Frequently asked questions disscussion

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Case Study

The Social Justice Impact of Plain Language: A Critical Approach to Plain-Language Analysis

NATASHA N. JONES AND MIRIAM F. WILLIAMS

Abstract—Introduction: This study investigates how plain language, examined from a social justice perspective, is implemented in mortgage documents and what the implications are for African-American homebuyers. About the case: We argue that plain language has the potential to engage issues of human dignity and human rights because language accessibility in documents plays a large role in how citizens engage in civic and social activities. In regard to the home ownership process, in which African-American homebuyers are more likely to experience discrimination, we need a study of the implementation of plain language in documents that might contribute to communication breakdowns between the banking industry and this historically marginalized group. Situating the case: We examine plain language from a social-justice stance by turning a more critical eye toward how and why plain-language guidelines are implemented. Methods/approach: Our study focused on the initial disclosure statements for adjustable-rate mortgages. We paired critical discourse analysis with the Securities and Exchange Commission’s Plain English Handbook guidelines for disclosure statements to analyze three disclosure statements. Results/discussion: We found that, generally speaking, each of the three disclosure statements effectively adhered to plain-language recommendations. However, the idea that plain language increases accessibility, reader comprehension, and usability is complicated, and the accessibility and usability of each document varied. Conclusions: We advocate for a human-centered approach that explores ways that plain-language guidelines can be applied along with a critical focus on amplifying agency and reducing inequity.

Index Terms—Adjustable-rate mortgages (ARMs), African Americans, critical discourse analysis (CDA), home mortgage documents, human-centered design, plain language, social justice.

This study examines plain language as a social-justice concern. Plain language considers how information is presented in a way that is—both textually and visually—accessible, understandable, and usable for specified audiences [1]–[4]. Plain language is a term that is often used to refer to textual design and visual design. Some scholars use the narrower term “plain English” and focus specifically on textual language of a document. In this paper, we use “plain language” in most instances. However, where other authors or documents use “plain English,” we retain the source’s wording.

The use of plain language has previously been examined from an advocacy and ethical perspective, but not from a perspective of social

Manuscript received January 6, 2017; revised August 14, 2017; accepted August 14, 2017. Date of publication November 10, 2017; date of current version November 22, 2017. (Corresponding author: Natasha N. Jones.) N. N. Jones is with the Department of Writing and Rhetoric, University of Central Florida, Orlando, FL 32816 USA (email: [email protected]). M. F. Williams is with the Department of English, Texas State University, San Marcos, TX 78666 USA (email: [email protected]).

IEEE 10.1109/TPC.2017.2762964

justice. This nuanced approach acknowledges the differences between ethics, advocacy, and social justice, and pushes toward a more complex and inclusive understanding of the potential of adopting plain-language guidelines to move beyond ethical action to support inclusivity.

Traditionally, plain language has been considered as a way to help audiences better access and understand technical, civic, legal, and scientific discourse. Willerton argues that

plain language gives citizens and consumers better access to their rights, and it combats the information apartheid that convoluted, overly complicated documents generate. [5, p. xiii]

Willerton’s articulated exigence for his 2015 text on plain language and ethics goes a long way toward explaining the impact that plain language can potentially have on individuals’ ability to participate in personal and civic decision making. In other words, the agency of individuals and groups of individuals can play a large role in the impetus behind implementing plain-language guidelines in documents, especially in documents that are meant to aid individuals in making decisions and taking actions.

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JONES AND WILLIAMS: THE SOCIAL JUSTICE IMPACT OF PLAIN LANGUAGE 413

Practitioner Takeaway

• Address writing style and document design from a user’s perspective. Do not limit plain-language considerations only to text.

• When using the plain-language style, test your document to ensure that the critical discourse analysis criteria used in this study (i.e. omission, presupposition, framing, foregrounding/backgrounding, and discursive differences are considered.

• Consider government recommendations as minimum standards. Plain language laws and legislation are rarely thorough enough to include best practices in plain-language writing and design.

• Adopt a human-centered design approach, involving users at every point in the development and design process to ensure that documents amplify agency and reduce inequity.

Willerton further posits that plain language is an ethical concern that can have a significant impact on individuals’ rights. He uses the bureaucratic, unfamiliar, rights-oriented, critical (BUROC) approach that focuses on elements of a situation that call for consideration of ethical plain-language implementation [5, pp. 14–15]. Although Willerton approaches plain language from an ethical perspective, we argue that plain language, because of its potential to engage issues of human dignity and human rights, moves beyond an ethics concern to a concern of social justice.

According to Jones and Walton, social justice in technical and professional communication

investigates how communication broadly defined can amplify the agency of oppressed people—those who are materially, socially, politically and/or economically under-resourced. [6, para. 3]

This definition of social justice takes into account not only agency and how it can be collaboratively amplified, but also identification and recognition of oppression and its root causes. In this way, social justice moves beyond ethical considerations. Importantly, oppression, as described by Young, is an umbrella term for a number of injustices and inequities (including marginalization, exploitation, and powerlessness) [7]. In all oppression, there is an institutionalized and systemic obstruction of the agency and active disempowerment of groups of individuals. Inherent in Jones and Walton’s definition of social justice is the transformative, participatory, and collaborative action required to enhance the agency of the oppressed [6]. Furthermore, Rose and Walton note that as the field of technical and professional communication begins to focus more intensely on social justice and social change, there has been a marked shift from “critical analysis to critical action” [8, para. 2]. Simply put, identification of oppression is only the first step in redressing injustice; critical action must follow.

Rose and Walton, in their consideration of posthumanism, articulate that social justice in technical and professional communication centers inclusion as the primary focus in theory, practice, and pedagogy [8]. Movement toward inclusion requires reflection (recognition and identification) and critical action. Making clear the connections between technical communication and user-centered design, the authors argue,

technical communication scholarship that takes an inclusive approach to user-centered design often involves shifting power toward users, especially those who are members of marginalized groups. [8, para. 7]

In other words, the critical action—the movement toward inclusion—needed to redress injustice occurs simultaneously as texts and technologies are ideated, prototyped, designed, and tested. Considering plain language from this more inclusive and social-justice stance not only necessitates turning a more critical eye toward how and why plain-language guidelines are developed and implemented, but also investigating how, whether, and when plain-language guidelines amplify agency of oppressed and marginalized groups.

In this paper, we examine plain language from a social-justice perspective by analyzing whether and how plain-language guidelines are implemented in mortgage documents that have the potential to disenfranchise and marginalize African-American homebuyers. Furthermore, we consider the possibility that the implementation of plain-language guidelines may or may not serve as the critical action needed to redress institutionalized and systemic discrimination in the US lending industry.

ABOUT THE CASE

Historically, in the US, home ownership has served as a means of acquiring wealth and material evidence of access to the “American Dream.” Blacks

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who were able to purchase land and build homes after the American Civil War found tangible benefits of living in communities that they hoped would provide some respite from the harsh realities of discrimination in public transit, public schools, retail establishments, eateries, courts, and the workplace. Black-owned homes were built near all-black schools, historically black colleges, black churches, and black-owned businesses. African Americans did not form these racially segregated communities by choice but to abide by laws that prohibited blacks from renting or buying homes in white communities.

After World War II, African-American veterans returned to the US, and many purchased tract homes, the vast majority without access to the G.I. Bill benefits [9]. According to the US Department of Veterans Affairs (VA), “from 1944 to 1952, VA backed nearly 2.4 million home loans for World War II Veterans” [10]. Of course, banks that refused African Americans equitable access to VA loans were supported by Jim Crow laws in southern states and legal discrimination that permeated the entire country. While the Servicemen’s Readjustment Act of 1944 was supposed to guarantee loans for all veterans, it was not until the Fair Housing Act of 1968 that African Americans gained greater access to home mortgages [11]. Conventional loans, which require higher credit ratings and down payments, still remain out of reach for most African Americans [11].

According to The State of Housing in Black America, a report commissioned by the National Association of Real Estate Brokers 2016 Board of Directors, African-American applications for “conventional loans decreased 82% from 2004 to 2014, and their applications for nonconventional loans increased by 60%” [11, p. 2]. Carr et al. also examine reasons that African-American homeownership has decreased to levels on par with the rate of homeownership during the Great Depression; the report argues,

black families attempting to become homeowners have largely been trapped, either in a vicious cycle of predatory mortgage schemes or by absolute denial of access to home loans. [11, p. 1]

Denial of African-American access to home loans and the wealth that homes generate over time is exacerbated by the fact that many African Americans live in neighborhoods or cities where home values rapidly decline.

Historically, one of the most detrimental contributors to declining home values in African-American neighborhoods was the banking practice of redlining. Redlining is the discriminatory banking practice of denying loans in neighborhoods deemed riskier or less favorable due to the racial or ethnic makeup of the area. In practice, these areas were actually marked on a map with red ink to denote the boundaries of areas where African Americans and other minorities lived. Although the Fair Housing Act of 1968 made redlining illegal, Ta-nehisi Coates described the long-term effect of this practice as having “destroyed the possibility of investment wherever black people lived” [12].

A November 2016 editorial in The Economist highlighted the contemporary and continued decline of African-American property values and noted that “discrepancies are evident for black and white homeowners, whose properties have fallen in value by 1.5% and risen by 9.8% respectively” [13]. A third quarter 2016 Pew Research Center study reports that 41.3% of African Americans currently own their homes, a 2% decrease in homeownership among blacks, which is a 16% decline since 2004 [14]. The only demographic examined in the Pew study with a higher percentage decline in homeownership is the under-35-year-old group, which experienced an 18% decrease since 2004 [14]. In this same study, researchers found a 3% increase for whites and a 14% increase for Hispanics.

While these statistics show a decline in homeownership for African Americans in the US over the past decade, few if any studies have examined the ways that the writing and design of mortgage documents might aid or hinder African Americans, a group that has experienced a history of discrimination in lending and housing practices, in their quest for home loans and home ownership. This study is a critical discourse analysis (CDA) of plain language in mortgage disclosure documents with a particular emphasis on how these documents might contribute to communication breakdowns between the banking industry and historically marginalized groups.

SITUATING THE CASE

Housing policies and financial regulations can have a major impact on potential homebuyers. For most of them, securing a mortgage loan is an essential part of the homeownership process as many homebuyers do not have the liquidable income to

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JONES AND WILLIAMS: THE SOCIAL JUSTICE IMPACT OF PLAIN LANGUAGE 415

purchase homes without borrowing. Obtaining a home loan is a difficult process, requiring borrowers to establish creditworthiness with a limited debt-to-income ratio, prove secure and sustained employment, and possess a certain level of financial assets. In addition, there are many legal and regulatory policies that potential borrowers must consider when obtaining a loan. The technical complexities of the home loan process can be further complicated by discriminatory lending practices. Unfortunately, as studies (both contemporary and historical) have shown, minority borrowers often experience racial discrimination throughout the home loan process [15]–[17]. This discrimination either prevents borrowers from securing the loan or borrowers are burdened with higher interest rates and downpayments.

Further compounding the difficulty that potential borrowers face, in 2007–2008, the US entered one of the most devastating economic recessions in the country’s history. This recession resulted directly from risky speculation in adjustable-rate mortgages (ARMs). Also known as subprime mortgages, ARMs are one of two types of mortgage loans offered by banks in the US. Although the most common mortgage is the 30-year fixed-rate loan, ARMs include variable rates that can lead to increases in monthly payments and balloon payments that result in foreclosures. During the 2007–2008 recession, these foreclosures disproportionately affected African Americans and Latinos [11]. In fact, a 2004 survey found that

lower income and minority buyers are most likely to choose adjustable-rate home mortgages over fixed-rate loans but are especially likely to be hurt by the rising interest rates that often accompany ARMs. [18]

ARM loans are deemed risky because they have a default rate of three to four times that of fixed-rate loans [11]. But as the 2004 survey found, many potential homebuyers are not well aware of the risks of interest rate fluctuation [18]. Instead, these homebuyers are drawn in by the initial interest rate because many ARMs offer a “teaser” or “discount” rate at the outset of the loan.

Moreover, the majority of ARMs are teased, meaning their initial rate is less than the fully indexed rate. Accordingly, after first rate reset, the rate and payment tend to increase significantly. [19, p. 306]

More minority homebuyers choose ARM loans with “31 percent of black respondents express[ing] a

preference for ARMs, compared with 23 percent of whites” [18]. While social scientists, including economists, sociologists, and psychologists, have studied the behaviors that lead to this risky speculation, few scholars in communication studies have examined the role that complex language in mortgage and loan documents played in this crisis. Indeed, calls for the use of plain language in financial documents are certainly not new, especially given the prominence of the Securities and Exchange Commission’s (SEC) A Plain English Handbook: How to Create Clear SEC Disclosure Documents [20]. Our study is unique in that it examines documents that had an overwhelmingly negative effect on people of color.

Language can play a significant role in determining how individuals engage with and participate in complex activities that can include voting [21], [22]; understanding laws and policy [23]; and keeping medical information private [24]. In fact, language accessibility is recognized as such an important aspect of being able to fully and knowledgeably participate in personal and civic life, that state and federal politics have played a large part in supporting or hindering bills and mandates that ensure clear and accessible language [25].

In academic research, the impact of plain language has been studied in regulatory and policy documents from a number of domains, including medicine [26], law [27], minority entrepreneurship [28], veterans’ affairs [29], and environmental agencies [2], [30], [25]. Moreover, plain language—specific guidelines about how language is used in documents and how documents are designed visually—moves beyond merely making language “understandable” [25, p. 332]. As noted by Jones et al., implementing plain-language guidelines has “been shown to improve text comprehension of readers with varying levels of familiarity with document content” [25, p. 335]. This fact is important to note because when readers are faced with new and unfamiliar content (such as mortgage loan documents), the language in a text can hinder comprehension, preventing readers from making appropriate and informed choices. In this sense, examining the role of plain language on minority homebuyers can potentially highlight the ways in which a text can either propagate discriminatory lending practices or support and enable a fair financial process.

The purpose of this study is to examine whether and how plain language can impact the process of

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securing a mortgage loan for minority borrowers. We ask three broad research questions:

RQ1: How are language and the design of ARM disclosure statements aligned with or different from SEC guidelines for writing plain-language disclosure statements?

RQ2: How are language and the design of ARM disclosure statements aligned with or different from plain-language recommendations in federal regulations?

RQ3: What is the potential impact of the language and the design of ARM disclosure statements on already vulnerable borrowers?

METHODS

Our study is an examination of one type of disclosure document, the initial mortgage disclosure statements for ARMs. We selected this type of disclosure document because it is the first disclosure document presented to prospective borrowers, and the purpose of the document is to provide prospective borrowers with important information about how ARMs work before they begin the lending process.

To analyze the early ARM disclosure documents, we needed to understand the genre that we were considering. Since neither of us was familiar with ARM disclosure statements, we conducted a general internet search for examples that were currently used by banks. This search yielded a number of ARM disclosures from lending institutions across the nation (Note: Because ARM disclosure statements are not in the public domain and obtaining the right to publish these documents is not easily obtained, we are unable to share the actual documents used in this study). Of the 11 identified ARM disclosure statements, which average 1- to 2-pages long, we selected three representative documents for analysis. These ARM disclosure statements were from banks located in various geographic regions (i.e., a mid-sized bank located in a metropolitan city on the East Coast of the US, a small bank in a rural city in the Western US, and one of the largest US banks in the South.)

We also located the Code of Federal Regulations (CFR) Appendix H-4(C) to Part 1026—Variable-Rate Model Clauses [31], which provides the banking industry with a model of an initial ARM disclosure document’s content. Though the model document provided a boilerplate template for the form and

content of ARM disclosures, the model did not provide advice regarding plain language. However, it did allow us to better understand ARM disclosures as a genre.

ARM disclosure statements are used for informational purposes and are not binding contracts between potential borrowers and lending institutions. Rather, ARM disclosure statements should present details about specific ARM loans. A lending institution can offer a number of different types of ARM loans. For this reason, it is important for potential borrowers to understand the specific ARM loan that they are considering and compare and contrast the features of multiple ARM loan types to acquire the loan that offers options that are most favorable to their financial situation. Because the features of ARM loans vary, disclosures must include information about the specific ARM loan’s interest rates, payment calculations, margins and indices, and potential for and frequency of adjustments. In addition, because a number of ARM loan options are available to potential borrowers, ARM disclosure statements seem to typically inform potential borrowers that other options are available to them.

To better determine the current standards (clarity, document design, organization, and content) of mortgage disclosure statements in general, we consulted the most current legal requirements for this genre. The current regulation became effective on June 27, 2016. The regulation was developed in response to critiques of mortgage disclosure documents and the recent mortgage crisis. Specifically, we consulted the US CFR, §1026.17 General Disclosure Requirements [32], which discusses general plain-language requirements for all mortgage disclosure documents (not just ARM disclosure statements), including closing documents disseminated from bankers to consumers. The suggested plain-language recommendations align well with the classical rhetorical canons. The federal regulation for general disclosure statements went so far as to include terms such as organization and style, even though it did not reference the rhetorical canons specifically (see Table I).

As mentioned before, we initially consulted CFR §1026.17 General Disclosure Requirements to get an idea of the general regulations for all mortgage documents. Then, by aligning the federal regulation with the rhetorical canons, we were able to understand some of the broad recommendations for the ideal design of a mortgage document. We

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JONES AND WILLIAMS: THE SOCIAL JUSTICE IMPACT OF PLAIN LANGUAGE 417

TABLE I UNDERSTATING FEDERAL REQUIREMENTS FOR GENERAL MORTGAGE DISCLOSURE STATEMENTS

THROUGH THE RHETOMCAL CANON

determined that the federal regulation makes broad suggestions about the general design of mortgage documents: the content that should be included (invention); the way that the content should be organized (arrangement); the tone, form, and accessibility of the content (style and delivery); and

the way that the audience should be able to save and preserve the content (memory).

The plain-language recommendations in CFR §1026.17 included relevant but vague suggestions. Examples of vague plain-language

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recommendations include the statement that “Information in the disclosures should be clear and conspicuous” [32]. Moreover, the federal regulation emphasized what a usable and accessible completed mortgage document might include. However, the federal regulation did not provide specific guidance or instruction as to how to achieve this ideal document. What specifically should designers do to ensure that the content in the disclosure statements is clear and conspicuous? How specifically should the disclosure statements be organized so that the information in the document is separated? What exactly is an acceptable type size?

Thus, to answer our research questions about the effectiveness of plain-language use in initial ARM disclosure statements (not just mortgage documents in general), we used the SEC’s Plain English Handbook [20] guidelines for disclosure statements and a CDA approach. (The SEC Plain English Handbook is appropriate for this study because it is a commonly referenced style guide for financial disclosure documents.) Although historical discourse analysis coupled with plain-language analysis has been used previously in technical communication scholarship [28], this study couples CDA with plain-language analysis.

First, after investigating the genre by examining the ARM disclosure model in the CFR Appendix H-4(C) to Part 1026—Variable-Rate Model Clauses [31], we used the SEC Plain English Handbook [20] to identify whether or not the ARM disclosure statement documents that we selected for analysis adhered to plain-language guidelines. Next, we turned from an evaluative stance to looking beyond whether or not the plain-language guidelines and regulations were observed in the document and began to examine the documents from a CDA perspective. The CDA allowed us to consider how historically marginalized groups with limited financial literacy might respond to these ARM disclosure statements. In this way, our analysis was completed in two distinct phases. Both of these phases (and related documents) are described in the following sections.

Phase 1: SEC Plain English Handbook Guidelines Evaluation As mentioned earlier, in 1998, the SEC published A Plain English Handbook: How to Create Clear SEC Disclosure Documents [20]. The Plain English Handbook is important for this study because it presented an attempt to codify plain-English guidelines across the financial industry. The SEC has established guidelines for textual elements of a document.

Generally speaking, the guidelines consist of a list of textual design choices to avoid, which are as follows:

� Long sentences � Passive voice � Weak verbs � Superfluous words � Legal and financial jargon � Numerous defined terms � Abstract words � Unnecessary details � Unreadable design and layout

In addition to the suggestions for designing textual elements, the SEC also recommends document design choices beyond text. These recommendations point to ways that writers and document designers can improve the accessibility, readability, and legibility of documents through visual design choices. The Plain English Handbook recommends the following design choices:

� Different typefaces for different types of information

� Sans serif typeface � Appropriate typeface � Visual cues to emphasize important text � White space � Left justified, ragged right text � Appropriate line spacing � Reasonable line length � Short paragraphs

Phase 2: Critical Discourse Analysis Conducting a CDA provided an ideal way to examine the language used in the mortgage documents because of the affordances of the CDA method. Essentially, CDA is a research method that “should deal primarily with the discourse dimensions of power abuse and the injustice and inequality that result from it” [34, p. 252]. CDA encourages critique of language and texts; examines issues of access; and interrogates how power, ideology, and dominance play a role in how language and texts can impact different stakeholders and groups. Simply put, CDA allows for a critique of ideologies through textual artifact analysis. Therefore, CDA can reveal the ways that language can structure or disrupt ideologies and societal “norms” and standards. This assertion is important because it makes clear that language and discourse, along with all discursive tactics, approaches, and strategies, are not neutral, but value-laden, rhetorical, and socioculturally constructed.

Scholars in technical and professional communication have long subscribed to the belief

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JONES AND WILLIAMS: THE SOCIAL JUSTICE IMPACT OF PLAIN LANGUAGE 419

that language—and specifically the language of technical communication—is not objective or apolitical [35]. Using CDA as a tool to investigate technical documents reinforces this idea. Furthermore, as a research method that supports critique, CDA examines the sociopolitical, ideological structures of discourse that can be used to disempower, disenfranchise, or oppress. As van Dijk noted, the work of critical discourse analysts is “admittedly and ultimately political” [34, p. 252].

In addition to sociocultural and sociopolitical critiques of ideology in discourse, another primary principle of CDA is attention to issues of access. In CDA, the issue of access not only considers who can engage with certain types of discourse (language, texts, and genres) but also who creates discourse, how the discourse is institutionalized, how the discourse is disseminated, and how the discourse is controlled or used to control others. Power has a very real impact on issues of discursive access [34]. As a research method, CDA provides a way to examine the interrelations of power and access in language and texts. This focus on access inherently brings to the fore considerations of power, oppression, and agency. CDA engages with these issues through a perspective that is well suited to social-justice-oriented examinations. Furthermore, an investigation of the use of plain language paired with CDA allows a researcher to do two things, which are as follows.

� Investigate the sociocognitive and cultural impact of language and discourse from a descriptive perspective

� Explore and address the pragmatic and applicable interventions that can redress injustice and inequity identified in the discourse

This approach promotes research that begins with critical analysis and moves toward critical action as suggested by Rose and Walton [8]. Furthermore, beginning with consideration of the genre and context of a text, CDA encourages the researcher to think about texts as relational: the relationship of the elements and properties within a text, the relationship of the text and the way that it is invented and interpreted, and the relationship of the text to larger social contexts [36], which can include systemic and institutional practices that are potentially oppressive, but rarely interrogated or questioned.

In addition to Huckin’s 1997 recommendations for conducting a CDA on a “text as a whole,” which begins with determining the ways in which a text

conforms to its genre (form, content, and conventions), he recommends that a CDA include some consideration and interpretation of each of the elements encoded and inscribed by the author of a text.

� Framing: The perspective of the text; the “angle/slant” of the text, including use of visual aids in the text

� Foregrounding/backgrounding: Privileging and emphasis of certain information over other information

� Omission: What is left out of the text; what is not written

� Presupposition: What the text “takes for granted”; assumptions about the reader and what the reader knows

� Discursive differences: Changes in voice and register in a text [36, p. 82]

Huckin argues that these elements can be discursive manipulations “serving nondemocratic purposes” [36, p. 80]. This necessarily requires an analyst to acknowledge the interrelations of the text and its social structure and ideology. The textual manipulations that can be identified in a text do not exist in a vacuum. Rather, textual manipulations can reflect or resist dominant ideologies. With this consideration in mind, we paired an evaluative plain-language analysis with CDA.

RESULTS

As described in the methods section, the first phase of the analysis of the ARM disclosure statement documents was primarily evaluative. In other words, we examined the three ARM disclosure statements to determine whether the documents met the basic plain-language standards proposed by the SEC. We looked to see whether the documents excluded any of the recommendations from the SEC Plain English Handbook [20] or the relevant recommendations of the CFR §1026.17 [32]. During the second phase, the CDA perspective, we critically investigated the ways in which Huckin’s [36] textual manipulation elements were manifested in the ARM disclosure documents. We present our findings from each phase below.

Phase 1 Findings: SEC Plain English Handbook Guidelines Evaluation In Phase 1, we compared the SEC Plain English Handbook’s guidelines for writing in plain English and designing documents with what appeared in the three randomly selected ARM disclosure documents. Table II presents our

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TABLE II EVALUATION OF DISCLOSURE STATEMENTS USING SEC’S PLAIN ENGLISH HANDBOOK “PLAIN ENGLISH WRITING”

RECOMMENDATIONS

findings of how each of the three implemented recommendations for plain-English writing.

Table II demonstrates that the majority of the SEC recommendations for plain English are met by all three disclosure documents. The shaded cells highlight the categories in which the plain-English guideline was not met or addressed. With the exception of jargon terms (such as “index,” “margin,” and “amortize”) that lacked a clear definition or description, and the absence of if–then

conditional statements (which would have been quite helpful in explaining possible changes in interest and payment rates), each of the three disclosure documents closely adheres to the SEC Plain English Handbook recommendations for writing using plain English.

The next step was to analyze the visual design of the three disclosure statements. As mentioned earlier, the SEC’s Plain English Handbook gives recommendations for the design of documents

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TABLE III EVALUATION OF DISCLOSURE STATEMENTS USING SEC’S PLAIN ENGLISH HANDBOOK “DESIGNING THE DOCUMENT”

RECOMMENDATIONS

beyond textual elements. Table III presents our findings regarding the SEC’s recommendations for document design.

As shown in Table III, Disclosure Statement 11 adheres most closely to the SEC’s Plain English Handbook’s recommendations for document design features. The shaded cells once again highlight the categories in which a design guideline was not met or addressed. While Disclosure Statements 2 and 3 fail to use a legible type size, fail to make effective use of white space, fully justify text, and do not use rules and boxes to make text stand out, Disclosure

Statement 11 features larger type, generous spacing around text, and boxes to call out important information. Our analysis found that Disclosure Statement 11 was the most effectively designed document based on the SEC recommendations.

Phase 2 Findings: Critical Discourse Analysis Next, we analyzed the three disclosure documents from a CDA perspective. Huckin [36] argues that to complete a CDA of a text, the analyst must first understand the genre under study. As mentioned earlier in this article, we were able to examine a

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TABLE IV EVALUATION OF DISCLOSURE STATEMENTS USING THOMAS HUCKIN’S CRITICAL DISCOURSE [36]

model of ARM disclosures by using the CFR Appendix H-4(C) to Part 1026—Variable-Rate Model Clauses [31] (henceforth referred to as the model ARM disclosure). Because this document provided a template for lenders to follow when creating ARM disclosures, we were able to identify the form and content typified in the genre. The disclosures that we selected each followed the model closely (including mirroring some of the language). However, each disclosure manipulated the discourse/language of the model in different ways. Thus, we move to a focus on the discourse of each text individually. We use Huckin’s [36] conceptualization of textual manipulations, which allowed us to examine the framing of the text, textual prominence, presuppositions and omissions in the text, and discursive differences in the text. Our findings are presented in Table IV.

As shown in Table IV, even though each of the three disclosure statements that we analyzed used language similar to the language provided in the model ARM disclosure, the ways in which the disclosure statements presented textual and visual information varied greatly. Each of the analyzed

disclosure statements framed information in unique ways, either including or not including visual aids. In addition, each disclosure emphasized or minimized different types of information. There was obvious variation in the information that the disclosure statements included or omitted and the way that discursive differences were presented in the disclosures.

From our analysis, we found that Disclosure Statement 11 was the most problematic in regard to discursive textual manipulations (see Table IV). Disclosure Statement 11 had the most textual omissions of the three disclosures. Disclosure Statement 11 also had the most glaring shift in discursive style and voice of the three disclosures, even though it most closely adhered to the SEC plain-English recommendations.

DISCUSSION

As noted in our Results section, the ARM disclosure statements that we analyzed varied in the ways that they implemented (or failed to implement) the SEC recommendations for writing in plain English

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TABLE IV (Continued)

(see Table II) and effective document design (see Table III). The ARM disclosures that we analyzed were inconsistent in their implementation of the document design recommendations, with Disclosure Statement 2 and Disclosure Statement 3 largely ignoring 6 of the 11 suggested guidelines (including guidelines about type size, call-out boxes and rules, and use of whitespace).

The most egregious violation of plain-language document design recommendations was found in Disclosure Statement 2, which included type that was so small that one of us, with 20/20 corrected vision, was unable to read the body of the printed form without a magnifying glass. While the magnification feature is handy and useful for many when reading electronic texts, needing to use a magnifying glass is not. Moreover, the use of such small type in Disclosure Statement 2 left the

bottom-half page empty. The only benefit to the reader for such small text would have been if the authors had used that half page of white space to include important information that was omitted (i.e., clarifying financial jargon used in the earlier portion of the document and providing example calculations as used in Disclosure Statements 3 and 11). Otherwise, the excessively small type seems to be an obvious attempt to make the information inaccessible.

Although all three disclosure documents used financial jargon, the use of legalese occurred less frequently than expected. Except for the use of financial terms that needed definitions, most sentences in all three disclosure statements employed concise and easy-to-read sentence structures recommended by plain-language advocates. Of the SEC Plain English Handbook

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TABLE IV (Continued)

recommendations we used to evaluate the disclosure statements in Table II, the only areas that the authors of the disclosure statements failed to observe were related to their use of jargon, their failure to use if–then statements, and their failure to make abstract terms meaningful to lay audiences. Had the authors of the disclosure statements used any of these strategies to define the financial terms, the clarity of the documents would have been much improved. Despite the failure to define some financial terms, the three disclosure statements were successful in implementing the majority—8 of 11—of the plain-language recommendations for writing.

In addition to using jargon, we noted that the SEC Plain English Handbook recommendation to “bring abstractions down to earth” was not achieved in all elements of the disclosure documents. The authors

of Disclosure Statements 2 and 3 included calculations that attempted to mathematically demonstrate to readers how increases in payments might evolve, but the authors of Disclosure Statement 11 did not make this effort. When communicating with historically marginalized groups about plain-language documents, focus- group research [28] shows that African-American business owners expressed the need for clarification of ambiguous and abstract language in plain-language regulations, not only to achieve clarity but to avoid the inconsistency in interpretation of abstract concepts that leaves room for discrimination.

In an effort to ensure that readers have access to definitions of financial terms, the authors of Disclosure Statement 11 concluded the document by asking readers to sign the document to

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JONES AND WILLIAMS: THE SOCIAL JUSTICE IMPACT OF PLAIN LANGUAGE 425

acknowledge receipt of the Consumer Financial Protection Bureau’s 2014 Consumer Handbook on Adjustable-rate Mortgages [37], a reader-friendly 41-page guide to ARMs that includes definitions and detailed explanations of these types of loans. On the surface, this action seems beneficial to the prospective borrower and lender.

1. The reader is provided a resource that defines terms not defined on Disclosure Statement 11.

2. The action of signing the document provides the bank with evidence that it has provided the information to the reader.

3. The action of signing the document to acknowledge receipt emphasizes to the reader the importance of the Consumer Handbook on Adjustable-rate Mortgages [37] as a resource.

As researchers and advocates of technical communication and plain language, we believe that this is an effective strategy. Unfortunately, in the signature line, the authors refer to the signer as “Borrower,” contradicting an earlier disclaimer in the document that states that the early disclosure document is not a contract or binding commitment. While a plain-language analysis of the document alone might not notice this feature of Disclosure Statement 11, coupling plain language and CDA allows us to examine how already-distrustful audiences might perceive this confusing element of the document. In Williams’ study [28] exploring African-American business owners’ responses to plain-language regulations, those business owners expressed a desire to be assigned the correct subject position by regulatory writers. In other words, to evoke trust in this audience, the entrepreneurs felt the need to be called by their correct position or title because people with different titles are assigned different legal obligations. In the case of Disclosure Statement 11, assigning the reader the title of “Borrower” is misleading.

Generally speaking, each of the three disclosure statements effectively adhered to the SEC plain-English writing recommendations. This is a significant finding because Jones et al. noted that implementing plain-language guidelines has “been shown to improve text comprehension of readers with varying levels of familiarity with document content” [25, p. 335]. This fact suggests that when readers are confronted with documents that include unfamiliar content, plain-language guidelines can aid a reader in making sense of the information presented. Of the three disclosure statements, Disclosure Statement 11 adhered most closely to the plain-language guidelines.

Plain-language and document-design research indicates that poor design of documents has the potential to impede accessibility and comprehension, especially in documents with unfamiliar content [25]. Considering this fact, Disclosure Statements 2 and 3 can be deemed as potentially less accessible, less understandable, and less usable than Disclosure Statement 11. But how does discursive access play a role in the design of the disclosure statements?

When examined from a CDA perspective, the idea that plain language increases accessibility, reader comprehension, and usability is complicated (see Table IV). Because CDA has the potential to reveal power relations inherent in discourse, this method of analysis reveals the ways in which text, though innocuous on the surface, can be oppressive and marginalizing when examined more deeply. Wodack argued,

CDA is characterized by the common interest in demystifying ideologies and power through the systematic and retroductable [i.e., transparent] investigation of semiotic data (written, spoken, or visual). [38, p. 303]

Because of this critical purpose of CDA, Disclosure 11 proved to be particularly problematic. In it, we found a close adherence to plain-English textual and design recommendations. However, it also demonstrated the most obvious and glaring textual manipulations described by Huckin [36]. In particular, study of Disclosure 11 revealed a great number of presuppositions, omissions, and discursive differences. These textual manipulations have the potential to reinforce dominant ideologies about groups of individuals and to restrict agency. Reinforcement of these dominant ideologies can be encoded in texts in a way that can be oppressive and restrict groups of individuals to certain rhetorical, material, political, and economic contexts.

Discursive practices may have major ideological effects—that is, they help produce and reproduce unequal power relations between (for instance) social classes, women and men, and ethnic/ cultural majorities and minorities through the ways in which they represent things and position people. [39, p. 258]

First, Disclosure Statement 11 included a number of presuppositions. As Huckin [36] describes, presuppositions reveal assumptions about the reader—what the reader knows and understands. Presuppositions make assumptions about who the

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reader is in positive or negative ways. Presuppositions in Disclosure Statement 11 included assumptions about readers’ familiarity with interest rates, market indices, the London market, the lending institution, and the Wall Street Journal. When an author encodes a presupposition in a text, the document can, at first glance, appear to give useful information to the reader (for example, Disclosure 11 notes that information about the index can be found in the Wall Street Journal ). However, if readers are unfamiliar with the content referenced, then they are unable to use the content to become more informed and make appropriate decisions. How is this suggestion that information about the index can be found in the Wall Street Journal helpful to individuals who do not know what an index is, do not know how indices are calculated, are not familiar with the Wall Street Journal publication, and cannot locate index information within the publication?

The problems caused by presuppositions can be exacerbated if the reader is also unfamiliar with the genre (for example, individuals reading an ARM disclosure statement for the first time). In this way, discursive presuppositions emphasize power differentials between an author and readers (or in the case of disclosure statements specifically, between lending institutions and potential borrowers). Presuppositions put the reader at a disadvantage under the guise of offering useful, well-designed information. The onus to become fully informed then falls on the borrower, making an already complex situation more difficult. As a result, marginalized groups that may already have limited resources (material, financial, political or otherwise) are forced to “play catch-up.”

Second, presuppositions in the documents also often lead to discursive omissions. Huckin calls omission the “ultimate form of backgrounding” [36, p. 82], burying or de-emphasizing information. Furthermore, Huckin argues that omission is “often the most potent aspect of textualization” because readers are not aware of what is missing, and, as a result, do not question or further interrogate the information that they are given (p. 82). In this way, omissions promote a striking loss of agency. Rhetorical agency, as described by Koerber, is negotiated but also “inextricably” linked to ideological, discursive structures [40, p. 88]. Omitting information, whether intentional or unintentional, prevents readers from making a fully informed decision, constraining their capacity to act within a system that can already be considered oppressive. In other words, some

readers just do not know what they do not know. As a result, potential borrowers are less able to resist and disrupt marginalizing, institutionalized discriminatory practices.

When important information is missing from an already unfamiliar genre (such as ARM disclosure statements), readers may be more likely to make decisions that are not in their best interest. And these decisions can impact the potential borrower’s quality of life in regard to financial constraints and economic stability. Importantly, considerations of agency are central to engaging with issues of social justice as they relate to resources available to individuals. In regard to the ARM disclosure statements that we analyzed, this failure to amplify the agency of potential borrowers could further oppress populations that are already marginalized and discriminated against in the US lending industry.

Third, Huckin posits that discursive differences can allow writers to exploit the audience in a number of ways [36, p. 83]. The discursive differences—shifts in voice, tone, and register—can shift the positionality of the author and the reader of the document. For example, in Disclosure Statement 11, the reader of the document is first positioned as a potential borrower considering loan options. In contrast, toward the end of the document, the positionality of the reader shifts, and the reader is referred to as an actual borrower. As mentioned earlier, the document even provides a space for the “borrower” to sign the disclosure (as acknowledgment of having read the disclosure and a supplemental handbook). This slight shift in the tone of the document and the way that the potential borrower is addressed can be seen as a strategic ploy by the lending agency.

In addition, Disclosure Statement 11 is inconsistent in its use of personal pronouns. Here, we see overlap with recommendations for writing in plain language because the use of personal pronouns has been found to help not only increase reader access and comprehension, but also to create a personal style and tone [41]. For example, in Disclosure Statement 11, sometimes the authors use the pronouns “we” and “our” to refer to the lending agency. Other times, the authors use “the lender” to refer to the lending agency. This inconsistent use of personal pronouns has the effect of drawing the reader closer and then pushing the reader away. In this way, personal pronouns (or the lack thereof) can affect reader perceptions because the document’s tone can often

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project a perceived attitude of the author toward the reader [25]. Even slight discursive differences, like the ones mentioned above, can further oppress and marginalize groups that already have a mistrust of regulatory agencies.

In summation, this study demonstrates that, though document authors can do an effective job of implementing guidelines for writing and designing documents using plain-language suggestions, this attention to plain-language recommendations does not ensure that the documents amplify or enhance the agency of marginalized users. Instead, despite implementation of plain-language recommendations, historically marginalized groups may still find that they must work extra hard to access, understand, and use the information that they need.

As Wodak posits,

. . . in texts, discursive differences are negotiated; they are governed by differences in power which is in part encoded in and determined by discourse and by genre. Therefore, texts are often sites of struggle in that they show traces of differing discourse and ideologies contending and struggling for dominance. [42, p. 52]

Furthermore, Clements asserts that

Plain English as a language style cannot guarantee the veracity of corporate disclosures because only writers know if the documents they write are truthful. Clearly, the writer’s intent plays a critical role in creating clear and accurate disclosures. [43, p. 261]

However, intent is only one consideration in instances where systemic, implicit, and institutionalized bias already exists and mistrust abounds. Writers must be careful and purposeful not to reinforce and reinscribe oppressive power relations and marginalization in their discursive practices.

CONCLUSION

During our careers, we have witnessed communication studies embrace of terms like “truthiness” (Merriam Webster’s 2006 Word of the Year) and “post-truth” (a 2016 addition in the Oxford dictionary). To produce documents that seek to even the playing field in home buying, documents (i.e., mortgage disclosure documents

required under the federal government’s Truth in Lending Act) must be evaluated by principles long held in technical communication— comprehensiveness and honesty [5], [28]. This CDA of plain-language ARM disclosure statements is further evidence that plain language without these important assessment criteria is superficial and does the work of complex language: it obscures. It appears to be honest and approachable, but because it is incomplete, it fails the reader.

As much as African Americans tire of being discriminated against, push back against identity politics and continued claims of racism are evidence that those with the power to discriminate tire of being called out on discriminatory practices. Still, the evidence regarding discriminatory practices in housing and lending persists. As technical communicator researchers, we can recommend the use of plain language in communication of complex topics with lay audiences, but technical communication studies [5], [28] show that there are clearly issues beyond current plain-language recommendations that we should consider. The findings of this study of ARM disclosure documents suggests that principles of technical communication (i.e., comprehensiveness and honesty) respond to issues that plain language alone does not solve. As technical communicators and advocates of plain language, we do practitioners a disservice by failing to consider these important aspects.

In the spirit of social justice requiring critical thought that moves toward critical action, we suggest that, in addition to considering how we should address oppressive discursive practices that can be overlooked during the implementation of plain-language guidelines, writers begin to take a human-centered design approach to plain language rather than a usability approach. It has long been a common criticism of plain language that documents are tested after, not during, their creation, or that documents are restyled and revised after problems arise [2]. As Rose notes, “human-centered design provides an approach that can both inform design and offer a critique to examine larger structural issues” [44, p. 428]. Further, Rose argues

human-centered design represents a broader conceptualization in regards to the design of information and technologies. It is not enough to include users in the design process or to focus solely on efficiency as a system value. Instead, human-centered design should look more

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broadly and provide a way to consider how design can support or constrain the needs of people whose lives are impacted by both the systems and policies . . . . [44, p. 428]

Adopting a human-centered design approach for designing plain-language documents and implementing plain-language guidelines would require inclusive and collaborative participation from readers of documents like the ARM disclosure statements. In addition, designers of such documents would be pushed to ask questions

about the different types of audiences that use the documents, and the needs and constraints of those audiences. We advocate for a human-centered approach that explores ways to privilege existing user knowledge by moving beyond shortening sentences, adding personal pronouns, and using headings in a document. Plain-language guidelines should be applied along with a critical focus on amplifying agency and reducing inequity. Doing so requires recalibrating our understanding of plain language’s purpose, with an eye toward design and not just information dissemination.

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Natasha N. Jones received the Ph.D. degree in Technical Communication from the University of Washington, Seattle, WA, USA, in 2012. She is an Assistant Professor in the Department of Writing and Rhetoric, University of Central Florida, Orlando, FL, USA. Her work has been published in Technical Communication Quarterly; the Journal of Technical Writing and Communication; and Rhetoric, Professional Communication, and Globalization, among other academic journals. Her research interests include activism, social justice, narrative, and rhetoric in technical communication and technical communication pedagogy. Prof. Jones is a winner of the 2017 Nell Ann Pickett Award.

Miriam F. Williams received the Ph.D. degree in Technical Communication and Rhetoric from Texas Tech University, San Marcos, TX, USA, in 2005. He is currently a Professor of English with Texas State University, San Marcos, TX, USA, and a Fellow of the Association of Teachers of Technical Writing. Her selected publications include the coauthored Writing for the Government, a part of the Allyn & Bacon Series in Technical Communication, and her monograph, From Black Codes to Recodification: Removing the Veil From Regulatory Writing, a part of the Baywood Technical Communication Series. She also co-edited Communicating Race, Ethnicity, and Identity in Technical Communication for the Baywood Technical Communications Series and coedited a special issue of the Journal of Business and Technical Communication on race, ethnicity, and technical communication. Prior to her career in higher education, she was an Inspector, Policy Analyst, Policy Editor, and Program Administrator for the State of Texas regulatory agencies.

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