Theorizing Legal Participatory Action Research

Abstract

In this article, the authors discuss how they—as legal scholars—have incorporated principles of participatory action research into their work as critical race/feminist legal researchers. Concerned particularly with how predatory lending practices are exacerbating economic inequalities in the United States, the authors describe their ongoing community-based research on the “fringe economy” and the importance of bringing critical race/feminist insights to issues of economic justice.

Keywords

feminist methodologies methodologies critical race theory participatory action research law

Introduction

In 1987, Mari Matsuda urged critical and progressive law scholars to “look to the bottom” in doing the important work of (re)theorizing justice and equality under the law (Matsuda, 1987). She wrote,

Looking to the bottom—adopting the perspective of those who have seen and felt the falsity of the liberal promise—can assist critical scholars in the task of fathoming the phenomenology of law and defining the elements of justice. . . . When notions of right and wrong, justice and injustice, are examined not from an abstract position but from the position of groups who have suffered through history, moral relativism recedes and identifiable normative priorities emerge. (p. 325)

Matsuda’s Looking to the Bottom, from which the above quote is excerpted, was one of several law articles that originated critical race theory (CRT) and critical race feminism (CRF); her thesis continues to inform discussion and study in the legal academy of the various forms of social, economic, and political inequalities permeating American life (Crenshaw, Gotanda, Peller, & Thomas, 1995; Delgado & Stefancic, 2013; Wing, 2003). “Race crits” and critical race feminists¹ have continued to expose the structural and conceptual deficiencies in the rule of law as well as in mainstream modes of scholarly legal analyses, theorizing across an expansive and diverse spectrum of legal issues, to expose how law functions to maintain and sometimes construct subordinating status regimes based on race, gender, sexuality, and/or class.

Despite this theoretically deep exposure in the academic literature, many such subordinating status regimes remain entrenched. For example, since the 1970s and 1980s, efforts to roll back the gains of the sociopolitical movements that culminated in the passage of the Civil Rights Act of 1964 have struck with stunning force and success (Omi & Winant, 1994). Data from the 2011 Census show that despite the oft-trumpeted successes of middle- and upper-middle class women in the white-collar workplace (Rosin, 2012), the gender–wage gap persists (National Women’s Law Center, 2012). Moreover, poverty rates for women are “substantially higher than for their male counterparts,” and “substantially higher” for Black and Hispanic women than for women overall (pp. 1-2, 3, 5). These persistent economic disparities are accompanied, as has always been the case, by sociopolitical and cultural representations that continue to cast women in supporting, objectified, and subordinate roles. Yet, hegemonic discourses of colorblindness and formal equality that dominate both popular and (formal) legal cultures would have us believe that “we” exist in a post-feminist and post-racial age (Cho, 2009; Hall & Rodriguez, 2003), despite the fact that existing disparities in wealth, employment, and health continue to grow along lines of race, ethnicity, gender, and class (Kishbaugh & Hayes, 2013, pp. 4-6).

The proliferation in low-income communities of short-term lenders or “alternative financial services” (AFS) providers—such as payday lenders and auto-title lenders—is symbolic of and perhaps causally related to these status-contingent inequalities. As teachers of both commercial law and CRT, CRF, and feminist legal theory, and co-directors of the Center for Race, Gender, and Social Justice at the University of Cincinnati College of Law, we are particularly concerned with these socioeconomic forms of retrenchment. Moreover, as critical race/feminist scholars,² we believe that critical perspectives must be brought to bear on the conventional scholarship in commercial and contract law. Thus, we have each individually addressed in our prior work the ways in which social identity and economic inequality intersect and interact in, for example, bankruptcy law and contract law (Houh, 2003, 2005; Kalsem, 2006). A lengthy law journal article, from which this piece is drawn, discusses at length our (first) collaborative attempt to explore these intersections and interactions in a different but related context (Houh & Kalsem, 2014).

We discuss in this shorter article—and, for us, to a new audience—how we are attempting, through this collaborative project, to incorporate the qualitative research method of “participatory action research” (PAR) into our ongoing work as critical race/feminist legal scholars and researchers. Consistent with Matsuda’s call to do critical work by “looking to the bottom,” our legal-PAR intervention puts the voices and concerns of community stakeholders and research partners at the center of the work itself. The first principles of PAR require our partners to themselves identify the problems that need “solving” and analyzing within a specific context (such as access to financial services in the fringe economy) and, ultimately, to generate community-based and practically viable solutions. Our role as academic researchers is not to “run the show,” but rather to bring to the table our own areas of expertise and specialized legal knowledge that may be helpful in facilitating community-based problem solving. Thus, our approach, which we call legal participatory action research, or “legal PAR,” makes its most significant and original contribution to the existing critical race/feminist scholarship by moving beyond just “looking to the bottom” in a theoretical sense, and treating those “at the bottom” as equal research partners who are presumptively best situated to identify, analyze, and solve problems that directly affect them.

We of course recognize that the PAR values and methods we use in our project are not new. But the values PAR shares with critical race/feminism—which makes them natural theoretical and methodological partners—are worth making explicit at the outset. PAR adherents have challenged as untenable the dominant positivist claims that (social) science is value-free and objective, arguing further that

[r]esearch that does not reflect on and analyze the social context from which it springs serves only its creators and does not enable us to engage with the nature of knowledge and its relationship and relevance to others in society. (Kirby, Greaves, & Reid, 2010, p. 2)

A central tenet of PAR, then, is to disrupt and destabilize the characterization of traditional knowledge-production and social science research as objective, apolitical, and democratic (Brydon-Miller, Kral, Maguire, Noffke, & Sabhlok, 2013).

Since the early 1980s, critical legal scholars have been making the same sorts of interventions in traditional legal research. Legal race, feminist, and feminist race crits continue to challenge the rule of law’s “objective neutrality” and to expose its structurally subordinating foundations, implementations, and analytic paradigms. Parallels in the historical development of PAR and CRT/CRF make the explicit linkage of the two fields inevitable. Just as a contemporary iteration of PAR developed in part as a response to the limitations in practice created by a split between global Northern and Southern action researchers (Fals Borda, 2006), CRT developed as a response to the limitations of the legal crits’ deep and obliterating critique of the liberal underpinnings of our legal system (Crenshaw et al., 1995, pp. xiii-xxxii). In addition, PAR was forever altered by feminist critiques in the 1980s (Maguire, 1987), just as CRF developed as a response to the gendered limitations of CRT’s critiques not only of the law but also of the legal crits (Wing, 2003, pp. 1-16).

As teachers and researchers who are concerned with economic inequality in the United States, incorporating PAR values and methods into our work provides a way for us to do critical socioeconomic justice work and to perform intersectional analyses with partner-stakeholders. Our ongoing work in the legal academy seeks to introduce what we have learned about PAR and to persuade other critical race/feminist legal researchers to incorporate PAR into their own work. For, while critical race/feminism, since its inception, has been used very effectively by non-legal PAR scholars and researchers, the reverse has not been as true. As such, our project’s primary intervention calls on critical race/feminists to incorporate and take up PAR to truly put theory into practice through the work that we, as critical race/feminist researchers, do.

This article proceeds as follows. Part II sets out some of the expertise and specialized knowledge that we have to bring to community conversations on predatory lending practices and the fringe economy. There, we provide a descriptive grounding for our intervention by presenting a very brief overview of some recent empirical studies on those most likely to use AFS. In Part III, we briefly highlight key synergies between PAR and critical race/feminism before discussing in Part IV our own community study on fringe banking and intersectionality. Part V makes the case that PAR has much to offer legal scholars and scholarship, specifically in the ways in which it facilitates the critical agenda of putting theory into practice. It then concludes by setting forth some challenges—and resulting benefits—of doing legal PAR.

Snapshot of the Legal Terrain: Fringe Banking and the Unbanked and Underbanked

In 1996, financial and urban economist John Caskey observed that deregulation of an increasingly interstate banking industry in the 1980s had resulted in “a rapid, nationwide expansion in the number of pawnshops and commercial cashing outlets” (Caskey, 1996, p. 1). One of the first academics to study these “fringe banks” and their effect on their largely low- and middle-income customers, Caskey demonstrated how fringe banks contributed to the “increasing segmentation of consumer financial markets” which, in turn, “reflected the increasing polarization in the economic well-being of American families” (pp. 1, 7). Because his study also demonstrated that fringe banking customers used such services on both discretionary and no-viable-alternative bases, Caskey’s prescriptions for how to prevent consumer exploitation by fringe banks called for both consumer financial education and more regulation of fringe banking institutions and markets (pp. 8-9, 121, 126).

Caskey’s 1996 study remains highly relevant today, as deregulation of the banking and lending industries continued to foster the expansion of an even more diverse AFS market in the 2000s; this market now includes products like payday loans, tax refund anticipation loans (RALs), and, most recently, auto-title loans. Consequently, academic literature on the fringe economy has expanded significantly since 1996 (Bar-Gill & Warren, 2008; Brooks, 2006; Johnson, 2002; Mann, 2008; Mann & Hawkins, 2007; Littwin, 2008, 2009; Martin, 2010; Martin & Adams, 2012; Thomas, 2007). In fact, the general unavailability of mainstream financial services and products by traditional banks to low- and middle-income individuals and households prompted Congress to amend in 2006 the Federal Deposit Insurance Reform Conforming Amendments Act of 2005 (“the Act”). The amendments require the Federal Deposit Insurance Corporation (FDIC) to undertake bi-annual national surveys relating to FDIC-insured banks’ and financial institutions’ efforts to make traditional financial services more accessible to unbanked and underbanked households and to bring those households into the “conventional finance system” (Federal Deposit Insurance Reform Conforming Amendments Act of 2005, Pub. L. No. 109-173, § 7(a)(1), 119 Stat. 3601, 3609-10).

In accordance with the Act, the FDIC has since conducted two rounds of national surveys, first in 2009 and again in 2011, not only to assess FDIC-insured banks’ efforts to better serve unbanked and underbanked households, but also to gather demographic data on those households themselves (Federal Deposit Insurance Corporation [FDIC], 2009, 2012).

To briefly summarize, the relevant survey data show that roughly 8% of U.S. households are unbanked (that is, no household member has either a checking or savings account), whereas roughly 20% are underbanked (that is, household members have a checking or savings account but have relied on alternative financial products such as non-bank money orders, tent-to-own agreements, payday loans, or pawnshops—at least twice in 1 year, or have taken out a tax refund anticipation loan at least once in the past 5 years). The data further shows that 1 in 4 households surveyed in 2009 and 2011 used at least one AFS provider in the prior year, whereas 1 in 10 used at least two or more such services during that time (FDIC, 2009, 2012).

Significantly, both the 2009 and 2011 surveys found considerable and comparable variations in the data between different racial and ethnic groups, as well as between married and unmarried householders. For example, both surveys reported in their key findings that Blacks, American Indian/Alaskans, and Hispanics are more likely to be both unbanked and underbanked than the general population, whereas Asians and Whites are less likely to be either unbanked or underbanked (FDIC, 2009, pp. 10-11; FDIC, 2012, pp. 5). The 2009 survey reported that within racial/ethnic groups, “almost 54 percent of black households, 44.5 percent of American Indian/Alaskan households, and 43.3 percent of Hispanic households are either unbanked or underbanked” (FDIC, 2009, p. 11). Similarly, the 2011 survey reported that close to one half of Black, American Indian/Alaskan, and Hispanic households are unbanked or underbanked, compared with one quarter of Asian and White households (FDIC, 2012, p. 5). In addition, the 2011 survey found that “almost one-third [sic] (62.7 percent) of all unbanked households are black or Hispanic, as are 38.7 percent of underbanked households” and that “[i]n contrast, fewer than one in five (16.2 percent) fully banked households are black or Hispanic” (p. 21). Not surprisingly, these more recent findings reflected no significant change from those reported in 2009 (FDIC, 2009, p. 18).

Finally, both surveys also found that family households headed by unmarried females or males are considerably more likely than married households to be unbanked and underbanked (FDIC, 2009, pp. 11, 17; FDIC, 2012, pp. 16-17). In terms of these statistics, gender was a significant factor. For example, 19.5% in 2009 and 19.1% in 2011 of unmarried female-headed family households were unbanked, compared with 14.8% in 2009 and 14.3% in 2011 of unmarried male-headed households (FDIC, 2009, p. 11, 18; FDIC, 2012, p. 16).

A similar but more localized and variegated 2006 study conducted by University of Michigan law professor Michael Barr, in collaboration with UM’s Survey Research Center, yielded results comparable with those of the 2009 and 2011 FDIC surveys (Barr, 2012). Furthermore, Barr’s study draws some important conclusions about how the currently structured financial system negatively affects low- and middle-income Americans and, in particular, their ability to accumulate both short- and long-term savings. Like Caskey and others who have studied the unbanked and underbanked, Barr’s data demonstrate the increased costs associated with being poor, due to the increased costs of using AFS products and other factors relating to unstable rates of employment, lower home ownership, and poorer access to schools, health and medical care, and other supports. According to Barr, all of this “makes saving even harder” (Barr, 2012, p. 15).

The FDIC surveys and Barr’s study provide data-rich contexts at both a macro and micro level relating to how the unbanked and underbanked manage their finances and gain access to credit. But finally, and of particular significance to us, Barr notes that race plays an important but “unexplained” role in his data:

Even when controls for income, education, and employment are implemented, large, unexplained racial differences in bank-account ownership are found: African American respondents are 12 percentage points less likely to have a bank account than their nonblack counterparts in the survey. (Barr, 2012, p. 9)

Although interrogating these “unexplained” racial and gender differences is not part of Barr’s project, it is central to ours. And although we believe proposals put forward by Barr, Caskey, and others warrant the serious attention and consideration of policy makers at both state and national levels, we are, for purposes of this article, more interested in the snapshots these studies provide of an empirically demonstrated reality that both maintains and reproduces economic inequality—often on “unexplained” race and/or gender lines—for many low-income individuals and families.³

Legislative reforms of the fringe banking industry at both the state and federal levels have focused primarily on capping interest rates and requiring AFS providers to give full and proper notice to potential users. And in some states, forms of fringe lending, such as payday lending, have been banned all together.⁴ But as is often the case, such regulation has resulted in the creation of other AFS products, such as the car-title loan, that also are suboptimal. In the wake of such innovation, both governmental and non-profit agencies are recognizing the need to do more than give notice, cap interest rates, and ban specific types of fringe banking products, as the AFS industry can often circumvent these regulatory measures. Many national and local organizations are also doing much-needed work in this area. We discuss the work of government and national and local organizations in some detail in our longer law journal article (Houh & Kalsem, 2014).

PAR: Putting Theory Into Practice Really

Practice needs theory and theory needs practice just like fish need clean water. (Freire, 1996)

PAR is research that concerns itself with action—making a difference, moving toward solutions—but only when those differences to be made or solutions have been agreed on and determined in community. The research and the action must be participatory, with those who will be affected by the actions—the stakeholders—involved at all stages of the research and decision-making processes. Within the larger framework of Action Research, PAR is at the more radical and “emancipatory” (as opposed to “technical”) end of the spectrum of political engagement (Zuber-Skerritt, 1996, pp. 68-69).

While it is difficult to provide any one coherent history of PAR, its “founders,” and the action research movements from which it developed, it is possible to locate distinct strands of this work in various geographical and historical locations. Moreover, emerging from these various strands are several unifying characteristics. For one, the literature consistently identifies action research/PAR as a critique of and response to the positivist tradition (Lewis, 2012). Also, Brydon-Miller, Greenwood, and Maguire (2003) assert that the various streams of action research/PAR are united by “[a] respect for people and for the knowledge and experience they bring to the research process, a belief in the ability of democratic processes to achieve positive social change, and a commitment to action” (p. 15). These values represent common threads throughout the narrative of the history of PAR.

Critical Developments in PAR

Feminist revision

PAR, in sync philosophically with feminism in so many respects, puts a high value on lived experiences as a source of knowledge:

PAR draws on the work of phenomenologists who expand the breadth and importance of experience. . . . Experiences are not from a sphere of subjective reality separate from an external, objective world. Rather they enable humans to engage with their world and unite subject and object. (Baum, MacDougall, & Smith, 2006, p. 856)

Despite these obvious synergies, in 1987, Patricia Maguire (1987) published Doing Participatory Research: A Feminist Approach, in which she asserted that the feminist perspective was distinctly missing from most participatory research discourse. She explained,

The movements which influenced the emergence of participatory research have been male centered and male dominated. It is not surprising that participatory research mirrors their male bias. As a result, women are marginalized in the majority of participatory research practice and theory. Participatory research may challenge the class biases of dominant social science research, but to date, much participatory research leaves its patriarchal filter in place. (p. 76)

Although Maguire’s feminist interventions profoundly changed much PAR work, Maguire reiterated in 2000 that “feminism and feminists are still quite marginalized in action research” and, on the other hand, that “feminists have not wholeheartedly embraced the action of participatory action research” (Maguire, 2000, p. xv). In a call to action, she declares that “[o]vercoming the resistance of action research to feminisms and of feminists to action research is work that needs you” (p. xv).⁵ With our current project, we are taking up this call.

PAR and CRT: Intersections to Further Explore

As with feminism, connections between PAR and CRT are clear. Both are informed by a deep understanding of the political nature of knowledge-production and the impact such production has on the organization of society, as well as a commitment to addressing sociopolitical inequality by challenging conventional modes of research and action. They both embrace the characterization of being political, overtly acknowledging an agenda of working for positive social change. With its focus on localized research and community-based solutions, PAR also shares with CRT the central tenet that history and context matter.

Yet, in 2001, Bell (2001) wrote about the invisibility of race in the field of action research. With the very notable exceptions of those associated with Myles Horton and the Highlander School,⁶ she describes that “in the USA where the fight for racial equality has historically dominated the landscape, an eerie silence lurks when it comes to discussing action research techniques to dismantle racial oppression” (p. 49). Although in the 1970s and 1980s, the action research literature did not make much of the connections between PAR and CRT and Black activism and research, Bell traces a rich history of participatory research in the Black liberation social science movement, pointing for example, to the work of Kenneth B. Clark (1965) and J. A. Ladner (1971).

She describes the basic tenets underlying the work of progressive Black sociologists “(1) to move beyond traditional methods, by (2) creating knowledge for the sake of economic, political and social change in the Black community, and (3) without forsaking rigorous social investigation” (p. 51). A key shift from traditional research for this movement was to engage the community in the research process and to work with them on identifying problems and solutions (Harris & McCullough, 1998; Walters, 1998). Thus, these Black liberation social scientists made important contributions to the field of action research, which scholars like Bell are working to bring to acknowledgment.

As has been the case in so many other areas, the 1990s brought to the forefront of activism in the Black community the need for an intersectional approach. Highlighting the racialized sexism that Anita Hill’s testimony during the Clarence Thomas confirmation hearings brought to national attention, Bell describes the efforts by Black women to expand the fight for racial equality to also take into account issues of gender and class (Bell, 1992; Brown, 1995; Ransby, 1995). In 2001, Bell identified PAR techniques as particularly well-suited “to dismantle both systemic and social dimensions of racial oppression, while at the same time addressing the interlocking forces of class, gender and sexual preference” (Bell, 2001, p. 56).

In the last 10 years, there is evidence of the “infusion” of CRT and CRF into action research discourse and practice that Bell’s article identified as important and necessary (p. 48). For instance, intersectionality has become increasingly integral to the PAR process. In the 2008 second edition of the Action Research Handbook, for example, Reid and Frisby (2008) explain why intersectionality should be taken into account at each step in a project, “when deciding on research questions, collecting and analyzing data, and deciding upon action plans” (p. 98). They also advocate the importance of building relationships and collaborating “across differences in gender, class, race, culture, sexuality, ablebodiedness and other markers of difference” (p. 98).

Other positive signs that race is no longer invisible in PAR include the fact that one of us (Houh) recently was invited to write a substantial entry on CRT and CRF in the forthcoming Encyclopedia of Action Research. This entry emphasizes how and why CRT/CRF and action research are “natural bedfellows” (Houh, 2014). More generally, collections such as this one and Interrogating Racism in Qualitative Research Methodology (López & Parker, 2003) move issues that are central to CRT and CRF to the center of the analysis of the research itself.

Just as PAR is recognizing all that CRT and CRF have to offer to its activist work, we hope to raise consciousness of all that PAR has to offer to critical legal theorists. In addition to its methodological tools for putting theory into action, PAR also can reveal more sophisticated understandings of various forms of intersections, including the privilege associated with the position of researcher: “Through open dialogues with both our participants and ourselves, we can begin to understand the nature of oppression, domination, and exploitation as they intersect and interrelate with gender, race, class and other forms of advantage and disadvantage” (Reid & Frisby, 2008, p. 98). In this way, PAR not only offers opportunities for action, it also deepens the theoretical analysis of CRT and CRF.

Our Own Project: Fringe Banking and Intersectionality

About a year after the FDIC (2009) published the results of its first survey on the unbanked and underbanked, we became aware of and fascinated with work that was being conducted out of the Action Research Center (ARC) at the University of Cincinnati. The ARC, under the direction of leading light Mary Brydon-Miller, was launched in 2006. The convergences between our own critical race/feminist work and that of the ARC were many and our shared philosophies and goals became increasingly clear the more we learned about PAR. We decided that a PAR process might be just what we needed to begin to address what had become nagging concerns of ours about the findings of the 2009 FDIC survey.

Although we understood the primary scope and purpose of the study, we were still frustrated with the lack of data regarding why so many more households of color were unbanked or underbanked; we also were left with many questions about what exactly gender had to do with it. So too were we wondering whether all of the notice-based initiatives in this area were getting at the heart of the problem. Maybe a PAR project could uncover information that, thus far, was missing from the data and research. Most importantly, maybe it could bring to light what actual users of fringe banking services see as problems and what solutions they might propose.

After doing a substantial amount of reading in the field and becoming active participants in the Action Research community at our University, we partnered with a local community-based action research organization, Harmony Garden. Harmony Garden had done significant community-based participatory research addressing the health and well-being of women and girls, and had trained a community research team from the predominantly Black and low-income West End community in Cincinnati. We held an initial focus group with six members of the Harmony Garden research team in the fall of 2010.

For the women in this focus group, notice about loan terms was not the problem. The women who had used payday lenders knew down to the penny the difference between the charges at various locations, and when and how they were to be charged. They did not, however, anticipate how easy it would be to keep borrowing money and how that would result in the rolling over of debt. They also knew that these charges, whether they understood them as interest or fees, were very high. But these terms were not the only things that mattered. Rather, what was more important to them were issues such as the length of the lines, who might see them, and transportation. Our goal at this initial session was not to identify specific problems with payday lending or discuss possible solutions. Instead, it provided us an opportunity to find out what might be on the minds of users of fringe banking services with a group of stakeholders who already were comfortable talking within a PAR setting. We unfortunately did not have another opportunity to talk with the women from this initial focus group. In fact, it would be almost 2 years before we took steps to start an ongoing community conversation on this topic.

In the fall of 2012, we, through the Center for Race, Gender, and Social Justice at the University of Cincinnati, landed an opportunity to collaborate with Pubic Allies Cincinnati on one of its “team service projects” (TSPs).⁷ Beginning in October 2012, we worked together on this project on fringe banking services with our team—which named itself Powershift—for the next 9 months. After Powershift indicated, early on, that they wanted more knowledge about the AFS industry and PAR, we read and discussed key articles on both and then held a PAR training session, led by Brydon-Miller of the ARC. At that session, Brydon-Miller trained the Powershift team members on four specific PAR methodologies: concept mapping (Louis, 2014), appreciative inquiry (Fry, 2014) and asset mapping (Puntenney, 2014), fishbone diagramming (Embury, 2014), and photovoice (Barndt, 2014).⁸

Over the next few months, Powershift allies used these methods, others they read about, and variations that they came up with themselves to research about the use of fringe banking services, particularly payday lending, in the mostly downtown area of Cincinnati. Although at the end of this developmental phase of this project we have only preliminary data, we will conclude this Part with a description of the “deliverables” that resulted from the TSP, as well as what we know now about the next stages of this research project.

The most comprehensive deliverable Powershift produced is a detailed manual setting out all of the research methods that the allies used, as well as the substantive results. The manual also includes evaluative sections in which the allies share their thoughts and opinions on what worked well and what did not. This manual not only provided us with important insights about how the process worked for the allies themselves, but also will be invaluable to new co-researchers as they join the ongoing project.

Powershift also produced several lengthy recorded interviews with community members who use payday lending and other short-term loan services. Over the course of the few weeks during which these interviews were conducted, several of the Powershift team members themselves disclosed that they had used or were currently users of payday lending services and subsequently agreed to be interviewed for the project. These interviews confirmed studies that have reported, for example, that borrowers use payday lenders not only for short-term emergencies, but also for monthly expenses and bills because they were short on cash and had to depend on savings (Pew Charitable Trusts, 2013), as well as to treat themselves and others for working two and sometimes three jobs at a time.

With school starting back, my child’s father, he said he was going to buy her school clothes and then he didn’t buy them on time . . . So I had to take out a loan but . . . I was responsible . . . and I paid them back. . . . And then around a month before income tax, I just got tired of being safe with my money so . . . I took out a loan just because I had the money to pay off my bills and then I would have had like only $50 left for two weeks which I knew it wouldn’t last me because I needed gas, lunch . . . and I paid it back. And then I had car trouble. (Shay)

For me, I used the “early access” availability at [my bank] . . . I was actually depositing my check into the bank and they said “You know, you’re approved. You can do this early access thing if you ever need money, you know, to get your car fixed, it’s available.” . . . But at the time, I didn’t need the services, I was working three jobs . . . When July came . . . I lost one of my incomes [because one of the jobs ended] but I still had bills and everything to maintain. And I was staying with my cousin and she had three children so we still had things to maintain . . . and my birthday was in July as well. . . . And I was like, I’m going to need some money because it’s gonna be my birthday and it wouldn’t be fair that I’ve been working so hard and I’ve been helping other people and I didn’t do anything for myself for my birthday. (Ja’lah)

One community member, Ashley, worked at a payday lender in Indiana and stated during her interview that

[a] lot of the customers are upset because it’s a slippery slope when you come in there. It only takes one time and you’re hooked because if you know the process, you go in with no money and we give you cash or a check or a prepaid card, and then you have to pay it back in two weeks. Now I don’t know about any of you but it’s kinda hard to give someone three, four, five, six hundred dollars and not need it back. So they roll over. And then it becomes this—it stops being a short-term emergency loan and it becomes part of their income. They have to account for that. It becomes another bill they have to pay for. And you’re actually losing money because you have to pay interest which is really high because it’s short-term.

The interviewed community members also consistently commented on how easy it was to first obtain a payday loan and then to extend the amount of time to pay it back, and on how they were consistently offered more money than they needed.

$750? I’m not even bringing this much money home. Why would they give me $750? (Ja’lah)

You get to choose how much money you want. They start you off a lot than what you need. So I think I wanted a hundred bucks or something and they were trying to offer me 200, 350 . . . Basically they tell you the terms of the loan and when it has to be due by. Then once you receive the money . . . they’ll start telling you “ok, you have until this amount of time to pay it off. But if you don’t want to pay it off then, you can extend it to this time. So they’ll charge you . . . to extend it. And you can keep on extending it and extending it and extending it . . . I used it two other times after that because it was so easy and because it was so simple . . . Then they’ll start sending you stuff at home. (Julian)

And finally, a striking commonality that ran through the Powershift community members’ interviews was their desire not to have to ask or depend on friends or family for money. Julian made this point most clearly:

I heard about [online payday lenders] on the radio . . . It was a time where cash was running low and I was like, I don’t want to ask for money, I didn’t want to ask, like, my partner or anybody for money. So I was like, “You know what, this will make you feel good. I don’t have to ask anybody for money. I can handle it, take care of it, do it quietly.”

The interviews further inspired some of the more visually inclined Powershift allies to create yet another type of “deliverable” in the form of a “zine.” The authors of the zine, which artistically translated one of the ally’s story into visual form, created an almost comic-book-like background on which they pasted and arranged the interviewee’s words and story. It makes for a fascinating and thought-provoking read as the words and images draw the readers into the personal experiences recounted on its pages. Powershift later distributed this zine at a community art show, where it sparked lively dialogue and where Powershift received much positive feedback. Although the TSP concluded in June 2013, the zine authors intend to create and publish more issues of the zine based on Powershift’s interviews with individual community stakeholders. It is our plan to help circulate the first and subsequent issues of the zine more broadly as a form of grassroots financial literacy outreach. A few pages of the zine are reproduced here:

Other deliverables that Powershift developed to help with the continuation of this project include a website (on which all of the interviews are posted; Powershift, n.d.), a map of the locations of payday lending facilities in the Greater Cincinnati area (not surprisingly showing particularly high concentrations in communities of color), and a “visual dropcloth.” Powershift took a dropcloth, a large piece of blank canvas, to several parks and outdoor venues and asked people to illustrate, with crayons and markers, their thoughts on and relationships to various topics, including “money” generally and “payday lending” specifically.

Because PAR happens in cycles, with much reflection and adaptation based on what has gone before, the next stage of our research will likely draw on much of the above-described community-building work and, particularly, on what we learned from the above-excerpted interviews. But before doing so and following the “completion” of the TSP with Public Allies in June 2013, we shifted into our own reflection mode, which resulted in the completion and publication of our law journal article, as well as the inclusion of this short article in this special issue. Although we are aware of the critiques of the expanding role of reflexivity in qualitative research (Pillow, 2003), we engage in some reflection here to help us focus on the critical race/feminist issues that, as discussed in detail in the next Part, we want to focus more directly on as the project proceeds. The next phase of our work involves (re-)connecting with a small handful of Powershift team members and other community members who, during the TSP, expressed interest in participating in more long-term community-based research on the problems associated with payday lending and other increasingly popular AFS products such as car title loans. In addition, we plan on reaching out to governmental and non-profit organizations about possible community collaborations and outreach on a local, statewide, and national level. To conclude, we elaborate in the next part of this article on why we, as critical race/feminist scholars, see so much promise in legal PAR, and what we as critical legal scholars can bring to the PAR table.

What PAR Has to Offer Critical Legal Scholarship and Activism

CRT, CRF, and feminist legal theory have proven to be powerful tools to uncover the law’s subordinating structures and effects. But a foundational tenet of both of these theoretical frameworks is that theory must be put into action. The deconstructing that illuminates problematic histories, power structures, and inequalities must be followed by the reconstructing of a more just society. The problem is that much of the best critical work falls short on community-based “action.” As we have discovered since we entered the academy, there is good reason for this—bridging the theory–practice gap is extraordinarily difficult work.

Kalsem and Williams (2010) took steps toward addressing the challenge of connecting theory to practice in Social Justice Feminism, by looking first to what activists on the ground were doing. These activists, they found, had identified “social justice feminism (SJF)” as work that they could relate to and be inspired by. Kalsem and Williams’s article explores how the concept of SJF fit in with current critical race/feminist scholarship and developed three related methodologies for doing SJF work: (a) looking to history to understand subordinating structures, (b) examining the relationships between interlocking oppressions, and (c) developing solutions informed by a bottom-up approach (pp. 175-84). This third methodology envisioned getting those directly affected by problems integrally involved in efforts to bring about change. It was not until after Social Justice Feminism was published, however, that Kalsem and Williams learned about PAR, a field dedicated to the “action” contemplated by this third methodology.

Although the benefits of incorporating PAR methods into our work as critical race/feminists are clear to us, PAR is not without its challenges from without and within. Its position that positivist research is untenable makes it “radical” within the social science field (Brydon-Miller et al., 2013, p. 2). Its defining feature—of being transparently political—makes its findings more than questionable by many more traditionally trained researchers. The community stakeholders’ involvement in all aspects of the research, including development of the research agenda itself, is not typical of contemporary empirical legal research, which is generally quantitative in nature and oftentimes starts with the testing of an already established hypothesis. The project described in this article is a counterpoint to the dominant empirical methods used in current legal research in particular, and seeks to engage in a different kind of qualitative research that is so in line with the theoretical commitments of critical race/feminists.

In the following subpart, we describe some of the challenges that we faced as legal academics engaging for the first time in a sustained PAR project, as well as some of the obstacles that our growing community of researchers, including ourselves and Powershift, faced during the past year. As we reflect on these experiences, we also see many benefits that were a direct result of figuring out how to productively work through these challenges. Also, importantly, the best data we gathered could only have become available through the community-building that required work and patience that, ultimately, led to trust and commitment.

Challenges and Benefits of PAR

On an individual level, participatory action researchers grapple with disorienting but necessary questions regarding their positionality and relationships within community. For example, in our work with Powershift and our ongoing project, we continue to constantly ask ourselves: When engaged in PAR, what is our role when, as is often the case, we are “outsiders” in some respects to the community with which we are partnering? If/when we write up our findings for purposes of publication in an academic journal, how do we do so without exploiting our community partners? What is and is not the role of researcher?

Those who engage in PAR have developed strategies for constructively addressing these difficult issues. Moreover, they continue to explicitly incorporate those strategies into their own reflective research journeys (Kidd & Kral, 2005; Smith, Bratini, Chambers, Jensen, & Romero, 2010). In that spirit, we reflect in this subpart on our journeys as nascent participatory action researchers by identifying specific challenges that we experienced, and that might, at first, seem daunting to others interested in doing legal PAR.

Finding and building community

It was not clear when we began our collaboration with Powershift how any one of us, let alone the collective group, conceived of “community” for purposes of our PAR project. We did not assume, for example, that our group would be studying some of our own members’ experiences. How then, were we to identify a community with whom we were initially going to discuss the “problem” of fringe banking? Some allies wanted to target community according to geography, given the way Cincinnatians have always strongly identified around what neighborhood they are from, while others suggested that the focus should be on certain class and race demographics in less geographically concentrated ways. Discussions at our weekly meetings about “community” continued for several weeks, without satisfactory resolution. This started to create a lot of tension as many in the group (ourselves included) became increasingly anxious about what we perceived as a “lack of progress.” When was the action going to start?

As it turned out, it already had. In trying to figure out where to go find community, several of the allies had reached out to friends, colleagues, and family members who had used payday lenders themselves, who thus became very interested in the project and willing to participate. Moreover, as differences of opinion on approaches were worked through by the Powershift team, members began to feel that their voices counted, that their contributions were being heard. As trust was built, several team members become comfortable enough to disclose that they themselves had used or currently were using payday lending services. It started to make a lot of sense why this group had selected our TSP project in the first place. Moreover, these members by this time were so passionate and committed to the project that they readily made public their very personal stories in videotaped interviews, thus, providing data for the project as well as tools to further community discussions on fringe banking.

None of this might have come about if we had interfered and disrupted this community-building process. Instead, we adapted our expectations to the process rather than the other way around. The result of this PAR process was a community, found and formed “in community,” that includes those people who became interested in participating because of Powershift’s organized outreach efforts, as well as Powershift members themselves.

Issues of power

A first principle of PAR is that research should empower its participants and stakeholders. PAR actively seeks to examine and break down the power differentials that characterize traditional positivist research, that is, between those doing the studying and those “being studied.” With respect to academic researchers, it is imperative that they constantly reflect on and interrogate their roles in the project as the project develops. Intersectionality plays an important role in this regard, as the legal participatory action researcher

must be willing to embrace the hard work of examining how his or her multiple identities shape and inform engagement with community members. This critical examination of issues of identity requires an analysis of the dynamics of power and privilege. (Brydon-Miller, Kral, Maguire, Noffke, & Sabhlok, 2013, p. 3)

During our weekly meetings with Powershift, for example, the allies, knowing that we were law professors, tended especially in the beginning stages of the project to default to interacting with us as if they were students in our classroom, rather than as co-researchers. As referenced above, we often had to restrain from intervening in group conversation (over a wide range of topics, from how to collect narratives about fringe borrowing, to which segments of the community such outreach should be directed) as our “teacher” selves. Also, the age difference between ourselves and the Powershift allies required us to think carefully about how to participate and dialogue together. There were times, for example, when we felt strong urges to assert control based on our simply having lived longer and experienced more than most of the team members.

Power issues among the allies themselves also arose and community efforts to make explicit these power dynamics and issues resulted in deeper and more substantive interactions within the group, which, very significantly, helped build trust.

The makeup of our community in terms of gender, race, sexuality, and class (the Powershift members as well as the other community members recruited to the project) requires a level of self-awareness and sensitivity to constantly keep us “in check” as highly privileged. Neither of us, for example, has ever used payday lenders or other AFS products, making us “outsiders” in a very key way to this community. But we remind ourselves that we are interested in building this community because we want the insiders to have their say on these issues, and because we have other types of knowledge and skills that can contribute to making this happen. At the same time, we remain vigilant about listening well.

Questions about “objectivity” and outcomes

Already steeped in the literature of PAR, we were fairly comfortable taking an overtly political stance when we started working with Powershift. We were unprepared for the resistance some Powershift team members showed, at the outset, toward PAR’s anti-positivist approach. Some members of the team had experience, through school or other community work, doing traditional social science research. We found ourselves surprised that we hadn’t anticipated this resistance, given the dominance of traditional empirical research methods. We also were forced to examine assumptions we had made about each ally’s sociopolitical commitments. This constant interrogation of our own lack of objectivity showed us how questions about “objectivity” in PAR are naturally tied to issues of power and, we would like to think, ultimately moved us toward a more egalitarian PAR process.

Similarly, we continue to find ourselves responding to the following types of questions about our project put to us by our more traditional law colleagues: I understand that you’re trying to do something about predatory lending, but what legal problem are you trying to solve/address? What, exactly, are the desired outcomes of this project, and how will you assess and measure them? Our bottom-line, one-sentence answer to those questions—that those questions are not central because doing legal PAR requires relinquishment of a certain degree of power and control over the project and a willingness to let go of anticipated outcomes—is unsettling to a traditional law audience made up of researchers who, after all, are trained in taking and being in control of difficult situations and of imposing top-down solutions. As such, we continue to discuss with them the benefits of letting go. That is, when the research process is re-conceptualized as a dynamic, equalizing, and shared process, concerns about outcomes and assessment recede. As we discovered, the academic researcher is no longer primarily driven by the finding of results that she can present for assessment and judgment by some “neutral” body (be it academic peers, judges, lawyers, or policy makers). Nor is she driven by proving an abstract principle or hypothesis through her data. Rather, she is driven primarily by what she can bring to the table vis-à-vis her own expertise and training that will enable everyone at the table “to examine their situation and to take action to achieve change.”

In other words, and to paraphrase Brydon-Miller (1993), “it’s not about what the community is doing for you [the academic researcher], but what you are doing for the community.” And it is what we can do for community that also provides the answer to the question of what law and critical race/feminism has to do with this PAR work, which we discuss further in the article’s Conclusion.

Margin to Center: Critical Race/Feminism

Rather unexpectedly, one of the most challenging aspects of our work with Powershift was figuring out how to bring race and gender to the center of our collective thinking about the impact of fringe banking on our local communities. We thought that the data we had reviewed and presented to Powershift spoke for itself, that the question of why the unbanked and underbanked were disproportionately Black, brown, and female would be a central one. But for much of our time together, this knowledge remained strangely submerged, overtaken perhaps by the more immediate concerns about just exactly what Powershift was supposed to do and produce and, particularly, how they were supposed to find “a community.”

We, too, felt the urgency of these other concerns and additionally, out of a desire not to dictate the terms of the team’s work, held back on putting questions about race and gender as the first course on the table. When the allies initially asked us for more reading about the state of research on fringe banking, for example, we provided it. But we did not at that time also provide them with foundational readings on feminist legal theory, CRT, or CRF. We had thought that race and gender would soon surface for the team as important issues to explicitly address and interrogate and that we could then begin to read and engage in critical conversations. We were wrong.

It was not the case that race and gender never surfaced as issues in our work together. Powershift’s compositional diversity was a fairly specific one—including ourselves, it comprised four Black women, five White women, one Asian American woman, two White men, no Black men, and no Latinas/os.⁹ Reflecting back, we likely assumed that our team’s intersectional diversity would result in an explicitly intersectional approach to the work from the start. But this was not the case. It was not until several weeks into our work together, after Powershift had recorded and compiled several interviews with stakeholders about their financial lives, that race and gender started to surface in our weekly meetings together due to the fact that all of those who told stories about their use of payday lenders and other AFS products, with the exception of one Black male, were women of color. Nor did the stakeholders and allies tend to explicitly discuss race and/or gender during their recorded conversations about their experiences with fringe borrowing, or in our many team conversations about community. That most of the stakeholders were people of color and, more particularly, women of color was just a fact.

By the time we, in community, began to explicitly realize the significance of this—that is, not just as reflected in the hard data we all had read at the start of the TSP but in reality—our time together was almost at an end. We—Houh and Kalsem—realized that we should have provided readings on critical race/feminism and intersectionality early on, alongside the materials on fringe banking, and that perhaps we should have arranged not only a training on how to do PAR but also one on the meaning of “intersectionality” and “intersectional” analysis. We came to this understanding, however, only after weeks of doing PAR and honest self-reflection taught us that doing so would not have been “imposing” our will on our team, but rather simply bringing our legal and “theoretical” expertise to the table.

As mentioned supra, we will continue to work on this project with community members who have expressed an interest in continuing their work with us. Going forward, we will prioritize bringing intersectional questions about race and gender, as well as class and sexuality, to the fore and develop ways of doing so. For as equal research partners, our specialized knowledge and expertise about critical race/feminism (including how and why these issues often are not central to the analysis) is, in addition to our legal expertise on the state of the fringe economy, what we can give to the community.

Conclusion

For those of us who are interested in the different ways in which law can be used to generate community empowerment and transformation, both big and small, legal PAR provides us a way to give community stakeholders more tools with which to examine their situations and more systemically generate their own action agendas. Law is a tool that doesn’t need to be wielded only by lawyers or pro-se litigants, and not always or only in a courtroom, legislative session, or classroom. Everyone should have access to law for the purposes of self-empowerment and action, and legal PAR provides a democratic process by which to gain that access.

Also, the tools that legal PAR can provide to community also enables us—as trained legal researchers and teachers—to put the critical race/feminist values to which we are so committed into practice in local and specific ways. That is, in Patricia Maguire’s words, legal PAR enables us to “dig where we stand.” For, as she eloquently writes,

The long haul work to transform reality, to change the world, to empower and liberate starts with “modifying the near environment” [Morawski, 1997, p. 677]. This means the organizations, institutions, and relationships in which we live and work on a daily basis. It includes the struggle to change ourselves in those near environments. In the face of deepening human poverty, widening economic and digital gaps, and numbing interpersonal violence, focusing on the “near environment” is not narcissistic luxury, but urgent necessity. (Maguire, 2000, p. xv)

Indeed, working to transform our near environments is such an urgent necessity that paralysis can sometimes occur, especially for the academic researcher, over the “how,” “why,” and “when.” But legal PAR can help us be critical race/feminists in a way that “intimately connects theory and practice in everyday life” (p. xv). This kind of theoretically grounded transformation, we are learning, is a slow and steady struggle but one that also is viable, sustainable, and richly rewarding for the legal academic. Moreover, it demands that we develop the habit of always asking what are we giving back, being always mindful of how are we using our critical legal knowledge to further a “bottom-up” approach to a more just world.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

Author Biographies

Emily M. S. Houh is the Gustavus Henry Wald Professor of the Law and Contracts and co-founder and co-director of the Center for Race, Gender, and Social Justice at the University of Cincinnati College of Law. She writes and teaches in the areas of contracts, commercial law, and critical race theory and feminism.

Kristin Kalsem is the Charles Hartsock Professor of Law and co-founder and co-director of the Center for Race, Gender, and Social Justice at the University of Cincinnati College of Law. She writes and teaches in the areas of commercial law, bankruptcy, critical race/feminism, law and literature, and women’s legal history. She is author of the book In Contempt: Nineteenth-Century Women, Law, and Literature (2012).

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