Law schools should not abandon standard grading policies for all students

Only those students with demonstrated hardships should receive a pass/fail option

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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.

Other Universities offered similar accommodations. Harvard Law School, however, declined to follow suit.

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.

NEXT: Today in Supreme Court History: March 23, 1870

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  1. The biggest problem with permanently abandoning grades is that you will substitute one hierarchy for another: prestige of school may become far more important. Employers who believe that almost everyone coming out of a top school is competent and has a work ethic, but are unsure of who is good or bad in a middling school (having lost the signalling mechanism to tell them who works hard), may be far more inclined to take exclusively students at top schools. In the absence of other information, the remaining information becomes far more important.

    People at middling law schools know that students need excellent grades to secure good jobs, and think that eliminating grades will enable everyone at that school to have a chance at a top firm or a good clerkship. But the reverse may well be true.

    Yale gets away with its grading system because everyone thinks that every Yale student is, at a minimum, very smart and possesses a work ethic; otherwise, they wouldn’t have gotten in. (Arguably, a fair number of people are good at their college courses but not good at law school courses, and grades serve that signalling function.) But a student at Quinnipiac, down the road, might be a brilliant person who wanted to save a pile of money by taking a merit scholarship, or might be someone who doesn’t even really belong in law school.

    I also worry that talented students will be disinclined to attend lower-ranked schools on merit aid: absent grades, they will have a harder time proving their chops. That will also reinforce the hierarchy.

    1. I’d argue the exact opposite, that Quinnipiac ought to be forced to show it is every bit as good as Yale, or go out of business.

      1. What?

        There is plenty of room for law schools that are not “every bit as good as Yale,” teaching students who will be competent lawyers providing normal legal services to normal people.

        The problem is with law schools that are not any good at teaching students who are not any good.

  2. If you truly were to grade on a statistical bell curve, that should not only correspond to bar passage rates, but means that the number of As must equal the number of Fs, and the number of Bs equal the number of Ds. Politically (and economically), I doubt it would be able to do either.

    First, you are not going to get a normal curve if the scale is related to the institution’s bar passage rate because rarely (if ever) will that be a normal curve — some law schools have a high passage rate, and some have low one, with a corresponding median and mode. Second, you are going to get into the “Neutron Jack” issue of having to expel the same number of 1Ls that get As, and I don’t see that happening.

    And as bad as it would be to flunk out students merely because the statistics demanded it, a school with a low bar passage rate (and hence a curve skewed to the left) would find itself expelling students into institutional bankruptcy. (Reality is that tuition revenue is important…)

    I’m not even getting into how a strictly statistical curve would affect minority students, or what would have to be done because of that. (Question: Would ‘academic judgement’ get around Griggs v. Duke Power Systems? Question: Would a separate scale for minority students be permissible?)

    Hence, I doubt that any law school has a truly statistical grading scale, at least one that corresponds to bar passage rates.

    1. “If you truly were to grade on a statistical bell curve, that should not only correspond to bar passage rates, but means that the number of As must equal the number of Fs, and the number of Bs equal the number of Ds. Politically (and economically), I doubt it would be able to do either.”

      Do the students at every institution exist on a true statistical bell curve?

      1. I’d argue that NONE of them do, which is why I argue that using a curve to grade is a bad idea. It should either be objective criteria based, or pass/fail.

        But what I was responding to here was reference to the standard of bar exam passage.

      2. No to general P/F grades and no to grading on a normal distribution.
        My experience both in teaching and in supervising professional is that the Bell curve is an improbable distribution unless the sample size is extremely large. In the employment situation I have found bi and even tri-normal distributions. In classes with 30 or few students grades are more typically skewed either high of low depending on the test. In in cases with a low skewed distribution there are always 1 or 2 students who perform extraordinarily well. In the absence of letter and numerical grades, these students are short changed.
        In reviewing applications, I find that students who saturate the system at their university are generally excellent prospects. P/F grading therefore puts students who went to non-elite schools at an inappropriate disadvantage.

  3. One other thing being missed here is that exams (and grades) are supposed to evaluate how well the material that was taught has been learned.

    Hence, I argue, the only truly ethical grade is “incomplete” and to offer the missed instruction later. As that’s not being done, I can see a possible legal challenge to a failing grade on that basis (failure to have classes), which wouldn’t be protected by academic freedom.

  4. The comparison to 9/11 is not inapt. I was an actor with a day job editing a NYC events website in midtown at the time. That day, I went downtown to help, and the next day I sort of gaped at the enormity of the situation, but then began the process of adapting the site to list closures and continuings. We had to strip away most of the design due to the CMS, but it worked. As days passed, I kept thinking about how important it was to do some Shakespeare — but reduced, essential. The reduction, the epoche, that I learned from that day’s adversity fueled both my stage work and the way I went into law school — walking into the first year exams with a fountain pen and a box of ink cartridges. Adversity prunes away the inessential. So by all means, retain the grading, but test its appurtenances.

    Mr. D.

  5. This kinda falls in the, “It it ain’t broke, don’t fix it,” category.

    Maybe some minor tweaks (on the lowest possible [i.e. individual] scale), but not for institution-wide policy changes.

  6. I am a fan of curves at elite institutions, if for no other reason than because in a culture of massive grade inflation and way too much boosting of people’s self-esteem, it’s extremely healthy as a reality check. You’re not going to be number 1 forever, you have to learn how to lose, you have to learn that people aren’t going to shower you with nothing but praise for whatever you do all your life.

    In any event, in addition to the social function they serve, they also impose a hierarchy where a hierarchy truly is needed. You actually do need to rank graduating classes. And that means curves.

  7. “…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….”

    Professor, was this an intentional or unintentional error? In your example, it is obvious that the grading choice is NOT between an A or an F. It is between a Pass (which is = to an A-through-D) vs that F. Why would you assume that a Pass equals an A??? The student will not make that mistake. No future employer will make that mistake. That law school (when calculating potential honorees at graduation) will not make that mistake. How is it possible that you made that mistake??? How puzzling.

    1. Jesus; it’s a typo.

      1. David,
        Genuine question: What part of the quote do you think was a typo? (Of course, it’d be great if Josh wants to chime in and clarify.)

        1. “If the only option is A or F” should obviously have said “P or F.”

    2. If you’re stuck with pass/fail as your options, you can’t signal a student that they’re struggling by giving them a D. You can either give them the same grade as the one you give students who excelled and deserved As, or you can fail them. In order to send the signal that they’re in trouble, then, you’d have to put your thumb on the scale and fail them.

      Perhaps a better analogy would have “if the only option is B or F”, but the logic holds.

      1. DRM,
        Of course you can signal a student that he or she is struggling. I’ve done this in the past, when I was a teacher, teaching a pass/fail class, or when teaching a graded class where a student decided to take it Pass/Fail.

        “John, I’ve seen that you’ve been struggling in the past few assignments and quizzes. You’re averaging a C-minus so far in the class, so you’re not in danger of failing at this rate. But do you think you’d benefit from extra studying, tutoring, etc.. Are you understanding the lectures? If you are; maybe we can figure out a way to translate that into success on the exams.”

        Of course I understand that this is not how things are done in law school…we expect students to be much more proactive if there are problems in their own learning process. But there is no pedagogical reason why this could not be done…it works perfectly fine in pre-college classes, and in undergrad classes as well.

        1. Yes, sure, you can say that to them. That’s not the same as getting through to the student. Communication has not been achieved until the message is received. If you’ve never encountered a case of a student who doesn’t wake up until they’re handed a low grade, I must say I’m astonished. And in a pass-fail regime, the only available low grade is Fail.

    3. Either it’s a typo, and he meant “…if the only option is a P or F…”, or he was referring to idea that some students in a pass/fail regime may have barely passed but will feel like A students anyway.

  8. The next time I need a lawyer, I will certainly look for one that got a “complete” on his college Law Degree and Bar association exam. I want nothing but the best!

    1. Interesting. I have had a bit under 1,000 clients by this point in my legal career. Not One Client has ever asked about my GPA in law school. (Although a decent minority has asked me which law school I attended.) I’ve hired about 5 lawyers, I could not have cared less about their grades in law school. I asked about the number of cases like mine they had handled, the results of their past cases, what legal issues they thought might be at play in my case, etc..

      Liberty, are you really saying that you’d care about your lawyer’s grades in law school? That’s genuinely surprising. (I guess I could see it for a lawyer who was in private practice and was only a year or so out of law school, but otherwise . . . .)

      1. edit: …for a lawyer who was in SOLO practice and only a year or two out of law school.

      2. As a lawyer, are you familiar with the term facetious? Or are you just that literal and lacking any sense of humor?

      3. Yes, certainly, grades are only relevant for people with little or no work history. So if you don’t hire fresh law school grads, you really shouldn’t care. Of course, if nobody hires fresh grads, you run out of experienced lawyers; somebody has to hire them to make the system work.

        The first article quoted dismisses this issue as a problem for employers, not law schools. But that assumes that law schools have no interest in helping their students get good matches in their first jobs. There’s a half-century of study of the economics of information asymmetries that show the worse the available quality signals for evaluation are, the lower average wages paid to new hires are, because of the negative consequences of hiring a lemon. If your school only pass/fails students, you’re reducing the information available. That’ll hurt your job-seeking students as a collective, and the better ones a lot more.

        Which, incidentally, will show up in the job placement/starting salary stats used to evaluate your law school in various guides, and so run down its reputation, and so cause the better students to avoid it.

  9. 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.

    No more artificial or absurd than the practice of law itself. Law is an adversarial process. Even if you’re doing compliance or contracts, you’re doing defensive work against a potential adversary down the line. And thus anyone who hires you damn well wants to know how good you are not compared to some basic standard, but against other lawyers, because that’s who they’re hiring you to duel. Your competence as a lawyer (as opposed to a law professor) is entirely relative, not objective.

    It’s like when hiring for an NFL team. NFL owners don’t actually care how fast you can run the 40 as an objective matter. If the average time in the 40 for an NFL running back was 7.5 seconds, a guy who ran a 6.0 would be a top prospect. And if the average time was 3.0, nobody would look at running back with a 4.5.

    The curve system doesn’t seem to make sense for, say, medicine, because your enemy in medicine is the disease or disorder. There it’s actually an artificial hierarchy. But for law? If your school doesn’t tell me which students were best, I’m just going to have to hire based purely on school reputations. And that means law students will wind up sorting even harder on school reputations, which will reinforce those reputations.

    If you’re a professor at, let’s say, the University of Kentucky College of Law, the only rational reason you should favor pass/fail is you dislike top students, and so want to reduce the number at your school, and handicap the career prospects of the ones who for some reason have to go there. In which case your employer should do their best to get rid of you.

    1. The curve system doesn’t seem to make sense for, say, medicine, because your enemy in medicine is the disease or disorder. There it’s actually an artificial hierarchy.

      Right; that’s why the old joke is, “Q: What do you call the person who finishes last in his class in medical school?
      A: Doctor.”

  10. “COVID-19 affects different students in different manners“
    Shrug. Normal times affects different students in different manners too. Gonna do anything special for the kid flunking out then?

  11. If a student wants to be excused from an exam due to this disease, he or she better be able to show their death certificate.

    “how do I excel when the racism is so thick that I can’t breathe”

    The racism of the Michael Brown grand jury reaching the exact same conclusion ultimately reached by the Obama/Holder justice Department?

  12. If executing Justice requires a Harvard Law Degree, wouldn’t that indicate that the Law is overly complicated and that instead of macho-flashing your credentials shouldn’t you be making Justice available to the common name.

    The US Constitution was debated, written for, and read by the common property owner and 6th grade graduate.

  13. When I attended Stanford Graduate School of Business in the late 1980’s they had a hybrid P/F system. Students received one of 5 grades – H, P+, P, P-, U (unsat), which were exactly equivalent to the normal A-F scale. The benefit of calling it a pass/fail system is that the school did not calculate a GPA, so there was a lot less competition for grades and no back stabbing to get the few H’s at the left end of the curve. If you wanted an H and were willing to work hard, for your own sake, you could (any many students did) depending on your interest in the class subject. You could get put on probation if you got too many P- or U’s. Overall, it worked pretty well and most students were happy with it.

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