (2017, 6).

Despite these early findings, the proposition that supporting the humanity of workers improves productivity proved unconvincing for many (Hill, 2017). Managers turned instead toward long held beliefs about motivation to work primarily through control. Many workplaces are still oriented toward forcing people to work out of fear or, at least, avoidance of discomfort. Such avoidance contributes to the emergence of conversations like the one at the beginning of this chapter. Even so, interest in alternative exploration of more positive approaches to motivation persisted. For example, Carrots.com declares its mission as, “we help companies appreciate people who do great work...because celebrating great work inspires people to invent, to create, to discover. . . And when people are inspired, companies grow” (“About Us”, 2020). In other words, Carrots.com focuses on how success of organizations ties directly to the investment and engagement of the employees. Obvious parallels exist in child development and ongoing discourse with regard to the parenting, teaching, or mentoring of young children using more positive approaches as opposed to more traditional forms of discipline. Though “being treated like a child” typically invokes use of control or aversive interventions, in both circumstances, contemporary brain science suggests greater recognition of the power of personal agency to inspire more prosocial, productive behavior. Agency lays the foundation for engagement. Engagement refers to connecting people to work in a manner that resonates as voluntary and specific to the organizations employing them (Crawford et al., 2014). According to Martin Seligman, and other scholars studying positive psychology, engagement in something outside oneself is one of the key factors of human flourishing (2014). Although employed adults spend most of their waking hours at work, this does not automatically mean that they will look for engagement first in the workplace. Healthy adults make free choices about the composition of their identity, including the relative order of importance of different elements of a complicated

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identity. However, as a primary location of adulthood, engagement at the workplace matters and will be pursued by those with the freedom to do so, especially in the absence of other obvious opportunities (Tuckey et al., 2018). From the perspective of the employer, it benefits the organization to for a high proportion of employees to rank their professional identity high on the list of elements of identity. A sense of engagement cannot be exchanged for extrinsic rewards such as increases in salary, especially beyond compensation parallel to what has been considered middle class in North America in recent decades. Contemporary brain science supports earlier social science on the necessity of worker agency to maximize workplace productivity because agency ties to engagement and cannot be deferred through compensation or perks in the long term. Intensive supervision stymies agency and reduces employee engagement. As a result, employees do not usually leave positions per se. More commonly workers leave supervisors (Hight et al., 2018). The reality can be difficult to capture in real life settings, especially in professional circumstances where employees are generally cautious about taking actions that put the quality of references or professional connections. After all, systematic collection of reasons for leaving jobs takes place frequently through interactions with human resource professionals through processes like exit interviews. As suggested in the opening story, only more naïve and extraordinarily trusting departing staff members would likely reveal a problem with a manager in an exit interview. Instead, most understand that they better serve themselves by providing positive, future oriented explanations for their departures such as the appealing characteristics of a newly accepted position or the proverbial desire to spend more time with one’s family. If problems with a manager had been addressed in the workplace prior to the employee’s decision to leave the employ of the organization, it is unlikely that the exit interview would provide new information about the situation or that the human resources official would be able to take in the information in the complete absence of bias (Lee et al., 2017). Management matters. Management should not be confused with parenting, especially the modern version of competitive parenting substituting the agency of the parent for the agency of the child (Skenazy, 2009). What constitutes effective management of employees is as least as debated as what constitutes effective parenting. Micro-managing has become a descriptor for management styles which do not communicate trust in the employee. Micro-managing is defined by the Merriam Webster dictionary as “to try to control or manage all the small parts of (something, such as an activity) in a way that is usually not wanted or that causes problems” (“Micromanage”, 2015). The term bears strong similarities to ‘helicopter parenting’ defined as “a parent who is overly involved in the life of his or her child.” In both cases, the judgment and critical thinking skills of the subordinate individual are considered insufficient to the tasks they have been assigned to complete. Presumed incompetence can become a self-fulfilling prophecy. Owing to factors such as frustration resulting from perceived lack of trust to insult resulting from lack of faith in abilities to the decision to go along with the treatment in order to avoid conflict, people tend to demonstrate less competence given lower expectations. Micro-managing also deprives the organization of appropriately placed expertise,

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at all of the levels of the organization involved. Furthermore, it can often result in a general increase in the labor necessary to accomplish task. Micromanaging takes a variety of forms. One type involves unnecessary direction of a worker’s use of time and prioritization of tasks. Attempting to manage the workflow of another individual stands in opposition to contemporary neuroscience in that it does not allow for coordination of tasks with the neurological energy a person has at any given moment or reap the benefits of agency. This potentially causes additional stress as the worker attempts to force energy to match the task at hand. The manager may also have a less accurate sense of what is required to complete a task, either because he or she does not have specific training in the tasks or because time has passed since the manager had to complete the tasks. This passage of time typically involves both changes in procedure or processes and a fading of the memory of the task itself. Micromanaging consequentially differs from redundancy. Redundancies exist to minimize risk resulting from human error in complex processes. In modern workplaces such redundancies often take the form of having multiple people sign off on documents authorizing or communicating a decision made on behalf of the organization. One weakness of this redundancy involves the tendency to sign off on documents given personal trust in the conveyor of the documents. Since micromanaging can involve recorded monitoring of the work of another person, implementation of redundancy policies can feel like micromanaging. This is especially the case if a supervisor, consciously or not, examines the documents submitted by one employee more closely than the documents submitted by another. The distinction between the two exists in the reason for the examination. If the questioning of decisions is part of the established practice and procedure designed to help eliminate risk of error, then responsible oversight depends on at least cursory review of the documents submitted. If, on the other hand, oversight is invented in the absence of reasoning around the cost and effort involved in creating the redundancy or the implementation is sporadic, the redundancies contribute to micromanaging. However, at the neurological level humans may have difficulty discerning between the two chain of command experiences. Practicing good management involves working with the inherent ambiguities and flexibility central to an “employee-centric culture” (Zak, 2017, 4). The threshold for behaviors constituting micromanaging vary by surrounding contexts, including predominantly organizational and social or ancestral culture. Actions considered a violation of trust in one culture may be understood as mentoring, politeness, or basic task responsibility in another. Additional factors such as stage of career and time in position also affect which management actions are considered intrusive versus developmental. Newer employees may experience less management as uncomfortable ambiguity. Ambiguity tolerance is “the ability to suspend judgment while new data is being gathered” (Van Wart, 2011, 307). However, ambiguity tolerance imperfectly aligns with real-time measures of success or failure. In some contemporary workplaces low ambiguity tolerance and micro-management impulses on the part of those high on the organizational chart have together manifest real-time, big data performance monitoring in which employees in a given position (such as cash

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register operators at large retail change) receive constant, real time evaluation of performance as compared to colleagues. In the most overt of implementations, scores for the last several transactions are reported directly to customers making a purchase. This lack of privacy, agency, and room for professional judgement allowed for dynamic working conditions reduces expected employee engagement. Ambiguity tolerance also depends on emotional maturity as it requires delaying gratification associated with resolution of questions. Psychological experiments have demonstrated that the ability to delay gratification in early childhood is associated with success later in life. For example, in one famous experiment first conducted by Walter Mischel and Ebbe B. Ebbesen in the 1970s, children are left alone with a marshmallow (or other similar treat) in an observation room. They are told that if they do not eat the marshmallow before the researcher returned, then they would be able to also have a second marshmallow. Children who waited out the researcher, or simply waited longer to consume the marshmallow were more successful across several life domains years later (Mischel, 2014). The temptation to act on preliminary data resembles the marshmallow test because the reward for analyzing the data early is generally less than what it would be if the data were analyzed later. It is potentially even more problematic in that unlike the marshmallow experiment, early results are likely to point in quite a different direction than the finding associated with data collected once the effects of an intervention have been allowed to sink in and expertise has developed. Working to maximize agency of both managers and workers in is in keeping with neuroscientific and psychological evidence regarding maximizing productivity. Bridging this neuroethical policy gap involves moving away from many of traditional management practices rooted in patronizing attitudes towards workers and exhibition of low ambiguity tolerance on the part of managers.

7.4

Progress in Play: The Discriminating Workplace

Effective practice of inclusion across diversity can move workplaces away from micromanaging and maximize employee agency thereby narrowing the neuroethical policy gap between traditional human resources policy and human neurology. Working with difference involves, at minimum, a tolerance for some divergences in how tasks are accomplished, even if it is only the most simplistic of conceptions involving a tolerance with regard to by whom the tasks are accomplished. Efforts to increase diversity define management reforms in recent decades. In North America, much time and energy has been invested to cease discriminatory practices reflecting historically celebrated biases against the abilities of all who were not able bodied, white, young, heterosexual, Christian men. In concordance with changing social norms, laws designed to end or remediate traditional workplace discrimination were developed in over the course of the twentieth century across North America. Table 7.1 prepared by Amandrea Horton lists key policies passed at the national

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Table 7.1 Timeline of federal anti-discrimination policies in the United States Legislative destination 45 U.S.C §§ 151-188 Pub. L. 114-138 29 U.S.C. §§ 151-169 Pub. L. 74-198 29 U.S.C. §§ 206 Pub. Law 88-138

Year 1926

Title Railway Labor Act of 1926

1935

The National Labor Relations Act

1963

The Equal Pay Act of 1963

1964

The Civil Rights Act of 1964 (Title VII)

42 U.S.C. §§ 2000e Pub. L. 88-352

1967

The Age Discrimination in Employment Act of 1967

29 U.S.C. §§ 621 Pub. L. 90-202

1973

The Rehabilitation Act of 1973 (sections 501 and 505)

29 U.S.C. §§ 791 Pub. L. 93-112

1978

The Pregnancy Discrimination Act of 1978

42 U.S.C. §§ 2000e Pub. L. 95-955

1986

The Immigration Reform and Control Act of 1986

1990

The Americans with Disabilities Act of 1990 (Title I)

8 U.S.C. §§ 1324a Pub. L. 99-603 42 U.S.C. §§ 12102 Pub. L. 101-336

Description Prohibits an employer from discriminating based on union activity in railways and airways. Prohibits against discrimination of an employee that chooses (or does not choose) to create or partake in a union. Prohibits employers from paying women and men different wages for the same work. This law prohibits the employer from retaliating against an employee that has complained or filed a charge of discrimination. Prohibits discrimination based on race, sex, color, national origin, or religion. Employers are required to accommodate a persons’ religious practices, unless unreasonable. Prohibits employers from discriminating against anyone over the age of 40 due to their age, nor retaliate in instances where someone has complained of age discrimination or filed charges. Prohibits the discrimination against a qualified person with a disability in the federal government. This law also requires that the employer accommodate for such disability, unless unreasonable. An amendment of the Civil Rights Act of 1964 Title VII, prohibits employers from discriminating against someone who is pregnant, having a child, or has suffered a medical condition due to pregnancy or childbirth. Prohibits employers from discriminating based on citizenship status. Prohibits employers from discriminating against a qualified person due to a disability. Employers must accommodate for an employee’s disability unless unreasonable. This law covers state and local government, as well as the private sector. (continued)

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Table 7.1 (continued) Year 1991

Title Jury System Improvements Act

Legislative destination 28 U.S.C. §§ 1875 Pub. L. 114-38

1994

The Uniformed Services Employment and Reemployment Rights Act

38 U.S.C. §§ 4301-1335 Pub. L. 103-353

2002

Federal Employee Antidiscrimination and Retaliation Act of 2002 The Genetic Information Nondiscrimination Act of 2008

5 U.S.C. §§ 2301 Pub. L. 107-174 42 U.S.C. §§ 2000ff Pub. L. 110-233

2008

Description Sections 102 and 103 of the Civil Rights Act of 1991 prohibit an employer from discriminating against an employee who is subject to jury duty. This act prohibits employers from discriminating against employees based on military obligations, whether past, present, or future. Requires federal employers to provide a non-discriminative work environment that is free from retaliation. Prohibits employer to discrimination due to genetic information and family medical history.

level in the United States forming the policy infrastructure aiming to end characteristic based discrimination in workplaces. Fairness in the workplace affects employee performance. Although typically not much of concern before the end of the nineteenth century, by the beginning of the twenty firstcentury concern for equality (and, later, equity) in the workplace became a standard feature of professional ethics and workplace policies. Implementation of these policies remains incomplete. In part, the ongoing nature of this work exists as a result of social justice progress made over the course of the twentieth century and into the twenty-first. After all, whereas at the beginning of the twentieth century, for example, progressive stakeholders actively wondered whether women belonged in all workplaces, by the beginning of the twenty-first century, progressive stakeholders wondered about the fairest definition of women in workplaces. Even so, that this work remains incomplete is not entirely due to transitions in public policy goals. It is also a result of a neuroethical policy gap surrounding bias which considers bias as predominantly overt, intentional, and clear-cut than findings in contemporary neuroscience suggests. Fairness can be relative. Bias is often internal. For many people, contentious borders between hope and hubris prevent clear, sustained interpretation of personal experiences which may or may not have been influenced by group characteristic bias. Policies articulating efforts to increase fairness and reduce bias trend peculiarly close to the governance of thought, especially if not judiciously implemented. Though arguably less completely than some accused of violations articulate, workplace policies designed to increase fairness and decrease bias target intent behind actions as much as they do the actions themselves. Even so, democracy presumes freedom of conscience. Reconciling these divergent factors depends on establishing one of the following: that the system design predictably produces unjust outcomes or

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that deliberate discrimination is demonstrated by empirical evidence. Remediation requires that individuals can be realistically expected to avoid bias in context. Anti-discrimination policy development continues across North America with substantial progress made in recent decades. However, backlash against policies also exists, with more prominence in the United States after the election of President Trump in 2016. In part backlash reflects the unidimensional focus of many policies, often forcing attribution of discrimination to a particular personal characteristic (Collins & Bilge, 2016). It also reflects a more general failure of the policy designers and implementers to negotiate intersectionality, address limitations on the point of view of any participant in any situation, and, more recently, understand the tenacious malleability of implicit bias (Hancock, 2011). Discrimination takes many forms. Human incompetence also takes many forms. False positives for any measure of either discrimination or professional incompetence of course exist. In the context of discrimination in the workplace, such challenges shift as social norms (thankfully) render overt discrimination impolite, illegal, or both. Addressing the neuroethical policy gaps surrounding management by emphasizing employee agency manifests justice only to the degree that the basic intention of most people leans toward inclusion. Confusion exists when societies make efforts to stop perpetuating historical injustices. Progress toward justice generates fewer clear-cut circumstances including potential for misuse of policies as power and advantage expand to include not only those with characteristics tied to historical privilege, but also those with characteristics traditionally associated with oppressed groups. Human capacities do not fall in line with such often artificial or exaggerated categories. Dynamic situational confusion creates space for bullying. The bully arch-type plays a quintessential role in stories of childhood. However, bullying is a behavior not a role. As is discussed in Chapter Three, definitions of bullying have become more complicated in recent decades. Also, bullying does not necessarily lend itself to accurate detection upon first glance of a situation. While bullying may be stereotypically understood as involving children and youth, bullying can also take place between adults. Approximately 11 percent of workers report having been bullied at work (Sansone & Sansone, 2015). Workplaces represent a prime location for such behaviors and, conversely, for confusion about such behaviors, given the key role that they play in the social world of adults. Effective and just implementation of policies designed to address workplace discrimination requires a forward-thinking and deep comprehension of the profession or job in question and a keen sense of dynamics of interpersonal relationships, especially in conflict, crisis and change. Understanding how to effectively define and negotiate worker agency in this concept is key to the bridging of the workplace management neuroethical policy gap. Employees often face change. While never absent from the workplace, in modern employment individual workers are expected to face much more change than in the past, especially during and following the Covid-19 global pandemic. Far fewer workers anticipate dedicating an entire career to a single position or employer than was once considered conventional. Types of jobs and means of accomplishing specific tasks also changed dramatically over the course of both the nineteenth and

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twentieth centuries because of technological, economic, and social evolutions. Changes within organizations have been linked to workplace bullying flourishing in environments with factors such as role conflict, role ambiguity, dictatorial leadership, unclear complaint policies and job insecurity (Baillien & De Witte, 2009; Sansone & Sansone, 2015). For employees represent change simply by existing in a given workplace, change related bullying can become especially challenging to negotiate, if for no other reason than the fact of the unrelenting nature of their participation in the change. After all, for those embodying characteristics associated with traditional oppression, to continue to be at work is to continue to bring change. Exhaustion results. The neuroethical policy gap involving misplaced tendencies to manage adults like children is complicated by the fact that crucial policies designed to address historical oppression and reflect the maturing of human social consciousness frighten, confuse, and exhaust workers, thereby rendering them at times less equipped to handle workplace agency.

7.5

Neuroscience, Management, and Bias

One way to consider contemporary workplaces is through consideration of organizational leadership and management. David Rock describes the application of neuroscientific findings to neuroscience as neuroleadership (2009). At its most effective, neuroleadership can help provide more thorough explanations for why successful leadership and management practices work, thereby providing a more convincing argument for their adoption. Neuroleadership can also help illuminate why certain management practices might prove less effective, thereby increasingly the likelihood that such practices will be eliminated from the toolbox of most managers. Embracing neuroleadership as potentially useful focuses attention on workers as agents and on human lifespan development. While still probable that too little relevant brain science is certain enough to mind the workplace neuroethical policy gap during periods of rapid social, political, and economic change, understanding leadership and management as irrevocably connected to neuroscience lays a foundation for this effort in the long term. Mens rea is a necessary condition of many misdeeds. In essence, this principle holds that a guilty act must include a guilty mind. The same act conducted without intent to cause harm involves no guilt and, typically, no punishment. An example of such an act in the workplace happens in the assigning of raises to only one of two employees equally deserving of the additional compensation. If the act followed a clerical error in the entry of determining information such as annual review score or years of service, then the supervisor assigning one employee the raise but not the other would not be understood as either unfair or biased. However, the same act attributable to a friendship or a preference for individuals with particular immutable characteristics presents a different story entirely. Mens rea also encumbers agency. Determining mens rea involves complicated legal maneuvering and more than a little guesswork. Nevertheless, the basic ethical principle of the importance of intent

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holds. Structurally similar to the separate recognition of process and outcome inherent in most policy design, this anti-Machiavellian attitude pervades most ethical principle present in democracies largely owing to their recognition of individual rights. Just as the desirable outcome cannot justify unethical process, a bad outcome cannot justify punishment for an undesirable outcome, no matter the suffering of the individual or individuals harmed by the process. While consent to conceptions of mens rea falls short of unanimous, modern neuroscience does little to change the dynamics of ethics or policy surrounding this source of bias and unfairness in the workplace. A different story surrounds the expectations of following instructions so as to avoid impressions of bias and unfairness. Controlling behavior presents more difficulties than routinely anticipated. Humans experience far less consciousness than typically imagined, particularly when it comes to habitual behavior or routinely performed activities. Furthermore, both behaviors on the margins of the routine and unexpected events necessitating quick decision making tend to present challenges when it comes to controlling behavior. In such circumstances, even the most conscientious stumble over behavior protocols established through policy or non-experiential learning. Especially as harm associated with microaggressions becomes better understood, such stumbles gain importance in the conception of how discrimination transmits over time and space despite the best intention of policies and organizations. In his exploration of the application of Stoic philosophy to twenty-first century life, Holiday describes that having advantages births fatal weaknesses (Holiday & Ferriss, 2014). Neuroscientific findings to corroborate this observation include that adults with extraordinarily comfortable childhoods are, on average, less capable of resilience as adults (Gocen, 2021). Of course, research into neuroplasticity would tend to suggest that adults retain capacity to develop grit as a result of adverse experiences similar to those who had the opportunity to develop these capacities during childhood. Nevertheless, those who have developed resilience develop strengths and also, presumably, find themselves more compelled to address weaknesses. This source of weakness combined with any discriminatory system standing in their way of success in employment would tend to suggest that, on average, those bearing immutable characteristics associated with systematic bias and discrimination possess stronger capacities for excellence in job performance by the time they successfully apply for or secure the desired positions with the required qualifications in place. Some of those without the characteristics may experience more difficulty in securing positions given a just selection process. Weaknesses and underdeveloped strengths can create this disparity, as can stated or unstated preferences to diversify the workplace in deference to a characteristic not embodied by the given individual. Importantly, developments of weaknesses relative to the abilities of historically underrepresented groups does not require high drama. Instead, it can involve prolonged, unchallenged and unexamined comfort. Modern workplaces value merit as evaluated by performance. Ideally, those chosen for positions and promoted enjoy fruits of (generally) competitive preparation and good labors. This approach pervades both the public sector and more

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(traditionally at least) collectively organized entities in the private sector. Even so, evaluation of performance proves much more difficult than generally thought. Bias can enter into scoring (Tewari & Mahapatra, 2018). Components of workplace performance routinely found in the modern American workplace include worksampling, evaluation by co-workers (which may include individuals holding positions at any level of the organizational chart), and self-report submitted by the employee at prescribed intervals. For positions involving any kind of complexity and, especially, discernment, conducting work place evaluations are time consuming and, often, impractical. Measuring the quality of workers by immutable characteristics dominated employment practices for centuries (Wilkerson, 2020). While comprehension of this unsavory practice as associated with ill will pervades much discussion of the practice, more recent commentary understands these dynamics in terms of privilege. In other words, the prevalence of discriminatory practices involved less deliberate harm than misguided understanding of evidence of quality in human beings. Privilege all too often involves misunderstanding of determinants of human capacities. Those who believe, for example, that people born with a given gender or coming from a family of a given ethnic background are more likely to have mathematical skills may unconsciously perceive applicants or current workers with these characteristics as more likely to successfully accomplish mathematical tasks without even realizing that they have made such decisions. The actions taken in response to such misguided belief may be so subtle so as to evade detection in the moment while still being frequent enough to result in substantially harmful cumulative effect. Unless the actions are particularly clumsy in their execution, those targeted by the actions risk characterization as overly sensitive or less than interested in working well with other. Even in the rare case of both detectable harm and a workplace able to appropriately manage discrimination, taking the time to address every instance of discrimination costs enough time and emotional labor to inspire even the hardiest to choose their battles. Instances of bias may lack the desirable purity of a stylized case. A person with the select immutable characteristic may, in fact, be underperforming as compared to peers. Arguments have been made to tolerate such differences defended as a result of differential opportunities in formative years or cumulative effects of discrimination over time. Others consider such accommodations discrimination in the form of lowered expectations. Furthermore, workplaces have a responsibility either to the public good (in the case of government or nonprofit entities) or to the client and the economy (in the case of the for-profit sector). While this responsibility arguably includes ethical (are therefore inclusive) delivery of these services, interest in the quality of the services provided must also be considered. Discrimination experiences can also involve causality and directionality different than the standard stories of either unfair benefits or punishment. For example, a supervisor interviewing candidates for a subordinate position might choose not to hire a candidate he or she considers sexually attractive. While the expected narrative in this situation would be that the supervisor would hire the candidate if at all possible and then give preferential treatment to that new employee either subconsciously or with the deliberate

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intent of currying favor from the new employee. Another possible narrative is that the employer chooses not to hire the candidate he or she considers attractive for reasons ranging from a fear that the attraction would threaten an existing romantic relationship to not wanting to deal with the complications to the simple fear that other people working for the organization would detect the attraction and would begin to be suspicious of all actions the supervisor takes both regard to the particular employee and other people in the workplace. Given the availability of other candidates with the necessary qualifications for the job, the candidate experiencing the attraction likely would have no idea of his or her circumstances and would be even less likely to be able to take (or even conceive) of any action if the attraction was obvious to the candidate. Costs and loss incurred as a result of efforts to prevent discrimination exist and have real effects on people’s lives, however. Though the person in the situation of being found attractive might appear, at first glance at least, less sympathetic because he or she is perceived of having the advantage of being attractive to other people. Human beings are biased. Brains build around narrative experiences, often involving a cast of characters with particular attributes. Experience with human diversity helps to distance castings from immutable characteristics and, ultimately, impressions tied to historical oppressions. Humans can deliberately attempt to avoid and control bias in their conscious decision-making. Most people can proactively address or stop actions contributing to bias given a desire to do so and an understanding of how to do so that includes both specific positive actions and specific mechanisms for overcoming negative emotions such as shame (Stevens & Abernethy, 2018). Proactive control of even implicit bias has been demonstrated as possible and an effective strategy for prejudice reduction (Amodio & Swencionis, 2018). However, in North American workplaces the complexity and pace of social changes in recent decades renders such clarity elusive, including the question of achieving consensus on whether (or to what degree) bias has unjustly affected decisions and operations. For example, a worker denied a promotion may have difficulty discerning whether bias in response to personal characteristics entered into the decision-making process. Situational insecurity and the tendency to rely on narratives featuring exogenous factors to accept personal setbacks could be expected to adversely affect employment performance capacity thereafter. Management efforts perceived as genuine contribute to a positive workplace culture. As Tewari and Mahapatra explain, “neuroscience claims that the innate collaborative human nature needs to be preserved by filtering negative and threatening stimuli from the organisation” (2018, 10). Neuroscience does not suggest that employees (or anyone) do better when catered to like proverbial children, rather they do better when treated as valued adults. Humans do not do better when exclusively given what they want, however temporarily. Instead, humans do better in contexts of respect, agency, and integrity. Such contexts involve, of course, threatening and negative stimuli originating in the slings and arrows of outrageous fortune but tend to focus more on join responsibility for recovery than on competitive location of blame. In other words, such contexts trust in the good intent of community members. As Zak explains, “employees in high-trust organizations are more productive, have

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more energy at work, collaborate better with their colleagues, and stay with their employers longer than people working at low-trust companies” (2017, 4). Practicing neuroleadership productively depends on deep, evolving consideration of what neuroscience suggests about best practices in leadership or management strategies rather than rapid or half-hearted adoption of a decocted or over-extended version of original science. Trust in leadership connects to apparent expertise of the leader, including the leader’s approach to new insight into the reduction of bias in the workplace.

7.6

Bridging the Gap: Making Best Use of the Neuroscience of Bias and Trust

Misinterpreted learning from (perceived) experience produces bias and overly controlling behaviors. Despite claims to the contrary, human beings love to learn, especially about topics of interest or intrigue. Brain science holds considerable contemporary appeal. Reports on scientific findings can affect how people interpret information, even in cases where the original data has little or nothing to do with present circumstances. For example, in a study of student interpretations of psychological findings, Diego Fernandez-Duque and his colleagues found that “across four experiments, the presence of irrelevant neuroscience information made arguments more compelling” (2015, 938). Unlike previous studies, this study did not find that this effect particularly depended on the use of visual images, such as the colored representations of brains commonly used to present fMRI findings. Instead, the authors suggest that “the allure of neuroscience information does not stem from processing differences related to the stimulus’s perceptual quality (perceptual processing hypothesis) but rather from a deeper embrace of neuroscience as an explanatory mechanism” (2015, 939). In other words, contemporary audiences find neuroscience interesting and intriguing above and beyond the generalizable or logical contribution that the findings can realistically contribute to understanding a phenomenon. Efforts to address the neuroethical policy gap between traditional conceptions of workers and what contemporary neuroscience suggests about work and workplaces must attend to the potential for misapplication of neuroscience in the design of neuroleadership strategies and philosophies. In the absence of such caution, so-called neuroleadership risks succumbing to trends in celebrity authors or advisors as opposed to replicated, unbiased science. As Zak has described “experiments around the world have shown that humans are naturally inclined to trust others” (2017, 4). Extending trust also increases production of oxytocin, a neurotransmitter believed tied to several pro-social behaviors and to the construction of group memories. Allowing individual employees to decide how to complete work in such a way that maximizes agency, choice, and supported self-direction includes trusting them to perpetually aim to avoid bias and counter traditional oppressions given an organizational norm indisputably establishing such

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norms as core values. Specialization in accordance with employee delight and capacity as opposed to the standardized roles involved in assembly line Fordism or scientific management rooted in the pin-sharpening constriction of roles imagined by Adam Smith also both creates and depends on trust in community. Resistance to building this bridge across the neuroethical policy divide between traditional conceptions of workers and approaches to fair and workplaces and the paths to success suggested by contemporary brain science could prove especially challenging in litigation rich environments seeking to maximize short-term economic benefit for shareholders. Even so, benefits tied to shaping leadership and management practices around contemporary findings about adult brains include positive feedback loops likely to amplify benefits of this transition over time. Being human in the workplace matters. Human resource professionals have worked to bridge the neuroethical policy gap surrounding the treatment of workers like proverbial children for some time. As Tewari and Mahapatra explain “the field has seen radical changes, starting from industrial revolution, where employees were perceived as means to economic gains to perceiving employees as valued resources—having heart and mind with focus on the holistic growth of the employees” (Tewari & Mahapatra, 2018, 8). Even so, use of brain-based arguments in the creation of human resource policy is still nascent. As one example, a content analysis of code-of-conduct policies of both public and private organizations conducted by Giselle Cruz for a student research project at California State University Channel Islands in the fall of 2018 found that less than 10% included brainbased arguments. Misunderstandings about human neurology underscoring the thinking of early practitioners of the dismal science and at least and embedded into the social-justice intentions of the Progressive Era as morphed into dispassionate Scientific Management hold ongoing appeal, especially as quick fixes or as strategies for avoiding the deep work of genuine, human communication. As work to bridge this neuroethical policy gap continues, progress will no doubt be riddled with failures, heartbreak, and (hopefully occasional) tragedy (Gocen, 2021; Baker & Leonard, 2017). True agency depends on the ability to make and recover from errors as well as substantial ambiguity tolerance as workforces and organizations develop as yet unknown ever-improving approaches to diversity and inclusion. As Alexander Pope wrote in 1711, “to err is human, to forgive, divine.” As the conversation opening this chapter suggests, forgiveness in the context of unraveling the systems of historical injustice will likely be especially trying and unjustly exhausting for some time to come. Building better workplaces through continuous improvement of neuroleadership strategies such as maximizing the benefits of neuodiversity, reducing imposed multitasking (not to be imposed with individually chosen attending strategies) and avoiding excessive data dependency will involve both our humanity and our capacity, in our better moments, to reflect the divine (Ghaemi, 2012; Gocen, 2021). Negotiating intentions in tension with manifest inclusionary justice in all human endeavors’ rests within human capacities in our best moments. Managing the work of others involves intruding upon their decision making process. Though leadership, administration, and management are not necessarily

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unwelcome such intrusions necessarily invoke ethics. Novel understanding of how human brains work in the context of labor and in responding to observations about the labor of those others create a neuroethical policy gap between received and appropriate practices (Gocen, 2021). The values and norms of workplaces will be best flourish if human resource policies maximize attention diversity, equity, and inclusion oriented policies designs continuously informed by advancements in neuroscience and ever questioning of received taxonomies underlying workplace data (Wang, 2019). The simplest definition of work is nothing more than the use of energy to achieve a goal. Despite many expectations to the contrary, even the most seemingly tedious work can be undertaken playfully and with habitual trust in workers. Positive attitude toward work increases productively and illuminates more efficient and prjactical techniques for work completion. Intelligent application of creativity on the part of an employee who understands the processes and goals of his or her work will improve operations and improve the chances of achieving production goals, especially given an ethos of neurodiversity and neuroinclusion.

Works Cited “About Us.” O.C. Tanner. Retried on January 21, 2020 from https://www.octanner.com/company/ about-us.html Amodio, D. M., & Swencionis, J. K. (2018). Proactive control of implicit bias: A theoretical model and implications for behavior change. Journal of Personality and Social Psychology, 115(2), 255. Baillien, E., & De Witte, H. (2009). Why is organizational change related to workplace bullying? Role conflict and job insecurity as mediators. Economic and Industrial Democracy, 30(3), 348–371. Baker, D. L., & Leonard, B. (2017). Neuroethics in Higher Education. Palgrave Macmillan. Baker, D. L., Drapela, L. A., & Littlefield, W. (2021). Law and neurodiversity: Youth with autism and the juvenille justice systems in Canada and the United States. University of British Columbia Press. Collins, P. H., & Bilge, S. (2016). Intersectionality. Polity Press. Crawford, E. R., Rich, B. L., Buckman, B., Bergeron, J., Truss, I., Catherine, R. D., Alfes, K., Shantz, A., & Soane, E. (Eds.). (2014). Employee engagement in theory and practice. Routledge. Duffy, R. D., Douglass, R. P., Gensmer, N. P., England, J. W., & Kim, H. J. (2018). An initial examination of the work as calling theory. Journal of Counseling Psychology, 328–340. Fernandez-Duque, D., Evans, J., Christian, C., & Hodges, S. D. (2015). Superfluous neuroscience information makes explanations of psychological phenomena more appealing. Journal of Cognitive Neuroscience, 926–944. Follett, M. P., & Metcalf, H. C. (2003). Dynamic administration: The collected papers of Mary Parker Follett: Early sociology of management and organizations. Psychology Press. Ghaemi, N. (2012). A first-rate madness: Uncovering the links between leadership and mental illness. Penguin Books. Gocen, A. (2021). Neuroleadership: A conceptual analysis and educational implications. International Journal of Education in Mathematics, Science and Technology, 9(1), 63–82. Hancock, A.-M. (2011). Solidarity politics for millennials: A guide to ending the oppression olympics. Palgrave Macmillan.

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Hight, S. K., Gajjar, T., & Okumus, F. (2018). Managers from “hell” in the hospitality industry: How do hospitality employees profile bad managers? International Journal of Hospitality Management, 97–107. Hill, N. (2017). How to own your own mind. Penguin Random House. Holiday, R., & Ferriss, T. (2014). The obstacle is the way: The timeless art of turning trials into triumph. Portfolio Publisher. Lee, T. W., Hom, P., Eberly, M., & Li, J. J. (2017). Managing employee retention and turnover with twenty-first century ideas. Organizational Dynamics, 88–98. “Micromanage.” Retrieved on March 20, 2015 from https://www.merriam-webster.com/dictionary/ micromanage Mischel, W. (2014). The marshmallow test: Understanding self-control and how to master it. Random House. Rock, D. (2009). Your brain at work: Strategies for overcoming distraction, regaining focus, and working smarter all day long. HarperCollins Publishers. Sansone, R. A., & Sansone, L. A. (2015). Workplace bullying: A tale of adverse consequences. Innovations in Clinical Neuroscience, 12(1-2), 32. Skenazy, L. (2009). Free range kids: Giving our children the freedom we had without going nuts with worry. Jossey-Bass. Stevens, F. L., & Abernethy, A. D. (2018). Neuroscience and racism: The power of groups for overcoming implicit bias. International Journal of Group Psychotherapy, 68(4), 561–584. Tuckey, M. R., Sonntag, S., & Bryan, J. (2018). Are state mindfulness and state work engagement related during the workday? Work & Stress, 32(1), 33–48. Tewari, S., & Mahapatra, G. P. (2018). Social neuroscience and HR: An introductory perspective. NHRD Network Journal, 11(4), 6–13. Van Wart, M. (2011). Dynamics of leadership in public service: Theory and practice (2nd ed.). M.E. Sharpe. Wang, Y. (2019). Pulling at your heartstrings: Examining four leadership approaches from the neuroscience perspective. Educational Administration Quarterly, 55(2), 328–359. Wilkerson, I. (2020). Caste: The origins of our discontents. Random House. Wickström, G., & Bendix, T. (2000). The ‘Hawthorne effect’—What did the original Hawthorne studies actually show? Scandinavian Journal of Work, Environment and Health, 26, 363–367. Zak, P. J. (2017). Neuroscience of trust: Management behaviors that foster employee engagement. The Harvard Business Review, 95(1), 84–90.

Chapter 8

Persistence of Memory: Bearing Witness and Serving on a Jury

8.1

Voire Dire

“I didn’t get a real good look at their faces. There were two of them—two boys—one walking a little ahead of the other. I notice them at the corner walking toward me, not smiling like the young parents with children in strollers or the teenagers holding hands, glancing at the menu or the plates of people eating on the patio. I look down deliberately. I don’t want them to think I’m staring. I think about my purse there, leaning against the railing patio, and my first impulse, my first impulse after I notice those boys watching from the corner, is to move it, to move my purse. Are they watching or only just standing? I know it’s stupid to put my purse against the railing but didn’t move it for the shoppers or yuppies, and the shock of that stops me. The shock of being that kind of person. The shock of being that kind of person who moves her purse when two black boys walk down the sidewalk. And because I am that kind of person, because I’m in the middle of reaching for my purse to move it, my hand is right there hovering over the strap when the first boy grabs it. He lunges over the railing and grabs it, and I yell No! And grab it too; my chair falls backward. He steals down the sidewalk. “That boy was wearing jeans and a t-shirt. A white t-shirt and dark jeans.” When the police officer asks me to identify the boy they find in a tree a few blocks away, I can’t. He’s wearing dark jeans and a graphic t-shirt. A black shirt with the face of a lion, its mane billowing up into a dark sky swirling with constellations in bright white. Such an obvious pattern. I would have seen that. I would remember it now. But all I can see is a white or light t-shirt, maybe grey. Definitely plain. Not this dark t-shirt with a huge picture on it. “No, I’m sure this isn’t the t-shirt the boy who grabbed my purse was wearing.” I can see it in my mind’s eye—two boys, sullen, dark jeans, plain t-shirts. That’s what I see. “Well, ma’am,” the cop says, holding the handcuffed boy by the forearm, the boy not looking up, not making eye contact with me, “this is him. He just confessed to me © Springer Nature Switzerland AG 2022 D. L. Baker, R. L. Baker, Neuroethical Policy Design, Studies in Brain and Mind 20, https://doi.org/10.1007/978-3-030-92289-4_8

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that he did it, so I really don’t need your statement to take him in. I just want to know if you can identify him.” He jerks the boy’s arm roughly, like how my daughter often grabs me, and the boy looks up and straight into my face, his eye full of me or is that fear? “Can you confirm this was the boy who grabbed your purse?” I just can’t find that lion anywhere in my mind. With this whole thing happening less than twenty minutes ago, that shirt would spark a memory if I’d seen it before, “No,” I say. “I can’t.” Memories evolve even as they persist. With each recall, a memory transforms, combining aspects of the circumstances when remembered with the specifics of the event initially stored (Lacy & Stark, 2013). Furthermore, our senses perceive and our brains process but a tiny fraction of any moment’s details and environment (Villegas et al., 2005). Even so human beings pride themselves on their ability to record experiences with accuracy. Our memories form who we conceive ourselves to be and are key to our sense of ownership of our lived experiences. The persistence of memory is actively also debated amongst contemporary philosophers, often in reference to a continuum between continuist and discontinuits (Robins, 2020a). Health human beings obviously remember details of their lives. And yet, humans frequently fail in their attempts to accurately report the past. This reality far from loved. Many find assertions of having misreported an event or without a crucial detail of a circumstance of potentially insulting. Humans are also quick to assume that those misreporting details of events are ethically or neurologically compromised. Public figures found to have mis-recalled experience widespread derision. In one example, Brian Williams, a journalist for NBC, described being on a plane under enemy fire while landing in Iraq in 2003. Evidence undeniably demonstrated that Williams was on a different helicopter landing in Iraq under substantially less duress a short time later. When discussing his memory after having been confronted with evidence of the actual sequence of events, Williams stated “I would not have chosen to make this mistake. . .I don’t know what screwed up in my mind that caused me to conflate one aircraft with another” (Steinberg, 2014, np). Chances are Williams experienced no lapse of morality or cognitive function. Instead, his experience falls into the neuroethical policy gap surrounding the persistence of human memory. Despite social convention, human beings have a long history of believing and, later, confirming, that we do not sense all of the reality around us. In earlier times, phenomena happened beyond human perception mainly incurred explanations involving religious beliefs and other supernatural phenomena. Very early in modern history, however, nascent understanding of natural phenomena beyond human perception emerged. Despite continuity of understanding that humans cannot sense every aspect of the world around them, traditional expectations held that honest people could generally depend on the accuracy of memory. Public policies depending on humans as reliable recorders of events emerged across policy subsystems very early in the known history of written public policy. In the context of justice as practiced in rights-based democratic systems, human capacity expectations

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assumed ability to accurately record, recall, and evaluate information presented about criminal activities in court proceedings. Contemporary neuroscience includes active debate over persistence, uniqueness, completeness, accuracy, suggestibility, and reliability of human memory, especially over extended periods (Vance, 2016; Wixted & Wells, 2017). Real limits to human detection and reporting of natural phenomena exist. The parts of our bodies receiving input have limitations, many of which can be measured. Vision follows this general rule. Our eyes face forward and only interpret light waves between approximately 400 and 700 nanometers. Even when detection through our limited senses occurs, human brains can be especially bad at remembering details of stressful events. One famous demonstration of this limitation came after September 11, 2001 when a sniper was shooting people on the streets of major cities. These so-called Beltway sniper attacks occurred in Virginia, Maryland, and Washington D.C. in October 2002 (Villegas et al., 2005). While later determined part of an elaborate ruse intended to both terrorize the general public and cover up the planned murder an ex-wife, while the killings occurred, motive remained a mystery and was assumed by many still traumatized by the 9/11 attacks to be related to international terrorism. Witnesses reported the shots came from a white van, a detail widely reported in the media. For example, an article in the Daily Mail on October 12, 2002, entitled “Police Hunt White Van in Latest ‘Serial Sniper’ Attack” reported that “Officers were searching for a white Chevrolet AstroType van, with a ladder on top, police said. . .a white van has been spotted near the scene of two earlier shootings.” However, in reality, the perpetrators drove a 1990 blue Chevrolet Caprice Sedan in the commission of these crimes, a vehicle which could not reasonably fit the description of a white van. Much of what we think we observe comes from suggestive interpretations built in our brains in reference to previous experiences, socio-cultural contexts, and personal biases (Choi et al., 2021; Robins, 2020b). To use vision as an example again, at best, humans actually see little of what they look at and their minds fill in the rest using details drawn from our entire previously remembered experiences. One of the more well-known experiments conducted on the limitations of human observation involved asking research participants to watch a video of a group passing a ball back and forth with the goal of counting how many times the ball changes hands between the players. During the video, another person wearing a gorilla suit walked between the players and performed a series of chest beating gestures. The gorilla lacked subtlety. However, more than half of those who watched the video to count tosses missed the gorilla entirely. Even when asked about unusual aspects of the video, those focused on counting tosses reported seeing nothing unexpected. Another experiment involving a gorilla used an image of a gorilla 48 times mean size of a lung nodule directly on an x-ray in which 83% of experienced radiologists did not perceive the gorilla even though most looked directly at it (Drew et al., 2013). Such inattention bias, combined with the inherent biological restrictions of any person’s sight and memory, render the use of eye witness testimony questionable even under the most careful of circumstances. The neuroethical policy gaps involving persistence of human memory form between expectations of honest, accurate

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reporting set into policy design and how human neurology records initial observations and then preserves information for local term recall.

8.2

Neuroethical Policy Divide

The old adage affirms seeing is believing. Especially since the Scientific Revolution, general operating procedures tend to depend on observed data (regardless of the actual sense involved). Humans do not routinely consider restrictions on the information our senses take in, even if they have a working knowledge of neuroscience. Furthermore, humans tend to find the transience and malleability of memory disconcerting. We want to know who we are. And when charged with doing so in a democratic context, we want public policy to bend the arc of history toward collective expression of either our best selves (generally associated with the liberal or progressive approach to policy design) or protect us from the worst implications of who we cannot help but be (generally associated with the conservative approach to policy design) (Marietta, 2011). The neuroethical policy gap surrounding eye witness testimony encumbers both of these worldviews, contributing to its scope and transcendence. While most acknowledge the loss of early childhood memories and anticipate memory to decline with old age, uncompromised adulthood before extreme old age is typically understood as a time of overall competence (Goodman et al., 2019). Witnesses expect belief of frankly reported observations. Juries anticipate following and remembering crucial aspects of trials while also making observations about the case through participant behavior through the proceedings. Testimony delivered by an eyewitness deemed reliable constitutes a gold standard of information in court, even in an era of ever-increasing use of evidence gathered with more scientific technology. Absence of eyewitness testimony suggests a weaker case. As Manveen Singh put it, “the acceptance of eye witness testimony as a substantive piece of evidence lies embedded in the assumption that the human mind is adept at recording and storing events. . .research though has proven otherwise” (2016, 444). Laying aside circumstances in which witnesses lie on purpose, senses can be deceiving, and memories are automatically reformed in recall, though the degree and implications of this biological reality remain less than fully understood (Robins, 2020b). Even so, eyewitness testimony is treated an reliable in law despite the questions raised about general accuracy of recall by neuroscience (Baker et al., 2020; Best, 2018; Davis & Loftus, 2018). This neuroethical policy gap presents tremendous philosophical challenges since it raises questions about who humans are and what they can accomplish under even ideal circumstances. Humans hands belong at the wheel of justice. Policy design typically aims to secure active human participation in judicial proceedings in democratic contexts. Even so, unexamined application of justice-oriented processes has long and often been shown to lead to oppression and abuse (Wilkerson, 2020). Reactive policies designed to take personal discretion out of the proceedings—such

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as minimum sentence protocols in the United States and mandatory arbitration across North America—have produced grandiose miscarriages of justice and contributed to record levels of incarceration (Alexander, 2012; Roth, 2018). Modern insight into the questionable capacity of humans record and judge events opens a neuroethical policy divide widened by a lack of a better-proposed process and our emotional commitment to the existing procedures. Given the proportion of criminal proceedings and civil conflicts settled out of court, the persistance of memory neuroethical policy gap also involves means that a level of awareness of this neuroethical policy gap factors into how participants make (or encourage others to make) decisions about going to court or accepting plea bargains, especially in circumstances in which wait time for courts are long and legal representation minimal. After all, choices made by defendants about settling tend to overtly consideration of the fact that juries and judges are unpredictable (Alexander, 2012; Roth, 2018). Research also suggests that specific aspects of eyewitness testimony may prove more reliable than indicated in the popular interpretation of psychology experiments. In essence, human memory appears more reliable regarding narrative than details. As a result, humans may be more reliable regarding the essence of an alleged crime than they are the elements of the criminal activity. Since law, as especially questions regarding culpability for crimes, turns on specifics, as interpretation of the law becomes more technocratic, both the neuroethical policy gap of eyewitness testimony and the quality of justice available across resource differences widen (Alexander, 2012; Baker et al., 2020). Given such circumstances, some precarious balance of biases amongst participants involved including relative predispositions toward eyewitness testimony could regularly produce just outcomes, assuming no other biases adversely affect proceedings. However, as was explored in Chap. 7, bias surrounding personal and immutable characteristics have been purposefully socially constructed and remain built into most public systems despite ongoing reform efforts (Wilkerson, 2020). The neuroethical policy gap between the assumed role of direct observation, whether by eyewitnesses or jurors, and the realistic neurological capacity of humans to manifest justice in first person observation widens with this ongoing debate of our reliability, especially as we are still struggling to develop away from caste based social, political and economic systems.

8.3

History of Concerns

Concerns regarding the accuracy of eyewitness testimony predate contemporary neuroscience. First, the practice of requiring witnesses to swear under a culturally meaningful oath arose and was designed to make people feel obligated to tell the truth, and to communicate that negative consequences result from lying in these procedures (Ingulli, 1986). Despite the often-passionate disgust humans experience with regard to lying, human beings are habitual, judicious liars and in most cultural contexts circumstances exist in which the social norm requires lying (Cantarero

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et al., 2018; Gneezy et al., 2018; Kajackaite, 2018). Even so, “people have an intrinsic cost of lying, and in many cases prefer to tell the truth even when lying would earn them more money” (Kajackaite, 2018, 195). As such, the creation of the oath (or affirmation) for eyewitnesses intends to support truth-telling and counteract pressures to lie (including other cultural norms). The concern that individuals might choose to lie holds relevance for this neuroethical policy gaps because humans choosing to lie about or exaggerate their confidence in observations in court likely factor beliefs about the human capacity to make accurate observations into their balancing of risk associated with compromising the truth. After all, the honest fallibility of other humans’ memory may be considered a potential cover when caught misrepresenting the truth unless a person has left a specific record of their consciously deceptive intent. Scholars have long raised concerns relating to the neuroethical policy gap between expectations and reality of the reliability of human memory. In 1904, William Stern began publishing research questioning the validity of eyewitness testimony, specifically referencing concerns about both intentional and unintentional misrepresentation of facts (I2008). Another influential scholar, Hugo Munstererg, published On the Witness Stand: Essays on Psychology and Crime in 1908. Munstererg’s book focused on the differences in perceptions people report about even the most trivial of difference (such as which color is darker when presented with two different hues). This early scholarship laid the foundation for increased use of brain science and to the establishment of forensic psychology. Scholarship on court proceedings and the limitations of human memory received substantial attention throughout the twentieth century. For example, on 1980 Elizabeth Loftus was awarded the National Media Award for Distinguished Contribution for the American Psychological Foundation for her 1979 book Eyewitness Testimony. This text focused on the fact that despite decades-long doubt on the part of psychologists about the credibility of eyewitness testimony, belief in the value of such testimony remained generally high. The text also discussed a variety of ways in which memory can be manipulated, including the still controversial topic of the creation of false memories in service of a desired conviction for a crime. During the late 1990s and early 2000s, the manufacture of false memories in misdirected attempts to recover memories of trauma resulted in numerous wrongful convictions. Furthermore, forensic DNA testing contradicting findings in court cases more routinely went against eyewitness testimony than any other form of court evidence. Concerns about human memory inspired by both academic scholarship and lay observation helped motivate a series of court cases. United States Supreme Court cases focused on eyewitness testimony both during trials and, in particular in line ups where a witness is asked to identify the guilty party out of a group of individuals with similar physical appearance. Cases heard during the 1960s, including most prominently, The United States v. Wade (1967) and Gilbert v. California (1967), set admissibility restrictions regarding eyewitness identification (Overbeck, 2005). Movement toward less strict restrictions began in the early 1970s. In particular, in Manson v. Braithwaite (1977) the Supreme Court ruled that totality of circumstances contribute to the question of whether or not information from eyewitness

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identification was admissible (Overbeck, 2005). Concerns surrounding the use of suggestive procedures in attempts to work with criminal investigations and judicial proceedings inspired and also shaped court decisions restricting the use of information derived from the use of procedures known to influence memory. For example, Manson v. Brathwaite “employed a narrow definition what constitutes a suggestive procedure and set aside concerns about reliability even when faced with clearly manipulated identifications” (Best, 2018, 42). In subsequent decades cases heard in state courts revisited and periodically reframed specifics of disallowed suggestive techniques. At the same time, concern on the part of psychologists about the reliability of eyewitness testimony grew and became more mainstream. Reservations expanded to include additional concerns such as overestimation of accuracy on the part of jury members, the specific accuracy of memory formation in traumatic circumstances (Lacy & Stark, 2013) and the more limited ability of, at least some twentieth century humans, to make identifications of individuals from a different racial backgrounds than their own (Overbeck, 2005; Davis & Loftus, 2018). In Canada, limitations of human memory have also been of both scholarly and judicial concern (Kaushal, 2013). Recommendations for changes to policies and practices motivated by instances of subsequently determined innocence of some convicted of crimes have included recording police interrogations and having police officers considered neutral about the given case conduct line ups or viewing of photos of suspects (Ibusuki, 2009). Also, voluntary compliance with the Sophonow Commission occurs with some agencies despite the absence of a national law requiring adherence to their recommendations (Roach, 2013). This commission was inspired by the arrest and prosecution of Thomas Sophonow for a murder he did not commit. In 2001, for example, the Attorney General of Manitoba, Gord Mackintosh, released a report detailing recommendations designed to fix and improve the justice system. In addition to calling for compensation for the wronged parties, the report recommended adopting procedures for avoiding tunnel vision that is the tendency to look only for confirmatory evidence once a theory has been developed. Such tunnel vision can lead to the involuntary reconstruction of memories to conform to the prevailing version of events (Werner et al., 2013; Davis & Loftus, 2018). Other examples of efforts to manage the use of eyewitness testimony in Canadian courts include the 2007 ruling by the Supreme Court of Canada in R. v. Trochym, which ruled against the use of hypnosis in obtaining identifications (Roach, 2013). As in the United States, judgments in Canadian court cases have sought to balance faith in the testimony of others as part of the social contract with implications of brain science showing the limitations and malleability of human memory.

8.4

Memories in Flux

Lived experience persuades that vivid memories of traumatic experiences retain more clarity than the memory of day-to-day experiences. However, recall studies, including ones with participants from the United States after September 11, 2001,

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demonstrate that memories of such consequential experiences transform and deteriorate as certainly as do other memories. In fact, given that such memories are likely recalled more than more banal memories, memories of such experiences potentially undergo even more transformation than do memories of more mundane events. Comprehension of traumatic memories is complicated by the potential for dynamic connections between memories of traumatic events and health. For example, posttraumatic stress disorder (PTSD) includes involuntary and distressing recall of traumatic events (Fernández-Lansac & Crespo, 2017). Debate remains as to whether quality differences occur in the first memory taking during traumatic events. Some scholars argue that the initial memory of a traumatic event will likely be of generally higher quality, suggesting, perhaps, that even after alternation expected of all recollections that the memory of the traumatic event could be of higher quality than other memories drawn for the same time ago from less traumatic experiences. Others argue that the events become less well recorded in instances involving such intense stimuli. Brain science remains divided with regard to the extent to which traumatic memories reported (sometimes long) after the event can be expected to be reliable in either absolute terms or relative to other memories of less traumatic times. As discussed above, changes in memories can be purposeful. Another gray area involves the concern of the creation of false memories inadvertently in attempts to gain necessary information about experiences relating to long ago crimes. For example, as Goodman et al. report when exploring concerns about the presence of false memories “in longitudinal studies of documented child sexual abuse (CSA) 15% to 38% of victims failed to recall the target case” (Goodman et al., 2019, 30). Goodman et al. posit that the disturbingly high numbers of sex crimes involving children relative to the number of innocent people convicted of crimes merit judicious consideration in efforts to bridge the neuroethical policy gap between human memory capacities and expectations built into legal systems. Not remembering details of a given traumatic event, especially in the context of sustained adverse experience, differs from not recalling having been attacked or exploited at all. Aspects of this gap involve the value put on the precision of the memory in the context of making a case that an individual is guilty of a crime. Other forms of evidence used in tandem with eyewitness testimony may help to bridge this gap between the persistence of memory and legitimate causes for doubt of guilt given an improved understanding of human consciousness. Traumatic memories do often have a different flavor than those of more standard experiences. As Fernández-Lansac and Crespo explain, “overall, trauma narratives are expected to be disorganized or incoherent, containing a greater number of effective and sensory elements than cognitive expressions, alterations in spatial orientation, and a disrupted temporal context, such as the high use of present tense and spontaneous shifts in verb tense” (2017, 81). Some have also posited that as heightened emotion surrounding a traumatic event decreases as people use fewer words with more coherent expression in describing event. This more coherent expression can reflect the smoothing or shaping efforts on the part of actors interested in a preferred version of the events in question. To the extent that juries can employ informed reflection on the anticipated character of narratives of trauma and

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the possible narrative preferences of (particularly professional) actors in a given situation, some narrowing of this neuroethical policy gap occurs in practice. As shown in the opening story, eyewitness testimony requires as an essential prerequisite the capacity to the convinced beyond a reasonable doubt of a defendant’s guilt (or lack thereof) in response to presentation of the case evidence by attorneys in court. Jury trials involve multiple decisions, each of which may be separately affected by bias. For example, legal systems founded in the common law system in Great Britain include a requirement of a determination of both actus reus (the exact nature of the crime committed) and mens rea (the intent behind the crime) (Popat & Winslade, 2015). As discussed in Chapter Seven, determining mens rea has long been recognized as complicated at best. Humans are complex and often undertake actions for more than one reason. Furthermore, human beings cannot directly access the intent of others or even of themselves at different moments. Likely clouding of intent increases with time, meaning that even the individual who consciously and soberly commits a crime may not form or retain an accurate memory of intent at the relevant time. In North American legal systems, an action becomes associated with different degrees of guilt depending on how consciously a person is believed to have chosen the action. Given that, during trials jurors form impressions about intent from the testimony of witnesses to the crime and from the statements of the accused (assuming he or she takes the stand). Despite common beliefs about the role of attorneys’ performance on juror impressions, “the best evidence tells us that juror bias exists independently of what lawyers do” (Perlin, 2016, 16). Evaluations of intent include specific instructions and guidelines. However, they also rest on the assumption that a person can imagine the mind of another with sufficient accuracy. Jury members attempting this risk factoring bias into this determination of the mental state of defendants. Existing research into whether or not such bias affects real jury decisions as to whether the determination of criminal intent widens the gap between what is expected of humans in criminal proceedings and the known capacities of human brains. Mens rea can also be shaped by differences in the mental capacities of the individual suspected of having committed a crime. Much concern exists about the potential of suspects to misuse processes by which they might be relieved of culpability owing to neurological limitations. Jurors are known to have influential, preformed attitudes toward defenses that affect interpretations of mens rea such as the insanity defense (Gonzales, 2017; Perlin, 2016). Myths about insanity defenses are transcendent and pervasive, incurring many ties to the globally ableist and moralistic attitudes toward disability, especially as it relates to mental health and neurological difference (Roth, 2018). For example, many, including some who serve as expert witnesses, held that the insanity defense is overused (Perlin, 2016). Many also believe that successful use of the insanity defense leads to less time in custody, as opposed to the greater amount of time generally spent in custody following the use of such a defense (Perlin, 2016). Especially in the United States, access to mental health diagnosis and care proves highly inequitable. Even when individuals gain the ability to become diagnosed through affordable and available care, the stigma surrounding the diagnosis of

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mental health challenges produces under-diagnosis as result of fear of undeliverable changes in life or reputation following diagnosis or treatment. Given these circumstances, individuals with mental health challenges or relevant neurological differences may find themselves defendants in court proceedings before their diagnosis of these conditions. In 2018 a study of 20 state and federal court cases heard in the United States heard between 1979 and 2016, involving defendants purported to have differences affecting mens rea Stevie Ray Acuña found that 12 of these cases (60%) involved arguments that the observation that the memories of the defendants appeared unreliable should be taken into account. In the same study, Acuña found that only half of the cases explicitly described a need for a psychological evaluation. Considering whether to invoke arguments related to neurological and mental health differences might affect mens rea likely involves pondering not only the actual capacities of the defendant but how the realistically the expectations of the neurological potential of other stakeholders in the process reflect actual capabilities of the individuals involved. Especially as the conversation surrounding differences in neurological capacities becomes more common and multifaceted, biases of participants about differences in procedures for different neurotribes in legal standards and proceedings. Absolute absence of bias is an impossible standard, especially in proceedings involving a high-profile defendant being tried in notorious cases. Human beings cannot eliminate bias from their thinking. However, humans can work to do better than in the past. Jury selection has historically been discriminatory, including routine exclusion by race, gender, and disability (Grosso et al., 2012). Characteristic prejudice is deeply rooted in the consciousness of most humans as histories across the globe teem with traditions reinforcing in-group/out-group constructs. Even those attempting to avoid discrimination find themselves inadvertently engaging in a determination about other people by race, ethnicity, or other personal characteristics (Howell & Ratcliff, 2017). Results drawn from exercises such as the Implicit Bias test, run by Project Implicit at Harvard University, suggest that many people operate with unconscious biases that they consciously oppose (”Project Implicit”, 2020). A complete discussion of implicit bias is beyond the scope of this text. However, two important aspects of this rich and contested area of work that has extended well beyond its disciplinary origins are first, that interruption of implicit bias in the moment is both possible and effective and second, that expansion of use of Critical Race Theory in its original context of legal analysis has been thus far insufficiently incorporated into legal processes. Deliberate, politicized obfuscation of the meaning and nature of Critical Race Theory in the third decade of the twenty-first century contributes to the widening of the neuroethical policy gap around eyewitness testimony. This dynamic is exacerbated in popular discourse by the fact that a substantial portion of the population in both the United States and Canada actively opposes even the teaching of accurate history (often misdescribed as Critical Race Theory). Furthermore, as evidenced, for example, by the number of active hate groups in both the United States and Canada, a minority of the general population makes no attempt to avoid discriminating on the basis of race. Supremacy persists and appears

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to have enjoyed some rise in favor in the Western world in recent years. Importantly, activist, committed supremacists represent a small minority of human beings. While presumably most expect active supremacists would be excluded from most contemporary juries in North America, just process and legal expertise are not always as available in the exceeding resource constrained and hurried legal environment many defendants face. Furthermore, recent events in the federal and state political processes in the United States have demonstrated too-broad tolerance for and pursuit of white supremacies principles. As a result, people practicing active racial or ethnic discrimination are likely put on juries. Also, people are more affected than they know by the attitudes of those around them. Friends, colleagues and family members who still embrace discrimination of others on the basis of immutable characteristics infect the minds of those around them, at least to a small degree. However, humans are capable of checking and addressing bias. As noted on the aforementioned Project Implicit website: In reporting to you results of any IAT test that you take, we will mention possible interpretations that have a basis in research done (at the University of Washington, University of Virginia, Harvard University, and Yale University) with these tests.. However, these Universities, as well as the individual researchers who have contributed to this site, make no claim for the validity of these suggested interpretations (”Project Implicit”, 2020).

In part, this disclaimer reflects concern regarding extrapolation from population data back to the internal world of individuals. It also responds to reported displeasure with the results and an attempt to protect the institution from public criticism or legal action inspired by such annoyance. Some scholarship has been produced by the researchers associated with Project Implicit aiming to address such displeasure. For example, the researchers have argued that dissatisfaction with one’s results on the test could reflect a generally better able to detect bias in oneself than in others. As Jennifer L. Howell and Kate A. Ratliff argue, “despite believing that prejudice exists, people hold fast to their self-reported egalitarian views when they report their own beliefs” (2017, 126). Others have argued that the effectiveness of the tests is context dependent and that the efficacy of the tests in providing useful information has diminished over time, especially as people have become more aware of implicit bias. As is discussed in Chapter Seven, to the degree that social norms regulate away from the outright expression of bias, especially traditional discrimination against personal characteristics, efforts to address individual bias have increased, at least at the level of not being caught publicly expressing prejudice. In the context of proceedings of the criminal justice system involving juries, such shifts in social norms raise hope that the remaining biases of juries might, at worse, balance each other out about their ultimate effect on decisions made. However, at the same time, the human capacity to manifest tribalism and fashion power from exclusion persists. When it comes to the consideration of crime and identification of persons as criminals, the entrenchment of the internet and, primarily, social media facilitate the creation of new tribalism and scapegoating. Traditional expectations of jury service involve coming to the case without a formed judgment regarding the culpability of the accused. The rapid evolution of tribal affinity surrounding a particular situation

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or a type of case facilitated by social media dampens potential for locating jury members without preformed judgments. After all, not only has the ability to access information about cases increased since the age of the internet, the age of information has also meant that both controlling access to information and avoiding information if a person who is otherwise engaged in daily life activities has become increasingly challenging. With the advent of social media, many people no longer have even to take the step of deliberately trying to acquire information about current events to become aware of high profile events. Even if a person does not follow any news sites on social media, the chance that none of their contacts follow any media is small (Dutton & Reisdorf, 2019). Working with the neuroethical policy gap between the persistence of human memory and the performance expectations of those involved in judicial processes requires understanding the diminishing chance that juries (and all participants in a given process) will arrive at the proceedings without existing and tribally moderated memories related to the events. Traditional questions about immutable characteristic prejudice and direct experience of related or similar events would tend to address this aspect of the neuroethical policy gap insufficiently. Human brains are not innately gifted in comprehension of probability or randomness. When asked to estimate probabilities of events, humans exhibit bias entangled with their own experiences such as confirmation or recency bias. When asked to create random sequences or patterns, humans routinely fail to produce non-patterns. Another common mistake about probability involves confusing the probability of uncommon events happening to a specific individual with the probability of the same event happening to any individual (Novella, 2013). In the contemporary world, mass media, in particular, has made it simultaneously true that any given individual will hear of a new, infrequent occurrence happening daily and that the probability of the event happening to the individual or anyone he or she knows would be far less than 1 in a million. When something with low probability is reported, humans tend to receive the news with such shock and amazement. This sense of surprise leaves people searching for explanations beyond established low probabilities manifest across a large population such as alternative (especially supernatural or science denying) explanations or asserting that the low probability of occurrence must have been miscalculated in the first place. In other words, a rare occurrence happening challenges in the minds of many the notion that the event could have possibly been rare in the first place in a confounding of rare with unexpected. Instead, human brains seek to reconfigure the narrative surrounding the rare event to explain their likely occurrence. Criminal activity, especially criminal activity is resulting in trial by jury, constitutes a relatively rare event in the lives of defendants and jurors alike. As a result, the mechanisms by which human brains work with probabilities imperfectly interpret randomness of misfortune which might lead to the misidentification of an individual as guilty of a given crime and the accurate interpretation of scientific evidence employing probabilistic outcomes to contribute to general understanding of events. After all, even the most reliable and robust of forensic evidence tools include both false positive and false negative rates in their use. Statistical numeracy is arguably on the rise in North America as more students are required to take basic

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statistics courses in high school or college. Understanding probability and statistics does not require understanding how human brains work with statistical information in the real world or in real time. However, judging statistical outcomes in context diverges from the standard of reasonable doubt in human neurology. Such observations about the limitations of human neurological capacities hold importance for the neuroethical policy divide involving the unreasonable expectations for human brains making judgments in judicial processes for two primary reasons. First, reliance on statistics and scientific tests founded in statistical analyses serve as a first line response to known limitations of eye-witnesses testimony as results are presumed unaffected by the passage of time or the contemplation of the outcome. Second, probabilities entering into the narrative of events are intended to create an aura of credibility to the preferred tale. Though statistics are held with suspicion, they are also considered the currency of the realm when it comes to the creation of persuasive arguments (Novella, 2013). Similarly to circumstances in which neuroscientific evidence is received a creating a more compelling argument or narrative regardless of the quality or apparent relevant of the neuroscience to the question at hand, the presence of information presented in a statistical format commonly renders arguments more persuasive. Addressing the neurological policy gap resulting from the distance between the expectations of brains involved in judicial processes and the actual capacities of human beings involves directly tackling statistical innumeracy. Expansion of access to statistical training is currently well underway but will need to be both continued and enhanced to include more insights about human cognition to make sure that the arc of history continues to tend toward justice. Progress toward general numeracy failing to keep pace with the deepening dependence on statistics to manage and organize information and predict unknown events supports rather than counteracts characteristic bias.

8.5

Just Bridges: Balancing Brains and Beliefs

Human beings understand themselves as reliable narrators of their experiences and observations. Systems designed in the hope of creating justice depend heavily on the capacity of human beings to present evidence accurately, placing particular psychological evidence on information collected by human senses. In contemporary North America, exercise of justice rarely involves the detailed examination and consideration cases, particularly in the United States. Those accused of crimes often lack the resources, time, faith or some combination of all three to pursue a full process, finding instead that their best available option is to make a plea deal. Even so, the potential to have a fair day in court given a wildly false accusation or after falling victim to a crime serves as a keystone of faith in the rule of law in North America, despite the fact that for most of the accused the probability of this experience remains remote. Unequitable distribution of justice constitutes a multi-dimensional challenge far from limited to the neuroethical policy gap involving eyewitness testimony and jury service. Nevertheless, working to manage the distance from the neurological

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realities of human memory and potential for bias when hearing stories to the legal expectations for humans giving and receiving testimony in legal processes builds reliable progress toward justice, even in the context of ongoing economic disparities. Characteristic bias affects all people (though undoubtedly far from equally). Even those experiencing mostly or only privilege tied to their characteristics must reckon with the existence and effects of systemic and institutionalized discrimination. Responses range. However, the plethora of potential reactions to finding oneself benefiting from privilege includes either buying into the (false) belief in innate superiority or experiencing the terror of discrimination, if for no other reason than understanding the potential of the violence of discrimination to turn against any difference. Tribalism confirms the potential of tribalism regardless of the particulars of a given time and place. Once one knows systemic oppression or exclusion is possible, any difference becomes potentially cause for exclusion. Improved understanding of the potential and limitations of human memory constrains potential for extended and diversified institutional discrimination. A sense of pressure to conform can emerge as a fear-based response to witnessing exclusion. This pressure to conform can include efforts to reinforce barriers between in-and-out groups to protect privilege associated with being on the favored side of a systemic characteristic bias. Public policy design in North America has lurched back and forth between efforts to eliminate and reinforce (or at least slow elimination of) discrimination, especially on the basis of race, gender, sexual orientation, age, and capacities. In working with the neuroethical policy gap between expectations of human brains in judicial processes and the actual workings of human brains, taking into account the complex dynamics of historical oppression, privilege, and the trappings of tribalism as a pervasive human practice, often influencing both narrative and memory. Eyewitnesses matter. As Werner et al. explained, “since eyewitnesses yield crucial and sometimes even the only available evidence in court, their testimonies are of critical importance for the juridical system. . .unfortunately, eyewitnesses’ memories are not immune to decay and distortions” (Werner et al., 2013, 1). More generally, as with all policy surrounding neuroethical policy gaps, the processes created in judicial processes decidedly must include the judgment of human beings. Though machine-based decision making through the application of often-mysterious algorithms shapes outcomes of many aspects of human life, retaining human control of judgments of human behaviors is a cornerstone of human freedom. In working forward with the neuroethical policy gap between expectations of humans in judicial processes and the actual ways in which human brains take in and store information, open, transparent triangulation of evidence from eyewitnesses with evidence collected by other means becomes increasingly vital. Eyewitnesses matter. Contextual evidence also matters. Investment in bias interruption for implicit bias as proscribed, habitual but not overly routinized practices could help to narrow the eyewitness testimony neuroethical policy gap. The neuroethical policy gap regarding the quality and persistence of human memory further unfolds as new forms of evidence come into being. In the twentyfirst century, evidence drawn from neuroscience is making its way into courtrooms

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and other judicial processes. Human beings are known to be impressed by the findings of brain sciences, perhaps especially when presented in colorful pictures of human brains. Even so, as Francis X. Shen describes, “the effect of neuroscientific evidence on judicial and juror decision-making remains unknown” (2017, 502). In the triangulation of evidence in response to known biases and limitations surrounding eyewitness testimony, attending to the potential pitfalls and misinterpretations of other forms of evidence is also important. Novelty threats can be reduced over time through familiarity with a given technology, of course. Memories evolve even as they persist. As discussed with regard to bullying and Zero Tolerance policies in Chap. 3 of this text, in societies tempted to practice clean, quick, justice neuroethical policy gaps emerge when these policy designs assume capacities different or beyond those of humanity. Trusting eyewitness testimony feels right (and even noble), but carries devastating consequences. Furthermore, the threat of the power of misremembered witness augments pressure to divert cases away from court rooms through plea bargains, producing increased suffering on the part of the innocent. Working with the neuroethical policy gaps surrounding eyewitness testimony requires augmented use of evidence triangulation, including the investment in efforts to educate the general population about new data types, pervasive attention to interrupting implicit bias and, ultimately, a recreation of the criminal justice system that both holds captive fewer individuals (especially people of color) and more fully honors the intention of jury trials. Without such measures, even with the best of intentions, eyewitnesses risk operating as nothing more than bystanders or bullies.

Works Cited Alexander, M. (2012). The new Jim Crow: Mass incarceration in the age of colorblindness. The New Press. Baker, D. L., Drapela, L., & Littlefield, W. (2020). Law and neurodiversity: Youth with autism and juvenile justice systems in Canada and the United States. UBC Press. Best, S. H. (2018). Fresh eyes: Young v. State’s new eyewitness identification test and prospects for Alaska and beyond. Alaska Law Review, 35, 41–66. Cantarero, K., Szarota, P., Stamkou, E., Navas, M., & Dominguez Espinosa, A. D. C. (2018). When is a lie acceptable? Work and private life lying acceptance depends on its beneficiary. The Journal of Social Psychology, 158(2), 220–235. Choi, S. Y., Liu, J. H., Mari, S., & Garber, I. E. (2021). Content analysis of living historical memory around the world: Terrorization of the Anglosphere, and national foundations of hope in developing societies. Memory Studies, 1750698021995974. Davis, D., & Loftus, E. F. (2018). Eyewitness science in the 21st century: What do we know and where do we go from here? Stevens’ Handbook of Experimental Psychology and Cognitive Neuroscience, 1, 1–38. Drew, T., Võ, M. L.-H., & Wolfe, J. M. (2013). The invisible gorilla strikes again: Sustained inattentional blindness in expert observers. Psychological Science, 24(9), 1848–1853. Dutton, W. H., & Reisdorf, B. C. (2019). Cultural divides and digital inequalities: Attitudes shaping internet and social media divides. Information, Communication & Society, 22(1), 18–38.

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Fernández-Lansac, V., & Crespo, M. (2017). Quality of memories in women abused by their intimate partner: Analysis of traumatic and nontraumatic narratives. Journal of Traumatic Stress, 30(1), 80–87. Gneezy, U., Kajackaite, A., & Sobel, J. (2018). Lying aversion and the size of the lie. American Economic Review, 108(2), 419–453. Gonzales, J. M. (2017). Pretrial attitudes and their influence on interpretation of case evidence and mock juror decision-making in insanity defense cases. Doctoral dissertation, Oberlin College. Goodman, G. S., Gonzalves, L., & Wolpe, S. (2019). False memories and true memories of childhood trauma: Balancing the risks. Clinical Psychological Science, 7(1), 29–31. Grosso, C. M., O’Brien, B., & Woodworth, G. R. (2012). A stubborn legacy: The overwhelming importance of race in jury selection in 173 Post-Batson North Carolina capital trials. Iowa Law Review, 10. Howell, J. L., & Ratliff, K. A. (2017). Not your average bigot: The better-than-average effect and defensive responding to implicit association test feedback. British Journal of Social Psychology, 56(1), 125–145. Ibusuki, M. (2009). Who keeps watch over incidents behind closed doors? The Japanese way of video recording in the interrogation room. Commentaries. Faculty of Law, Seijo Univeristy, Tokyo, Japan. Ingulli, E. D. (1986). Trial by jury: Reflections on witness credibility, expert testimony, and recantaton. Valparaiso University Law Review, 20, 145. Kajackaite, A. (2018). Lying about luck versus lying about performance. Journal of Economic Behavior and Organization, 153, 194–199. Kaushal, R. (2013). Eyewitness testimony: Inception on trial. Innocence Canada. Retrieved from https://www.aidwyc.org/eyewitness-testimony-inception-on-trial2/ Lacy, J. W., & Stark, C. E. L. (2013). The neuroscience of memory: Implications for the courtroom. Nature Review Neuroscience, 14(9), 649–698. Marietta, M. (2011). A citizen’s guide to American ideology: Conservatism and liberalism in contemporary politics. Routeledge. Novella, S. (2013). Your deceptive mind: A scientific guide to critical thinking skills. Great Courses. Overbeck, J. L. (2005). Beyond admissibility: A practical look at the use of eyewitness expert testimony in the federal courts. New York City Law School, 80, 1895–1920. Perlin, M. L. (2016). The insanity defense: Nine myths that will not go away. In M. D. White (Ed.), The insanity defense: Multidisciplinary views on its history, trends, and controversies. Praeger. Popat, S., & Winslade, W. (2015). While you were sleepwalking: Science and neurobiology of sleep disorders & the enigma of legal responsibility of violence during parsasomnia. Neuroethics. “Project Implicit.” Retrieved on January 20, 2020, from https://implicit.harvard.edu/implicit/ selectatest.html Roach, K. (2013). Wrongful Convictions in Canada. University of Cincinnati Law Review, 80(4). Retrieved from http://scholarship.law.uc.edu/cgi/viewcontent.cgi?article¼1150&context¼uclr Robins, S. (2020a). Defending discontinuism, naturally. Review of Philosophy and Psychology, 11(2), 469–486. Robins, S. K. (2020b). Stable engrams and neural dynamics. Philosophy of Science, 87(5), 1130–1139. Roth, A. (2018). Insane: America’s criminal treatment of mental illness. Basic Books. Shen, F. X. (2017). Minority mens rea: Racial bias and criminal mental states. Hastings Law Journal, 68(5), 1007–1084. Singh, M. (2016). In eyes, we trust: The changing landscape of eyewitness testimony. Northern Illinois University Law Review, 37, 444. Steinberg, B. (2014, February 4). NBC’s Brian Williams Admits He Told False Story About Iraq Expedition. Variety. Retrieved from https://variety.com/2015/tv/news/brian-williams-falseiraq-war-story-1201424120/

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Vance, E. (2016). Suggestible you: The curious science of your brain’s ability to deceive, transform, and heal. National Geographic. Villegas, A. B., Sharps, M. J., Satterthwaite, B., & Chisholm, S. (2005). Eyewitness memory for vehicles. Forensic Examiner, 14(3). Werner, N.-S., Kühnel, & Markowitsch, H. J. (2013). The neuroscience of face processing and identification in eyewitnesses and offenders. Frontiers in Behavioral Neuroscience. https://doi. org/10.3389/fnbeh.2013.00189 Wilkerson, I. (2020). Caste: The origins of our discontents. Random House. Wixted, J. T., & Wells, G. L. (2017). The relationship between eyewitness confidence and identification accuracy: A new synthesis. Psychological Science in the Public Interest, 18(1), 10–65.

Chapter 9

Happy Golden Years: Retirement Policy

9.1

The Waiting List

Dad’s stubbornness exhausted me. He had this list he always looked at—pulled softened from his leathered billfold and stared at intently while waiting on line at CVS for Grandmother’s Salonpas or for his hydrochlorothiazide Istanbul Gaborone Maputo Paris Sometimes he worried it—anchored it between his index and middle fingers and smoothed it under his thumb from left to right from left to right from left to right— while watching a fight on cable or listening to a time-share robocall. London Harare Zurich Frankfurt Doha Come December, on Mom’s birthday, Dad would say, I didn’t get you anything, Ronnie, but come on, let’s why don’t we go to Perth, Abu Dhabi, Windhoek. Come on, baby, just you and me! And Mom she would just laugh and say, I said no to those last year, Will. What’s next on the list? Atlanta Lusaka Luanda Nairobi

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Accra Washington And Mom would smile and say, When we retire. You’re going to take me when we retire aren’t you, baby. Sometimes Dad would even take Mom’s hand and kiss it and say, When we retire, where to first? Dad wasn’t a man who took too often to flights of fancy, so when I told him it was time for him to go what was he waiting for, if Mom wouldn’t go I would—what is it you’re waiting for—he said, Not now, Nadia. There’s plenty of time. How many have you gone to, anyway, on that list? Atlanta. I’ve gone to Atlanta and Washington. Both of them. State and DC. And then I got married. Then I had you. Then Seth. Then Jessica. I guess life just gets away from you, that’s all. I’m going to do it, though. As soon as I retire, I’m going to go to as many of these places as your mom and I can afford. But I’m going to save Istanbul for me and you, kiddo. Dubai Sydney Bulawayo Tel Aviv Cairo Rome Adis Ababa You know, I feel I’m starting to slow down, Dad said one day while trying to download an app so Mom could watch the Valentine’s Day Lifetime specials on her tablet. I can’t do this stuff like I used to. When I worked for IBM I could have done something like this in 15 minutes. I’ve been working on this for four weeks. Could you take a look at it? That’s when I knew, when I figured it out in twenty-four hours, that’s when I knew something was slipping away, something that changed was changing still and I texted Dad: I’m looking up prices for Istanbul. Let’s go in March I’ll see which week I have off. Dad texted back a smiley face with sunglasses and: there’s time I’m not going anywhere. A consummate work horse, Dad died on his day off. We put him in the ground— Mom, Seth, Jess, and I—on a rainy day in February—one of two days it rained in February that year, weeks away from the first day of spring. At the reception we had fried chicken and sweet tea and four different kinds of cake nobody ate because we just all couldn’t believe he was gone. After the reception, I drove home, grabbed my passport, packed a bag, caught a Lyft to the airport, and bought myself a ticket to Istanbul, Dad’s list stuffed in the computer compartment of my carry-on.

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Retirement signifies a radical, modern invention originating in the eighteenth century. Though history of pensions, especially to those who served armed forces, started earlier, working people were not expected to routinely and voluntarily cease paid labor during their lifetimes prior to the modern era. Shorter life expectancy played a role in the delayed onset of retirement as a common practice, since people often passed away prior to becoming elderly by today’s standards. In addition, in largely agricultural economies, individual workers were often not the unit of analysis for household economies. Individual family (or other group) members were expected to contribute to the collective economy regardless of age and useful work could be found for most, regardless of age. Retirement, like weekends, was simply not known. The Industrial Revolution involved broad recreation of employment and, ultimately, producing broad policy subsystems including the retirement policy subsystems. By the late twentieth century, anticipation of retirement played into the life expectations of a large proportion of the population, often whether or not the move makes objective financial or neurological sense for the individual worker. Given that the initial policy design linking public problem to a particular public intervention understood as a solution originated in the end of the nineteenth century, it is hardly surprising that a neuroethical policy divide formed between typical retirement policies implemented into a variety of policy subsystems and what the brain sciences are discovering about human brains later in life. Ironically, this neuroethical policy gap is structurally similar to the one previous explored around early childhood education in the sense that despite the gap, the actual policy goal of providing for widespread retirement remains connected to positive social goals. However, the neuroethical policy gap involving retirement includes a much greater diversity of both public programs and policies designed to shape and regulate retirement programs run by private enterprises. As illustrated in the opening story, retirement as a generic concept means a reward for a lifetime of work, earned by those who reach a predetermined age or length of service. Retirement realities involve more wicked problems. In 2018, an Employee Benefit Research Institute survey found that 62 is the mean retirement age in the United States. Interestingly, in the early twenty first century, despite expectations very much to the contrary, most workers who retire leave work earlier than the age at which they had predicted their own retirement. Common reasons for earlier than anticipated retirement include being more financially prepared than anticipated, changes in family care needs, layoffs, and health concerns. Furthermore, faltering faith in public retirement systems plagues otherwise successful and wellrun programs (Fishman, 2010). In contemporary North America, retirement hovers mysteriously at the edge of consciousness, both normal and inconceivable to many in the current workforce. Expanded participation in retirement coincided with rising life expectancy in North America a reality in part related to improved understanding of brain and emotional health, but more routinely related to advances in healthcare generally and increased material security amongst the general populace. Although attribution of the standardized retirement age at the life expectancy of 65 to the cold calculations of

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Otto Van Bismarck appears apocryphal, entitlement to a planned period of rest from work at the end of the lives has not been universal throughout much of human experience was initially created to cover a period of time representing extreme old age. Many who were not formally employed in the past were not working owing to station or, sometimes, gender. Particularly for individuals and families not part of economically privileged groups, work continued as a matter of survival for the longest period possible. Whereas care for the elderly was considered an obligatory honor in many traditional cultures, this period of life had more to do with loss of capacity to continue to do work rather than a reward for a sufficient number of years of service to a society and economy. Modern retirement approaches an entitlement, especially for those who have worked in the economy at paid jobs. Work ends in retirement well before death, at least within the popular imagination. In the United States, for example, the Social Security System pays lifelong payments to those who have worked at least a total of ten years in qualified work, who have been married to someone who completed this labor requirement, or who have otherwise qualified through, for example, disability (“Benefits Disability Planner”, n.d.). While living exclusively on Social Security payments presents considerable financial challenges, the existence of Social Security protects serves to prevent extreme poverty in old age if savings run out or never existed in the first place. In the United States, workers receive yearly statements from the Social Security Administrating stating expected monthly payment after age of retirement. Payments are also adjusted according to estimated changes in cost of living meaning that Social Security payments provide some projection against inflation. Such statements communicate a public expectation of retirement. Popular understanding of retirement is generally positive and does not typically consider that losing one’s work might prove burdensome or a loss. This failure of imagination continues despite increasing prevalence of reports suggesting otherwise, especially around isolation in old age. As the timing and experience of old age changes as a result of a host of factors including improved understanding of the human brain ages, a neuroethical policy gap expands between cultural conceptions of retirement embedded in a broad spectrum of policies and what work in the brain sciences are discovering about brain development (and flourishing late in life). Because of the scope and variety of public policies influencing retirement experiences, contemplation of this neuroethical policy gap encumbers not only a handful of related public polices but entire policy subsystems.

9.2

Neuroethical Policy Divide

Prior to widespread access to social benefits and retirement, old age represented a frightening experience indeed. A person lucky enough to live beyond the ability to contribute to the workplace ran high risk of extreme poverty in old age. In the United States, charitable donations, families, and, to a degree largely forgotten, work farms providing often no more than subsistence level existence to the elderly (Ruggles,

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1996; Zhang et al., 2013). Of course, such an understanding of retirement applied only to those who worked outside the home in qualifying occupations. The (mostly) women who labored more exclusively for their families rarely experienced retirement so clearly, living instead with perpetual, marginal change in the role in their family based on the age and proximity of children and grandchildren. When much of the labor of the non-wealthy involved physical labor, reduced capacity to contribute to production appeared more obvious. Danger of physical labor increased as strength, flexibility and reaction time decreased starting in what we now consider to be the middle age of the human lifespan. While somewhat and sometimes offset by skills development or task replacement, over time perceived ability to contribute could decrease with age and, in jobs involving physical labor, danger of labor participation at times also increased with age. Retirement reduced risk of harm for said individuals. Retirement policies were designed with the assumption that timing of decline into danger could be predictably assigned to a given age applied to the general population across a broad spectrum of occupations (Anton, 2016). Retirement has always been a gendered concept. At the basic level, during the periods of history where the dominant cultural image (not reality) was of a singleincome family where only the male spouse worked outside the home, work assigned to the female partner was not assigned an end point. Granted, in the minds of many, the most labor-intensive component of work assigned to wives—care of young children—could be reasonably expected to cease no later than the average time at which the husband retired from formal employment. Nevertheless, the care of the home and of any other family members was considered a woman’s duty at least until she was considered in need of such care herself. As a result, at least as they were traditionally understood, women did not encounter the same sudden change in identity at the moment of retirement (in some cases, however, similar crises may have been experienced when the youngest child left the parental home in industrial and post-industrial societies centered on nuclear families). Retirement as restful reward was a predominantly male experience. Recent research into our brains raises broad questions about assumptions underlying aging, work, and retirement. Human brain development continuous throughout life, increase new strengths acquired middle-aged brain development and less meaningful decline in healthy brains during these decades than often believed standard in modern societies (Strauch, 2010). Some have even proposed that middle age should be redefined to start at age sixty. To the extent that brain development continues productively throughout middle age and at least into early old age, customary retirement deprives workplaces of a neurotype, thereby unnecessarily limiting the neurodiversity of workplaces. To the extent that neurodiversity—like all human diversity—creates and reinforces collective strength, limiting neurodiversity weakens potential of human efforts (Baker, 2011). Workplaces and group endeavors become compromised as much through ageist systemic exclusion as with other forms of minoritized oppression. As with many aspects of human experience, confusion arises from modern efforts to comprehend health (or even status quo) more or less exclusively through the study of disease and decline. Substantial debate remains regarding the timing of artificially

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imposed adult life stages, especially as life expectancies have grown unevenly across diverse populations with disparate access to health care and elements of human flourishing (Baker, 2017). Even so, little evidence exists that most well-cared for and connected humans require retirement in their mid-sixties as a natural outcome of human life course. Furthermore, decline in human functioning correlates with loss or lack of connection and purpose (Zinger & Roche, 2020; Shen, 2017). As a result, assumed, largely unquestioned anticipated benefits of retirement if and of itself to both (former) employee and workplaces creates a neuroethical policy divide between the good expected and the harm experienced in real lives. To the extent that social policy exists to protect and serve vulnerable populations, existing justifications for public provision of retirement benefits starting around age 65 misalign with what we now know about the human neurology and brain development of the course of a healthy life. For many people later age retirement promotes, as opposed to hinders, health and cognition (Grotz et al., 2016). It is, of course, vitally important to keep firmly in mind that this reality in no way supports a return to systematic depravation and exclusion starting in late middle age. After all, treatment of the aging and elderly in North America prior to the implementation of social safety net programs thoroughly demonstrated social capacity to cause severe and rapid decline of adults through excessive physical labor, hunger, and economic insecurity. Benefits of a longer work life should not and cannot be understood as a moral or ethical justification for demanding more economic labor from individuals, particularly in an era in of rising economic inequality, work weeks over in excess of full time (either as a result of an economic necessity for multiple jobs or from being employed in a setting less respectful of work-life balance), augmented expectations for performance of parenting producing more labor in homes with children than historically present in North America, and salaries that have failed to keep pace with inflation, often for decades. Furthermore, given more rapid changes in economies, more workers than historically anticipated have found themselves developed out of positions, either as a result of technological change or the changing economies manifest in international corporations’ strengthened by legal personhood, diffuse and complex financing, and multinational economic agreements. Careers include a greater number of work transitions and more intensive retraining than in traditional cultures and economies. While learning new information and change are both connected to neurological health in adults, prolonged stress and economic deprivation are not. Addressing the neuroethical policy divide between the justifications for retirement and the capacities of human beings requires the same deliberate and sustained avoidance of binary thinking about policy design necessary to bridge other such gaps. This is particularly true given that the gap involves entire policy subsystems. Finally, retirement policies reflect the assumption that the happy golden years depend on freedom from obligation as a way of prolonging human life and, as described in the story at the beginning at the chapter, reserving some time in life for joyous adventure. However, freedom, as they say, is not free. While rest is a key component of healthy life, exclusive rest above and beyond that which is necessary

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to support the health status of the particular individual tends to foster both physical and mental health problems. Rest restores. Sloth kills. Excessive periods of purported rest can also counterintuitively produce decision fatigue as minds flail between too many choices of what to do (no demands on time) and a perceived lack of choices of what to do (options that are or are perceived to be limited). Decision fatigue produces stress and exhausts self-regulation meaning that prolonged rest can result in a tendency to make poorer, less life affirming decisions over time. While rest is habitually considered the best way to reward and thank individuals for hard work and contributions to society, rest outside of social engagement parallels exclusion and neglect. Contemporary brain science suggests a lack of social engagement is a leading cause of depression in later life ultimately shortening of human lifespan unless the work is replaced with similarly meaningful activities or social contributions. Particularly in work-centric cultures in which capacities to develop work life balance have been less than fully realized in many individuals, rest can kill. As suggested above, contemplation of the retirement neuroethical policy gap requires (re)consideration of the purpose of the local, national, and, sometimes, international market economies because “human being” is not synonymous with “economic man.” Economic implications exist whether or not retirement is compulsory under the prevailing public policies or just anticipated as part of the social, political, and economic contexts. Fundamentally, human beings do not come into existence to exclusively to serve the collectively and socially constructed economy. Despite the fact that economics is appropriately understood as a science, economies are neither transcendent, divinely ordained, nor, in the literally sense, natural. Human beings create economies to facilitate and, ideally, optimize cooperation. Whereas recent centuries (at least) have conclusively demonstrated that global economies excel in serving to facilitate exploitation, economic cooperation has also enhanced human comfort above and far beyond that which is understood to exist for any other known life form. Ultimately, capitalist expectations involve prioritizing employment providing sufficient economic gain at least until individuals reach the point of accumulation of resources necessary to provide for themselves for the duration of life. While emphatically not articulated as one of the purposes of pension and retirement programs, one effect of well-funded programs is to buttress this level of security earlier in life than would otherwise be the case, thereby allowing elders to potentially contribute their talents to society independent of the potential for economic remuneration. A neuroethical policy divide exists between the purported purpose of retirement and what contemporary brain science suggests about brain health and development during the final decades of human-life. Similar to the case of early childhood education examined in Chap. 2, policies providing for retirement at what is now being redefined by some as barely into middle age (and is more routinely described as “young old”) are extremely popular irrespective of whether or not the brain-based explanation for the policies and programs accurately describe human neurology. For example, in the United States, politicians are often described as avoiding discussion of changes to Social Security policies and programs for retirement because attempting disruptions of any kind

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would be akin to touching the third rail (a metaphor derived from the live rail in the center of power-train tracks providing power to train and deadly electrical shock upon human touch). At least in part because middle age tends to involve deepened capacity for long term thinking, older adults are far more likely to participate in democratic processes than younger adults (Strauch, 2010). While not all democratic participation is exclusively self-centered, voters (and others engaged in democracy) can rarely be expected to vote systematically against their own interests as they themselves understand them. Since the neuroethical policy divide surrounds the desired policy and the explanation for why retirement is necessary, contemplation of what is desirable in retirement policy includes reframing narratives around the purposes and goals of retirement while effectively and convincingly managing the existential terror of reduced economic support coincident with vanishing potential for paid labor, especially when economic circumstances have not reliably permitted accumulation of wealth over time. As with early childhood education programs and policies, the programs serve to reduce fear simply by existing regardless of whether or not they save a specific individual from certain doom. It remains as objectively untrue that all people over the official retirement age are beyond the capacity to work as it is that all people under that age are necessarily capable of working, especially with the level of time and commitment culturally anticipated in contemporary North America. Conversely, reactions to the notion that people should continue working into their late sixties as part of a larger duty to “age well” also exist (Laliberte, 2016). Similar to early childhood and age of majority polices, retirement policies artificially attach human development to a set and common chronological age as a convenient shorthand for potential and capacities. Reframing the conversation regarding the purpose of these policies is beyond the pale of acceptable policy questions for most politicians trapped by current narratives about the economy and old age. Addressing this neuroethical policy gaps forces observance of some of the most fundamental assumptions and mysterious aspects of contemporary economies.

9.3

Conceiving Retirement

Discussion of plans for retirement focus on the economics of retirement for individuals and nuclear families holds obvious importance in terms of the survival and wellbeing of those of retirement age. Less focus on other components of human flourishing exists in the contemplation and design of retirement policies. Although more attention to other needs of senior citizens has emerged in recent decades (especially as articulated under the relatively nebulous category of wellness) such programs remain understood primarily as desirable benefits as opposed to entitlements. Conceiving of retirement as the end all and be all of success in a job or career neglects to take into account that work increasingly became the social world of the adult over the past two centuries. As Robert Putnam described in Bowling Alone during the final decades of the twentieth century, despite the complications of social

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media and other web-based outlets, adults participated in non-work-related social activities at ever declining rates (Putnam, 2020). Augmented loneliness and depression reported during the Covid-19 global pandemic served to poignantly emphasize this point, even as one of the primary measures imposed to reduce transmissions was social distancing. Undoing or loosening social ties rooted in work typically arises when people no longer spend time at the workplace (Fishman, 2010). Despite connections to former co-workers made more possible by social media, friendships rooted and located exclusively in work cannot help but be transformed once severance occurs. As Putnam explores traditional cultures and cultural habits fashioned in North America in the nineteenth and early twentieth centuries included typically many more intensive interactions with both religious and secular organizations, thereby centering the social world of adults at least in part outside of their workplaces (Putnam, 2020). Contemporary adults run the risk of being less practiced in rest and recreation than in the past. With less developed habits of rest and social intercourse going into retirements, retiring adults must learn new skills and will have lower reserves of long-term memory available to activate in service of effective socialization in times of stress. Retirement ties to notions of generational equity in complex ways (Anton, 2016). One primary element of generational equity present in discourse surrounding retirement policy has to do with the responsibility of each younger generation to take care of elders who cared for those who came before. In North America, retired workers who paid for decades into the public systems to support those retired during their work years justly consider financial support during their retirement a sacrosanct entitlement even when (as not all do) they understand that the programs do not function as individualized savings accounts with a return on investment over time. Whereas in North America individualism prevails, this sense of individualism does not extend to the point of pure Libertarianism for the majority of the population. Social obligation exists to maintain existing system as a social and moral debt owed to the currently retired population. Ceasing (or even questioning) investment into the system violates notions of intergeneration equity above and beyond any baseline ethic of care. However, other presumed aspects of generation equity also come into play. Older workers risk incurring a perception of occupying desirable positions longer than fair, especially during periods of economic distress or in professions in which the number of available positions do not necessarily grow in tandem with population growth (or decline). Some see not retiring per standard timelines as tantamount to deliberate holding up of the career progress of younger workers seeking employment or promotion. Furthermore, depending on the circumstances and salary schedule, organizations may anticipate with some excitement the ability to pay a person with less years of experience less well to complete the duties of the position vacated by a retiree (although, especially in non-unionized settings salary inversion and ageism related difficulties in finding alternative positions create the opposite circumstances when younger workers are in a position to demand better compensation for their service). Managers and administrators at organizations at times perceive

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opportunities for somewhat less stressful reorganization of organizational charts if coincident with a departure through retirement, regardless of whether a proposed reorganization creates the potential for new and revitalized opportunities for younger workers. Pressure to retire in such circumstances may have little or nothing to do with the actual job performance and needs of the employee in question. Salient points in this discourse still include the reality that the types of labor still possible later in life tend disproportionately include more privileged positions with career trajectories tied to greater salary and power. Notable exceptions to this rule include, for example, surgeons, elite athletes, law enforcement, and many high caliber roles in entertainment industries. However, many contemporary market needs are met at least as well be old masters as they are young geniuses (and sometimes as best left to those with more experience) (Gladwell, 2009; Strauch, 2010). In essence, especially to the degree that economic opportunity is (artificially) understood as fixed and limited, the notion that younger workers either could do the perform jobs better, render a workplace more adaptive to changing circumstances, or should just be given a chance because it is their turn to try makes retiring a duty tied from some perspectives to intergenerational equity. Given that a previous generations’ workforce retired in order to provide opportunities, older workers are then understood as duty bound to make similar room for the contemporary generation of younger workers. Even if this duty is not part of the explicit policy design or articulated in the text of policy, the existence of a policy subsystem designed to provide for retirement provokes this sense of duty. Ageism policies were, after all, designed in part because of the observed discrimination against older workers still seeking or participating in employment (Lagacé et al., 2019; Cadiz et al., 2017). Generational equity interpretations of the duty to retire tend to envision professional and economic opportunity as a fixed pie where the quantity of work available remains reasonably fixed. In such world views, holding a position too long becomes understood as impolite (Fishman, 2010). However, work both expands and fluctuates. As population increases, the absolute number of needed positions grows, particularly in the service industries. Creative endeavors and knowledge work are similarly less obviously constrained. While there are positions that are relatively population inelastic, the diversity of positions may have fewer limits. Human beings have demonstrated remarkable creativity with the regard to the number and types of goods and services they might enjoy. Institution building pervades in complex societies, usually with the attendant bureaucracies. Furthermore, benefits of workforce turnover may tie more directly to the length of service and oppose to the chronological age of employees. Finally, remembrance that the notion that survival should depend on forty hours (at least) of formal labor on the part at least one member of a household exists only as a modern human construction. Reduction of expected hours of work that correspond to income generating an acceptable standard of living obviously creates potential for additional positions as well as a externalities such as increased demand for services involved in leisure. Present circumstances in North America nonetheless form around rigid biases how distribution of the benefits of technological and social advances should occur, often directing new wealth away from those performing the labor and artificially reducing

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potential for alternative conceptions of full-time work. Life-maintaining benefits, including health care in the United States, are also tied to full time employment as defined decades ago. The neuroethical policy gap between assumptions present in retirement policy design present in many policies attempting to link the problem of aging with solutions providing for the comfort, care, and engagement of individuals defined beyond expected age of employment and actual human capacities late in life artificially constrains understandings of wealth and productivity.

9.4

Building Bridges to Retirement

Stoicism posits that passing one obstacle just means we are worthy of more (Holiday, 2014). Recent research on flourishing, particularly in the field of positive psychology, also suggests that human beings require ongoing challenges in order to achieve real happiness (Seligman & Csikszentmihalyi, 2014). Arguably this principle holds not only at the level of the individual human, but in groups of all sizes, up to an including the masses of humanity participating in contemporary international market economies. In industrial and post-industrial societies, default human experience has been understood as best aimed toward the ultimate relief of all duties as a way to reward success. Even if, in stark reality, many human beings have been excluded from realizing this outcome owing to characteristic-based oppressions, active discrimination, or bad luck, the ideal view of the human experience was to leave challenges to the young. Despite an extensive history of narratives to the contrary, retirement when possible has been understood as fundamentally pro-social and salubrious. When most people worked in physical labor, the question of when to complete work was largely driven by the fact that physical capacities do tend to decline over time during adulthood. Importantly, many jobs still include physical components, often to a degree misunderstood by those not so employed. For example, repetitive stress injuries produce long term and sometimes permanent damage to humans employed at jobs less obviously physically demanding than jobs commonly associated with physical labor. Many of the policies designed to create retirement policy subsystems failed to imagine the expansion of the knowledge economy, producing a mismatch between policy design and contemporary challenges of old age above and beyond those associated with misunderstandings regarding how the human brain ages. Furthermore, stress in modern and contemporary workplaces exerts a real physical toll on humans, even if work no longer systematically breaks the bodies of many workers. Realistically, there is also decline in neurology over time for many given the acquisition of neurological disease. Humans age differently and how the individual is affected by aging is partly connected to genetics. However, contemplating the neuroethical policy gaps between retirement and aging involves facing the fact that humans age faster than necessary. As Jeste and Harris explain:

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Homo sapiens may be the only major species in which the average life span (currently around 80 years in the United States) is much shorter than the maximum life span (120 years), in the absence of predators and natural disasters. . .Age-related decline in physical and mental functions (psychomotor slowing, loss of muscle strength) is characteristic of and usually begins in middle age, if not earlier (2010, 1603).

Findings from recent studies in neurology suggest that even dementia in old age may not be as fundamental part of human aging as is commonly believed. For example, it is commonly believed that adults as less capable of challenging feats of short-term memory than are children. However, as an example, a study of recall of list of words including subjects of all different ages found that older people were as capable of memorizing information as were younger people. Understanding retirement as a reward implicitly accepts that paid labor is justly exhausting and afflicting. Accepting that a time comes when a person cannot longer contribute to the economy should raise more questions about the decisions made regarding the health and safety of all workers than in customary in North America. Working to narrow the neurological policy gap between retirement policy design and human capacities over the full lifetime raises core questions about the risks, demands, and costs of everexpanding, internationally oriented economies which insights from novel brain science can help specify in the definition of public problems, the design and selection of policy solutions, and in the articulation of their linkages. Especially as the potential to meet the basic needs of the population exists in principle (though not in the practiced distribution) fundamental questions about the nature and purpose of wealth should be revisited. After all, the existence of neuroethical policy gap surrounding retirement policy design does not necessarily imply that retirement (or other time during which an individual is excused from the workforce while still living in above subsistence) should not exists. It means instead that the timing of that time is worth reconsidering. Retirement as reward assumes that work fully displaces activities that the individual might rather spend his or her time on. Underlying this understanding is the presumption that during one’s work years, work-life balance proves generally elusive. Workers, particularly workers who also have families, occupy lower socio-economic statuses, or who seek career advancement over time, are perceived most honorable when perpetually exhausted. Especially in the second half of the twentieth century, lack of time for health relationships, hobbies, or even sleep became (mis)understood as evidence of lack of commitment to one’s career. Professionals seeking the honor and respect of their colleagues have been portrayed as those who point to compromise or absence of one’s personal life as a signal of professional commitment and competence. At the same time, working class and many professional wages fell, meaning that many families came to depend on multiple incomes resulting either from more than one adult in the family working outside the home or more than one job per worker (or both). These factors work together to present the personal life as a liability for the worker best postponed until retirement. Drawing attention to the fact that attitudes connecting exhaustion or, simply, working excessive hours, contradict scientific findings about how to sustain human motivation and efficiency was considered soft, beside the point, or ignored

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entirely (Rock, 2009). Furthermore, in spite of the notion that enjoyment of much about life was best delayed until retirement, instruction in how to best prepare for a late in life shift in identity has been sporadically available at best. When the majority of jobs included a preponderance of physical labor, retirement was deemed necessary as a result of the observation that people typically become less physically strong over time. At first glance, it might seem that the shift in the majority of employment tasks toward less physically demanding jobs would result in less of a negative influence of job on capacity and health over time. In part this is true, especially because the once physically taxing jobs most people worked (and which many still do) took place in environments involving less than ideal attention to the safety and toxicity of the environment. However, modern employees also incur risks, ironically too often connected to the negative health outcomes correlated with remaining sedentary for too long periods of time. The rate of type 2 diabetes, for example, grew substantially in recent decades, in part as a result of more people spending more of their adult lives engaged in activities done while sitting in front of a computer or other workstation. The social stress present in dynamic, organizational power and politics-oriented workplaces also contribute to the development of inflammation-oriented conditions, including diabetes. As discussed above, the retirement neuroethical policy gap is widened by an understanding of the economy and humanity that artificially constrains both. Human beings are clever and have extraordinary capacity to consider risks and to understand how threats to safety and health exist in environments. Adult humans retain strength well past conventional age of retirement, especially if their health has been protected over the course of their lives and the safety of their work environments maximized. Contemplation of how to narrow the neuroethical policy gap between retirement policy design and human capacity involves reprioritizing (and maximizing) focus on workplace safety. The work involves consistent calling into question assertions about the necessity of obsession with narrowly defined efficiency, including from the perspective of economies. Especially in the era of mass production, simplistic definitions of economic productivity as maximized efficiency as defined more or less exclusively as per unit cost pervert genuine wealth. Whereas once it might have been necessary to set employee expectations to calibrate with maximized physical strength, speed, or flexibility, such expectations did not dominate all traditional societies. Given modern technological, social, and political innovations rendering machines capable of much physically taxing work and widening conceptions of human rights, exhaustion of this kind does not have to exist in contemporary workplaces. Employment should not cause humans to age faster than determined by biology—no other animal on earth permits such circumstances outside of desperation. Restored emphasis on the flourishing is part and parcel to reconceiving retirement given what is now known about human development. This emphasis also serves to address some of the intergeneration equity elements of retirement policy given the focus on all employees and positions rather than exclusively the most senior. Retirement as rest is not only costly to many individuals but requires substantial investment by society at large. Whereas the economic considerations are, of course,

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complicated by the fact caring for the elderly can create jobs. However, in North America these elder care jobs are frequently poorly compensated. As with many sectors of contemporary economies, in North America, substantial profit has been captured through the institutionalization and standardization of elder care by large companies and corporations. Whereas at the end stages of life, it is likely fragility, frailty, or reduced neurological capacity render intensive care necessary, the relationship between age and health or other care needs is not completely linear. In many nations around the world, policy design in recent years has begun to incorporate more focus on healthy aging (Fishman, 2010). For example, as Liz Lloyd and her colleagues point out, “in the context of the British welfare system, the active ageing agenda has become inextricably linked with the broader policy agenda to reduce older people’s call on public resources in order to manage the increasing proportions of older people in the British population” (2013, 322). Efforts have at time addressed the neuroethical policy divide underlying assumptions about retirement as rest. Retirement involves financial planning, at both the individual and collective levels. The existence of program such as Social Security and Medicare in the United States provides a level of financial contribution to the maintenance of life after an individual (or family) is no longer receiving income from work. Even so, income beyond this basic level helps enhance social and economic justice. Many people struggle with how to understand how to properly save for retirement (Kiso & Hershey, 2016). Existing suggestions for recreation of the retirement policy subsystem, particularly those involving privatization, depend of successful efforts to make retirement easier to understand. This, in turn, relies on reducing cognitive dissonance associated with a disconnect between what people personally experience as they age and the assumptions underlying policy design across retirement policy subsystems. Especially if healthy aging also serves to extend the life span toward the biological limits of human life span, planning for retirement could mean planning for periods even longer than the original work life. Planning, however, requires sufficient income during the work life to render success in planning a possibility. Economies are constructed and constrained by government. Anything we permit to occur in the economy happens by virtue of policy. Furthermore, all aspects of planning for the future are at least partially shaped by public policy. Planning depends on understanding expectations and responsibilities. As Laliberte-Rudman explains, “while pensions were once viewed as a collective responsibility met by the state, pension reforms in several nations since the mid-1980s have shifted toward individual responsibility and market-based solutions” (2016, 110). Politics of the contemporary era have highlight inherent cruelties of highly individualized responsibility, particularly in the United States. Reactions to ongoing brutalities such as the routine separation of families seeking asylum in the United States have ranged from enthusiasm to horror. As generations that experienced less reliable economic opportunity during their work years reach retirement age and as questions about diversity, inclusion, and economic inequality become more routinely (and starkly) raised, the range of reactions to realities of individualism in less comprehensively secure contexts could usefully inform how to conceive of responsibility for and in old age.

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Working with this neuroethical policy divide involves the questioning the rarefication of retirement age as universally appropriate inspired by the specification of exact ages into public policies such as those providing Social Security benefits in the United States, regardless of personal preference and, to some degree, capacities. The sense of entitlement to retire at a stated age is strong and strengthened by public policy which routinely articulates for individuals the age at which they qualify for retirement benefits. However, this sense of entitlement presumably does not take into full account the health risks often associated with retirement. In a study conducted in France, Catherine Grotz and her colleagues found that risk of dementia was lower for those who retired later in life, regardless of the number of years worked prior to retirement (2016). Grotz et al. are careful to emphasize that the results of their study do not imply that working to a later age improves individual health. Rather, the results suggest that retirement can be associated with decline in cognitive function, especially if undertaken at a time that is not, for whatever reason, appropriate for that individual. Of course, contemporary comprehension of the natural potential for human brains based on existing scientific findings does not rule out the possibility of either a non-causal correlation or causality running in the opposite direction. People experiencing earlier and faster cognitive decline may choose to leave or be more systematically forced to leave workplaces, for example. Working with the neuoethical policy gap between assumptions present in retirement policy design involves negotiating the tricky dynamics of genuine protection of agency and choice in systems intended to be universal and equal. Negotiating real differences between equality and equity challenges many social policy designs. As the diversity of aging experience—especially with regard to neurological development and capacity—we can better understand how to maximize equity. Finally, as the opening story of this chapter suggests, working with this neuroethical policy gaps involves reclaiming eldership. Much of contemporary retirement policy design assumptions ignore conception of a social role for the elderly. This, from the standpoint of many traditional histories, is a problem of modern origin. Work on reclaiming eldership exists in North America. Public figures, such as former United States President and First Lady Jimmy and Rosalynn Carter, have both openly discussed and well modeled eldership. Discourse around volunteering during retirement involves the ideal of giving back to the community or society at large. In many traditional societies, old age was a time of reverence and contribution of knowledge back to the group. As Laliberte-Rudman described, “the problematization of the aging population is often framed in relation to rising dependency ratios resulting from a decrease in the proportion of working age population relative to the population aged sixty-five and older” (2016, 109). Despite its presence in North American societies, purposeful creation of opportunities for performance of eldership rests notably outside discussion about retirement policy design. Affording eldership rest outside how many in North America understand our wealth and discern our priorities given our sense of individualized, perennial obligation to the market economy despite obvious (though ill distributed) abundance. Bridging the neuroethical policy gap between assumptions driving retirement policy

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narratives and our emerging understanding of human aging depends on reacquaintance with age old expectations of elders. Dignity of age matters. Contemporary brain sciences suggest that the path to dignity is not exclusively material. It is vital that retirement policy subsystems continue to focus on preventing extreme poverty in old age and stand firmly against the return of wide-spread economic desperation amongst the elderly. In order for retirement to function as intended, however, the neuroethical policy gap between the connected and purposeful late in life years necessary for brain health and the current charity-based presumption dominating retirement policy subsystems must be creatively, diversely, and equitably bridged.

Works Cited Anton, A. L. (2016). How long should people work? The debate over the retiring age. In The Palgrave handbook of the philosophy of aging (pp. 495–516). Palgrave Macmillan. Baker, D. L. (2011). The politics of neurodiversity: Why public policy matters. Lynne Rienner Publishers. Baker, D. L. (Ed.). (2017). Disability and U.S. politics: Participation, policy, and controversy. Praeger. “Benefits Planner: Disability.” (n.d.). Social security administration. Retrieved on January 28, 2020, from www.ssa.gov Cadiz, D. M., Pytlovany, A. C., & Truxillo, D. M. (2017). Ageism in the workplace. In Oxford research encyclopedia of psychology. https://doi.org/10.1093/acrefore/9780190236557.013.2 Fishman, T. C. (2010). Shock of gray: The aging of the world’s population and how it pits young against old, child against parent, worker against boss. Scribner. Gladwell, M. (2009). What the dog saw and other adventures. Back Bay Books. Grotz, C., Meillon, C., Amieva, H., Stern, Y., Dartigues, J.-F., Adam, S., & Letenneur, L. (2016). Why is later age at retirement beneficial for cognition? Results from a French population-based study. The Journal of Nutrition, Health & Aging, 20(5), 514–519. Holiday, R. (2014). The obstacle is the way: The timeless art of turning trials into triumph. Penguin Group. Jeste, D. V., & Harris, J. C. (2010). Wisdom—A neuroscience perspective. JAMA, 304(14), 1602–1603. Kiso, H., & Hershey, D. A. (2016). Working adults’ metacognitions regarding financial planning for retirement. Work, Aging and Retirement, waw021. Lagacé, M., Van de Beeck, L., & Firzly, N. (2019). Building on intergenerational climate to counter ageism in the workplace? A cross-organizational study. Journal of Intergenerational Relationships, 17(2), 201–219. Laliberte-Rudman, D. (2016). Risk, retirement, and the “duty to age well”: Shaping productive aging citizens in Canadian newsprint media. In Neoliberal governance and health: Duties, risks, and vulnerabilities (p. 108). Putnam, R. D. (2020). Bowling alone: America’s declining social capital. In Culture and politics. Palgrave Macmillan. Rock, D. (2009). Your brain at work: Strategies for overcoming distraction, regaining focus, and working smarter all day long. HarperCollins Publishers. Ruggles, S. (1996). Living arrangements of the elderly in America: 1880–1990. In T. Harevan (Ed.), Aging and generational relations: Historical and cross-cultural perspectives (pp. 254–263). Aldine de Gruyter.

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Seligman, M. E., & Csikszentmihalyi, M. (2014). Positive psychology: An introduction. In Flow and the foundations of positive psychology. Springer. Shen, H. W. (2017). Resource and strategic mobilization model (RSM) of productive aging: Examining older Americans’ participation in various productive activities. Ageing International, 42(1), 23–43. Strauch, B. (2010). The secret life of the grown-up brain. Penguin Books. Zhang, Y., Engelman, M., & Agree, E. M. (2013). Moving considerations: A longitudinal analysis of parent–child residential proximity for older Americans. Research on Aging, 35(6), 663–687. Zinger, A., & Roche, E. (2020). Using meaningful leisure activities in OT to decrease occupational deprivation in older adults. https://doi.org/10.1177/0308022619840180

Chapter 10

Will to Live and Living Will

10.1

At Times Regrettable

February 2, 2020 I do not wake up every day and notice the clouds these days—I don’t some days see the outside or feel the breeze in the courtyard gather, die down, and return the way it does in the afternoon—some days I don’t get up out of bed at all. I never thought it’d be like that. My living like this with machines to lift me. Nurses to change my diaper. I never would have guessed this life. This living that is not healthful. This living on machines and medication and a name tag in all my belongings and still they come up missing. There is no need for anything nice here to live. 7 breakfast 7:45 balloon toss 8 morning visits 9 morning music mix 9:30 morning board games 10 movie 12 lunch 1 patio pals 1:30 TV classics 2 bingo 2:30 afternoon visits 4:30 Tech Town—help with email, Skype, and computers 5 dinner 6 Bible study and reflection time 6:30 bedtime. I live on a ritual of meds and food and activities. And yet I don’t wake up and regret that every day. Some days I regret no one told me my son died, but my oldest baby, he doesn’t come see me anymore, and I remember him sometimes; some days I can call his name. Some days I wake up and I do not regret that I can’t live with my family anymore and that this place is my home. I regret it eventually but not at first. At first, I am breathing in my bed breathing in. Alive. Maybe not well. In September I turned 100 and I am swollen and thin-haired and I can eat cake and smile and stand from my wheelchair and sit in a car, breathing, looking out the window from the back seat, my baby’s daughter and wife in the front and him not driving, seeing the cars on the freeway not moving, alive. I do not wake up every day and regret that. I do not wake up and regret that every day. Although sometimes I think it is regrettable that growing old takes courage. Sometime I regret that growing old is not for the weak.

© Springer Nature Switzerland AG 2022 D. L. Baker, R. L. Baker, Neuroethical Policy Design, Studies in Brain and Mind 20, https://doi.org/10.1007/978-3-030-92289-4_10

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May 21, 1954 At times it’s regrettable I have to get old as if life doesn’t want to keep this girl in mind. This girl I am today. I am 2 good 2 be ____________________ 4 gotten (smiles) I saw that in William’s yearbook (smiles). All my boys give me that spirit + the inspiration to keep going so my sons can remember me big. Remember me, my dear boys. Remember me always. I may not live to be 100 but for as long as I live I hope I have days like today. Here I am today, graduating, getting my degree from high school. Keep this girl in mind, graduating today in cap, tassel, and gown, with my diploma and the flowers you boys gave me in my hand, smiling, them heels hurting my feet, but I had to wear them because they matched the off-white of my dress just perfectly, me smiling big, all my upper teeth showing, please keep this girl in mind. After all of our planning for the future, after our Saturday mornings watching Bugs Bunny cartoons on the pull-out couch, our apples for lunch and Nehi grape sodas when we had them, I hope I still have this smile that I have today standing in front of the school with you taking my picture—them window panes smashed out behind me, some boards in the windows, that school building was never too pretty but I got my diploma today, my hair all short and pressed out and pincurled behind my ears. And there will be so many more days and smiles I know there will be, but do keep this girl in mind. Look at your mom. With this diploma in my hand I feel like a new girl. I’ll be able to get work outside of the factory. I’ll get a better job so we can get our own house if I work hard and save a little every month. Maybe this girl can get herself all the way to California where my brother is and you boys can come too and we can build something together that is very fine. We can have all the things that make life true, and the days good. As I go into the perfect things that will fill all the time stretching forward into my future, I hope I can always keep this girl in mind (smiles). Human beings plan. While planning capacities exist in other species, the ability to make and carry out a plan rests at the core of how we understand ourselves. Planning necessarily involves making decisions, which in turn connects to a sense of freedom and agency. Relative absence of agency vis-a-vis typical circumstances of a given socio-cultural context threatens our sense of human dignity (Lloyd et al., 2014). However, opportunity to make decisions is not exclusively beneficial. For example, the degree to which and about what people want to make decisions is not innate and varies by socio-cultural context (Schuler et al., 2016). Making decisions costs time and energy and individual magnitude of these costs varies. In some contemporary settings, human beings experience negative effects of having too many options and, in some circumstances, feeling underprepared for the choices expected of them. In

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many parts of the world, including North America, end of life decisions can involve both these kinds of challenges. Human beings live, with varying degrees of comfort, with the knowledge that at some point individual capacity to make or effectively communicate decisions slows and ceases. In contemporary societies policies surrounding end of life decisions have proliferated in recent decades and now incur a broad spectrum of historically unavailable options such as physician-assisted suicide, terminal sedation, or active and passive euthanasia. This chapter considers living wills as a representative case, in part because of their shared overall mode of linkage between public problem (what to do when individual agency falters or ceases) and policy design solution (create legal provisions allowing individuals to formally displace these decisions into an early point in time). Traditional wills (i.e. the last will and testament) are a form of public policy designed to communicate (and ensure) individual preferences regarding distribution of personal wealth and responsibility for children upon the individual’s death. Wills constituted a policy innovation building from traditional practices of passing belongings through socially structured relationship patterns (e.g. from fathers to sons). They are designed to augment individual agency beyond tradition and the points at time at which human beings have the natural capacity to communicate their choices. Such policies and practices emerged to address circumstances under which a person could not or did not wish to transmit personal property as prescribed by social convention. Wills, in essence, were invented to maximize choices regarding the end of life and extend the influence of our individual neurology beyond death. The first known will in English was recorded in 1395 though similar documents in Latin were recorded somewhat earlier in the British Isles (Proffatt, 1876). Like many aspects of freedom, choice, and agency, wills initially held relevance only for privileged segments of the human population. As understandings of entitlement to human rights and economic agency slowly diversified, a greater proportion of the population gained ability to plan wills. Creating a will gradually transformed into a duty connected to responsible adulthood. Even so, in the United States, the proportion of people who reported to Gallup polls that they have a will has rarely passed 50% in the last 30 years (Jones, 2016). The underlying policy design of wills rests on the assumption of potential for disagreement, if not discord, surrounding regarding how to carry forth an individual’s responsibilities once they are understood as no longer able to do so for themselves. Perceptions of disputes around wills can fall prey to the recency bias. In other words, attribution of difficulties surrounding estate planning appears to many people more modern than how the history has actually unfolded. Uncertainty regarding stewardship of resources over time is, after all, a challenge with ancient roots even if as it has remained true that until recently the majority of human beings did not engage the practice. Challenges surrounding wills have evolved and produced a growing diversity of specific forms of public policies addressing specific end of life concerns above and beyond the disposition of property and custody of dependents. Policies designed to address periods of reduced competence prior to the actual end of life have

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proliferated over the past several decades. End of life and other medical decisions became more complex as both the effectiveness of health care and human life spans have increased. Furthermore, desire for and pursuit of personal agency regarding health care expanded. As Klein and Coogle describe, “although there is high regard for technological medical advances, beginning in the last 1970s there was growing unease that choices for medical treatment, especially at the end of life, were in the hands of medical professionals rather than individuals and their families” (2016, n. p.). Given the complexity and uncertainty of emerging treatments individuals and families sought to weigh in on health care decisions with especially probabilistic or painful outcomes. This agency included input regarding the timing and nature of heroic or intensive measures employed in the face of imminent death. For example, in the United States, the Patient Self-Determination Act of 1991 requires organizations providing medical care to provide information about advance directives to patients. Such decisions involve an often-disconcerting degree of financial considerations in the absence of state funding for care and with thinning social networks. Because advanced medical care tends to be extremely expensive, costs of care factor heavily into decisions about end of life. While more than one type of policy exists to share consent and preference for medical and other care past the point at which a person can reliably communicate, in the United States, common parlance refers to living wills, whether or not this is the specific legal document in question. In Canada, options and decisions about the end of life are less involved with concerns about high costs of medical care, however policies exist in all provinces allowing for the creation of advance directives or Power of Attorney for Personal Care. In this chapter, living wills serve as the representative case within this increasing complex set of policies. As discussed above, living wills, advance directives, advance care plans, psychiatric advance directives, and durable power of attorneys (hereinafter referred to as living wills) address periods of time during which a person is unable to make or articulate decisions before death, especially about a medical crisis, long term palliative care, or extreme old age (Klein & Coogle, 2016). The policy design embeds the assumption that an individual’s cognitive capacities in the present are, at least statistically speaking, better than those of their future selves. As medical science, hygiene, nutrition, and other health practices improved over the past century, and a half life expectancy increased across North America. Increases in life expectancy involved more people living longer and often until more feeble states for more prolonged period than in the past. Furthermore, increased understanding of the human body meant that health care professionals gained the capacity to keep people alive at much lower levels of functioning with the assistance of medical technology, sometimes in conditions from which human beings do not yet know how to do anything to help the individual to recover. Furthermore, though the distinction is increasingly demonstrated as scientifically false, a sense that the mind and body often do not age in parallel exists. More than was ever the case in the past, members of the general population live with a reasonable level of risk that they might end up alive, but not in a state that they might be able to express their preferences about

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continuing to live or dying without a given medical intervention. However, it is also true that more members of the general population will live into old age with their capacities intact. As discussed in Chap. 9, neurological development continues throughout the human life span and does not exclusively involve decline past early adulthood as was once believed. Given neurological development in middle and old age, questions reasonable arise as to whether our younger selves are, in fact, literally the same person as our older selves. Living wills rest on the assumption that individuals are the best and fairest judges of the preferences of their future selves. Assuming awareness of future preferences runs counter to the narrative many individuals would express about their lived experiences. After all, few adults would want to allow their teenager selves to make decisions about their current lives. Rather, by middle age, people often believe that the decisions made in youth were at time regrettable or ones that the individual might make differently if given a chance. In fact, people whose basic needs are satisfied tend to be more content during older ages than are younger people (Fishman, 2010). In a meta-analysis of 109 data sets drawn from 132 nations, David Blanchflower found that overall happiness tends to decline through early to middle adult hood then increase after 47.2 in developed nations or 48.2 in less developed ones (2020). Furthermore, when it comes to the state of a person’s body or mind, many people lucky enough to live into at least middle age find themselves perfectly happy in, especially, bodies in conditions that they might have declared not worth living in as younger, less experienced human beings. Finally, those who have found themselves living with a condition they once thought untenable as a result of a failed or improperly implemented living will have been shown to be often glad to continue to live their new lives after a period of adjustment (Seligman & Csikszentmihalyi, 2014). Debate remains as to the uniformity of this hedonic adaptation across individuals and life experiences (Lucas, 2007) and, in all likelihood, diverse and highly individualized experiences exist across the human population. Even so, combination of these factors creates a neuroethical policy divide— that individuals making the decisions involved in living wills are often not actually the individuals to which the living wills are applied despite policy designs assuming without question that the best person to communicate decisions about end of life or compromised health status is that individual years or even decades before. One of the more challenging and poignant aspects of living wills involves failure of imagination about living as a person with a disability. Histories of sustained, unquestioned ableism persist into our contemporary social, political, and economic infrastructures (Trent, 2016; Baker, 2017). Policies designed around newfound understandings of disability as an element of diversity fundamental to human and civil rights remain relatively novel and still incomplete (Baker et al., 2020; Brown, 2018). Most human beings have the capacity for empathy making them able to think about the experiences of another individual with some understanding of the emotional and sensory aspects of the experience. However, human beings also overestimate the degree to which they comprehend the experiences and interpret the thoughts of others. This overestimation becomes especially substantial when the experience is not well understood by society at large or diverges from (perceived)

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common experience. Furthermore, respect for and attention to neurodiversity has lagged somewhat behind other aspects of disability policy in part as a result of the fact that early leaders of the disability rights movement in North America were largely individuals with physical disabilities (Scotch, 2001; Baker, 2017). As a result, the neuroethical policy divide widens since a person making a decision about end of life may have misguided or no understanding of positive aspects of different ways of being shaping their understanding of preferences for themselves as they are during the period of life for and during which decisions are made (Brown, 2018). An aged or disabled human may, in fact, be a fundamentally different person than they were in their youth or prior to the acquisition of the disability. To the extent that policy design underscoring wills assumes that a person is making decisions for themselves, such policies may be privileging youth and typicality over age and disability without the explicit consent of the people embodying the later categories. Importantly, disability awareness has improved in recent decades as a result of sustained effort on the part many individuals and groups (Scotch, 2001; Baker, 2017). Even so, disability remains unknown and unimaginable to many members of the general population. Part of this reality is rooted in the diversity of disability itself; as previously mentioned having experience with one condition does not necessarily provide insight into any other way of being above and beyond comprehension of the potential for disability-based discrimination. Another part of this reality speaks to the absence of disability from the vast majority topics about which people receive education, both formal and informal, even when said education is deliberately addressing historical oppression, diversity, and inclusion (Brown, 2018). When individuals are making decisions about disability in all likelihood, they do not have any real understanding of the decisions being made. With possible exception of pain, lived and observed experience too often excludes direct contact with the particulars of a given experience prior to personal engagement with the experience. For example, while a person might consider the neurological compromises associated with dementia as worse than dying, they do not know themselves as a person with dementia. Furthermore, given the social complexities and high financial cost of care as provided for many experiencing dementia in modern and contemporary societies, observed experiences of grandparents, parents, or other loved ones may tend toward the painful and bleak. The degree to which such negative experiences may reflect social construction as opposed to natural state remains unknown. Even so, as Niedderer and her colleagues describe in reference to neurological decline in old age and happiness “design can help to support social, leisure, and creative activities. . .it can help empower people with dementia through offering choices and aiding decision-making. . .the importance is to use design to help reduce stigma and exclusion, and instead to improve the wellbeing and social inclusion to create happiness” (2019, 8). Obviously, the fact that happiness can be created across neurological divergence considered devastating reduces clarity on the neuroethical policy divide between presumed capacity for prediction of preferences over the course of a lifetime and the experienced malleability of desires.

10.2

10.2

Role of Living Wills in Society

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Role of Living Wills in Society

Living wills, and other legal documents that providing for decisions past (presumed) competence are relatively novel innovations resting on an ancient policy linkage between the problem of end of life and the solution of recording and enforcing preferences articulated well before death. When considering this policy design’s implications for a neureothical policy gap, it is important to ask what specific public challenges are addressed by these documents. As with all neuroethical policy gaps, in the context of neuroethics and neuroscience, it is important to ask whether or not responses to these policy challenges are made using accurate interpretations of human neurology. Individualistic societies aim to maximize the amount of control individuals have over the course of their lives. This challenge is connected to an understanding of society with a primary unit of analysis that is smaller and less connected than in past social constructs; those that focused on families, tribes, or other groups. Literally speaking these constructions included consideration of groups as individuals as the source of the sense of self. This, combined with generally more unified, singular faith systems operationalized more immortal and transcendent senses of self. While the role and treatment of elders in more traditional societies should not be considered with rose colored glasses, clearer guidelines about both caring for elders and options for the elderly in managing the end of life may not fully bridge the distance present in the neuroethical policy divide surrounding living wills. The notion that people should be individually in charge of their end of life decisions (and, to some extent, that they have a responsibility to do so) is the outcome of modern understanding of personhood and political activism connected to the Eugenics movement of the late nineteenth and twentieth centuries. As a result, it prioritizes contribution to the economy, deemphasizes interdependence, and tends toward a presumption of one, measurable way to measure value of human of existence. In the context of public policy, the Eugenics movement is most famously associated with Social Darwinism, a political philosophy which sought to apply emergent understandings of genetics in reproduction to improve the human race. Overtly racist in intent and application, the movement gained tremendous support across western democracies until the atrocities of commitment by the Nazi party in the Third Reich became well known. Though substantial academic discussion around distinctions between positive and negative eugenics exists, eugenics as a whole serves to minimize human diversity and poses a perennial threat to both equity and inclusion by virtue of differential valuing of (human) traits. The Eugenics movement assumes care is worthwhile only to the extent that the recipient might be reasonably expected to contribute to society in the future and, ideally, produce offspring of more supposed merit that was average for the human population of the prior generation. In stringent interpretations of eugenicist philosophy, once a person is understood as lacking the potential to contribute to the economy, he or she incurs the responsibility to rectify this situation, even if this means agreeing to a voluntary death, whether or not the person otherwise considers his or her quality of life

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generally good. Understanding human value as defined primarily as economic capacity is not exclusive to Eugenics, but it is a core component of this philosophy incorporated into early some elements of living will policy designs. Eugenics has fallen solidly out of popular favor in North America. Debate remains as to the degree to which public policy deliberately supports historical oppressions tied to immutable characteristics. Racism, for example, persists, but has been both modified and moderated by popular, widespread efforts to avoid and cease racial caste systems (Kendi, 2019). Establishing diagnostic criteria for complete social, political, and economic recovery from racism lays beyond the scope of this book and, likely, stretches beyond the current state of human knowledge. Nevertheless, working to bridge the neuroethical policy gap between public policies establishing protocols for individual pre-determination of end of life choices and human neurology requires consideration of the echoes of the philosophical principals drawn from Eugenics and other active forms of characteristic-based discrimination employed to value human life remain embedded in public policy and social mores. North American populations still demonstrably value some human forms more than others. For example, fetuses are screened for disabling conditions, including those that are not necessarily fatal. “Wrongful life” and “wrongful birth” court cases exist in which medical providers and other professionals have been sued following the start or continuation of a life with disability or disease (Brown, 2018; Frati et al., 2017). Disability identified in either the mother or fetus correlates with increased abortion rates (McKinney, 2019; Reinders et al., 2019). While ethics and dynamics of beginning of life decisions incompletely parallel those related to the end of life, both areas of personal decisions and policy design incur questions about the worth of lives, the boundaries of individual rights, and the ethics of obligatory care (Baker, 2017). As another example, Social Security payments are tied to the income earned over the course of a lifetime rather than the economic need of the individual collecting those payments despite access to income differentiated across immutable characteristics when examined at the population level (women, for example, continue to systematically earn less than men). While few would consciously accept the principles of eugenics in modern North America, questioning of policies with design elements either reflecting or manifesting discrimination the neuroethical policy divide around living wills has been widened by systemic oppression.

10.3

Living Wills and Disability Politics

The politics of living wills intersect dynamically with the politics of disability. Over the course of the twentieth century, disability policy became well established as a rights-based issue, justly upending centuries old traditions of contemplating disability largely outside the context of the human or civil rights of people with disabilities (Scotch, 2001). In more recent years, efforts to go beyond this rights basis have expanded, particularly amongst more progressive stakeholders. Such expansions

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typically involve considering disability as an element of diversity, key to both human strength and ongoing tensions between disparate groups (Baker, 2017). Even as this work flourished, efforts to claw back policies establishing or protecting disability rights have been undertaken. For example, in the fall of 2016, the ADA Education and Reform Act of 2016 was proposed by house Republicans in the United States with the goal of shifting part of the (often exaggerated) economic burden on implementation of the Americans with Disabilities Act on to people with disabilities. In both Canada and the United States, confusion about the relationship between at times differential access to health care and public programs, social justice, and individual rights underscore uncertainties about how best to provide for rights across diversities, especially given historical and systemic oppressions tied to individual characteristics. As a result of confusion regarding goals, a lack of consensus one progress, and, at times, ongoing belief in the benefit of historical hierarchies, uneven progress exists in all efforts to reduce oppression and enhance diversity. In the overlap of the politics of disabilities and living wills these opposing trends both magnify and result from confused and conflicted attitudes of rights, responsibilities, inclusion, selfhood, and quality of life. The question revolves around general acceptance of conditional access to life, and the specific nature of those conditions deliberately applied across populations. Negotiation of this distinction involves challenges for all stakeholders. On September 13 2016, Disability Scoop, an electronic news service, included an article written by Michelle Diament with the headline “Down Syndrome Rates May Be ‘Gross Overestimations,’ Study Finds” (2019, n.p.). Only in the last paragraph of the story was selective birth of children believed to have Down Syndrome discussed as follows: A number of factors are likely impacting population trends among those with Down syndrome, researchers said. In recent years, prenatal testing and elective termination have become more available. At the same time, however, people with the disorder are living longer thanks to better treatments for heart defects that are common among this group and other co-occurring conditions like thyroid disease, obstructive sleep apnea and leukemia (Diament, 2019, n.p.).

As discussed above, the neuroethical challenges relating to preventing a birth and halting a life already in progress outside the womb are not identical. However, as the quote above demonstrates differential valuing of human life starts before birth and, too often, continues throughout the human lifespan. The prevalence of this differential valuing in contemporary societies implies that decisions about living wills take place in ableist context and, often, manifest ongoing ableism once articulated. Narrowing the neuroethical policy gap surrounding living wills depends on broad expansion of education in and awareness of disability history, disability cultures, and disability rights and the degree to which ableism remains built into public policy. Disability exists as a result of a combination of insufficiently inclusive infrastructures, constructed definitions of life functions, and the essential characteristics of individuals. Long histories of exclusion and oppression on the basis of disability exist throughout the world, often motivated by fear, exploitation, and political supremacy (Reinders et al., 2019; Baker, 2017). While a complete discussion of

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disability rights and Disability Rights Movements is beyond the scope of this text, fundamentally the premise that life becomes not worth living owing to either dependence on others or change in capacities at the end of life involves deeply ingrained discrimination against disability and an correspondence between external, perennially biased judgments of social or economic worth tied to being of so-called sound mind and body (Brown, 2018; Baker, 2017).

10.4

How Do People Make Decisions About Living Wills?

Communication about end of life decisions involves the potential for bias. In other words, those who speak to individuals about choices regarding living wills could have biased interpretations of the quality or value of individuals lives rooted in histories of oppression tied to human characteristics’ differences understood as disability or permanently compromised. On the other hand, group preferences with regard to communication could vary with regard to knowledge, communication styles, perceived capacity to manage the financial risk associated with intensive health care, and socio-cultural expectations of life and death. For example, in a student of 152 people with stage IV or V kidney disease, it was found that black and white patients had such differences which could systematically affect their decisions about living wills (Eneanya et al., 2016). Managing the neuroethical policy divide surrounding living wills involves constant and thorough examination of intersectionally relevant to both the design and implementation of living will policies. In the United States, discourse about living wills in the absence of consideration of financial strain and economic inequality creates is unethical. Medical costs are one of the most common causes of bankruptcy in the United States (Himmelstein et al., 2019). The Affordable Health Care and Patient Protection Act of 2010 (also known as Obamacare) expanded access to health insurance in the United States. However, as of this writing, nothing even remotely close to a single payer system exists in the United States. The closest available, is Medicare, for individuals over the age of 65 (notably different from the more universal Canadian policies bearing the same name). Nevertheless, even this policy leaves some of the medical costs up to the individual. Furthermore, given that individuals are encouraged to write living wills when they are younger, in many cases the documents are being created at a time at which intensive or long-term health care would result in high expenses for the individual or their family, especially if that care lasted for a long period of time. Though in Canada medical costs loom less large, costs of lifetime care following acquisition of disability are often similarly substantial and worrisome. Wisdom tends to grow with age. According to Jeste and Harris, “wisdom, when it does increase with aging, may serve to compensate for the aging-related biological losses, and thereby may enable older adults to better exploit their remaining resources and plan ahead more strategically. . .evolving research on neuroplasticity of aging is consistent with the notion of increasing wisdom in later life” (2010,

10.5

Narrowing the Gap: Neuroethics and the End of Life

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1063). Wisdom involves greater, not less, capacity to manage both uncertainty and shock. As Stephen S. Hall has put it: In moments when life’s regular playbook flies out the window, when the ground shifts beneath our feet in a literal or figurative earthquake, we feel a surge of adrenalized fear at the shock of the unexpected. But right behind that feeling comes the struggle to make sense of the seemingly senseless, to try to understand what has just happened and what it means so that we will know how to think about a future that suddenly seems uncertain and unpredictable. . .In truth, the future is always unpredictable, which is why these moments of shock remind us, with unusual urgency, that we have constant (if often unconscious) need for wisdom, too (2011, 4).

A younger version of an individual often lacks the wisdom to fully comprehend the value of time in late life. Human beings understand the potential of old age less well than they might, in part because historically most human beings have not had the opportunity to enter advanced age in good health and prosperity. In North America, and much of Western society, security in old age eluded the vast majority of human beings until social policy innovations included social security payments and guaranteed health care. Furthermore, many of the currently aged population experienced economic deprivation during childhood and youth owing to the Great Depression. As is discussed in Chap. 2 of this book, economic insecurity during young age is connected to changes in neurological development. Information about capacities for wisdom in old age under current social structures remains contradictory, incomplete, and, at least potentially, generational. Thinking about living wills requires free and informed contemplation of old age, which necessarily takes place in a context of high-quality information about what it is to be a self-actualized human in old age. The neuroethical policy gap surrounding living wills widens in the absence of a wellestablished social role for elders and an incomplete comprehension of being old without looming concern of causing economic devastation for oneself and one’s family.

10.5

Narrowing the Gap: Neuroethics and the End of Life

Entitlement to command of or agency about the end of one’s life is a privileged concern. While ethics around suicide, especially in the face of shame or social death, have varied across cultures, command over one’s life and death following loss of capacity to communicate preferences constitutes a relatively novel challenge of human beings. Ironically, this opportunity has coincided in many social and cultural contexts with a reduction or elimination of the role of traditional death rituals in daily life (Doughty, 2018). Policies designed to protect each individual’s right to decide how to live throughout their lives assume certainty of preference and clarity on both implications and options. Since contemporary brain science suggests real limitations to other capacity to imagine our future (other) selves and demonstrate long term effects of social norms and economic pressures on neurological development, a gap

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exists between intended and practice agency regarding policies articulating selfmade end of life decisions. Most creating living wills do so in the expectation that they will be created for extreme old age or severe accidents. The primary argument for this policy design is the expectation that the individual will be unavailable or unable to make the decisions involved in their care due to loss of consciousness and that the younger version of that individual best represents their future, older self. In other words, living wills and other policies employing this policy design in the context of old age incompletely address the issue of compromised capacity in old age directly since lack of consciousness in and of itself is not an experience that changes over the course of a lifetime. Part of the reason for creating these documents as understood by many who promote their creation is the belief that neurological capacity peaks during young or middle adulthood, making this the most appropriate time for individuals to create such documents. Emerging understandings of the life-long neurological developments suggest not necessarily that end of life policies is inherently mis-designed, but that they would better manifest the intended justice if implemented more cautiously and, potentially, if they were valid for shorter periods of time. Just as it may prove advisable to place time limits on how long a passport to travel between nations can be in effect, the neuroethical policy gap surrounding living wills suggests in would be similarly advisable to limit the period of time documents functioning similarly as passports between life and death were timelimited. After all, limited periods of validity would allow decisions to mature alongside individuals and reflect the incremental experience of neurological change experienced by most of a healthy and secure aging population. Perceived pressure to create living wills and the like exacerbates sensitivities on the part of stakeholders across political spectrums. For example, during the development of The Patient Protection and Affordable Care Act, political conservatives in the United States rallied against the so-called “death panels” assumed into policies attempting to provide for conversations around living wills. Of course, raising this specter in this context held peculiar irony given the functionally similar and far less transparent decisions made by for-profit medical insurance providers. Even so, such sensitivities reflect how wide the neuroethical policy gap between policy design and the real capacity of human beings to contemplate others’ minds (including the other that is oneself at another stage of life) remains. Advance directives, living wills, and other policies in the end-of-life policy subsystem presume consistency of identity over the life span. Acquired neurological difference can result in a change in identity (Tobia, 2016). The degree to which human bearing the original identity holds rights trumping that of the human bearing the new identity remains blurry at best. The discontinuity of personality has been used to argue that advance directives should not hold force in, for instances, cases of dementia (Demarco & Lipuma, 2016). However, as discussed above, in the case of dementia, debate exists as to the degree to which a new personality is establishes as compared to the original personality still existing in a compromised state. As DeMarco and Lipuma put it, “various forms of dementia are best viewed as disease states, much like other late-stage diseases, that eventually destroy personality,

Works Cited

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whereas early stages leave intact some personality traits while destroying other personality traits” (2016, 678). Living wills do not remove completely the need for physician discernment (Trachsel et al., 2014) and collective decisions about life and death rituals. The reality remains that someone makes decisions with less than perfect information about end of life. Negotiating the neuroethical policy divide between human brains and living wills raises fundamental (and disquieting) questions about the balance between individual rights, social justice, and collective responsibility. As more and more people live longer and longer, importance of issues regarding the end of life grows and will likely draw increasing public attention. As explored by Jeffrey Rudski and colleagues, discourse surrounding end of life decisions made on behalf of someone else often center on pain, suffering, or lack of experience whereas consideration of personal end of life decisions tend to revolve more around capacity for agency (2016). Psychiatric advance directives, which connect at least as much to temporary loss of freedom as to the end of life, complicate consideration of emphasis on pain and agency, especially, as was discussed in Chap. 4, more becomes known about how little truly understand about mental illness, mental health, and recovery. Across cultures, people report regretting what they did not do more than mistaken actions (Gilovich et al., 2003). The degree to which regret after death affects an individual in the literal, conscious sense or exclusively in the imagination of what those that loved them believe they would feel is debated relative to beliefs about the afterlife. Whether the action in question is to have chosen life or determined when to die, dying at any point involves an end to what is credibly, universally known about doing. In contemporary North America choosing a point to die is a human right conditioned on capacity. Bridging the neuroethical policy gap between end of life policy design and the neuroscience surrounding essential continuity of self depends on making sure the capacity in question at such crucially personal moments remains exclusively the capacity of the individual in the moment. As discussed in Chap. 9, understanding and making space for our elders represents a long-term human responsibility. The work serves to avoid having capacity of society or social context play an outsized and dominant role in end of life decisions. Even so, bridging this neuroethical policy gap requires active, ongoing and contemplative discussion about what the brain sciences are revealing about human identity, agency, and life course. The ablest society is, after all, the least ableist.

Works Cited Baker, D. L. (Ed.). (2017). Disability and U.S. politics: Participation, policy, and controversy. Praeger. Baker, D. L., Drapela, L. A., & Littlefield, W. (2020). Law and neurodiversity: Youth with autism and the criminal justice systems in Canada and the United States. UBC Press. Blanchflower, D. G. (2020). Is happiness U-shaped everywhere? Age and subjective well-being in 132 countries (No. w26641). National Bureau of Economic Research.

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Brown, L. X. (2018). Legal ableism, interrupted: Developing tort law & policy alternatives to wrongful birth & wrongful life claims. Disability Studies Quarterly, 38(2). Demarco, J. P., & Lipuma, S. H. (2016). Dementia, advance directives, and discontinuity of personality. Cambridge Quarterly of Healthcare Ethics, 25(4), 674–685. Diament, M. (2019). Most older people with down syndrome have demnti. Online at https://www. disabilityscoop.com/2019/10/29/most-down-syndrome-dementia-study/27367/ Doughty, C. (2018). From here to eternity: Traveling the world to find a good death. W.W. Norton & Company. Eneanya, N. D., Wenger, J. B., Waite, K., Crittenden, S., Hazar, D. B., Volandes, A., Temel, J. S., Thadhani, R., & Paasche-Orlow, M. K. (2016). Racial disparities in end-of life communication and preferences among chronic kidney disease patients. American Journal of Nephrology, 44(1), 46–53. Fishman, T. (2010). Shock of gray: The aging of the world’s population and how it pits young against old, child against parent, worker against boss, company against rival, and nation against nation. Simon and Schuster. Frati, P., Fineschi, V., Di Sanzo, M., La Russa, R., Scopetti, M., Severi, F. M., & Turillazzi, E. (2017). Preimplantation and prenatal diagnosis, wrongful birth and wrongful life: A global view of bioethical and legal controversies. Human Reproduction Update, 23(3), 338–357. Gilovich, T., Wang, R. F., Regan, D., & Nishina, S. (2003). Regrets of action and inaction across cultures. Journal of Cross-Cultural Psychology, 34(1), 61–71. Hall, S. S. (2011). Wisdom: From philosophy to neuroscience. Vintage Books. Himmelstein, D. U., Lawless, R. M., Thorne, D., Foohey, P., & Woolhandler, S. (2019). Medical bankruptcy: Still common despite the affordable care act, 431–433. Jeste, D. V., & Harris, J. C. (2010). Wisdom—A neuroscience perspective. JAMA, 304(14), 1602–1603. Jones, J. (2016). Majority in U.S. do not have a will. Gallup Polls. Located online at http://www. gallup.com/poll/191651/majority-not.aspx Kendi, I. X. (2019). How to be an antiracist. One World/Ballantine. Klein, M. L., & Coogle, C. L. (2016). Living wills, durable power of attorney, and advance directives. The Encyclopedia of Adulthood and Aging. Lloyd, L., Tanner, D., Milne, A., Ray, M., Richards, S., Sullivan, M. P., Beech, C., & Phillips, J. (2014). Look after yourself: Active ageing, individual responsibility and the decline of social work with older people in the UK. European Journal of Social Work, 17(3), 322–335. Lucas, R. E. (2007). Adaptation and the set-point model of subjective well-being: Does happiness change after major life events? Current Directions in Psychological Science, 16(2), 75–79. McKinney, C. (2019). A good abortion is a tragic abortion: Fit motherhood and disability stigma. Hypatia, 34(2), 266–285. Niedderer, K., Woelfel, C., Ludden, G., & Cain, R. (2019). Designing with and for people with dementia: Wellbeing, empowerment and happiness. TU Press. Proffatt, J. (1876). Curiosities of laws and wills. http://www.gutenberg.org/files/41075/41075h/41075-h.htm Reinders, J., Stainton, T., & Parmenter, T. R. (2019). The quiet progress of the new eugenics. Ending the lives of persons with intellectual and developmental disabilities for reasons of presumed poor quality of life. Journal of Policy and Practice in Intellectual Disabilities, 16(2), 99–112. Rudski, J. M., Herbsman, B., Quitter, E. D., & Bilgram, N. (2016). Mind perception and willingness to withdraw life support. Neuroethics, 9(3), 235–242. Schüler, J., Sheldon, K. M., Prentice, M., & Halusic, M. (2016). Do some people need autonomy more than others? Implicit dispositions toward autonomy moderate the effects of felt autonomy on well-being. Journal of Personality, 84(1), 5–20. Scotch, R. (2001). From goodwill to civil rights: Transforming federal disability policy. Temple University Press.

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Seligman, M. E., & Csikszentmihalyi, M. (2014). Positive psychology: An introduction. In Flow and the foundations of positive psychology (pp. 279–298). Springer. Tobia, K. P. (2016). Personal identity, direction of change, and neuroethics. Neuroethics, 9(1), 37–43. Trachsel, M., Mitchell, C., & Biller-Andorno, N. (2014). Advance directives between respect for patient autonomy and paternalism. In Advance directives (pp. 169–179). Springer. Trent, J. W. (2016). Inventing the feeble mind: A history of intellectual disability in the United States. Oxford University Press.

Chapter 11

Complexity is Our Responsibility: Concluding Thoughts and Moving Forward

Human beings tend to assume current knowledge stands penultimate despite realizing that history has repeatedly proven this wrong (Klosterman, 2016). Human learning transcends but is not linear. At any moment in time, knowledge remains too incomplete to support perfect decisions. Even so, human responsibility involves taking measured action in real time while forever building new models to better explain existence. In the best of times, frameworks help us understand the gap between current practices and contemporary aspirations. In this way, scientific models are imaginative processes. As such, the material found in this book can only be taken with a grain of salt. The goal of the book is to encourage readers, stakeholders, and policymakers to savor this salt. Neuroethical policy gaps emerge from wicked problems. As previously discussed in the book wicked problems refer to public challenges in which no consensus on the problem to be solved or the viability of the solutions proposed. As Lönngren and Van Poeck discussed in a review of the wicked problems literature, even the theoretical underpinnings of wicked problems is a wicked problem (2021). This book steps into such efforts overtly by exploring how developments in one area of science create and widen gaps in established policy linkages, further distancing the conceptions of public problems from accepted public solutions. To provide specific policy designs in response to the exploration of these neuroethical policy gaps would, undoubtedly and ironically, serve to proliferate neuroethical policy gaps. Instead, working with neuroethical policy gaps involves embracing and enhancing definite forms of flexibility in thinking about public policy design. Promising mindsets and approaches associated with the topics explored in the previous chapters may be summarized as follows: 1. Understand that policy is designed and cannot automatically follow scientific advancement; 2. Avoid reductionism in thinking about public policy design and recall that point of view, problem definition, solution selection, and the work done to create linkages between problems and solutions are necessarily subjective; © Springer Nature Switzerland AG 2022 D. L. Baker, R. L. Baker, Neuroethical Policy Design, Studies in Brain and Mind 20, https://doi.org/10.1007/978-3-030-92289-4_11

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3. Honor the ideal of separation of science and politics while aiming to maximize (genuine) objectivity in science and just subjectivity in the politics of policy development; 4. Know that wicked problems depend on narratives for their always temporary resolution and policy designed to address them should include sunset provisions; 5. Remember that not everything must or can be created anew with scientific development, some policy linkages still make sense even if the science that inspired their creation is antiquated; 6. Anticipate that plicy linkages should be explicitly refined in the event of antiquation of science, even if both the problem and the programmatic solution remain the same; 7. Remember that incrementalism is not always the enemy, even in the context of scientific revolution and the fact that policy development should never be considered complete nor policy design sacrosanct; 8. Expect that particularly when entire policy subsystems or a broad spectrum of policies are involved in a neuroethical policy gap, invest more and more diversely in science, scientific contemplation, and thorough work with all stakeholders and impacted communities, including naysayers; 9. Finally as was spoken long ago, keep the elders and experts on tap, not on top both when it comes to (always cautiously!) involving science in politics and politics in science. In addition to these, maximizing literacy in diversity of disciplines is vital in an era so taken with our evolving understanding of our brains as understood through dominating paradigms shaping biological, medical, and experimental psychological models. Dominant paradigms can lead toward one-dimensional solutions and inspire rush to action using available tools, including traditional policy designs. As the old adage goes, if all one has is a hammer, everything looks like a nail. Working well with wicked problems requires unceasing transdisciplpary effort. Public policy lives well in the spaces shared by and falling between disciplines. Furthermore, in the words of twentieth century German poet, playwright, and dramatist Bertolt Brecht “art is not a mirror held up to reality, but a hammer with which to shape it” (1964, 425). In this vein, we explore the relationships between story and public policy design to emphasize its essentially narrative aspects. Working across and between disciplines makes more obvious the essential complexity of neuroethical policy gaps. Working productively with complexity stands as a core challenge of the twenty-first century that can be met only through consistent practice and collective skill building emphasizing improved learning from risks, uncertainties, and contemplation of public failures deliberately avoiding the convenience of closure through public scapegoating. In particular, stakeholders risk practicing fruitlessly consequentialist ethics in failing to distinguish intentions from effects. Furthermore, in many parts of the world, national politics of the early twenty-first century included potentially discouraging lessons about the public square as represented in social media and some electorates’ ongoing appetite for bullying, including by elected officials. Even so, progress in political conversations

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continues and, particularly in subnational governments capacities for work across difference occurs and grows. For example, as described on by the Columbia Center for New Media Teaching and Learning, “we believe that neuroscientists and neuroclinicians, as well as neuroethicists, can work together to celebrate advances while helping to protect people from what might be considered inappropriate applications of novel technologies. This does not happen automatically” (located online at: http://ccnmtl.columbia.edu/projects/neuroethics/). The work goes on. Doing the work well depends on, as Bayard Rustin described, transforming democratic clichés back into ideals (2015). A key part of the work of negotiating neuroethical policy gaps involves when and how to determine necessity of policy redesign in response to novel (or seemingly novel) insights derived from emerging data and its meaning in dominant cultural narratives. It is important to remember that neuroethical policy gaps have been closed in the past and are continuing to be closed today. For example, advances in brain sciences demonstrated that women faced no extraordinary neurological or bodily danger in pursuing formal education as once believed and access to schools and universities has now been granted in nations around the world. A similar example in the education policy subsystem today involves the (slow and still limited) removal of standardized tests in college admissions decisions. The scientific process is consciously driven by uncertainty, caution, and perpetuality. Politics, however, often pursues closure and finality. In a democratic context, the ethics of presenting data and stories to the general public knowing that those consuming the findings are unlikely to take or have the time to comprehend meaning and limitations of findings are complex. For example, inductive logic underlies much of contemporary brain science, particularly interpretations of fMRI data involving small samples. While this circumstance may change as technology evolves and the number of available data points increase, most of these studies involve a small number of scans conducted on people in artificial settings. The presentation of the data as an image of a single brain can suggest that the image is a piece of data taken from a single brain scan. Furthermore, the images may be explained as ideal types standing in for the whole of relevant human experience without necessary contemplation of generalizability of the data (or of generalizability writ large). Contemporary politics in much of the world includes vociferous demand for transparency. Contemplation of the nature of transparency and how to better develop information literacy in general populations rests at the center of neuroethical policy development. Approaches to knowledge building change over time, and not only as a result of net increases in available information. The ancient human technology of narrative building and storytelling facilitates communication across differences, including differences in ways of knowing. Cultivating the patience, skill, and resources to communicate and contemplate stories about wicked problems boosts communication across disciplines, information asymmetries and aids in the management of statistical errors. When scientists use frequentist, positivist statistics they work with three types of error. These risk characteristics of statistics are embedded in every exercise of inferential statistics rooted in Central Limit Theorem oriented statistical philosophy

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of statistics and their influence on the specific outcome of a single study cannot be known. Type I error refers to the risk of determining that a relationship exists between variables based on a statistical analysis when, in reality, no such relationship exists. Type II error refers to the risk that a statistical analysis will suggest that relationship does not exist between variables even though in reality a relationship does exist. These errors are not mistakes, they are reflections of the risks associated with making decisions in contexts of incomplete information. Importantly, even the vast amounts of data available in the contemporary era does not necessarily mean more or complete insight. Transparency, then, depends heavily on numeracy and narratives built from a place of numeracy. In considering these errors, it is important to understand they are tied to the unknowns that both require and permit statistical analysis in the first place. If data about the whole population is readily available, inferential statistical analysis is, of course, unnecessary. Consulting all humans, including those yet to be born, is, however, impossible. Avoiding use of information and insight available from statistical inference compromises the human capacity to attempt to understand and predict circumstances beyond those that have been already documented. In the consideration of neuroethical policy gaps, the vast majority of findings in contemporary neuroscience is rooted in the analysis of sample data. After all, no neurological measures of entire populations have been conducted to date. In many cases the data collected in even the most well conducted studies in neuroscience involve a relatively small sample size as compared to the sample sizes common in other academic disciplines. This circumstance is not a fault of the discipline but rather an effect of the typical expenses associated with collecting the data in the field. While this may change over time, at the present time it means that the power of many of the statistical analyses employed in neuroscience will be modest. Given that, interpretation and translation of results requires both conscience and the courage to tell new stories. Very likely there are neuromyths emerging out of current neuroscience influencing policy design at this very moment. Responsibility for detecting and addressing neuroethical policy gaps is ongoing. Nevertheless, it is important not to interpret the evolutionary nature of science as an excuse to maintain the status quo in public policy. Traditional understandings of the human brain underscoring the neuroethical policy gaps are unlikely enough to be shown accurate in future studies. Policy design goals regarding neuroethical policy gaps are defined by keeping up rather than completion. Moreover, type III refers to asking the wrong questions and drawing lessons from incomplete stories. Such errors lay the foundation for unethical policy design. This type of error exists in all kinds of decision taking, not exclusively those that rely on statistical analysis. Consequently perhaps, this type of error is less discussed in courses and textbooks on statistics. Many people alive today fall enraptured with neuroscience and the potential of technologies allowing us to observe the operations of living brains. This fondness for neuroscience extends well beyond those with relevant academic or medical training. As a result, the danger of framing questions around the workings of the human brain that are better otherwise posed exists and is difficult to detect. After all, little that humans do excludes evermore detectable

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neurological processes. This does not mean, however, that neuroscience is necessarily at the center of all questions about public policy posed by humans. Policies less specifically focused on individual behaviors and destinies are less immediately connected to neuroethical policy gaps. As was mentioned in the previous pages, many of the areas of engagement of the public sector involve wicked problems. Such problems can each inspire of multitude of narratives and questions. Working with neuroethical policy gaps involves careful consideration of what question about the human experience specific policies aim to address and the degree to which knowing more about our neurology can clarify decision making in the context at hand. Effectiveness of the public sector and the public policy designed to redress neuroethical policy gaps depends upon active, ongoing questioning of whether the correct question is being raised starting with the strategies and mindsets listed above. Implications of this concern are augmented by the fact that neuroscientific research may not be paying sufficient attention to the nature of randomness, the meaning of null-hypotheses, selected p-values, and publication biases that favor studies reporting statistically significant results (Ellenberg, 2015). Whether contemporary understandings of the world will stand the test of time any better than paradigms of the past remains debated. If the known pattern of history holds, there is little reason to believe that all contemporary understandings of the phenomena of any academic discipline will stand the test of time (Klosterman, 2016). Even so, eschewing the responsibility of activities Gregor Wolbring and Lucy Diep describe as “anticipatory governance” (2016) is likely unethical in that it can prolong resolvable injustices. This book has not attempted to describe all neuroethical policy gaps. Others, such as the distribution of culpability when humans begin become more synthesized with machines or engage collectively in activities that blend our historic physical reality with augmented reality, will likely become more obvious over time at a rate anticipated to be much faster than the rate of evolution of human experience for which the general public is prepared. Neuroscience will continue to unfold. Likely, too, the era of the brain will fade as the whims of the general public shift to another area of gee-whiz discovery. Attraction to neuroscience will likely plateau over time as the science of watching living brains in action becomes a more routine part of the quest to enhance human knowledge. It is also well worth considering that the current technology for building knowledge about the human brain could be replaced by other technologies. Furthermore, routine enhancement of human neurological capacity or a more fundamental transformation of the human experience into one that combines human anatomy more directly with technology could reshape humanity. While this book assumes that humans will, on the whole, choose to retain the core aspects of the human experience even if the technological potential to go otherwise realizes, the possibility that the issues discussed herein will ultimately require complete overhaul in response to transformation of the human experience exists. Creation of public policy that cannot be amended, reinterpreted, or revoked over time reduces the capacity for democracy over time and, in the extreme, creates inter-temporal tyranny. Working with neuroethical policy gaps is just only as a perpetually present tense activity. Ethics vary from constructed context to constructed context. The book also assumes that the ethical principles common in western society will guide the

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redesign of public policy in response to recognition of neuroethical policy divides. The assumption is, of course, key to liberation as we now habitually understand it and potentially of some concern. After all, contemporary democratic governance can never be perfectly practiced and has been built on foundations including systemic oppressions. Social, economic, and political recovery from systemic oppression is challenging at best and confounded by overlapping element of and often blurry distinctions between colonialism, nativism, traditionalism, and conservatism. For example, the basic notion of the privileges of citizenship and the nature of national borders rest at the center of democratic ethos while also manifesting obvious core ironies regarding the relative rights of human beings. Moving forward requires enhanced general capacity for social and political responsibility possible only in reasonably secure conditions in which basic needs are reliably met and survival reasonably expected. As explored in the preceding chapters, reasonable (or at least predictably helpful) short-term responses to existing policies surrounding neuroethical policy gaps range from better implementation of existing policy, to nudging narratives surrounding socially desirable programs, to fundamental reconsideration of legal institutions, to changing the time in effect of administrative products, to reconstruction of ancient social roles. Each of these proposed practices share the essential characteristic of avoiding absolutes. Moving forward with complexity involves deep acceptance of the principle that absolutes produce oppression. Narrative subtlety and uncertainty define human beings and shape the human experience even as human under stress often voraciously crave clarity and closure. Policy goes on and on and on. In examining neuroethical policy gaps one tempatation is to jump to new policy designs or specific policy recommendations inspired by now novel neuroscientific findings. While such actions may bridge gaps in the moment they do not in and of themselves permanently address policy development challenges involving neuroethical policy gaps. Enhancing the neuroethics of public policy design involves stately, majestic efforts to calmly, boldly, and spectacularly go forth.

Works Cited Bretch, B. (1964). Feeling power: Emotions and education. Routledge. Ellenberg, J. (2015). How not to be wrong: The power of mathematical thinking. Penguin Books. Klosterman, C. (2016). But what if we’re wrong? Thinking about the present as if it were the past. Blue Rider Press. Lönngren, J., & Van Poeck, K. (2021). Wicked problems: A mapping review of the literature. International Journal of Sustainable Development & World Ecology, 28(6), 481–502. Rustin, B., Carbado, D. W., & Weise, D. (2015). Time on two crosses: The collected writings of Bayard Rustin. Cleis Press. Wolbring, G., & Diep, L. (2016). The discussions around precision genetic engineering: Role of and impact on disabled people. Laws, 5(37), 1–23.