The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Covid-19 pandemic is creating lots of challenges to business-as-usual. Legal education is no exception. Courses are moving online, and professors and students alike are being forced to adapt.
I understand the impetus for this shift. The disruption and dread triggered by the pandemic is real, and for many it is quite severe. Nonetheless, I believe making all grades pass/fail (or pass/no credit) for the spring 2020 semester would be a mistake, especially for all but a handful of law schools. As I suggested to my colleagues at Case Western, I believe such a policy would be unfair to our students and send the wrong message about learning in a time of upheaval or crisis. A better alternative is to allow students pass/no-credit option (either before, or even after, receiving their grades). Let me explain why.
As a general principle, we should be compassionate to students who face difficult circumstances. But compassion does not mean anything goes. We generally recognize that there are good and bad ways to be compassionate. There are always students who face hardship and who, for reasons beyond their control, don't achieve their potential in a given course or semester. We make accommodations for those students on the margin, as we should, but rarely in ways that erase all the consequences of their hardship. Indeed, accommodating to that degree is often impossible to do. Significantly, we generally resist making changes that compromise other aspects of what we do as an educational institution or that potentially disadvantage other students. I think that same principle applies to the current situation.
The first problem with eliminating real grading for all students is that it will discourage students from focusing on their studies at the margin. This will result in less learning across-the-board. As we all know, students tend to focus most intently on what is graded, and many students (consciously or otherwise) will focus less on learning material that is only graded on a pass-fail basis. Further, for those students who benefit psychologically and emotionally from having something else to focus on, we will be (on the margin) be giving them less reason to focus on their studies.
The second problem with such a policy is that it penalizes those students who are capable of excelling under these circumstances. If a student is capable of mastering material and learning in trying circumstances, don't we want to acknowledge that? I would certainly hope so. When I write letters of recommendation I often note when students have excelled despite particular disadvantages or hardships because I know many employers value that. Why would we want to take away being able to distinguish some students in that way?
A third problem with eliminating grades for a semester at most law schools is that it will remove or reduce those opportunities that are available to high-achieving students. Such opportunities are not only important to those individual students, but also to the law school communities of which they are a part.
One reason law schools grade (and curve) in the first place is because identifying high-achieving students is important. There are some opportunities that are only available to high-achieving students (such as clerkships, certain law firm jobs, etc.), and access to those opportunities for our students necessitates the differentiation that traditional grading applies. A few elite schools can get away without having meaningful grades without sacrificing such opportunities for their students, but most law schools are not in this position.
As a practical matter, at most law schools, eliminating letter grades for a semester will make it harder for the current cohort of students to obtain highly competitive positions, particularly insofar as they are in competition with students from higher ranked schools. In the absence of real grades and ranks. many employers will rationally assume students are at a school's median. Such an assumption may not be a big loss for a high-achieving student at Harvard or Yale, but at other schools, that difference matters.
The loss of these sorts of highly competitive opportunities is not simply bad for the individual students who lose out. It can be bad for the law school communities of which they are a part. The value of a given school's law degree is based, in part, on the achievements of its alumni, and that includes the ability of some students to pursue certain sorts of opportunities right out of school. Making it more difficult for a given school's highest achieving students to obtain clerkships, high-profile associate positions, etc. is thus something that harms all of a given school's stakeholders (though, I suppose, the decision of some schools to take this course may inure to the benefit of those schools that do not).
A fourth and related problem is that the leveling represented by eliminating grades is likely to disproportionately affect students from disadvantaged backgrounds who were likely to excel despite these exigent circumstances, including those who are first generation law students. The third-generation law student with an elite undergraduate degree whose family members are partners at prestigious law firms is far more likely to have the sorts of social and professional networks that can compensate for poor or undifferentiating grades. Students who lack equivalent connections or social capital are more reliant upon "objective" measures of their ability and accomplishments. Across-the-board pass/fail grading deprives them of that potential.
A fifth problem is that eliminating all grading for this semester will unduly (and unfairly) exaggerate the importance of first-semester grades for 1Ls. Many employers like grades. If all they have is one semester, then that is all they'll use, and that will unduly punish those students for whom the first semester was a period of adjustment or a difficult time for whatever reason.
None of the above means that law schools should do nothing. As I noted at the beginning, I think reasonable accommodations should be made. In my view, an optional pass/no-credit option represents a compassionate release valve for those students most disrupted or harmed by who need that assistance and does the least harm to other competing interests, including the need to encourage our students who can to stay engaged and continue to learn. Is such an approach perfect? Of course not. Might some students still find the current situation particularly difficult and the prospect of grades—even the potential of grades—an added source of stress? Yes. Might some other students "game" the system or take advantage? Yes again. I nonetheless believe this is a better alternative to pass/fail grades across the board.
On a personal level, I can say that switching to pass-fail grading would certainly make my life easier. It would simplify grading, reduce my stress levels, and give me more time to do other things. But, for the reasons I noted above, I also think it would be irresponsible. I am tremendously privileged to have the opportunity to be a legal academic and I take my responsibilities to my students and my institution very seriously. If I believed across-the-board pass-fail grading were in their interest I would embrace it. But I do not, so I will not. In this and other related decisions, I believe law schools should be focus on what measures are most consistent with their underlying mission, and I believe a shift to mandatory, across-the-board pass/fail grading for the Spring 2020 semester would be a mistake.
UPDATE: A quick clarification that I should have included in the original post is that I can imagine specific circumstances arising in individual classes or programs that could justify a switch to pass/fail or pass/no-credit grading for an individual class. My argument is about whether the current circumstances justify such a switch across the board.