The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
COVID-19 has presented academia with novel challenges. Virtually every institution of higher education has transitioned to online instruction, almost overnight. This rapid change occurred with little planning or preparation. Students who were accustomed to learning in one fashion are now being asked to learn in a completely different fashion. This new normal will likely last the rest of the semester, and could recur again in the future.
That much is largely beyond our control. But some issues are within our control. Specifically, universities are debating what to do with the Spring 2020 semester. Should schools maintain the regular grading curve? Should some students, with demonstrated hardships, be able to request a pass/fail grading option? Should all students be given the option to request a pass/fail grading option? Should all students be graded on a pass/fail basis? Should some exams be graded pass/fail (upper-level electives) but other exams be graded with the regular curve (1L mandatory courses)? My co-blogger Jon Adler offers several recommendations.
Here, I will make three broad points. First, there has been a long-simmering movement to abolish grades altogether. This approach may work at elite institutions where most students cluster together near the top. But at other law schools, grades perform an important signaling function: students at the bottom of the curve need intervention. Eliminating grades will deny those students the help they need. Second, we should not abolish normal law school policies simply because of our current circumstances. Attorneys have a duty to their clients during crises of all manners; law students should learn that lesson personally. Third, COVID-19 will not affect all students in the same fashion. Some students will be personally affected. Others will merely be inconvenienced. Any sort of grading relief should be tailored to address individual circumstances; law schools should not adopt a blanket policy.
1. Grading Curves Should Not Be Permanently Abolished
The debate about whether to eliminate mandatory grading curves is not new. Some professors and students have long advocated for abolishing these strictures. The arguments being raised now are familiar in faculty lounges nationwide. Brian Frye (Kentucky) states the case at Jurist:
Law school grades merely reflect the hierarchy that pervades the profession. In a battle of all against all, everyone wants to come out on top, or at least in a reasonably comfortable position. If it means someone's the loser, them's the breaks. But the hierarchy itself is artificial and absurd. After all, the "best" law school in the country ostentatiously refuses to grade its students on the mandatory curve its peers feel obliged to adopt. Why? When you've got it, flaunt it. Why let the winner define the game? Why accept a hierarchy that exists for the purpose of creating winners and losers, rather than evaluating competence? Well, it's hard to defect when everyone else is playing the game. Everyone knows the system is rotten, but no one wants to make the first move. Here's an idea. Law schools should go pass/fail this semester. And they should stay that way. Sometimes, it takes a crisis to enable a change that is long overdue.
I have some sympathy for this general position. Indeed, the bar exam is a pass/fail exam. The only number that matters is whether you clear the minimum "cut score." (Though, the Texas Bar rewards the person who receives the highest score; the current Chief Judge of the Fifth Circuit still boasts about that honor.) Moreover, in many law schools, the difference between an "A" and a "B" exam are subtle. I am not surprised that elite law schools like Harvard and Yale have already adopted something akin to a pass/fail grading system.
But this approach cannot work everywhere. At many law schools, a certain percentage of students are in real jeopardy of failing the bar exam. One of the single greatest predictors of bar passage is law school GPA. In particular, students below a certain GPA after 1L may have less than a 50% chance of passing the bar. These numbers hold from year-to-year with some accuracy. Thankfully, having a low 1L GPA is not a self-fulfilling prophecy. Our school, and others, provide counseling to students who underperform. We offer specific classes and instruction to help students develop better study habits, take tests more effectively, and prioritize their approach to law school. Some students thrive in these programs, and bring their grades up. Others do not. But awarding grades allow us to identify the students that need help. Receiving bad grades can hurt, but that shock can often wake students up, and make sure they receive much-needed help. Or, receiving a bad GPA could force the student to reconsider: law school is not the right choice for everyone.
If all law schools abolished grades, our weaker students would develop a false sense of security: well, I passed, and didn't fail, so I must be okay! Moving to a mandatory pass/fail system cheats students out of the full law school experience. They will walk into the third year of law school, and perhaps the bar, with no real assessment of their capabilities. The students at the top and middle of the class will be fine. But the students who would most benefit from getting a bad grade will not receive the help they so need, and deserve. Professors have an obligation to help students in need. Grades are a signal (perhaps an inaccurate one) that tell us who needs help.
I can foresee another consequence of a pass/fail scheme. Some professors may overcompensate by simply failing more students. As a result, more students will fall below the minimum threshold after 1L, and be expelled. These students will not even have the chance to redeem themselves, and increase their scores. Sometimes giving a student a C or a D is enough to send a message. But if the only option is A or F, professors may place their thumb on the "fail" side of the scale.
Perhaps schools could privately give students grades (A through F), so they know how they stand, but only note a pass/fail on the transcript. I'm not sure this approach would alleviate the problems Brian and others have identified. Employers would simply ask students to see the private grade reports, and we would be back in our current position. Though, class rank would be impossible, if the school doesn't rank. Some business schools actually adopt non-disclosure agreements for grades–students cannot share them with employers until they secure a full-time job. I don't think this cartel would work with law students. In the absence of published rankings, employers will become more dependent on private recommendations from professors. That dependency exacerbates some of the problems we have seen with the law firm and clerkship hiring process. (See my post on that topic.)Partners and judges hiring for clerkships will find out rankings, one way or the other. I would rather those rankings be calculated objectively and publicly, rather than be whispered by a professor's personal recommendation.
Ultimately, if schools adopt a pass/fail option during our current situation, we should revert to the normal order in the fall.
2. Law School Policies Should Not Be Abandoned During Difficult Times
There is a second, related, theme concerning grading curves: they can be maintained during normal times, but should be abandoned during difficult times. This argument is also not new.
We saw similar arguments during the Fall 2014 semester. At that time, grand juries did not return indictments in cases concerning Michael Brown and Eric Garner. Students at elite law schools demanded that their final exams be postponed. The Washington Post had this account:
Students at some elite law schools are demanding action: They want their final exams postponed because of the grand jury decisions related to the deaths of Michael Brown and Eric Garner. If your reaction was "huh?" welcome to the club: Some critics think the demands seem a little too convenient, especially coming from people who should be clamoring to take their place in the legal system, if only to help fix whatever problems they perceive. "We have been traumatized over and again by the devaluation of Black and Brown lives," wrote members of the Columbia Law School Coalition of Concerned Students of Color in a Dec. 6 letter to the school administration. "We are falling apart." The students asked that the university "recognize" their trauma as legitimate and schedule an "emergency event" to address the two cases. Similar letters have subsequently been penned by a broad coalition of student groups at Harvard University Law School and a coalition of black students at the Georgetown University Law Center.
The Dean of Columbia Law School allowed students to postpone exams:
"The grand juries' determinations to return non-indictments in the Michael Brown and Eric Garner cases have shaken the faith of some in the integrity of the grand jury system and in the law more generally," Scott wrote. "For some law students, particularly, though not only, students of color, this chain of events is all the more profound as it threatens to undermine a sense that the law is a fundamental pillar of society designed to protect fairness, due process and equality." He added that "students who feel that their performance on examinations will be sufficiently impaired due to the effects of these recent events may petition" to have exams rescheduled.
At the time, Columbia's decision was criticized. Elie Mystal offered these comments at Above the Law:
"Every black person has been told the line 'you have to be twice as good' as the white man to get the same thing," Mystal writes. "This is what that looks like. Nobody said it was going to be easy or even fair, but showing up to take your test in the face of this adversity happens to be what is required. It's a learning experience: how do I excel when the racism is so thick that I can't breathe? It's a skill that you might as well learn in school because it will be required of you in life."
And the New York Times offered these criticisms:
"It shows a remarkable degree of empathy," Stephen Gillers, a law professor at New York University, said. "Students cannot expect that from their boss in practice, nor I imagine would they ask for it. And they certainly can't expect it from a judge when papers are due. But you know, academic institutions are worlds of their own." Benjamin Brafman, a prominent defense lawyer, called the decision "absurd." "Despite the genuine trauma that law students may honestly feel about the Ferguson and Garner decisions, as lawyers, they are going to be dealing with tragedies many times worse," Mr. Brafman said. "If law students cannot function with difficult issues like these, maybe they should not try and become lawyers."
Lawyers have a duty to their clients. That relationship does not dissipate during difficult times. Indeed, that relationship becomes even more important during times of crisis. Let's use a contemporary example. Every day, I fear a COVID-19 outbreak in prisons. These populations are especially vulnerable, and are unable to engage in "social-distancing." The attorney-client relationship for those who are incarcerated does not vanish because of stay-in-place orders. Indeed, courthouses are among the few institutions that remain open. And who works in courthouses? Lawyers. (With good reason, the ACLU and others have opposed legislation that could shutter the federal courts.) Attorneys will be exceptionally busy in the coming weeks and months.
Lawyers cannot abandon their responsibilities because of the pandemic. Nor can doctors. Or other first responders. Law students should learn this lesson, personally. Once they graduate, their duties exist regardless of what is going on in the world. There are procedures to withdraw from a case, or hand a matter over to a colleague, but those options should be used sparingly. Likewise, there should be special circumstances in which students can petition for a pass/fail option; but that option should not be available to everyone as a matter of course.
3. COVID-19 affects different students in different manners
COVID-19 will not affect all students equally. Noah Zatz explains these dynamics at the Faculty Lounge. The coronavirus may infect some students, or someone in a student's family. Students or their families may lose sources of income because of COVID-19. Or students may have to adjust their priorities because of new household burdens, such as caring for children or the elderly. I would put these students in a special category. And they deserve some special attention because of their demonstrated hardships.
These students may not be able to meaningfully complete the course work, and should not be required to sit for an exam they are unprepared to take. Given that these students will have already completed half a semester, I think offering them a pass/fail option would be appropriate. And there should be no discretion. A categorical approach is warranted. If a student falls into any of these categories, a pass/fail option should automatically be offered. Or these students should be allowed to withdraw without penalty. There is no reason to sit for an exam they have no prospect of passing. Is it possible to offer these students a full refund of tuition? From what I've gathered, the answer is no. I understand there are some constraints on school funding and student loans that make this option not viable.
But other students will not have such demonstrated hardships. For many students, the current situation will create some inconveniences. These students will not be infected, nor will anyone in their families be affected. And their sources of income will not be disturbed. (Many students, regrettably, subside on student loans.) And some students will not have any sort of family care responsibilities that burden their ability to study. Indeed, some students–now largely confined to their homes–may have more time to study than they did in the past. For these students, the regular grading curve should be applied. And with a curve, they will be judged against the performance of their classmates. Distributions are normal, even in abnormal times.
In 2017, Hurricane Harvey struck the City of Houston. The damage was devastating, but not evenly distributed. The images you saw on TV were misleading. Some neighborhoods near bayous were flooded. Other neighborhoods, far from the bayous, were not flooded. The majority of Houstonians did not suffer any property damages. But those who suffered damage were profoundly impacted. In some cases, they were left homeless overnight. Several of our students fell into the latter category. And our College took every action we could to help those students stay in class. Most of our students fell into the former category. Perhaps lost power for a few days. And they completed the semester with the usual policies in place.
Many of our law students were toddlers during September 11, 2001. They may have no personal memories of that day. I do. On 9/11, I was a high school senior in Staten Island, New York. Every year, I blog my remembrance from that day. At that time, the world had been turned upside down. Several of my classmates lost their parents. (Many firefighters and police officers lived in Staten Island.) I could still smell the pungent odor in the air from the wreckage. Ground Zero smoldered for weeks. For months, I would panic whenever I saw an airplane overhead. For years, I carried a gas mask in my trunk. In New York City, schools were closed on September 12, 2001. But the next day, on September 13, schools reopened. And we found a way to learn and study, and complete the year. We can do so here.
C.S Lewis gave a sermon about learning during World War II. He stated the issue far better than I can.
I think it important to try to see the present calamity in a true perspective, The war creates no absolutely new situation: it simply aggravates the permanent human situation so that we can no longer ignore it. Human life has always been lived on the edge of a precipice. Human culture has always had to exist under the shadow of something infinitely more important than itself. If men had postponed the search for knowledge and beauty until they were secure the search would never have begun. We are mistaken when we compare war with "normal life". Life has never been normal.
We should have empathy for those who suffered hardships because of COVID-19. But law schools should not abandon the normal rules for those merely inconvenienced by the current situation.