The Volokh Conspiracy

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Grading in the Time of Coronavirus

For most law schools, switching to across-the-board pass/fail grading would be a mistake.


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.

As noted at TaxProf blog, many schools are moving to Pass/Fail grading. UCLA's Noah Zatz makes a case for this move at The Faculty Lounge.

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.

NEXT: Unicorns, Coronavirus, and Emergencies

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  1. I think you mean "The mass hysteria is creating lots of challenges to business-as-usual."

    1. A lot of parents may be willing to pay the $100 deposit but if this stuff goes into the fall, I can't see them paying thousands upon thousands of dollars so that Junior can sit at home and play with his smartphone....

  2. I don’t understand the problem.

    The VC law professors have always taken an assertively lazy attitude to grading. They boast about having only one exam, at the end of the semester. How does the current situation affect that? You’ve got nothing to do for two months, until May.

    1. It's quite clear that you don't understand the problem: the justification is about the burden on the students, not the professors.

      1. Noscitur a sociis: Indeed, the post is about whether going to pass/fail is better for students, at least this semester.

        captcrisis: Also, to make it clear, law schools generally have just one final exam per semester, with no midterms. There are a few exceptions here or there, but this is the standard practice, not just for "VC law professors." You can debate whether it's pedagogically sound -- I'm inclined to say that it would be better to have midterms and not just a final, though switching to that will probably upset students at least as much as it would upset professors. You can also debate to what extent it's linked to the practice of law professors, unlike college professors, not being allowed to use TAs to help grade exams. But in any event, descriptively this is the norm at law schools, rightly or wrongly.

        1. I think the problem is photocopiers, not letter grades, and I suggest thinking back to a century ago, when all of higher ed (including but not limited to law schools) was pass/fail -- one either graduated or one did not. Going back to the middle ages, one had a diploma (which one showed potential employers) and the institution stood behind each of its graduates equally. The transcript was a piece of cardboard which sat in a filing cabinet in the Registrar's Office -- and they weren't going to hand=copy that. No, they'd summarize it in a letter of recommendation.

          Hence the grades stayed on campus, and while one might graduate with honors of various sorts, most simply graduated with only the college knowing how close some came to not graduating. Richard Hooker, the MD who wrote the book M*A*S*H, references this a few times in hypothetical correspondence between Hawkeye and the Dean of what would be Dartmouth College.

          But by the 1950s, microfilm printers and increasingly advanced office technology arrived to the point now where the transcript has replaced the diploma. I don't think that is good because it has turned a lot of 3rd & 4th rate institutions into casinos where a few win big and the house (i.e. school) keeps the money of the rest. This is particularly true on the undergrad level where there are so many variables over which the student has no control (starting with who the school assigns as a roommate) that I do not believe there is an actual link between effort/ability and GPA.

          It's good for the 3rd & 4th rate institutions because they can market themselves much as casinos do, but it's not good for the students -- and it serves to drive the cheating which plagues academia. The Bar Exam is pass/fail, life is pass/fail, and there is a lot to be said for grading pass/fail as well.

          On a more realistic note, and I'm speaking to higher ed in general here and not law schools, what's going to happen is what happened after Kent State when the colleges closed a month early. Reality is that students are going to get one of two grades -- either the letter grade they have right now (based on prelims and/or midterm) or a Pass/Fail grade, and of those two options, I believe that Pass/Fail is the fairer of the two.

          1. On the larger issue, and back to a credit being a Carnegie Unit consisting of 50 minutes of instruction for 17 weeks, I think the actually fair grade to give is "Incomplete" --- I believe that the IHEs ought to be making up the missed instruction time.

        2. " law schools generally have just one final exam per semester, with no midterms."

          True 30 years ago as well when I was in law school.

  3. As a high school teacher here's what we have been instructed to do:

    1) No new material
    2) No material delivered via internet because "equity of access"
    3) No grading allowed

    Wondering what the incentive of the students to even look at the material will be. My suspicion is "low".

    1. The "no new material" is going to be a big issue in those subjects where next year's classes build on what was supposed to have been taught this year. I can see it being a big issue in STEM (Math in High School, all the Engineering subjects in College), although I can see it being problematic with something like English grammar.

      We are taking between a fifth and a quarter of the school year, and the extent to which students actually learn things, this is going to create major deficits that could well haunt these kids (in a variety of ways) for life.

  4. In medical schools, they just have a pass-fail quiz where they have to show their anatomical knowledge by reciting the hymn "Dem Bones."

    1. There was one medical school where the anatomy students were sent a body part from a cadaver in a bag through the mail, and they had to identify it by video conference.

      The first student opened his bag, felt around, and said, "It's a heart," and pulled out a heart.

      The second student opened her bag, felt around, and said, "It's a liver," and pulled out a liver.

      The third student opened his bag, felt around, felt around, and flet around some more. Finally he said, "I give up. I have no idea what this is.

      "C'mon," the teacher said, at least give it a try. What does it feel like?

      The student said, "well, it feels like a sausage."
      And the teacher said, "well, what body part feels like a sausage?"
      The student said, "no, no, it's not that. In fact, I'm sure it's a sausage." And he pulls out a sausage.

      And the teacher said, "Oh my God, I wonder what I ate for lunch as I was preparing the test!"

  5. Has MIT been forced to change its practices? How much in person, non-computer contact do they have, anyway (except, hypothetically, for sex).

    Probably the final exam (building a working laser using only a cucumber, a clothespin and a Bic lighter) can be done remotely with robot arms.

  6. I'm giving Trump a solid B+. However if the Chloroquine hail Mary works then that has to go to an A+++.

    But I totally agree pass/fail isn't appropriate now. But of course that's how we will be grading in November.

    1. Found the guy who would manage to get a "Fail."

    2. If this goes to November, I doubt we'll be grading -- parents are committed for what they have already spent, but I can't see them paying thousands upon thousands of dollars in the fall for Junior to sit at home.

    3. Chloroquine hail Mary

      Promising everyone a cure that isn't from the bully pulpit isn't a hail Mary, it's something else.

      1. My daughter is a pharmacist in a hospital in Washington, their doctors are actively prescribing Chloroquine to their handful of covid-19 patients. While that doesn't equal a randomized double blind test, they will be seeing outcomes over the next week.

        Its not being dismissed out of hand by medical professionals, but maybe you should correct them.

        1. In fact here is an article from the Wall Street Journal by 2 physicians actively using HydroChloroquine for their patients:
          "We had been using the protocol outlined in the research from China, but we’ve switched to the combination prescribed in the French study. Our patients appear to be showing fewer symptoms.

          Our experience suggests that hydroxychloroquine, with or without a Z-Pak, should be a first-line treatment. Unfortunately, there is already a shortage of hydroxychloroquine. The federal government should immediately contract with generic manufacturers to ramp up production. Any stockpiles should be released."

          There isn't any doubt that Trumps early championing of the drug made it available quicker, and increased its use. But only time will yell how effective it is.

          Of course we are seeing ridiculous articles trying to scare people off, by saying that taking 4x the recommended dose can be fatal. You can say that about Tylenol too. Or whiskey (my recommended dose is .12bac).

  7. This is a bunch of self-serving, self-justifying nonsense.

    Law school grades measure one and only one thing: a student's propensity for studying exam keys in order to "do well" on a law school exam. It doesn't measure a student's intelligence, creativity, or even work ethic apart from that very narrow application.

    It is certainly true that legal employers rely heavily on law school grades in order to sort applicants. I am somehow still being asked for my law school transcripts, for instance. But it's a bad system, tending to select for students who are good at following rules, but not very good at asking why those rules should be what they are. A generation of this system being in place is why legal academia is such a joke, now, and our courts are places for pedants to slowly expand the role of authoritarian rule.

    So I see no harm whatsoever in dispensing with this illusion of an education and forcing judges and other employers to pick their way through a cycle without an easy GPA sorting mechanism. Maybe then they'd be forced to re-think what they really want in a clerk or associate, and find different ways of getting at it.

    I'll tell you that I, when I'm involved in hiring decisions, overlook a student's grades and disregard empty resume-filler like law review positions. Some kid's ability to follow the exam formula isn't going to tell me how good he or she is at drafting a contract - or at least fucking reading the thing before sending to a client. I wish you academic-types would find a way to grade for that, maybe.

    1. Well I'd say there maybe is a correlation between being able to read a question on a test, and answer what it's asking, and reading a contract before sending it to a client. But I will agree with you it's amazing the number of errors that are made in just about every field from people that just plain refuse to carefully read what's right in front of them.

      1. Well I’d say there maybe is a correlation between being able to read a question on a test, and answer what it’s asking, and reading a contract before sending it to a client.

        No one is reading the contracts I'm working on without having proven they can read a question and answering what it's asking.

        The phenomenon is this: junior lawyers in a corporate practice are trained to simply implement the instructions that more senior lawyers give them. They don't think. They just do, and they do in such great volumes that we then bill them out at rates that have fat margins built in. And somehow, over the years, we expect them to pick up enough of the substance that they start to be able to make judgments in the course of advising clients on what they should do.

        But it is utterly remarkable to me how frequently I find junior lawyers not even reading what I am giving them to do. These people just have no pride in the work they're producing. They do not ask themselves critical questions like, "Does this language make sense here," or, "Does this paragraph clearly indicated as an internal note to draft belong in a distribution to our counterparty," etc.

        So what does a law school grade tell me? It tells me that an applicant has a certain propensity for punishing themselves with tedious work, for copious hours, in pursuit of a promised reward. Cynically speaking, that has some value in a law practice. But it does not tell me anything about their ability to be a good lawyer, who doesn't do shit like reveal confidential details about our client because they can't read a fucking footnote.

    2. Assuming that there is a rational relationship between the Bar Exam and what lawyers need to know, I find it troubling that (a) folks have to study for the bar exam, and, notwithstanding that, (b) there are law schools where upwards of two thirds of their graduates fail to pass it on the first try.

      I'd like to know what the failure rate would be if paralegals were permitted to take it (without ever having attended law school), and then if some of them might make better lawyers as well...

      1. Assuming that there is a rational relationship between the Bar Exam and what lawyers need to know,...

        There isn't.

    3. So, if you're not going to use GPA or grades on a new legal associate, what mechanism would you like to use to help differentiate between the two of them? If three people show up from law school XYZ for a new legal position, all just having graduated from law school, how do you pick one? Let's say one of them has an "A" average, the second has a "B" average, and the third a "D" average. Do you think they are all going to be the same?

      I'm not saying the grades directly tell how someone will do. But they can give correlations, at least, about relative grasp of the law, work ethic, etc. It's not going to be perfect, but it's better than nothing.

      1. But they can give correlations, at least, about relative grasp of the law, work ethic, etc.

        Do they? On what possible factual basis could you be basing this conclusion? It just seems plausible, so you (like the rest of the legal field) just accept this hoary bromide that's been passed down from one generation to the next. Personally, I try to de-select for this tendency towards group-think.

        I'd be more interested in a candidate's transcript if the grades reflected effort throughout the course of a term rather than just their performance, in an isolated measurement, on a test, where that performance is entirely a function of how well the student "studied to the test." Personally, my best grades, in law school, were in classes where there weren't exam keys. Accordingly, I have no reason to view law school grades as a meaningful sorting metric, just because we have it.

        I'm not saying that it is better to have to rely on more qualitative measures, like how the candidate handles the interview and their life experiences prior to law school. But law school grades are worthless.

        1. "On what possible factual basis..."
          Scientific studies across a broad number of fields. There's a correlation. It's not the strongest correlation in the world, but it's there. Moreover, it doesn't account for people who didn't go into certain fields because "their grades weren't good enough"

          "I’d be more interested in a candidate’s transcript if..."
          That's one view. Personally, I view them as adults, and don't think they need regular, consistent exams in order to do well. Real life doesn't give them constant self reinforcement.

          "I’m not saying that it is better to have to rely on more qualitative measures..." You basically are saying it's better. But sure, if grades are "worthless", here my challenge to you. Next time you bring in interns, look at the grades, but bring in the ones with the worst grades. The D students. And see how it goes. You'll probably get a couple diamonds in the rough, but on average, well....

          1. Scientific studies across a broad number of fields. [Cites single study without apparently reading it.]

            Any suggestions on how I could avoid hiring someone with your degree of analytical skill?

            That’s one view. Personally, I view them as adults, and don’t think they need regular, consistent exams in order to do well. Real life doesn’t give them constant self reinforcement.

            In fact, "real life" gives people plenty of opportunities to seek, receive, and learn from feedback, and the resulting growth in response to such feedback is likely to be far more informative, in my view, than discrete data points reflecting whether the student in question figured out how to "study for the text."

            I want an associate who will be embarrassed by a simple error that I point out in their drafting, and will endeavor to avoid it in the future, rather than one who simply has a timer running at 11:30 p.m. while they flip bleary-eyed through hundreds of pages of a data room.

            You basically are saying it’s better.

            Better than relying on the GPAs that law schools currently produce. Keep in mind that, since I'm typically reviewing applicants for 2L summer jobs, the GPAs I'm looking at reflect virtually none of their meaningful law school careers. And since law schools are so lacking in pedagogy, those 1L grades basically just reflect whether the law students have come to law school already with the skills necessary to succeed in that particular fishbowl.

            But sure, if grades are “worthless”, here my challenge to you. Next time you bring in interns, look at the grades, but bring in the ones with the worst grades. The D students. And see how it goes. You’ll probably get a couple diamonds in the rough, but on average, well...

            What would this prove or disprove? If grades are worthless, then it makes no difference whether they're a D student or an A student.

            As it happens, institutionally, the initial screening is out of my hands. I never see the applicants whose GPAs don't "cut it." They may send me the transcripts for my interviewees, but I've never reviewed them. Instead, I prepare interview questions based on target competencies, a close read of their resume, and questions designed to get at "cultural fit." In the conversations I have with them, I try to push them off their talking points and see how they do. I see no reason to actively select for D students.

            1. But sure, if grades are “worthless”, here my challenge to you. Next time you bring in interns, look at the grades, but bring in the ones with the worst grades. The D students. And see how it goes. You’ll probably get a couple diamonds in the rough, but on average, well…

              What would this prove or disprove? If grades are worthless, then it makes no difference whether they’re a D student or an A student.

              Um, that's the whole point. That would be true if grades are worthless. The previous poster, and now I, suggest that you would quickly realize that it does make a difference, and therefore grades are not worthless.

  8. It's quite out of touch of you to claim that minority students need letter grade to differentiate themselves in this difficult time. Their parents are getting laid off as janitors and cashiers. Some of them are busy worrying about how to take care families and put food on the table.

    If you have compassion and care about equity, you won't make such argument for optional Pass/Fail policy to help minority students. It will defeat the very purpose because it will discredit minority students and throw them under the bus.

    1. While there are always exceptions, I think you will find that the minority students attending law schools don't have parents who work as janitors & cashiers.

  9. I’m surprised the author doesn’t recognize the ridiculousness of his own argument. Which boils down to, “grades matter because we’ve created a system in which grades matter”. Do away with grades and other, perhaps more relevant, sorting methods would soon emerge. And maybe, just maybe, we wouldn’t end up with sniveling, hypocritical grade-grubbers like Brett Kavanaugh on the Supreme Court.

    1. Tell me that Sonia Sotomayor could have survived what Brett Kavanaugh was subjected to.

    2. Yeah, I could have used a more red meat conservative myself. But he was filling Kennedy's seat, who didn't have to go, maybe that was the deal. I can see Kennedy wanting Kavenaugh as his successor.

  10. If Covid is going to accelerate anything it is going to be the undoing of the lie of higher education. Schools just up and cancelled classes with no notice, many are refusing to refund tuition and housing, and from all fair takes online learning is a joke.

    A friend's son was just told by his professor that everyone was going to get A's for the semester since there is no way he can judge their work performance and it would be unfair to students who will be judged by GPA for graduate schools to do anything else. Another source was just given a book to read and told to write a "short paper" about it due in April. The tragedy of kicking all the students off campus, with no notice or even due process, is going to sting a lot of campuses in the future. And wait until the next cycle of grad school applications for that entire farce to become transparent.

    Maybe instead of sunlight you need a good pandemic for disinfectant.

    1. What amazes me are those who somehow think this could continue into the fall -- that parents are going to pay another semester's worth of tuition & fees for Junior to sit home and play with his smartphone.

      Ain't gonna happen -- nor is Trump going to bail out higher ed.

      And every (undergrad) IHE needs to replace at least 25% of its student body annually, often it's in the 30%-40% range because of transfers, and admission deposits are due in early April. Parents may pay the deposit, but Junior well may not show (it's called "shrink" and already happens).

      And student financial aid is based on student & parents *2019* tax return -- which in many cases is going to be a LOT more than what the current income is. Even with assets -- stocks are valued at what they were worth in December of 2019, not now. So a lot of kids are neither going to have the money nor be eligible for aid.

      We *will* see colleges not reopen. I don't know how many, but it could be a lot.

      1. I have heard from friends on Admissions Committees that they are "rethinking" from the ground up their strategy for the coming academic year. Large numbers of new admissions may choose to defer or just not show in the Fall. A HS teacher friend says that "gap year" is the new buzz word among seniors. They don't want to show up to college in the Fall to get sent home if there are pockets of this pandemic still around. And many feel "cheated" of their senior year, wanting to capture the "glory" of it by taking a year off.

        Higher ed was going to go bust sooner or later. Frankly I am surprised it has stayed afloat as long as it has. This Fall is going to be the death knell for many schools.

        1. A lot of IHEs are unable to refund the room & board from this spring -- simply do not have the money....

  11. Outside of some people at Harvard and Yale and a few other places, no third years are getting jobs for quite a while. Even many Ivy grads are going to struggle.

    The national panic is wrecking the economy. Hiring will basically not occur until 2021.

    Might as well just deem them passed and let them get on with their lives in peace.

    1. What's that going to do to the law schools?

      I heard they took a *big* enrollment hit circa 2011, that many of the regional ones were nearly half the size they had been the year before, and this on top of that could be quite interesting...

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