Teaching and Learning Law Page Professor Glesner's Home Page
COMPETITION AND THE CURVEProfessor Barbara Glesner Fines
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ARTICLE OUTLINE
I. The Meaning and Uses of Grades
C. Grades as Tools for Motivation and Discipline
II. Fair Game: The Arguments For The Curve
A. The Curve and the Legitimacy of Easy Graders and Hard Graders
B. The Curve as Institutional Equity
III. Institutional Values In Law School Grading
A. The Privileged Values of Competition and Control
B. Underprivileging the Value of Learning
C. Underprivileging Equality & Justice for All
D. Underprivileging Professionalism
IV. A Subversive Guide To Beating The Competition And The Curve
B. Individual Faculty Responses
Introduction
In judging pedagogical issues, most law professors favor their own
experiences as students: the best way to teach is the way they were taught. I
suspect that I am no different in this respect. Unlike most faculty, however, I
was taught without the grading game playing a central role in my education. My
undergraduate education was at a small, public, interdisciplinary, liberal arts
college, with no departments, no majors, no curricular requirements to speak
of, no tests and, most critically, no grades. I loved my education. It stays
with me today. I attribute that retention and enthusiasm to the learning
environment of my college. And I attribute that environment largely to the
absence of competitive grading structures.
I went on to a law school that worked diligently to avoid a
competitive atmosphere--there was no ranking, many academic rewards were distributed
without a primary reliance on grades, and diversity of student opinion and
background were cherished. I finished my student career by obtaining my masters
in law at a law school with no rankings, and the most generalized grading
system one can find in the United States: pass, fail, honors. I believe that
the de-emphasis of grades and ranking in my educational background encouraged,
for most students, creativity of thought, academic integrity, intellectual
enthusiasm, and deep learning.
Naturally, then, I will argue here that law schools rely too much
on grading systems (as opposed to evaluation systems); that requiring
norm-referenced grading undermines an effective learning environment; and that
ranking is wholly counterproductive in a program designed to prepare
individuals to serve justice. I begin with the question: why grades? I conclude
that the primary reasons for our reporting of grades are not educational but
economic: we grade because we need to sort our students for the marketplace. Part
two of the article then examines the arguments and assumptions supporting
institutionalized grading norms as a basis for that sorting. Part three
explores what the choice to rate and rank students reveals about the values law
schools prefer and the values that are discounted. The final section of the
article provides some thoughts on change and resistance. For those readers who
agree with the thesis that the grading practices of most law schools have
profound negative effects, what reforms--institutionally or personally--can
mediate these effects?
I. THE MEANINGS AND USES OF GRADES
The process of
"grading" has two parts. One part consists of the various processes
used to assess students and their work. [1] The second part is the
reporting of a portion of those assessments. An informed discussion of grades
and grading should distinguish the assessment process from the reporting
process. This section of the article will describe these two processes,
particularly as used in legal education, and define grades in this context. The
justifications for "grades" as defined will then be explored.
A. Some Definitions
There are many methods of assessment: from the informal, at times
almost subconscious, evaluations of the preparation and ability of students
based on their oral analysis in class discussions, to the highly structured
critique of a student's written analysis on a final examination or paper.
Unfortunately, law faculty are notorious for limiting their assessment options
to these two extremes. Short quizzes, reaction papers, and the like are not as
common as in many other educational settings. Perhaps the increasing
availability of technological resources, such as e-mail discussion lists and
computer-assisted instruction will change this picture. [2] The purpose of this
article, however, is not to lament once again our barren assessment methods, [3] nor to catalogue
suggestions for improvement.
[4] Nonetheless, we must recognize that often we
employ only a small portion of the available tools for assessment.
Moreover, we report on the outcomes of even fewer of those
assessment tools. Some of our assessments may not be reported to others at all,
but are used to improve our own teaching. Surely all faculty have had the
experience of realizing, after reading a set of exams or listening to student
response to a series of questions in class, that students were hopelessly
confused about a particular concept. Faculty might use this realization, drawn
from the evaluation process, to adjust their teaching of that subject in the
future. Several legal writing instructors reported in a recent e-mail
discussion list that they frequently use their prior year's grading and comment
forms as resources in designing the next year's class, thus clarifying the
criteria for student evaluation and improving the instructor's teaching. [5] How often assessment is used to evaluate
teaching is difficult to discover, since we studiously avoid sharing our
assessments with others for this purpose. Perhaps the only instance in which we
even begin to think about using the assessment of students as a tool for
examining our own (collective) teaching effectiveness is when bar exam results
are unfavorable. [6]
When we do report on our assessments, we may limit our audience to
the students alone. For example, faculty may have students complete a short
exercise to determine whether the students have absorbed a particular concept
or to reveal misunderstandings or confusions. If feedback is provided while the
learning process is still underway, these types of evaluations can communicate
critiques to the student about his or her own learning The "practice
midterm" is an excellent example of a common assessment tool with a
limited reporting range. Again, the extent to which faculty report assessments
for formative purpose is unclear. Likely one would find this type of reporting
most often in first-year classes, as a response to the extreme anxiety of
students, and in "skills" courses, where this formative evaluation is
more traditional.
We rarely refer to this reporting of assessments to internal
audiences as "grading."
Rather, when we speak of "grades," we refer to the reporting of
assessments to outside audiences, such as academic administrators, employers,
parents or those who provide financial assistance to students. Just as there
are a variety of assessment systems, so those assessments can be reported out
in a multitude of formats: pass/fail, contracted grading, multiple marks to
reflect performance on a variety of measures within one class, narrative
evaluations, or dossiers. [7] Yet if the range of
assessment tools used by law schools is narrow, the range of reporting systems
used is even narrower. With few exceptions, law schools use symbolic
codes--numbers, letters, or categories--to report their assessments. [8] In this article, I will
be using the term "grades" to refer to this predominant method of
reporting in law schools--that is, a symbolic code.
With only slight consideration of the broader alternatives for
either assessment or reporting, law faculties debate our grading methods:
normalization methods, numbers versus letters, curves and distributions,
inflation and reliability. We rarely ask, however, "why do we grade at
all?" What would happen if we rid ourselves of these marks? Conventional responses
to this question would assert that grades are necessary to set educational
standards, to motivate and discipline students, and to sort and rank students
for distributing wealth.
B. Grading and "Standards"
In the debate over grading systems in law schools, particularly in
discussions of "grade inflation," one is likely to hear an appeal to
"standards." [9] Anyone proposing that
we abandon grades must address the effect of an ungraded system on standards of
educational quality. The argument favoring grades goes like this: grades are
necessary for establishing and enforcing our standards of quality--without
grades no one, including the students, will know or care about the quality of a
student's education. Notice that
when faculty make these arguments, they are not referring to setting standards
for, or controlling the quality of, their own teaching. Indeed, law schools and
law faculty are especially skeptical of the ability of any numerical system to
accurately reflect the quality of their own institutions [10] or teaching. [11] Rather, the standards are those the individual
faculty set for the students. Grades are then used as a means of communicating
those standards to the students and to the outside world.
This standards argument assumes that, without grades, students and
others will conclude that faculty lack standards of quality. This further assumes,
of course, that grades mean the same thing to everyone: an A is an A and an F
is an F. However, grades have as many meanings as the criteria with which we
test. Different instructors produce grades in different ways, taking into
account different criteria, including comparison to peers, comparison to
evaluative criteria, effort, growth, or behavioral compliance (e.g., tardiness
in assignments or class attendance and participation). The integrity of grades
as tools for communicating standards depends on the clarity with which we
identify and communicate these criteria. [12] In many instances, our criteria may be only
vaguely defined. In other instances we may have clearly defined criteria, but
we may not have communicated those criteria to the students. Even if one is
truly testing against a set of clearly conveyed criteria, however, a symbolic
grade does not communicate those criteria to anyone outside the classroom. In
sum, there are too many variations in teaching and testing to be able to say
that grades have a fixed meaning outside the classroom.
My purpose here is not to say that evaluation systems are
unnecessary or invalid. Clearly one can have standards. Faculty can develop
criteria against which student achievement can be measured. This is by no means
an easy task- some may say impossible. [13] Yet in recent years, law faculties have begun
educating ourselves more about teaching and about our students. Within the past
three years, the American Association of Law Schools has sponsored major
workshops of teaching and learning and endorsed a new section on Academic
Support. [14] The Gonzaga Institute
for Law School Teaching was established to provide support for research and
exchange on pedagogy. [15] These efforts all
attest to increased faculty interest in crafting pedagogically sound
instructional objectives, procedures and evaluations. [16] But developing
specific, assessable instructional objectives for these goals within an entire
course and for each individual lesson is not enough. These objectives and
procedures, once developed, must be communicated to students to create the most
effective environment for learning. Finally, we must tailor our evaluation
methods to match those instructional objectives.
Surely this process
of developing, communicating and then testing criteria would provide for the
competency standards that we may be seeking through grades. However, that
criteria-referenced evaluation systems (i.e. standards) are possible does not
support the additional argument that enforcing those standards requires
translating those evaluations into a single numerical or letter symbol and reporting
that symbol. One could devise a system in which grading is criteria-referenced
and the reporting of assessments would include an explanation of that criteria.
[17] Without this context,
however, single-symbol grades have no meaning in communicating standards. [18]
Another strand of
the standards argument posits that grades are necessary, not to prove that we
have (undefined) standards or to communicate those standards, but rather to motivate
students to meet those standards. The merits of this argument require careful
scrutiny. As the next section of this article points out, arguments about
student motivation are often grounded on generalities, ill-supported by any
evidence. Given the observational standpoint of most faculty, however, these
fallacies often go undetected. Since grades worked for most faculty, we assume
they work for our students and are wont to blame the students, rather than
ourselves, for failures.
C. Grades as Tools for Motivation and Discipline
Even if we
acknowledge that grades do not serve as a benchmark of quality with clear
meaning, they do operate as a powerful incentive. Grades are the basis for
distributing a multitude of rewards and punishments. [19] Students use grades to define themselves in
positive or negative fashion, as in "I am a B student." [20] Many faculty would
assert that, without grades, students won't work.
A pure behavioralist
model tells us that individuals will respond to reinforcement. That
reinforcement model is the basis for the argument that grades are required to
motivate student learning. [21] Reinforcement however
can come from a variety of sources. Educators and motivation theorists
differentiate sharply between extrinsic and intrinsic rewards as motivational
tools. [22] Those who argue that
grades are necessary base their position on the power of extrinsic rewards.
The question is not
whether grades induce learning:clearly they do. Indeed grades may be one of the
most efficient methods to induce learning behaviors. "[E]xtrinsic
inducements always work more quickly and powerfully than intrinsic ones.
Students can be motivated to learn almost anything if promised a sufficiently
attractive external reward." [23] The question is, rather, whether intrinsic
rewards could provide a sufficiently powerful motivation that we could
effectively dispense with grades. Study after study confirms that grades are
not necessary to motivate learning. [24]
Faculty members who
have taught a pass/fail course in a school in which marks are given are likely
to howl in disagreement. Their experience supports the theory that grades are
necessary to motivate students:in pass/fail classes (or for students who elect
a pass/fail option for an otherwise graded class) students simply do not work
as hard as they do in graded courses. The difficulty with relying on these
experiences, however, is that they arise in a context of comparative reward
systems. Extrinsic rewards motivate in a powerful, immediate, and direct
fashion; intrinsic rewards, while equally powerful in the long run, are more
subtle and indirect in their effect. [25] Thus, in a system in
which some classes are rewarded with grades, most students are likely to direct
their efforts toward these classes and away from other, perhaps more
intrinsically rewarding subjects. [26]
Eliminating grades
entirely would do much to create the conditions for encouraging intrinsic
learning motivations. However, other fundamental reforms would likely be
necessary to truly rely on intrinsic reward as the source of motivation for
students. Intrinsic motivation cannot be forced, it can only be encouraged and
supported. Law school structures do not tend to provide the types of
flexibility and student control that would be conducive to this support. [27]
The extreme cynic of
student behavior would say that no amount of restructuring would result in
intrinsic motivation for law students. This view of students characterizes them
as so directed toward extrinsic reward that they have failed to develop any
intrinsic reward systems (such as love of learning or enjoyment of effortful
accomplishment). While individuals do vary in the degree to which their
orientations are toward intrinsic or extrinsic reward, it is an
over-simplification to suggest that individuals are exclusively oriented in one direction in all situations. [28] Nonetheless, as a
society, we may have so firmly entrenched anti-intellectualism, with its
message that one learns only for reward, [29] that encouraging learning for its own sake may
indeed be quite difficult. In its very cynicism, however, this most extreme
argument--that students simply will not learn at all without grades--is self-defeating.
For if we have truly arrived at this dismal state of anti-intellectualism, the
solutions are not to be found in grading systems but in massive cultural
change. "No curricular overhaul, no instructional innovation, no change in
school organization, no toughening of standards, no rethinking of teacher
training or compensation will succeed if students do not come to school
interested in, and committed to, learning." [30]
Even if one takes
the more moderate position that grades, while not fundamentally necessary to
learning, are simply more effective and efficient in motivating students in an
environment of formal education, the argument for grades is not settled. It is
not enough to say that grades motivate students to learn. To adequately justify
the use of grades on the basis of motivation, we must say that grades motivate
students to learn effectively and that they motivate more than they discourage.
Yet both of these conclusions are difficult to support.
First, a wide
variety of studies reveal the irony that success (as measured by citation
frequency for scholars, salary for business people, and grades for students) is
inversely correlated with extrinsic (comparative) orientations. [31] The highest achievers
according to traditional measures of success are those who are least motivated
by these extrinsic rewards. [32] For those who are
motivated by extrinsic reward, the primary motivation that grades provide is
the motivation to get good grades. That motivation is not necessarily the same
as the motivation to learn. [33] When one is learning to
get a grade, the focus is on strategies for short-term learning, and on finding
shortcuts to success. Research indicates that this approach to study is
unlikely to be effective in creating long-term learning, that it undermines
intrinsic interest in learning, and that it leads to reduced effort overall. [34] Thus, to the extent we create an academic
climate in which the external reward for learning (i.e. grades) is
overemphasized at the expense of intrinsic reward, we undermine long-term, deep
learning. [35]
Indeed, for many students the presence of powerful extrinsic
rewards can be a significant disincentive to truly effective learning. [36] As this article will demonstrate in section
III, this negative motivational impact is not distributed equally among
students. Some are discouraged more profoundly by these strong external reward
structures than others.
Even if we wish to
dismiss these conclusions and insist that extrinsic rewards are necessary, it
does not follow that grades are the necessary reward. In law schools, there are
always extrinsic rewards--the credential and the competitive advantage in
practice of having a sound education. There are external threats as well-- the
bar exam, discipline and malpractice. Thus, we could conclude that these less
immediate extrinsic rewards could be used along with more subtle intrinsic
rewards to achieve an effective learning result even without reporting grades.
But how, one might ask, would we be able judge the relative abilities of
students if we would adopt such a system? Let us turn to this final
justification for grades.
D. Grades and Sorting
If we can conclude
that grades are unnecessary, even counterproductive, for the purposes of communicating
and enforcing educational standards, or for motivating and disciplining
students, are there any additional reasons to use grades? Yes, answers legal
education, we need grades to screen, sort and rank students on a comparative
basis. This sorting serves a number of purposes. Some screening is needed for
basic administrative functions. Do students get credit for a course or need
they repeat the class? Have students met our minimum requisites for graduation?
Of course, these administrative functions rarely require a sorting beyond that
of pass or fail.
In addition to basic
credentialing, however, a great deal of wealth is distributed based on our
grade currency. [37] Financial aid may be
based on maintaining or achieving a particular grade average. Law review
membership and many of the other academic awards are distributed only to the
top percentage of the class, determined by rank. [38] If we did not sort students, how would we be
able to distribute these awards? Even if we decided that within our
institutions we could eliminate some honors or distribute them on a basis other
than cumulative grade point average (GPA) and rank in class, we would lose a
competitive edge in obtaining benefits for our strongest students.
Increasingly, financial aid opportunities are distributed based on GPA or rank.
[39] Employment
opportunities too would be lost for our students were we to eliminate grades,
or even the ranking of students. Since the most elite (large firm) employers
generally screen applicants based on their rank, eliminating ranking would
disadvantage our students vis a vis comparable schools that continue to provide
this efficient screening mechanism for employers [40] unless, of course, the school itself is ranked
high enough to give a competitive edge to all its graduates even without ranks.
Certainly eliminating grades entirely would be a risky proposition for law
school placement programs.[41]
Accordingly, there
are very powerful arguments that law schools need grades and sorting in order
for their students to remain competitive. [42] This competitive edge for our students
translates into a competitive edge for our institutions. We gain institutional
prestige by attracting students with high numerical credentials and by placing
those students in elite settings. We may even assume that this placement will
reap direct rewards of stronger financial support from our alumni. [43] Given the increasing
reliance of even public law schools on private funding by large firms, one
could argue that, in a sense, the very survival of a law school could hinge on
its ability to sort students. [44]
There is a less
direct way in which evaluating and sorting students on the basis of comparative
grades may be seen as critical to the competitive edge of law schools. Sorting
students is a very efficient method of grading. Proceeding under the assumption
that our purpose is simply to sort students according to their performance (or,
even less demanding of our teaching, according to their ability), we need not
concern ourselves with criteria or with teaching to that criteria. Moreover,
the effect of creating a system of competitive credentialing for external
markets is to "redirect conflict from hierarchical to lateral lines. Thus
students compete[] against one another but never collectively challenge[]
teachers or departments over the validity of their evaluative tasks as measures
of knowledge." [45] Without a need to
articulate, justify or coordinate our grading criteria, we have considerably
more time and resources for activities that are more likely to increase our
institutional prestige (the production and dissemination of scholarship) or our
individual financial reward (consulting). [46] I hate to mire myself in the cynicism that says
that we are simply paying students in the currency of credentials for their
participation in a system designed to justify our power. [47] Yet one must consider that there may be very
fundamental conflicts in the life of academic lawyers that impact their
day-to-day choices in carrying out their roles. As our colleagues in the
academy have observed:
Legal academics are, like other professional
groups, "jealous of our prerogatives, comfortable with the way things are,
and intensely conservative about matters as central to our selfhood as what and
how we teach .... We are threatened by discussions of values, by messy human
emotions, by personal involvement with students or clients ...." And we
have managed to create a structure that maximizes our autonomy and keeps
messiness at bay. [48]
II. FAIR GAME: THE ARGUMENTS FOR THE CURVE
Concluding that we
need grades to sort students and that we need to sort students to be
competitive, faculty next must consider whether the grading decision should be
constrained by institutional policies. The approaches law schools take to these
institutional grading policies can be readily categorized. Schools differ
according to the range of symbols they provide for grading, the presence of
ranking, and the approaches to constraining grading decisions. This article
will not consider those few institutions that simply do not provide grades for
sorting purposes. These schools can be found almost entirely at the most elite
end of the spectrum, where, one assumes, they have concluded that ranking and
sorting is unnecessary and even counterproductive to their competitiveness. [49] Of the rest of the
schools, most do use symbolic grades, translate those grades into a GPA, and
then use that number to calculate a rank. [50] Even those schools who do not officially rank
students often provide charts with distributions of grades according to
percentages, allowing at least a percentile ranking. [51] Further, most schools have taken the additional
step of requiring faculty to apply some standardized mean or curve in awarding those
grades. [52] The arguments for
normalization assume the necessity of grades, concede that different faculty
grade differently, and conclude that a curve is necessary.
A. The Curve and the Legitimacy of Easy Graders and Hard Graders
Advocates of
required grade curves argue that these curves are necessary to insure
consistency in grading, and thus equity in the ranking process. Some of these
arguments about equity contain hidden judgments about the greater validity of
norm-referenced versus criteria-referenced systems. When we hear arguments
about grade normalization or required curves, we often hear reference to
distributing the inequity of "easy graders" or "hard
graders." These labels are extremely value-laden and unpacking their
content may be useful to our discussion of the reasons for requiring grading
curves and normalization systems.
The characterization
"easy grader" may be used to communicate a message that the
instructor is either dishonest or incompetent. The view of easy grader as
dishonest posits that faculty whose grades are consistently higher than the
norm, regardless of the rigor of teaching or testing, are awarding grades on an
illegitimate basis:to avoid the more difficult task of differentiating students,
to curry student favor, to increase enrollments in their classes, or to improve
student evaluations of their teaching. This may indeed be accurate for some
faculty. For example, if faculty are rewarded for good student evaluations, and
if one can, by the simple expedient of giving out plenty of high grades,
increase those evaluations, the temptation is great to exercise grading
discretion in that direction.
While most research
shows a connection between student ratings of teaching and overall teaching
effectiveness, [53] many faculty perceive
that students also evaluate teaching based, in part, on the student's
prediction of the strictness or leniency of a faculty member's grades. [54] There is some research
confirming this perception. The more certainty with which a student can predict
his or her grade, the more likely that expected grade might impact their
evaluation of the instructor. [55] Thus, for example, research confirms the
suspicion of legal writing instructors that their early and frequent evaluation
of students impacts their teaching evaluations more directly and negatively in
comparison to their colleagues who do not distribute grades until after student
evaluations are completed. [56] The existence of these
perceived incentives to provide high grades creates the suspicion that easy
graders are indeed succumbing to the temptations of academic dishonesty.
Not all uses of the
term "easy grader" connote dishonesty. An alternative
characterization implied by the term is incompetency. The easy grader is
incompetent in teaching to the extent that the substantive demands on the
students are inadequate. This characterization rests on the notion that, in
order for many students to receive high grades in a class, the faculty member
must have set standards for a course too low, eliminating challenge and
learning. Alternatively, the faculty member may be lazy or incompetent in
devising examinations that are not sufficient discerning of student ability.
This position contains an entire set of assumptions about teaching, learning
and testing. One assumption is thatstudents have significantly different innate
abilities and that the distribution of those varying abilities is consistent
across categories:that is, once a 'D' student, always a 'D' student. A second
assumption is that ability determines achievement. A third assumption is that
no amount of teaching can change either ability or achievement. [57] If one accepts these
assumptions, one must conclude that grades, measuring either ability or
achievement, will reflect that "natural distribution" and that
instructors who fail to recognize this fact of life are being unfair to those
students with higher ability and are fooling no one except themselves. These
assumptions are entrenched even further by those normalization systems that
assign the first-year students to classes according to numerical predictors,
that allow for exceptions to the curve based on past grade achievements by the
students in the class, or that adjust the rank value of a grade achieved in a
course based on the GPA of other students in the course. [58]
The assumptions are
poorly supported by empirical evidence, however. Grades are poor indications of
ability. [59] Likewise, ability is
only one of several factors that correlate with grades, others being student
motivation, instructor ability and motivation, and course objectives and
organization. [60] One study for example
found that only one quarter of the variance in achievement could be accounted
for by cognitive ability. That study concluded "in stressful situations,
therefore, non-cognitive intrapersonal variables may become predominant
determinants of learning, irrespective of actual ability levels." [61] Furthermore, even when
ability is a factor, evidence seems to demonstrate that as the conditions of
teaching improve, differences in ability fade in importance in predicting
grades. [62] "Modern research
has shown that the seemingly direct relationship between aptitude or intelligence
and school achievement depends upon instructional conditions, not a probability
curve. When the instructional quality is high and well matched to students'
learning needs, the magnitude of this relationship diminishes drastically and
approaches zero." [63]
Thus, there is a
third, more positive, view of easy graders: that the easy grader is one whose
teaching and assessment methods have validity and whose students achieve at a
high level because of that teaching. Understandably, just as those faculty who
perceive leniency in grading as negative are unwilling to make these assertions
directly, lenient graders are unwilling to claim the superiority of their
teaching relative to their colleagues. Rather, in the debate over institutional
grading policies, faculty often simply allude vaguely to the "easy
graders" in our institutions. To unpack these arguments is to involve
ourselves in evaluating the honesty and competence of each other's teaching,
testing and grading.
The hard grader too
can be criticized as either incompetent or dishonest. Whereas the easy grader's
incompetency is in the substantive arena, the hard grader's incompetence is in
teaching methodology. Since the instructor is unable to translate his or her expertise
to a novice level of communication, students are unable to demonstrate any
mastery. Alternatively, these faculty have set unrealistic standards for their
students. Disdainful of the judgment of their colleagues, with a distinct
antipathy toward the careerism of today's law schools, they are still operating
in the "look to your right, look to your left" days of open
admissions and high attrition; they do not recognize the high caliber of
admittees today. Or they are dishonest. Heedless of student criticism--or
perhaps happy to keep their class enrollments low so that they will have fewer
teaching demands--they delight in the ego satisfaction of demonstrating their
superiority over their students.
Of course, there is
another view. These faculty may indeed be operating on good faith
determinations that high standards of quality can and must be maintained
through the grading process. With an increasing supply of lawyers and an
increasing criticism of their abilities--the call for greater rigor and higher
standards is not without support. [64] One might surmise, for example, that hard
graders are simply more aware of the standards of practice in the bar and
consider their fundamental role as a gatekeeper to the profession. [65] Moreover, some subjects
may be more intrinsically difficult than others, so that student achievement
will be lower. Once again, however, we are unwilling to detail these arguments,
since to do so is to rank ourselves and our teaching against that of our
colleagues.
While the terms
"easy grader" and "hard grader" often carry pejorative
connotations, the legitimacy of strict bell-curve graders is rarely questioned.
In part, this may be because faculty are unwilling to accept that criteria can
be legitimately developed and applied for the purposes of assessing grades. For
criteria-referenced graders to win the day, they must demonstrate that
legitimate standards can and do exist. It is much easier to prove the
proposition that all students are created unequal--thus providing the
legitimacy of curve grading--than that one has developed a set of criteria for
grading that has integrity. We can prove differences among students more easily
than we can demonstrate the validity of assessment criteria.
Yet the argument is
self-defeating. If we critique the criteria-referenced graders on the basis
that there is no legitimate way to evaluate and mark against a standard, we have
also conceded that our ranking of students one against each other is untenable.
For relative performance still must be measured against some benchmark. Student
A is better than student B at what? The insistence of curved grades accepts as
a legitimate benchmark only those criteria that allow students to be sorted. It
says nothing about the appropriateness of using one set of criteria over
another or of the relationship between the grades resulting from these criteria
and the overall learning goals we may have set for students. In the curve
approach to grading, the student group sets the standards for performance, not
the instructor. Any claims of educational superiority for the curved-grade
standards are just as suspect as the claims of easy or hard graders for the
superiority of their grading methods. As one educational critic has suggested,
"it is not a symbol of rigor to have grades fall into a 'normal'
distribution; rather, it is a symbol of failure-- failure to teach well, to
test well, and to have any influence at all on the intellectual lives of
students." [66]
Justifications for
institutional grading policies can mask some very potent judgments about
ourselves and each other:unspoken judgments about the honesty or competency of
our colleagues, or judgments about the arbitrary nature of grading in general.
Required norm-referenced grading is a politically acceptable but logically
unresponsive solution to the problems identified in these judgments. The
solution to arbitrary grading, to incompetence and to dishonesty, is not to
distribute the arbitrariness, incompetence or dishonesty. In some of the
arguments over grade normalization I feel as though we have devised a system in
which we distribute wealth to those who are struck by lightening and are simply
arguing about whether we should give everyone an equal chance to stand under a
tree.
B. The Curve as Institutional Equity
If the political
reality is such that we regard our sorting process as a critical institutional
function, then even if we recognize that lenient or strict graders may have
perfectly legitimate reasons for their grading practices, we may nonetheless
conclude that those grading practices should be constrained. Institutional
grading policies often are justified as necessary to even out differences among
faculty in grading practices. [67] These policies are grounded in a distributive
justice rationale--given that faculty differ significantly in their grading
practices, and given that the rewards and punishments allotted to students may
be profoundly affected by the chance of their assignment to particular
professors, normalization policies are required to achieve equity. While we are
perfectly willing to allow individual faculty members the freedom and power to
teach and assess according to whatever approach they please (assuming minimal
competence), we are unwilling to grant individual faculty the ability to
control the external distribution of rewards.
Both hard graders and
easy graders distort the competitive process. [68] Consider the effect of
those graders who give more than their "share" of very high grades.
Schools may justify required grade means or distributions on the basis of the
need to control these lenient graders. Particularly in those schools where
labor market and academic rewards are especially limited, one member of the
faculty should not have disproportionate control over the currency that grades
represent. Indeed, it is unfair if a student's chance of being chosen for Law
Review or for an interview with the elite corporate firm is based on the chance
of being assigned to one particular professor rather than on merit.
Likewise graders who
give an inordinate number of substandard grades distort the competitive
process. The likelihood of a student graduating (or graduating on time) can be
determined by the random chance of their assignment to these hard graders.
Moreover, in the intra-institutional competitions for placement of our
graduates, these strict graders have an impact. If the student who graduates at
the twenty-fifth percentile from hard grader's school has only a 3.5 GPA, one
can surmise that she will be competitively disadvantaged over the student from
a competing school with the same rank in class but a higher GPA.
Educators recognize
the power of these extreme, even if principled, grades in the competitive
reward structures of education and the employment market.
[A] zero has a profound effect when combined with
the practice of averaging. Students who receive a single zero have little
chance of success because such an extreme score skews the average. That is why,
for example, Olympic events such as gymnastics and ice skating eliminate the
highest and lowest scores; otherwise, one judge could control the entire
competition simply by giving extreme scores. [69]
If our primary justification for institutional grading policies is
to insure that the competitive process of sorting our students should operate
without this distorting impact of extreme grades, then we should craft our
normalization policies to reflect this purpose.
Often, the limited
application of many normalization policies and the variety of exceptions
allowed undermine the equity goal. For example, one of the most widely used
institutional grading policies [70]--required mean grades--is unlikely to achieve
our goal of constraining extreme grading. If all that a grading policy requires
is a "B" average for example, Professor Bunch can give very few A and
F grades, while Professor Spread can award a significant percentage of extreme
grades and still achieve the required mean. Since the unfairness of faculty
grading is felt most acutely at the extremes of the grade curve, policies
should require fairly rigid distributions of grades. [71] Otherwise, the unfair extremes in grading and
the distortions based on assignment to one or another professor will still
occur. Moreover, these policies should apply most strictly in those courses
where students are subject to the "chance" factor and where grades
are most likely to impact the distribution of reward. Consistent with this
rationale, most schools do apply these policies more strictly to first-year or
required courses. [72] The greater the equity
we desire to create in these systems, the more rigidly we must craft our
normalization policies.
Accordingly, if a
grading policy is justified by providing an equal playing field, one must be
careful in evaluating the impact of any exceptions to the policies. Many
schools create exceptions for small classes, seminars, or courses in which
exams are not the primary grade determinant. These "seminar
exceptions" may be based on two rather divergent rationales:one relies on
the randomness of ability, the other relies on the educational effectiveness of
these classes. The first rationale exempts small classes from a curve because
these classes do not provide a statistically significant sample--there is less
likely to be a random distribution of ability in these classes, so we cannot
expect a curve to result. Even if there is a random distribution of ability,
many seminar classes allow such a degree of flexibility in the products by
which students are measured (e.g. seminar papers) that we do not trust our
ability to adequately differentiate student ability in these settings. The
operative assumption here is that the purpose of law school is to test the
ability of students to perform rather than to teach the students to perform
ably. [73]
However, given that
these seminar exceptions usually do not completely eliminate the requirement of
a curve, but rather increase the required means or broaden the distribution
requirements, another rationale seems equally likely. This rationale accepts
the legitimacy of higher grades when instructional effectiveness is higher. The
rationale is well supported by educational literature. Students do truly learn
better in smaller rather than larger classes. [74] Students do learn better when they have more
formative evaluation (such as rough drafts, practice arguments, etc.) [75] Students do learn
better when they have the ability to choose their topic of study (as is often
the case in seminars). [76]
Despite the educational
justification for these exceptions, we have undercut the equity rationale if we
do not insure that the access to these seminar classes is not also equally
distributed. Otherwise, that ability of students to shop for grades (or even to
shop for education) will be based on factors irrelevant to merit: their
flexibility in scheduling, their savvy in understanding the enrollment process,
or their luck in the course lottery. We may conclude that some chance is
inevitable and we will simply choose to tolerate this degree of inequity rather
than undercut the educational effectiveness of allowing reward to follow
achievement in these small classes. A good indication of prioritization of the
value of equity against the value of merit would come in the proposal to teach
one portion of a first-year class in these seminar class formats. Would we
allow an exception to apply here? [77]
Another inequity
could be created by the distribution of students in classes. Again, assuming that
ability is one immutable characteristic, randomly distributed among students, [78] our required means and
distributions would be unfair if students are not evenly distributed by ability
in classes. Thus, some institutions attempt to even out this inequality by
assigning students to first-year classes to insure an even distribution of
their admissions numbers. [79] Likewise, exceptions to
grading policies in upper-level classes may be adjusted to reflect an unusual
distribution of ability in the class, usually to be measured by the GPA of the
students in the class. [80] The difficulty with
this extreme effort to achieve "equity" is that, not only does it
assume teaching can have no effect on performance, it also oversimplifies the
concept of "ability." Current mind-brain research reveals that
individuals who have a variety of abilities and strengths in one area do not
necessarily have equal strength in another area. [81] While it may be that law school is indeed
focussing on only one narrow range of these abilities, it seems equally
plausible that different classes may call upon students to demonstrate (or
develop) different abilities. [82] Relying on past grades to predict performance
(and to control grade allocations in future classes) is unfair to those
students whose greater abilities are not tested or revealed (or developed)
until later in the educational process. [83]
Thus, we must be
careful when we approach the equity rationale for our institutional grading
policies. Obviously we cannot entirely eliminate inequity in our sorting
processes. Some students will have an advantage over others based on the chance
of their available resources and competing demands when entering law school.
Some will have the chance advantage of a better match of professor to their
learning style. We seek to eliminate the inequities of chance resulting from
our own control over the educational process--the assignment to classes and
professors. But we cannot eliminate even this inequity entirely without
creating the inequity of students not being able to receive the rewards they
deserve based on their effort and achievement. How much inequity will we
tolerate? What reasons will we give for tolerating this inequity? In answering
these questions, we privilege certain roles and values in our educational
process over others.
The choice to retain
grades, and especially to retain a system of ranking, is justified best by our
role in sorting students for the distribution of wealth. Other educational
justifications-- setting and maintaining standards or motivating learning--are
less defensible. The choice to require means and distributions of these grades
is best justified by a concern for fairness in that sorting function. What do
these choices reveal about our priorities as educational institutions? Section
two of the article examines some of these conflicting priorities.
III. INSTITUTIONAL VALUES IN LAW SCHOOL GRADING
How an institution
grades says a lot about what it values. [84] Further, what a school values is determined in
part by the values of the society in which it operates. Educational
institutions are "socially constituted relevance systems, reflecting and
amplifying larger sets of social and cultural values in the emphases they give
to kinds or ways of knowing." [85] Thus, one can view our priorities in grading
systems as a subset of the values of the larger society. In the grading debate,
the competing values include individualism and collectivism, competition and
cooperation. "Regular swings in the number and nature of grading systems
seems to correspond to larger swings in societal concern for standards,
accountability, and the ranking of people on the one hand, and individual
growth and group consensus and support on the other." [86] This section of the article
will demonstrate that an institution's choice to retain symbolic grade
reporting systems, to emphasize grades through ranking, and to enforce the use
of ranking through normalization efforts has the effect of privileging the
values of competition and control. These same choices underprivilege other
values:learning, equality, and professionalism.
A. The Privileged Values of Competition and Control
Critics have
identified some implicit values served by legal education, such as hierarchy, [87] patriarchy, [88] or the adversary ethic.
[89] When we choose to award
grades for the purposes of ranking students, especially when that ranking is
required by a normalization policy, we further entrench the value of a
competitive, hierarchical system. [90] In part, law schools are simply reflecting the
greater society's values. From our economic and labor policies to our selection
of public officials, from the boardroom to the ballfield, our society has
prized a system for distributing wealth based on winning a battle, contest or
game. [91]
Education is no
exception:"competitive" has become a synonym for "high
quality" in our description of educational institutions. As with American
education generally, competitive learning is the norm within most law schools.
So ingrained into our education system is the norm of competitive learning,
that "most teachers misunderstand the very word cooperation; they use it
to refer to obedience .... We have another word for genuine cooperative
effort:it is cheating." [92] Yet law schools are also powerful cultural
agents themselves, amplifying these values as they distribute greater power and
prestige to those who achieve the most under these competitive conditions.
Grade normalization
policies do create and intensify a competitive atmosphere in education. If a
student asks a professor "How do I earn an A in this class?" a
professor operating under a policy of required means and distributions cannot
simply describe the criteria of a good exam answer. For a student in such a
class, fulfilling each of these criteria--no matter how specific, objective or
verifiable they may be--is neither necessary nor sufficient. The truly honest
answer is "Do more and better than 90% of your classmates in the exam
answer." Students need not perceive the niceties of the distribution
scheme to be aware of its operation. The shuffling of social order that occurs
after the first semester of law school is evidence that students are acutely
aware of their relative standing and are measuring themselves and others
according to that standing.
Some would argue that law schools are not encouraging competition
through our grading systems, but are simply meeting consumer expectations. This
argument posits that law students are highly competitive and would sort
themselves in a hierarchical fashion regardless of the grading systems used.
Thus, one could conclude that we should grade students on a curve and rank them
based on grades because this is what they expect. It may be that students who
choose law as a career are more competitive by nature than others in society.
It may even be that students expect (some may even desire) competition. Neither
of those premises, however, undermines the position that we are exacerbating
competition by meeting this presumed expectation. Educational institutions can
be agents of cultural change; yet law schools, with rare exceptions, have not
chosen to resist the cultural norms of competitive ranking.
This comparative
evaluation process serves an important function in a competitive, meritocratic
society. As one educational researcher has commented:
[Schools] may promote the notion that
competition is, if not the only way people can live, at least the best way.
Acceptance of such a system would induce students who doubt their competence to
accept their lowly place or, at least, to opt out and not challenge the system.
Academic anxiety, unrealistic levels of aspiration, and academic alienation
would be seen as necessary aspects of the process whereby students of low
attainment come to accept their place in the "natural order." In
turn, alienation, lack of effort, and pursuit of nonacademic goals might, in
the eyes of students and teachers, further justify low status and restricted
freedom and responsibility. [93]
If students judge their own abilities and opportunities based on
their relative ranking on academic tests, they are prepared to accept and
maintain a society that values competition as a basis for distributing wealth
and a society in which the terms of the competition are set by those who have
won in the past.
The competition in
law schools is controlled by winners--legal academics are, by and large, top
ten-percenters from top ten-percent schools. [94] By virtue of our achievements, we take control
of the educational process as resident experts and judges. [95] We recognize that our
control of academic programs can be an underlying cause of inequity:our
justifications for required means and distributions are based on principles of
equity in the competition for distributing grade wealth. Law school grade
normalization practices make it clear that the inequity sought to be alleviated
is that which results from the "chance" assignment to an instructor
with extreme grading practices. That chance is the result of the lack of
student control over the terms of the competition. We rarely question this
allocation of control. While the rules of professional conduct emphasize the
importance of sharing control in the lawyer-client relationship, [96] the teacher-student
relationship in law schools is one in which the teacher is clearly in charge.
Some see this
control as domination. Dean Roger Abrams' recent characterization of legal
education reflects this view:
We select the best, the brightest, and the most
interesting and diverse group of students (even in an era of declining
applications), and then we proceed to transmute this gold into straw, a reverse
alchemic process. Students learn from their professors that success flows from
elitist bullying and from the obnoxious exercise of arbitrary power. Nurturing
is not part of the educational process. Respect is a one-way street. [97]
Many faculty would
take the more moderate position that gross authoritarianism is on the wane in
law schools and there is an increasing place for nurturing in teaching.
Nonetheless, in the place that our control counts economically--grades--we
still exercise near absolute control. We consider "grade shopping" an
evil, we limit pass/fail options, and we restrict grade appeal processes or
"second chances" to the most extreme cases. We could, however,
reconsider these and many other aspects of student control over the grading
process.
Just as the proponents
of a participatory model of the attorney-client relationship emphasize the
value of individual autonomy, [98] so too autonomy would be advanced by greater
student control in legal education. Greater participation by students in
setting the terms of the competition could have significant educational
benefits for students:encouraging the development of intrinsic orientations
toward learning, [99] encouraging greater
personal responsibility, and reducing counterproductive anxiety. [100]
Any time that
educational policies encourage faculty to move from "sage on the stage" to "guide on the
side" protests arise that faculty control is necessary to insure
effective, challenging education. [101] But lowered standards or minimal expectations
need not result from a respectful and supportive relationship with students.
Indeed such a relationship is crucial to student willingness to engage themselves
in dialogue. Thinking skills can most effectively be developed in the classroom
by creating "a stress-free, cooperative classroom condition where
experimental ideas can be risked, alternative hypotheses explored, and answers
changed with additional data; where value is placed on creative problem-solving
strategies rather than on conformity to 'right' answers." [102] Just as in the
attorney-client context, participatory relationships are not inconsistent with
challenge or effectiveness, they only require a surrender of some control and
an increase in open communication.
Surrendering some control does have some significant political
implications, however. When students are given the power and responsibility to formulate
their own learning tasks, they approach learning with greater flexibility and
creativity and a greater sensitivity to nuance. "It is these aspects of
inquiry that give birth to new social movements and political orientations, and
that are central in the emergence of insight." [103] While we may not intend to stifle these
innovative or iconoclastic approaches to legal thought, the more we control our
student's learning, the more we model conformity. [104]
Our choices of
grading systems not only sustain the values of competition and control, but the
educational research indicates that these values are preferred at the expense
of other equally fundamental values. The more we emphasize the importance of
competitive grading and ranking structures, the more these detrimental effects
will result. We must take care to delineate our observational standpoint when
exploring these negative effects of ranking and competition. The narrow range
of experience with legal education that is represented on law school faculties
can lead to bias in our assessments of educational practices. [105] Those who have had
their own excellence defined in terms of their relative ranking may
"overlook the problems associated with a preoccupation with one's rank in
hierarchy of competence." [106] In learning and
teaching, in equality of learning, and in professionalism, competitive grading
systems do present significant costs.
B. Underprivileging the Value of Learning
While grades are not necessary to teaching and learning, [107] their use strongly
impacts those processes. [108] One of the aspects of grading
that is the most detrimental to teaching and learning is the practice of
required grade curves. "Grading and reporting should always be done in
reference to criteria, never on the curve. Using the normal probability curve
as a basis for assigning grades typically yields greater consistency in grade
distributions from one teacher to the next. The practice, however, is
detrimental to teaching and learning." [109] If students are measured against each other on
a competitive scale, rather than against an objective norm, competitive
learning strategies will predominate. Why are these strategies so inferior in
terms of real learning?
Competitive learning
structures create external motivators (grades and status) rather than internal
motivators (excitement and curiosity). Evenfor the student who is ordinarily
intrinsically motivated in learning, "evaluative, competitive conditions
have been found to diminish intrinsic interest." [110] For the majority of
students, external reward and a competitive environment do not inspire maximum
effort. For the students who see themselves as winners, little additional
effort will be put forth. Indeed, to the extent that one is measuring one's own
ability in reference to others, the less effort required to achieve the same
reward as others, the better. For if one puts forth significant effort, that
implies lesser ability than one who accomplishes the same amount through lesser
effort. Winning requires, not only achieving the most, but making it look easy.
[111] Notice that if
intrinsic motivation is at work, the opposite effect on effort will be seen.
When one is focused on the task ("learning for learning's sake")
satisfaction comes not only from the end result (accomplishment) but also from
the process of achieving that result (effort). [112] Extrinsic and intrinsic orientations are, in
most learning situations, mutually exclusive. [113]
In the tasks chosen,
as well as the effort expended, extrinsic orientations tend to undermine
learning. "[An intrinsic orientation] appears likely to foster sensitivity
to problems ... and to favor the selection of tasks that might require high
effort rather than those that might quickly enhance one's image." [114] Thus, while proponents
of grade normalization policies argue that the equalizing effect of these
policies reduce the incentives of students to "grade shop," the
overall effect of these policies-- by emphasizing a competitive ranking--is to
create these very incentives. Competitive students may no longer be shopping
for the "easy graders" but they are quite likely to shop for the
courses to which the normalization policies do not apply or to arrange their
schedules with a percentage of pass/fail credits so as maximize their
investment in and chances for beating the curve in their graded classes. [115]
For students who have
resigned themselves to being losers ("I'm a C student"), the impact
of competitive conditions on motivation is even more pronounced. [116] While grades may in
some instances act as carrots, they rarely function well as sticks. [117] When one has an
extrinsic orientation toward a task, effort will reflect the extent to which
one has assessed his or her relative ability to achieve well on the task. For
most students, grading practices of law schools undermine perceptions of
ability, with a detrimental impact on task choice and effort.
Low levels of
confidence can affect choice of learning tasks in a variety of ways. Students
may, like others, simply look for the easiest way to their C grade. Or they may
act in seemingly self-defeating ways:overloading class schedules with highly
demanding courses. As a form of self-handicapping, this approach provides
excuses for their expected failure, thus reducing the threat to self-esteem. [118]
Most commonly, an
extrinsic orientation combined with self-doubt leads to a reduction in
involvement overall. [119] When we see students with
lower grades performing poorly, we tend to infer that their poor performance
causes their poor grades. In fact, the opposite causality may be operating.
Students whose grades are disappointing to them--not even inherently
"bad" grades-- are not necessarily motivated to challenge themselves
more or work harder. Rather they are more often found to withdraw. [120] We may associate this
withdrawal with our curriculum or the lure of clerking jobs. We may even
conclude that these students have simply chosen to invest their resources
elsewhere. Indeed, third-year "malaise" may be read as evidence that
grades are all that motivate students (i.e., since the rewards are all
distributed by that point, student no longer have motivation). [121] However, this
phenomenon may reveal an even more fundamental flaw in our use of grades to
motivate learning:that is, that withdrawal from learning is the disheartening
result of the very process we believe is providing motivation.
For those students
who do compete in earnest, the nature of the effort expended differs from the
effort inspired by an intrinsic motivation. Educational psychologists have
consistently demonstrated that competitive learning gives the poorest results
in educational attainment. [122] Studies of adult
learners indicate that the detrimental results of competitive learning
environments hold true for older students. [123] Competitive learning is directed toward
achieving the highest grade rather than the best understanding. [124] Thus, exam taking
strategies, last minute cramming, and commercial study guides will replace
thoughtful conceptualization and creative problem solving. [125] When a student is
studying a subject for a grade rather than for intrinsic learning, he or she
will more likely cut short their analysis and end their learning when the
perceived reward is likely. [126]
Moreover,
competitive situations tend to lead one to dichotomous thinking. While we
encourage our students to "see both sides of the question", clearly
the superior students are those who can go beyond the either/or of a situation,
and explore a variety of perspectives. [127] The competitive process of learning does not
encourage this creative, more open-textured approach to subjects: creativity
and inefficiency in study approaches pose greater grade risks. In contrast,
cooperative learning situations lead to significantly different motivations and
outcomes in learning than do competitive environments. "[P]eople who feel
accepted by others also feel safe enough to explore problems more freely, take
risks, play with possibilities, and 'benefit from mistakes rather than [endure]
a climate in which mistakes must be hidden in order to avoid ridicule."' [128] Not only does
competition reduce effort and effective learning approaches, it also increases
anxiety, which in itself is a significant inhibitor for learning overall. [129] In many ways, then, the presence of, and
emphasis on, competitive grading has detrimental effects on motivation,
cognition, and resulting learning.
Once again, this
affect is "most pronounced among those who believe, rightly or wrongly,
that they stand little chance of winning." [130] That the adverse effects of competitive grading
structures impacts those who have least confidence in their own abilities is
only one way in which competition undermines equality in learning. The next
section will explore other ways in which we underprivilege this value by
emphasizing ranking.
C. Underprivileging Equality & Justice for All
Ironically, the
major reason law schools cite for adopting grade normalization policies also
provides an important argument for abandoning these policies:fairness. [131] Grade normalization
policies are premised on a theory that, in the competition for grades, it is
unfair to allow the extreme grading patterns of some faculty to skew the
results. However, if the effect of grade normalization policies is to produce
other inequalities in the competition, the goal of fairness is illusory.
"Competition cannot be fair if competing with others itself produces
inequalities." [132] Grade normalization
policies focus attention on and thereby increase the competitive atmosphere of
law school. [133] Educational research
and the testimony of our own students indicate that, for a substantial number
of students, highly competitve learning environments undermine motivation and
increase anxiety and alienation, all of which damage the quality of learning.
As the prior section
outlined, the adverse effects of competitive grading structures impact those
who have the least confidence in their own abilities. In task choice and in the
amount and nature of the effort expended on tasks, those students who doubt
their abilities will make poor choices regarding learning goals and approaches
compared to other students whose confidence is high. [134] One can dismiss this effect by concluding that
those with low confidence have simply assessed their own inability accurately.
If they put forth less effort, there is little harm since greater effort would
not result in greater achievement. The problem with this analysis is that
self-confidence is not an accurate proxy for ability. [135] Rather, confidence is a complex amalgam of
prior experience, personality, and setting. [136]
A student's preferred learning style may be an important factor in
the extent to which competition undermines confidence, motivation, and
achievement. One way to characterize learning styles is as "field
dependent" or "field independent." [137] Field dependent students are those who learn
best when they first have the "big picture" and whose learning is
influenced significantly by their environment. [138] These students are especially influenced by
expressions of confidence or doubt. [139] Competitive grading environments have a
disproportionately negative impact on these students, as they are
overwhelmingly designed to send messages of doubt rather than
confidence:"instead of celebrating the success of learning, a testing
culture emphasizes what was not learned." [140] Our system of equity, then, by creating and
emphasizing the critical role of comparative ranking, undermines the learning
motivation and abilities of field-dependent learners.
This inequality is
perhaps even more troubling when one considers that field-dependent learners
are found more often among Euro-American women and among African-American,
Mexican-American, Puerto Rican and Native American men and women. [141] We have only just begun
to explore the implications of how our learning environments have differential
impacts on those students who represent classes of persons historically
disenfranchised by the legal system and by society. [142] From a number of perspectives, however, one can
see how a learning environment that prizes individualistic competition and
conformity would impede certain groups of students more than others.
Consider the effect
of a competitive environment on women. Studies of women's experience in law
schools reveal, to a greater or lesser extent, that the competitive learning
environment may undermine the learning experience for more women than men. [143] For example, as the
prior section of this article reported, the demotivating effect of competition
is greater for those students who doubt their abilities. More women than men
are prone to self doubt, so the inequality of motivation engendered by
competitive grading environments will disproportionately impact women. [144] In general, research
seems to indicate that "the more competitive an academic program was
perceived by women, the poorer their performance, while the relationships were
in the opposite direction for males." [145] This effect may also be attributable to the
force of socialization into a competitive culture, which may affect more women
than men. Research in the development of ethical systems indicates that more
women than men may have value systems that prefer cooperation over competition.
[146] A student's ability to
learn is likely to be hampered if an educational environment is at odds with
that student's basic values.
Likewise, the
competitive nature of law school may be especially alienating to those students
whose race and culture lead them to value community and cooperation more than
individualistic competition. [147] These law students experience an added sense of
estrangement from the law school community. [148] In turn, this estrangement can promote the
self-doubt that undermines motivation and effective learning. [149] "Although most law
students, regardless of their race, feel a certain level of alienation from law
school, this is likely to be more acute and have clear racial overtones for
African American students, perhaps particularly for African American women, who
are already distrustful of the dominant white culture." [150]
To the extent we
prioritize competition, control, and uniformity in our educational systems, we
need to recognize that we are de-emphasizing equality of learning environments.
One response to this critique may be that we are simply preparing students for
the world of law as it is. If students cannot operate well in a competitive
atmosphere, they will not be able to perform well as lawyers because the
practice of law is competitive. [151] In other words, "if you can't take the
heat, get out of the kitchen." [152] The essentially conservative nature of this
response is revealed if we consider that, while much of law practice may indeed
be competitive, success could be measured by the extent to which one is able to
transform the nature of the system. For example, there is evidence that
practicing lawyers have begun to recognize the high transaction costs
associated with competition and have moved in many arenas to less adversarial
models. [153] Simply because one does
not prefer to operate in a competitive learning environment does not make one
less fit to practice law. Maybe some people are stifled by the kitchen, but
they are also the ones who will find a way to bring in fresh air.
Of course, to the
extent that competitive environments may be beneficial to some students, one
also faces the specter of inequality no matter how the educational program is
structured. "Often, law students are too complex and too variable to be
uniformly affected by any single teaching method. Some students will benefit
academically and some will suffer, on a relative basis, from the use of any
given group strategy." [154] However, the evidence of educational research
at all levels supports the conclusion that, for the vast majority of students,
the more one emphasizes grades and ranking, the more one undermines effective
learning. The equality argument against grade normalization, then, should not
should be heard as one which seeks to lower academic standards in order to
accomodate certain groups of students. Rather, grade normalization policies
should be questioned, not only because they have negative effects on learning,
but also because this negative effect is unevenly distributed.
D. Underprivileging Professionalism
Not only do grade normalization
policies interfere with learning by fostering highly competitive learning
environments, these policies also teach affirmative lessons. In our quest for
equity in grading, we should consider what these lessons might be. One clear
lesson of competitive grading systems is the "do- it-alone rule." [155] Despite the importance
of team work in most professional settings, [156] law schools rarely provide learning experiences
fostering cooperative work. [157] Classroom dialogues often discourage
student-to-student interaction outside our direct control. [158] Opportunities for
students to work on teams are rare outside the context of clinical or skills
settings. [159] Team teaching is even
rarer. [160] The grading systems of
law schools emphasize that the exercise of individual skills in a competitive
setting consititutes competence. [161]
One competency that
all lawyers require is effective interpersonal communication skills. [162] Once again, however, we
find that the competitive norm advanced by our grading systems interferes with
the development of competence. Communication in competitive structures tends to
be "unreliable and impoverished." [163] In contrast, in cooperative learning
environments students listen to one another more carefully and express their
ideas more fully. [164]
The reason for this
interference with interpersonal communication skills can be found in the
attitudinal effects of competitive learning environments. In order to compete effectively,
one must objectify one's opponent--turn them into a rival. Educational
psychologists note that competitive environments decrease the tendency to
exercise and develop empathy and altruism. [165] In some instances, this "battle"
mentality can lead to disturbing stereotyping and group isolation. As one study
of female law students revealed, for example, battle lines may be drawn on the
basis of gender.
[A] student at the Law School, reported that
some of her male colleagues chose their upper-level law school classes based on
the number of women enrolled in each class. Women were perceived as
"Q-absorbing" buffers, with Q ("Qualified") being the
lowest passing grade on formal and informal grading curves. These men assumed
that their own chances of receiving a grade higher than Qualified increased as
the number of women enrolled in the class increased because the women would
absorb a disproportionate number of the Qualified grades. They sarcastically
referred to large groups of women in a class as the "Q quotient." [166]
These implicit lessons have obvious implications for a profession
struggling with issues of civility, respect and the ideal of public service. [167]
At a time when even "successful" lawyers are
increasingly dissatisfied with the practice of law, law schools may want to
consider their contribution to this decline. [168] In studies of lawyer satisfaction, certain consistent
themes reveal themselves. Attorneys say that they do not find an intellectual
challenge in the practice of law and that they have become disenchanted with
the lack of respect from their colleagues. [169] To the extent the competitive learning
environments in law schools undermine intrinsic orientations toward study [170] and encourage
competitive behaviors among peers, they have modelled the very conditions that
are causing attorneys to drop out (or burn out) at higher rates than ever
before. As Albert Einstein once commented:
one should guard against preaching ... success
in the customary sense as the aim of life .... The most important motive for
work in the school and in life is the pleasure in work, pleasure in its result,
and the knowledge of the value of the result to the community .... Such a
psychological foundation alone leads to a joyous desire for the highest
possessions of men, knowledge and artist-like workmanship. [171]
Law schools have a critical role to play in the development of
professional identities of our students. [172] We should be mindful, then, of the implicit
messages created by our systems of assessments and rewards. Emphasizing the
importance of the competitive aspects of law schools emphasizes an extrinsic
orientation toward learning and provides disincentives for developing
professional attitudes toward working with one's peers.
Perhaps the most
worrisome aspect of our choice to emphasize competition is the powerful
incentive to cheat created by that emphasis. In law schools, the competition
for grades can lead to a variety of behaviors designed to gain unfair
advantage:ranging from the subtle undermining of peers by discouraging active
learning [173] or hoarding resources [174] to outright cheating
and plagiarism. [175] Admittedly, the
attitudes and behaviors of some students are not likely to be influenced by the
educational environment. For perhaps sixty percent of our students, however,
the culture of the schools will have an influence on cheating. [176] Nor can we conclude
that cheating is a problem confined to the desparate students whose abilities
do not allow them to succeed. The students most likely to cheat come from all
ends of the educational spectrum. [177] When law schools emphasize the critical role of
ranking and competition in learning, they exacerbate the incentives to cheat.
Once again, then, to the extent that required grade curves and distributions
are justified on the basis of equity in competition, law schools should also
consider that the more competitive the environment created, the greater the
probabilities that students will seek to skew the competition.
IV. A SUBVERSIVE GUIDE TO BEATING THE COMPETITION AND THE CURVE
I have argued that
when law schools choose to impose institutional requirements for grading
curves, they emphasize competition to the detriment of learning, equality and
professionalism. The value of competition is a powerful cultural norm. Faculty
steeped in and, advantaged by that norm, may have difficulty questioning the
fundamental premises of this norm:that competition encourages excellence and
that those who win are those who deserve to win. Indeed faculty may not easily
conceive a measure of merit that is not comparative. Arguments to the contrary,
such as those presented here, seem inflated, counter-intuitive, pollyanna. Yet,
decades of educational research at all levels supports the basic premise that
competitive grading environments can interfere with learning. Our own
experiences as faculty tell us that students use our numerical labels as a
basis for measuring their own worth and that of others. Our own numbers reveal
that the range of abilities of our students has narrowed over the years and the
vast majority truly are all "above average." [178]
Admittedly, a true
meritocracy has significant advantages over alternative methods for
distributing wealth. As one commentator, arguing for traditional grading
systems, commented, "[i]f what you know doesn't count, in the competitions
of life, who you know will determine the outcomes." [179] I do not argue here
that we need strive for or pretend to absolute equality for our students or
eliminate sorting entirely. I do argue, however, that we can balance the
necessary task of sorting students with our equally important task of providing
environments that enhance, rather than diminish, motivation and learning. [180]
In this section of
the article, I preach to the converted. Even if we are inclined to accept the
indictment of competition, political realities press upon us to overlook these
negatives. Law schools are unlikely to eliminate grades, rankings, or required
curves. Yet, we need not conclude that nothing can be done to counteract the
competitive influence of these grading systems. In conclusion, then, I offer
some recommendations for mediating the negatives of competitive ranking at the
institutional and individual level.
A. Institutional Responses
How can law schools
diminish the the negative effects of required grade curves? One way to reduce
the negative effects of competition and to encourage intrinsic motivation
toward learning is to lower the stakes for grades. Each additional reward or
punishment linked to grades fuels competition. At at institutional level, then,
we should question the wisdom of multiplying rewards for students with the very
highest grades. For many of our awards, we could devise additional or
alternative criteria for the selection of prestigious awards (such as law
review membership, scholarships, or honor societies). [181] Of course, the
requirements for many of these rewards, such as honors societies or
scholarships, may be outside of the law school's control.
Nonetheless, were
law schools willing to supplement the rank and GPA information with other,
richer reporting systems, they might influence these outside decisionmakers to
broaden their criteria. Another step toward lowering the stakes, then, would be
to create these richer reporting systems--not to displace the ranking system,
but to supplement it. I will provide one, perhaps idealistic, example:an
optional portfolio assessment program. [182] In such a program, students could choose to
prepare a standardized portfolio, representing their achievements in legal
education. The faculty could, as a whole, set the terms for the type and
quality of materials to be prepared in the portfolio (legal memos, brief,
drafting, analytical essays, videos of interviewing or oral argument, etc.).
Criteria for judging each item could be developed and faculty would agree to
act as a panel of judges for the portfolios. Students could then, in their
various classes, prepare the materials to submit to the panel for judging.
Teachers in these classes would not be on the panel, but would act as
teachers--facilitating the student's learning so as to improve the product to
be judged. The judging panel would not provide extensive commentary or diagnosis:they
would merely determine whether the submission is acceptable or not. If not
acceptable, the student could continue to work with their instructor, and with
others, to improve the product for resubmission.
Consider the learning
advantages of a system that would provide a rich "evaluation product" for students to use in
marketing themselves:no mere writing sample, this, but a group of samples
reflecting the competence of the student, as judged by a group of faculty. Students
would not be competing with one another, since the program is voluntary and
competency based. Students would have significant control over the specific
topics and timing for learning. Of course, such a program would be extremely
expensive. [183] One can imagine that a
significant number of students might opt to participate, creating a large
workload for faculty. Assuming that a faculty is truly interested in improving
the learning environment, however, such an investment would reap rich rewards
for the students. Whether it would be worth the investment for the faculty
would depend on the institution's overall valuing of teaching versus other uses
of faculty resources. More limited investments in richer reporting systems are
available, of course. Faculty need only explore the options and choose to
invest in one or more.
Timing issues could
also affect the competitive atmosphere of a law school. In most law schools,
the heat of competition is felt most by the first-year students, for whom
grades take on critical importance in the allocation of most institutional
rewards. A bold school could delay ranking until the second semester, or even
the second year of law school, could base first-year grades on a pass/fail
system, or could weight the cumulative GPA to give greater emphasis to
upper-level grades. Where grades are used to restrict access to law school
programs, such as Law Review, seminars, or competitions, we should be
especially wary that our academic reward systems do not aggrevate inequality by
providing richer, more effective learning opportunities for some students than
others.
In addition to
lowering the stakes of grades, institutions can work to create environments
that emphasize intrinsic learning by providing exciting and valuable ungraded
programs. These programs can be as simple as lecture series or as complex as
pro bono service requirements or formal attorney mentoring programs. The key
factors in these programs are student choice, relatedness [184] and active involvement.
[185] When students have an
opportunity to interact with faculty, judges, legislators and practicing
attorneys as "near peers," the learning climate changes considerably.
Students focus on long-term learning and intrinsic interest is emphasized.
Finally, law schools
should have institutional programs to enhance the ability of all students to
achieve competence, usually referred to as academic support programs. The
optimal model of such a program would be to integrate academic support across
the curriculum. That is, each faculty member would create learning
environments, in their choice of materials, classroom presentations, and
examination techniques, that recognize the diversity of student values and
learning styles. Each faculty member would be available and committed to
working with individual students to achieve mastery. Again, the investment in
teaching required to establish such a comprehensive program would be signficant.
Less elaborate models are available, however. Well designed academic support
systems can provide greater individual feedback and more flexible learning
opportunities, as well as provide non-cognitive support to students. [186]
B. Individual Faculty Responses
Even assuming that
law school inertia, resources, or culture obstructs creating instituion-wide
offsets against competition, individual faculty can take steps to improve the
learning environment in the face of competition. Just as law school could lower
the stakes for grades, so too faculty should avoid unnecessarily allocating
rewards and punishments to students based on their grades. We need to be
especially sensitive that our behavior toward students--our tone and approach
to classroom interaction or willingness to supervise projects, answer
questions, attend social functions,--is not influenced by knowledge of the
student's rank in the class. [187] Likewise, grades should be used only for
academic assessment:the use of grades to control nonacademic behavior (class
attendance, for example) encourages a grading orientation. [188]
Some faculty may
feel as though spreading the competition over a greater number of exams or
evaluation systems would neutralize the effect of competition. After all, if a
student's grade does not depend on only one final exam, would this not lower
the stakes? While such an approach might indeed reduce student anxiety over
individual exams, it would be unlikely to decrease the orientation toward
grades. Indeed, the more we stress extrinsic rewards (such as a complex system
of credit points or multiplying grading events) the more we encourage a grading
orientation. [189]
We could, however,
give students greater choice and control in the approaches to learning and
evaluation. [190] Competitions can become
more positive, with a greater support for intrinsic orientations, when the
conditions of entry are not controlled solely by others. In the classroom, this
may mean we abandon efforts to force class participation and instead search for
techniques that encourage this participation. [191] In preparing our syllabi and course materials,
we could provide students with alternative assignments and approaches to
mastering the material. In designing evaluation systems, we could foster more
positive competition for grades by giving students greater choice and control
over formats, timing, and even content of exams. [192]
The best steps
individual faculty can take to discourage a grading orientation, however, are
simply to model an intrinsic orientation and to instruct with the expectation
that students are also intrinsically oriented. If we approach our teaching with
an extrinsic motivation, not only will our own performance as teachers suffer,
but we will also provide a poor role model for students. Does our teaching
reflect reluctance to engage with students? Are we excited about guiding
students in their learning? Or does our entire approach to teaching and
students indicate that the amount and nature of our teaching effort depends on
the degree to which it is compatible with external reward structures? If we set
and strive for high goals for teaching effectiveness and craft our own teaching
packages so as to maximize our own enthusiasm in teaching, we will not only
make our jobs more satisfying but we will model the intrinsic orientation
toward learning and professionalism that we would desire in our students. [193]
Enthusiasm for the
subject and respect for the students can make a critical difference in the
effectiveness of teaching. [194] Thus, we should design
our instruction to provide students formative, rather than evaluative,
feedback. This means avoiding graded assignment while students are still
learning and but providing constructive critique and opportunities for
individual work. [195] Classes should not be
structured so that the only time material is reviewed or synthesized is in
preparation for the final exam. The language we use to discuss assignments and
the expectations we convey to students about those assignments will affect
student motivation. While it may be a quick fix to student inattention in class
to say "On the exam, I will require that you ....", to encourage a learning
orientation our language should sound more like "I am looking forward to
hearing your views on the reading for today ...." We should not be
reluctant to provide students with "extra curricular" learning
opportunies in or outside the classroom. While only a few students may follow
up on our guidance for further reading or research on topics, we have provided
an important message about the intrinsic value of learning when we suggest that
students can "read more about it." Overall, we should not allow our
systems of grading to control our systems of teaching or
evaluation:"grading should flow from course objective and instructional
strategies, not vice versa." [196]
Respect for students
includes valuing their diversity. We should review our teaching materials and
methods for unintended biases and monolithic approaches. The increasingly rich
literature devoted to teaching approaches that enhance diversity can be a
powerful source for re-examining our own teaching. [197] However, often the best source for feedback on
our own teaching is right at our door. Since we may often be blind to our own
preferences, improving our teaching to enhance our sensitivity to diversity
issues will generally require that we open our classrooms and textbooks and
invite the scrutiny of our students, colleagues, and others. [198]
Finally, faculty can
encourage a cooperative atmosphere in learning. Creating formal structures for
peer teaching can accomplish this goal. As a method of structuring the standard
curriculum, one may hypothesize that pure peer teaching is rare. [199] The closest equivalent in
curricula may be found in student academic activities such as moot court [200] or law review, [201] where students guide
one another through the competition or article preparation process. It is
difficult to say how much pure peer teaching is structured into the daily
classroom setting. [202] Seminar classes in
which students present papers to one another may be the most common example.
Without a thorough survey of all legal educators regarding all their classes,
however, we cannot know how much peer teaching is structured into courses
themselves.
There are
considerable advantages to structuring our courses to include cooperative
learning devices. [203] Where peers interact in
learning there tends to be both a cognitive and an affective difference in the
approach to the process by both participants. [204] Rather than viewing the relationship as one in
which knowledge is given from teacher to student, the peer learner is more
likely to see the process of working with another peer as a cooperative one in
which both participants are actively learning. [205] Structured opportunities for students to teach
one another can provide significant benefits. For the peer teachers, the
teaching that takes place is cognitively different from that of a faculty
member's teaching. Since the peer has only recently learned (or is currently
learning) the material being taught, the peer teacher is more likely to
consciously think through the steps of the learning process than one who has
greater expertise. [206] The combination of a
greater opportunity for empathy on the part of the peer teacher and a lesser
need for deference from the peer student creates an affective environment in
which the student peers view themselves as partners in a process of learning. [207] Thus, the peer teacher
and learner will engage in a cooperative, active process of constructing
knowledge. [208]
Faculty can begin
structuring cooperative learning opportunities into their courses in some
rather simple steps. The "think, pair and share" strategy is a highly
efficient and effective method of classroom cooperation. In this technique,
students think about the answer to a question in class, then work in pairs to
share the results of their thinking. [209] Likewise, faculty can structure reading and
study assignments to encourage students to work in groups. Faculty may even, to
the extent their institution allows, base all or a portion of final grades on
these cooperative learning tasks. [210]
Of course, I can
only skim some of the approaches to teaching effectiveness that can best
promote learning, equality and professionalism. A plethora of resources exist
for faculty who truly wish to improve their teaching to enhance any one of
these values. Faculty should not delude themselves that there are many
extrinsic rewards in devoting energy to improving the academic climate for
these values, however. However, for those so inclined, the intrinsic rewards of
influencing the development of these values in our students, and thus in
society, are immense.
V. CONCLUSION
This article has
attempted to outline some of the larger questions raised by grading systems in
legal education. Examining the justifications for grades leads one to the
conclusion that we grade our students not so much for educational purposes but
for much the same purpose that we "grade" eggs--to sort a product for
the market. I have assumed that the overwhelming majority of faculty would consider
ranking important to the ability of law schools to maintain their viability and
contribute to the meritocratic system of allocating power in the legal
community. Given that assumption, I agree with those faculty who conclude that
our institutional grading policies constrain the power of individual faculty to
distort the ranking process, though I explore the extent to which these same
policies may also mask more subtle judgments about the propriety of our
colleagues' grading practices.
The focus of this article
is on the other values--beyond fair competition-- that are impacted by our
institutional grading policies. Drawing on educational and cognitive science
research, I have explored the extent to which our competitive grading focus
interferes with effective learning, disadvantages some students, and encourages
unprofessional attitudes and behaviors. Recognizing that, despite these
disadvantages, most law schools will not abandon required grade curves, I then
explore some options to lessen these negative effects. My purpose here is to
exhort more than instruct, however. If I have accomplished my purpose, faculty
will collectively and individually examine the balance of values we promote
through our grading policies. We will recognize that, without this reflection
and informed choice, the task which most faculty wish to spend the least amount
of time and effort on-- grading-- can have the most profound effect on the
environment in which we teach and learn.
[1].
Educational literature often further divides assessment into that designed to
be formative--used for diagnosis and feedback in learning--and that designed to
measure outcomes. See Thomas R. Guskey, Making the Grade:What Benefits
Students?, 52 EDUC. LEADERSHIP 14 (Oct. 1994).
[2]. Cf. Richard A.
Matasar & Rosemary Shiels, Electronic Law Students:Repercussions on Legal
Education, 29 VAL. U. L. REV. 909, 929-30 (1995).
[3]. For an excellent
lament, see Janet Motley, A Foolish Consistency:The Law School Exam, 10 NOVA L.
REV. 723 (1986).
[4]. See, e.g., Arturo
Torres & Karen Harwood, Moving Beyond Langdell: An Annotated Bibliography
of Current Methods For Law Teaching, 1994 GONZ. L. REV. 1 (providing by
subject-matter, bibliographic lists of texts that discuss alternative law
school teaching methods).
[5]. E-mail discussion
comments from legwri-1@chicagokent.kentlaw.edu. Copies of individual messages
on file with author.
[6]. See Ken Myers, Low
Grades from the ABA Spur Unique School to Traditional Path, NAT'L L.J., May 6,
1996, at A12 (CUNY law school plans to do away with its pass/fail grading
system in response to low bar passage rates criticized by ABA inspection team).
[7]. See generally Hal
Malehorn, Ten Measures Better than Grading, 67 CLEARINGHOUSE REV. 323, 323-24
(July-Aug. 1994); James A. Bellanca & Howard Kirschenbaum, An Overview of
Grading Alternatives, in DEGRADING THE GRADING MYTHS:A PRIMER OF ALTERNATIVES
TO GRADES AND MARKS 51-62 (Sidney B. Simon & James A Bellanca, ed., 1976).
[8]. In her 1993 survey of
law school grading practices, Nancy Kaufman found that all but three of the 120
responding schools used either letters, numbers, or a high pass/pass/fail
system of grading. See Nancy H. Kaufman, A Survey of Law School Grading
Practices, 44 J. LEGAL EDUC. 415, 416 (1994); see also Robert C. Downs &
Nancy Levit, If It Can't Be Lake Woebegone ... A Nationwide Survey of Law
School Grading and Grade Normalization Practices, 65 U.M.K.C. L. REV. 819
(1997).
[9]. J. Harvie Wilkinson III,
Legal Education and the Ideal of Analytic Excellence, 45 STAN. L. REV. 1659,
1662 (1993) ("There is ample reason to recognize, however, that
undifferentiated grading threatens the quality of legal education and
compromises the ideal of analytic excellence.... The real concern is that grade
inflation suggests the reluctance of the law school community to subject itself
to standards.").
[10]. Frank T. Read, Legal
Education's Holy War over Regulation of Consumer Information:the Federal Trump
Card, 30 WAKE FOREST L. REV. 307, 309- 10 (1995).
[11]. See, for example,
the comments of John Mixon & Gordon Otto, Continuous Quality Improvement, Law, and Legal Education, 43
EMORY L.J. 393, 436-37 (1994):
Law schools do not systematically ask
their customers whether they are well-served, and most managers (deans) and
workers (professors) show little inclination to find out. The merest suggestion
brings howls of complaints that students do not know what is good for them,
that customer feedback (particularly in teaching evaluations) is suspect, that
the practicing bar has nothing useful to say, and that law school faculties
best serve their customers by producing law review articles.
Id.
[12]. Motley, supra note
3, at 723; Douglas A. Henderson, Uncivil Procedure:Ranking Law Students Among
Their Peers, 27 U. MICH. J.L. REFORM 399 (1994).
[13]. See William Prosser,
Lighthouse No Good, 1 J. LEGAL EDUC. 257
(1948) ("At last, mustering his courage, the young man comes to the
great question:How do you teach law? And the old professor, who is at least a
very truthful man, answers him as he was himself answered so many years
before:'I don't know. None of us knows."').
[14]. Ken Myers, Learning
About Teaching Is Topic At 96th Annual AALS Meeting, NAT'L L.J., January 8,
1996, at A16.
[15]. Steven I. Friedland,
How We Teach:A Survey of Teaching Techniques In American Law Schools, 20 PUGET
SOUND L. REV. 1, 2 n.5 (1996).
[16]. R. NICKERSON, ET
AL., THE TEACHING OF THINKING 329 (1985).
[17]. Patrick J. Dowling,
Beyond Letter Grades, in DEGRADING THE GRADING MYTHS:A PRIMER OF ALTERNATIVES
TO GRADES AND MARKS 87-94 (Sidney B. Simon & James A Bellanca, ed.)(1976).
[18]. Howard R. Pollio
& W. Lee Humphreys, Grading Students, in ASSESSING STUDENT LEARNING 85,
91-92 (James H. McMillan, ed., 1988).
[19]. For example, Dean's
list, Latin honors, Law Review membership, probation & dismissal are all
often based on grades or rank. See Roger C. Cramton, The Current State of the
Law Curriculum, 32 J. LEGAL EDUC. 321, 328-29 (1982).
[20]. Commenting on the
reaction of students to shifts to ungraded systems, Alfie Kohn, Grading:The
Issue is Not How but Why, 52 EDUC. LEADERSHIP 38, 41 (Oct. 1994) notes that
"Some older students may experience, especially at first, a sense of
existential vertigo:a steady supply of grades has defined them."
[21]. RAYMOND J.
WLODKOWSKI, ENHANCING ADULT MOTIVATION TO LEARN 56-57 (1993).
[22]. See Kohn, supra note
20, at 39 ("Not only are these two orientations distinct, but they also
often pull in opposite directions.").
[23]. Joseph Lowman,
Promoting Motivation and Learning, 38 COLLEGE TEACHING 136, 137 (Fall 1990).
[24]. See Guskey, supra
note 1, at 14. For example, Francis B. Evans, What Research Says About Grading,
in DEGRADING THE GRADING MYTHS:A PRIMER OF ALTERNATIVES TO GRADES AND MARKS 30,
40-41 (Sidney B. Simon & James A Bellanca, ed., 1976) describes one study
that compared the performance of 1500 high school students in traditional,
graded college preparatory programs, with 1500 students in ungraded programs.
After controlling for many potentially significant variables (age, sex,
religion, socioeconomic background, previous grades, and others), the study
concluded that the ungraded students received higher college grades and were
considered by college faculty to be "more intellectually curious,
resourceful, and more objective in their thinking." Id.
[25]. Lowman, supra note
23, at 138.
[26]. See id.; see also
Evans, supra note 24, at 45.
[27]. See B.A. Glesner, Fear
and Loathing in the Law Schools, 23 CONN. L. REV. 627, 658 (1991).
[28]. See Jan Nespor,
Grades and Knowledge in Undergraduate Education, 22 J. CURRICULUM STUD. 545
(1990) ("global characterizations of students as ... 'grade-oriented' or
'learning-oriented' seem too inflexible to explain the situational specificity
of students' academic orientations ....").
[29]. See generally LOUIS
STEINBERG, BEYOND THE CLASSROOM: WHY SCHOOL REFORM HAS FAILED AND WHAT PARENTS
NEED TO DO (1996); DUMBING DOWN, ESSAYS ON THE STRIP-MINING OF AMERICAN CULTURE
(Katherine Washburn & John Thornton, ed., 1996).
[30]. STEINBERG, supra
note 29, at 194.
[31]. See JOHN G.
NICHOLLS, THE COMPETITIVE ETHOS AND DEMOCRATIC EDUCATION 130-31 (1989) (citing
studies of physical and biological scientists, mathematicians, architects,
research psychologists, business persons, artists, and students at all grade
levels).
[32]. Id.
[33]. "[E]xtrinsic
attractions must usually be offered indefinitely for the behavior to continue.
In contrast, intrinsic interests are slower to motivate new behavior and less
certain of being effective, but they are usually more lasting once they take
hold." Lowman, supra note 23, at 137.
[34]. WLODKOWSKI, supra
note 21, at 215 See infra text at notes 109-30 for elaboration of these
principles.
[35]. See infra text at
notes 109-30.
[36]. See infra text at
notes 118-21, 132-51.
[37]. A significant
percentage of which appears to be distributed in the first year of law school.
See Cramton, supra note 19, at 328-29; Henderson, supra note 12, at 424; Lani
Guinier, et al., Becoming Gentlemen:Women's Experiences at One Ivy League Law
School, 143 U. PA. L. REV. 1, 28 (1994).
[38]. Mark A. Godsey,
Educational Inequalities, the Myth of Meritocracy, and the Silencing of
Minority Voices:the Need for Diversity on America's Law Reviews, 12 HARV.
BLACKLETTER J. 59, 74-76 (1995).
[39]. See, e.g., Elizabeth
Shogren, Clinton Moves Quickly on Education, Proposes Tax Credits and
Deductions, L.A. TIMES, Feb. 6, 1997, at 22 (students in the top 5% of a class
would qualify for $1000 Presidential Honors Scholarship).
[40]. Heather S. Woodson,
Evaluation in Hiring, 65 U.M.K.C. L. REV. 931 (1997).
[41]. Mixon & Otto,
supra note 11, at 467.
[42]. See D.N. Campbell,
On Being Number One:Competition in Education, PHI DELTA KAPPAN 143, 145 (Oct.
1974) (sorting turns schools into "bargain-basement personnel screening
agencies for business").
[43]. One might presume
that if alumni earn higher salaries, their alma maters may expect larger endowments.
Of course, alumni contributions and law school academic policies may have no
correlation whatsoever. Cf. Marin Roger Scordato, The Dualist Model of Legal
Teaching and Scholarship, 40 AM. V.L. REV. 367 (1990). ("Given this ...
financial dependence upon tuition and alumni contributions, one might predict
that law schools would most highly value those skills in their faculty that are
perceived by students and potential students as most directly serving their
interests .... This, however, is clearly not the case.").
[44]. Deirdre Shesgreen,
The Legal Academy's Cash Cow Law Firms Are Shelling out Big Bucks to Law
Schools, Raising Concerns about Undue Influence, LEGAL TIMES, Jan. 27, 1997, at
1.
[45]. Nespor, supra note
28, at 549.
[46]. "The reward
system of most law faculties strongly favors writing law review articles over
creating innovative courses or developing new teaching materials." John O.
Mudd, Academic Change in Law Schools, Part I, 29 GONZ. L. REV. 29, 60
(1993-94). See also David J. Turner, Publish or Be Damned, 31 J. LEGAL EDUC.
550, 555 (1981) ("A rigid application of the 'publish or perish' doctrine
does not calculate the relative values of the professor as counselor and the
professor as publisher but blindly requires the latter role."); Cramer,
Academics After Dark, 1 AM. LAWYER 23 (Dec. 1979) ("When a professor is
late with his work, seems semi-conscious in class, or is the first one out the
door, students suspect that he may be moonlighting."). For similar
arguments in the context of changing assessment practices in English
departments, see Chris M. Anson & Robert L. Brown, Jr., Large-Scale
Portfolio Assessment:Ideological Sensitivity and Institutional Change, in
PORTFOLIOS:PROCESS AND PRODUCT at 248, 261 (Pat Belanoff & Marcia Dickson,
ed., 1991).
[47]. See, e.g., Nespor,
supra note 28, at 554.
[48]. Deborah L. Rhode,
Missing Questions:Feminist Perspectives on Legal Education, 45 STAN. L. REV.
1547, 1548 (1993) (quoting Cramton, supra note 19, at 332-35).
[49]. Downs & Levit,
supra note 8, at 822, 843.
[50]. Id.
[51]. Id.
[52]. Id.
[53]. See JOSEPH LOWMAN,
MASTERING THE TECHNIQUES OF TEACHING 17 (2d ed., 1995) (review of research
literature demonstrates strong correlations between teacher effectiveness and
student ratings and generally weak correlations between leniency of grading and
high student ratings.).
[54]. There is some
limited support for this perception. See James G. Nimmer & Eugene F. Stone,
Effects of Grading Practices and Time of Rating on Student Ratings of Faculty
Performance and Student Learning, 32:2 RESEARCH IN HIGHER EDUC. 195, 207-09
(1991).
[55]. Id.
[56]. Id.
[57]. Surprisingly, most
United States educators appear to hold this belief. See Thomas Toch, et al.,
The Case for Tough Standards, U.S. NEWS & WORLD REP., Apr. 1, 1996, at 52
(reporting study conclusions that "a very strong belief that academic
achievement is mostly a matter of natural ability.").
[58]. See Nicholas L.
Georgakopoulos, Relative Rank:a Remedy for Subjective Absolute Grades, 29 CONN.
L. REV. 445, 446 (1996).
[59]. RAYMOND J.
WLODKOWSKI & MARGERY B. GINSBERG, DIVERSITY AND MOTIVATION 276-77 (1995);
Evans, supra note 24, at 35.
[60]. LOWMAN, supra note
53, at 5, 257; Boyle, The Role of Interpersonal Psychological Variables in
Academic School Learning, 25 J. SCHOOL PSYCH. 389, 390 (1987).
[61]. Boyle, supra note
60.
[62]. Guskey, supra note
1, at 16 (citing B.S. BLOOM, HUMAN CHARACTERISTICS AND SCHOOL LEARNING (1976)).
[63]. Id.
[64]. For example, the
McCrate Report concluded "law school graduates are not prepared to
practice law without supervision." Report of the Subcommittee on Hearings
and Conferences of the Task Force on Law Schools and the Profession:Narrowing
the Gap, reprinted in SECTION ON LEGAL EDUCATION AND ADMISSIONS TO THE BAR,
A.B.A., LEGAL EDUCATION AND PROFESSIONAL DEVELOPMENT--AN EDUCATIONAL CONTINUUM
386 (1992).
[65]. It would be a
fascinating study to empirically correlate faculty grading patterns with years
of practice experience (or with a range of other characteristics such as age,
gender, and subject matter). Of course, the widespread acceptance of
institutional constraints on grading make such an investigation difficult
today.
[66]. O. MILTON, ET AL.,
MAKING SENSE OF COLLEGE GRADES 225 (1986).
[67]. Institutional grade guidelines
may also serve the purpose of setting a grade mean that will advantage students
in their intra-institutional competition in the job market. While important
issues, I will not explore grade inflation and grade competition among schools
here.
[68]. See, e.g.,
Georgakopoulos, supra note 58, at 455.
[69]. Guskey, supra note
1, at 19.
[70]. Downs & Levit,
supra note 8, at 837.
[71]. Cf. Richard A.
Epstein, Grade Normalization, 44 S. CAL. L. REV. 707 (1971).
[72]. Downs & Levit,
supra note 8, at 839, 840.
[73]. See supra text at
notes 57-63, for a discussion of this assumption.
[74]. The research on
class size and its impact on learning is complex and somewhat contradictory.
However, the most recent, well documented and designed research, indicates that
in classes smaller than thirty students, a number of positive changes in both
teacher and student attitudes and behaviors occur. See NATIONAL EDUCATION
ASSOCIATION, WHAT RESEARCH SAYS ABOUT CLASS SIZE 1-11 (1986).
[75]. LOWMAN, supra note
53, at 204-05; WLODKOWSKI, supra note 21, at 220- 27.
[76]. WLODKOWSKI, supra
note 21, at 283-86.
[77]. Professors Feinman and
Feldman's report of the controversy that arose regarding their experiment in a
mastery learning course provides some evidence that educational rationales will
be subordinated to equity rationales. Jay Feinman & Marc Feldman, Pedagogy
and Politics, 73 GEO. L.J. 875 (1985). Likewise, the negative reaction of
faculty to Professor Tushnet's proposal that grades in a first-year class could
be based entirely on group products points to the priority given to
individualized, competitive evaluation. Mark Tushnet, Evaluating Students as
Preparation for the Practice of Law, 8 GEO. J. LEGAL ETHICS 313, 317 & n.17
(1995).
[78]. See supra text at
notes 59-63 for a discussion of the evidence against such an assumption.
[79]. Downs & Levit,
supra note 8, at 832, 840.
[80]. Epstein, supra note
71.
[81]. HOWARD GARDNER,
FRAMES OF MIND (1983).
[82]. Jeffrey Evans Stake,
Who's "Number One"?:Contriving Unidimensionality in Law School
Grading, 68 IND. L.J. 925 (1993); Georgakopoulos, supra note 58, at 446
("Fields of law may draw on different talents, such as qualitative versus
quantitative reasoning, rule versus relationship orientations, or formal versus
intuitive reasoning.").
[83]. See Nespor, supra
note 28, at 555 ("any system of evaluation and ranking based on
performance in one set of tasks tells us little about how people will perform
on tasks embedded in other systems of activities.").
[84]. Pollio &
Humphreys, supra note 18, at 85, 86.
[85]. Gene L. Piche, Class
and Culture in the Development of the High School English Curriculum,
1880-1900, in RESEARCH IN THE TEACHING OF ENGLISH 11, 17 (1977).
[86]. Pollio &
Humphreys, supra note 18, at 90.
[87]. D. KENNEDY, LEGAL
EDUCATION AND THE REPRODUCTION OF HIERARCHY (1983).
[88]. Guinier, et al.,
supra note 37.
[89]. Thomas L. Shaffer,
The Unique, Novel, and Unsound Adversary Ethic, 41 VAND. L. REV. 697 (1988);
William H. Simon, The Ideology of Advocacy:Procedural Justice and Professional
Ethics, WIS. L. REV. 30, 36-37 (1978).
[90]. See Bellanca &
Kirschenbaum, supra note 7, at 56 ("Grades establish a meritocracy that
rewards conformity and compulsive compliance and discourages individuality and
creativity.").
[91]. ALFIE KOHN, NO
CONTEST:THE CASE AGAINST COMPETITION (1992) [[hereafter NO CONTEST].
[92]. Id. at 26-27.
[93]. NICHOLLS, supra note
31, at 160.
[94]. See Robert J.
Borthwick & Jordan R. Schau, Note: Gatekeepers of the Profession:an
Empirical Profile of the Nation's Law Professors, 25 U. MICH. J.L. REF. 191,
235, 237 (1991) ("Despite a substantial increase in the number of law
teachers, five law schools produced nearly one-third of the nation's law
professors, a percentage nearly unchanged from the mid-1970s. When the top-
twenty law schools are considered as a group, they produced nearly 60% of all
law professors in our sample.").
[95]. Audrey M.
Kleinsasser, Assessment Culture and National Testing, 68 THE CLEARINGHOUSE REV.
205 (Mar. 13, 1995).
[96]. ABA Model Rule of Professional
Conduct 1.2 (1983).
[97]. Roger Abrams, A
Prescription for Legal Education, NEW JERSEY L.J., Apr. 22, 1996, at 27.
[98]. DOUGLAS ROSENTHAL,
LAWYER & CLIENT WHO'S IN CHARGE? (1974).
[99]. Richard L. Curwin
& Patrick J. DeMarte, Making Classroom Competition Positive:A Facilitating
Model, in DEGRADING THE GRADING MYTHS:A PRIMER OF ALTERNATIVES TO GRADES AND
MARKS 14-19 (Sidney B. Simon & James A Bellanca, ed., 1976); WLODKOWSKI,
supra note 21, at 283-86; Lowman, supra note 23, at 138. ("Likewise, we
know that giving choices to students and reducing instructors' external control
increase intrinsic desire.").
[100]. B.A. Glesner, supra
note 27.
[101]. Alison King, From
Sage on the Stage to Guide on the Side, 41 COLLEGE TEACHING 30, 30-31 (1990).
[102]. NICKERSON, supra
note 16, at 327.
[103]. H.A. THELEN,
EDUCATION AND THE HUMAN QUEST 26 (1960).
[104]. Richard Boldt &
Marc Feldman, The Faces of Law in Theory and Practice:Doctrine, Rhetoric, and
Social Context, 43 HASTINGS L. J. 1111 (1992).
[105]. Borthwick &
Schau, supra note 94.
[106]. NICHOLLS, supra
note 31, at 133.
[107]. Supra notes 21-36
and accompanying text.
[108]. Pollio &
Humphreys, supra note 18, at 85.
[109]. Guskey, supra note
1, at 16 (identifying "points of agreement" on grading).
[110]. NICHOLLS, supra
note 31, at 92.
[111]. Id.
[112]. NICHOLLS, supra
note 31, at 91-92.
[113]. Margaret M.
Clifford, Effect of Competition as a Motivational Technique in the Classroom, 9
AM. EDUC. RESEARCH J. 123, 134-35 (1972).
[114]. NICHOLLS, supra
note 31, at 128.
[115]. Research on the
presence of pass/fail courses in an otherwise graded curriculum has concluded
that students do not take advantage of these courses for the purposes of
enrolling in more difficult courses or courses outside their field of emphasis.
Evans, supra note 24, at 45.
[116]. Id. at 119.
[117]. Guskey, supra note
1, at 16; NO CONTEST, supra note 91, at 56; Glesner, supra note 27, at 635-66.
[118]. NICHOLLS, supra
note 31, at 123.
[119]. Kilpatrick, et al.,
Personality Stress of the Medical Education Process, and Changes in Affective
Mood State, 34 PSYCHOLOGICAL RPTS 1215, 1223 (1974).
[120]. WLODKOWSKI, supra
note 21, at 98.
[121]. I have arrived at
that conclusion in the past. B.A. Glesner, supra note 27, at 658. See also
Pipkin, Legal Education: The Consumer's Perspective, A.B. FOUND. RES. J. 1161,
1173 (1976):
On the
average third year students reported that law was not taught in law school in a
systematic and orderly fashion, that class attendance was unrelated to
obtaining high grades, that cramming for exams was as effective as regular
study, that case briefing was not an effective way to learn law, and that
grades were given largely to aid firms in hiring rather than as feedback on
progress.
Id.
[122]. David W. Johnson,
et al., Effects of Cooperative, Competitive, and Individualistic Goal
Structures on Achievement:A Meta-Analysis, 89 PSYCHOLOGICAL BULL. 47, 53 (1981).
In their review of studies of learning structures, the authors found that 65
studies found superior learning in cooperative structures than in competitive
structures, 8 studies found competitive structures superior, and 36 studies
found no differences.
[123]. Donald Bruce Haines
& W.J. McKeachie, Cooperative Versus Competitive Discussion Methods in
Teaching Introductory Psychology, 58 J. EDUC. PSYCH. 386, 390 (1967).
[124]. NO CONTEST, supra
note 91, at 60-61.
[125]. Glesner, supra note
27, at 648-49.
[126]. NO CONTEST, supra
note 91, at 62-63.
[127]. Id. at 127-28.
[128]. Id. at 62 (quoting
David Johnson & Roger Johnson, Instructional Goal Structure:Cooperative,
Competitive, or Individualistic. 44 REV. OF EDUC. RESEARCH 213, 228 (1974)).
[129]. Glesner, supra note
27, at 636-37.
[130]. NO CONTEST, supra
note 91, at 64.
[131]. See supra notes
67-70 and accompanying text.
[132]. NICHOLLS, supra
note 31, at 158.
[133]. See supra notes
90-94 and accompanying text.
[134]. See supra notes
116-21 and accompanying text.
[135]. WLODKOWSKI, supra
note 21, at 97-98.
[136]. Id. at 88-89.
[137]. WLODKOWSKI &
GINSBERG, supra note 59, at 144-46; Eileen B. Cohen, Teaching Legal Research to
a Diverse Student Body, 85 LAW LIBR. J. 583, 588 (1993). For discussions of
learning styles in general, see Paul T. Wangerin, Objective, Multiplistic, and
Relative Truth in Developmental Psychology and Legal Education, 62 TUL. L. REV.
1237, 1277 (1988); and Vernellia R. Randall, The Myers-Briggs Type Indicator,
First Year Law Students and Performance, 26 CUMB. L. REV. 63 (1995-96).
[138]. Cohen, supra note
137, at 588.
[139]. Id.
[140]. Audrey M. Kleinsasser,
Assessment Culture and National Testing, 68 THE CLEARINGHOUSE REV. 205 (Mar.
13, 1995).
[141]. Cohen, supra note
137; James A. Anderson & Maurianne Adams, Acknowledging the Learning Styles
of Diverse Student Populations:Implications for Instructional Design, TEACHING
FOR DIVERSITY 19, 20-22 (Laura L.B. Border & Nancy Van Note Chism, ed.,
1992).
[142]. See generally,
Guinier, et al., supra note 37.
[143]. See id. The extreme
differences in learning experiences for the women and men in the Guinier study
should be contrasted with other studies that have found fewer gender
disparities in satisfaction and achievement. See, e.g., Amy Mathews, Remaining
Ladies:Women's Experiences at the University of Missouri of Kansas City Law
School (unpublished manuscript on file with author) (concluding that
"female students do not find their educational experience hostile and male
oriented").
[144]. Rhode, supra note
48, at 295; Joan M. Krauskopf, Touching the Elephant:Perceptions of Gender
Issues in Nine Law Schools, 44 J. LEGAL EDUC. 311, 328 (1994).
[145]. Kingsley R. Browne,
Sex and
Temperament in Modern Society: A Darwinian View of the Glass Ceiling
and the Gender Gap, 37 ARIZ. L. REV. 971, 1021 (1995) (citing KATHARINE B.
HOYENGA & KERMIT T. HOYENGA, GENDER-RELATED DIFFERENCES:ORIGINS AND
OUTCOMES 319 (1993)).
[146]. Carrie
Menkel-Meadow, Portia in a Different Voice: Some Speculations on a Women's
Lawyering Process, 1 BERKELEY WOMEN'S L. J. 39, 51- 55 (1985).
[147]. Anderson &
Adams, supra note 141, at 23; Judith G. Greenberg, Erasing Race from Legal Education, 28 U. MICH. J. L. REF.
51, 98-99 (Fall 1994).
[148]. See, e.g., Valerie
Fontaine, Progress Report:Women and People of Color in Legal Education and the
Legal Profession, 6 HASTINGS WOMEN'S L. J. 27, 28 (1995) (concluding that men
do better in law school than women, in part, because of the Langdellian method);
Guinier et al., supra note 37, at 59; Stephen R. Ripps, A Curriculum Course
Designed for Lowering the Attrition Rate for the Disadvantaged Law Student, 29
HOW. L. J. 457, 467-68 (1986) (noting that minority students need a process
course that is geared toward developing student confidence and legal skills).
[149]. Cathaleen Roach, A
River Runs Through It:Tapping into the Informational Stream to Move Students
From Isolation to Autonomy, 36 ARIZ. L. REV. 667, 675 (1994).
[150]. Greenberg, supra
note 147 (citing Margalynne Armstrong,
Meditations on Being Good, 6 BERKELEY WOMEN'S L.J. 43, 44 n.2
(1990-1991); and Margaret E. Montoya, Mascaras, Trenzas, Y Grenas:Un/Masking
the Self While Un/Braiding Latina Stories and Legal Discourse, 15
CHICANO-LATINO L. REV. 1, 9-17 (1994)).
[151]. G. Andrew H.
Benjamin et. al., The Role of Legal Education in Producing Psychological
Distress Among Law Students & Lawyers, 1986 AM. BAR FOUND. RES. J. 225, 251
("[I]t may be necessary to create pople who are more paranoid, hostile,
obsessive-compulsive and the like.").
[152]. Cf. Professor
Carrington's arguments in favor of the Langdellian method:"Teachers
unwilling to cause such pain ... are not as helpful as they might be to
students preparing themselves to deal with human conflict." Paul D.
Carrington, Hail! Langdell!, 20 L. & SOC. INQUIRY 691, 748 (1995).
[153]. Critiques of the
adversary ethic have argued against a competitive approach to problem solving
for many years. See, e.g., Thomas L. Shaffer, The Unique, Novel, and Unsound
Adversary Ethic, 41 VANDERBILT L. REV. 697- 715 (1988); Marvin E. Frankel, The
Search for Truth:An Umpireal View, 123 U. PENN. L. REV. 1031-59 (1975).
Recently, the legal system has begun to respond to these critiques. Rogelio A.
Lasso, Gladiators Be Gone:the New Disclosure Rules Compel a Reexamination of
the Adversary Process, 36 B.C. L. REV 479, 489- 97 (1995). It seems that even
litigators are beginning to value cooperation. Richard C. Reuben, The Lawyer
Turns Peacemaker, 82 A.B.A. J. 54 (1996). The value of cooperative approaches
would be no new news, perhaps, to transaction lawyers. See generally Ronald J.
Gilson, Value Creation by Business Lawyers:Legal Skills and Asset Pricing, 94
YALE L. J. 239 (1984).
[154]. Ruta K. Stropus,
Mend It, Bend It, and Extend It:the Fate of Traditional Law School Methodology
in the 21st Century, 27 LOY. U. CHI. L. J. 449, 482-83 (1996).
[155]. Kleinsasser, supra
note 140.
[156]. See id.
("Working cooperatively is one skill needed for the future, along with
higher-order thinking skills and a capacity for self-reflection and for
sustained engagement in a task.").
[157]. For an interesting
experiment in offering students lessons in team work, see Tushnet, supra note
77. See also Theresa Glennon, Laywers and Caring:Building an Ethic of Care into
Professional Responsibility, 43 HASTINGS L. J. 1175 (1992).
[158]. But see Stephanie
M. Wildman, The Question of Silence: Techniques to Ensure Full Class Participation,
38 J. LEGAL EDUC. 147, 152-54 (1988) (cooperative learning techniques in
classroom).
[159]. Michael Burns, The
Law School as a Model for Community, 10 NOVA L. 329, 383-84 (1986); Carrie
Menkel-Meadow, Feminist Legal Theory, Critical Legal Studies, and Legal
Education or "The Fem-Crits Go to Law School, 38 J. LEGAL EDUC. 61, 77
(1988).
[160]. Frank J.
Macchiarola, Teaching in Law School:What Are We Doing and What More Has to Be
Done?, 71 U. DET. MERCY L. REV. 531, 535 (1994); Robert R. Merhige, Jr., Legal
Education: Observations and Perceptions from the Bench, 30 WAKE FOREST L. REV.
369, 375 (1995).
[161]. See Mixon &
Otto, supra note 11, at 440. ("Students ... pick up on the competitive
norm or have it reinforced as they battle each other for grades, positions on
the law review, jobs, and whatever other prizes the environment offers.
Students can easily believe that combat is a normal human state (or at least a
normal lawyer condition.)").
[162]. Bryant G. Garth
& Joanne Martin, Law Schools and the Construction of Competence, 43 J. LEG.
EDUC. 469, 472-74 (1993).
[163]. Id.
[164]. MORTON DEUTSCH, THE
RESOLUTION OF CONFLICT:CONSTRUCTIVE AND DESTRUCTIVE PROCESSES 26, 353 (1973).
[165]. See NO CONTEST,
supra note 91, at 140. ("If empathy encourages altruism and competition
depresses empathy, then we should find an inverse relationship between
competition and altruism--and so we do.").
[166]. Guinier, et al.,
supra note 37, at 31-32.
[167]. For similar problems
in the practice of law, see Daniel Wise, Survey Finds Wide Incivility, Sharp
Practice Among Bar, N.Y.L.J. July 12, 1993, at 1. For the role of legal
education in shaping professionalism, see Deborah L. Rhode, The Future of the
Legal Profession:Institutionalizing Ethics, 44 CASE W. RES. L. REV. 665, 733-35
(1994).
[168]. Twenty-three
percent of attorneys are dissatisfied with their jobs and only 29% are very
satisfied. If one focuses on newer attorneys, the numbers of dissatisfied
attorneys rise to 40%. Edward A. Adams, Lawyers' Lot Not a Happy One, ABA
Finds, N.Y.L.J. Aug. 13, 1991, at 1.
[169]. Walter Lucas,
Associates' Anthem:'Can't Buy Me Love', N.J.L.J. May 30, 1991, at 1. Intellectual
challenge was the most critical variable for 21% of the attorneys polled. Other
important variables included:ranking time for self and family (15% name as most
important); control over work (14%); and substantive area of work (11%).
[170]. See supra notes
107-26 and accompanying text.
[171]. ALBERT EINSTEIN,
OUT OF MY LATER YEARS 34-35 (1956).
[172]. Rhode, supra note
167.
[173]. See Guinier, et
al., supra note 37, at 82-83 (describing "bingo" games played by
students to discourage active class participation).
[174]. Abrams, supra note
97.
[175]. Id.
[176]. See Debbie
Goldberg, Getting Beyond a Culture of Cheating, The Washington Post, Nov. 5,
1995, at R12 ("[D]ata suggest that about 20 percent of college students
will cheat no matter what, and another 20 percent will not cheat under any
circumstances." For the remaining students "the single most
significant factor is the behavior of other students ... the 'cheating
culture'.").
[177]. Id.
[178]. Roger C. Cramton,
"The Most Remarkable Institution":The American Law Review, 36 J.
LEGAL EDUC. 1, 6 (1986). See also James S. Terwilliger, Some Thoughts on
Grading Systems and Grading Practices, TEACHER TRAINING IN MEASUREMENT AND
ASSESSMENT SKILLS 63, 79 (Steven L. Wise ed., 1993) ("students at
[professional/graduate school] level already have been subjected to extensive
sorting and selection .... [T]he expectation is that almost all students who
are admitted will succeed.").
[179]. Terwilliger, supra
note 178, at 69 (quoting P. Moynihan, Seek Parity on Educational Achievement,
Moynihan Urges, REPORT ON EDUCATIONAL RESEARCH 3, 4 (1971)).
[180]. NICHOLLS, supra
note 31, at 95.
[181]. See, e.g., Godsey,
supra note 38, at 74-76.
[182]. The following
description of a portfolio process is roughly drawn from Peter Elbow & Pat
Belanoff, State University of New York at Stony Brook Portfolio-Based
Evaluation Program, PORTFOLIOS:PROCESS AND PRODUCT 1, 6-12 (Pat Belanoff &
Marcia Dickson, eds., 1991).
[183]. Id. at 11.
[184]. WLODKOWSKI, supra
note 21, at 158-59.
[185]. Id. at 172-74.
[186]. See generally
Kristine S. Knaplund & Richard H. Sander, The Art and Science of Academic
Support, 45 J. LEGAL EDUC. 157 (1995) (describing and evaluating effectiveness
of academic support programs at the University of California at Los Angeles);
Paul T. Wangerin, Perspectives on Higher Education:Law School Academic Support
Programs, 40 HASTINGS L.J. 711 (1989) (evaluating law school academic support
programs generally). See also Stropus, supra note 154; Roach, supra note 149.
[187]. See NICHOLLS, supra
note 31, at 159 (noting the existence of
"inequality of respect or autonomy that is not an intrinsic
consequence of unequal academic accomplishment.").
[188]. Lowman, supra note
23, at 138.
[189]. LOWMAN, supra note
53, at 231-32.
[190]. See id.
("Likewise, we know that giving choices to students and reducing
instructors' external control increase intrinsic desire.").
[191]. Stephanie M.
Wildman, The Question of Silence:Techniques to Ensure Full Class Participation,
38 J. LEGAL EDUC. 147 (1988).
[192]. Curwin &
DeMarte, supra note 99, at 14-19.
[193]. LOWMAN, supra note
53, at 310-312.
[194]. Id. at 21-31.
[195]. Lowman, supra note 23,
at 138. See also Kohn, supra note 20, at 41; Pollio & Humphreys, supra note
18, at 95.
[196]. Pollio &
Humphreys, supra note 18, at 95.
[197]. See generally
TEACHING FOR DIVERSITY (Laura L. B. Border & Nancy Van Note Chism, ed.
1992).
[198]. Our academic
support professsionals are often excellent resources for this feedback.
[199]. Here, as with any
empirical questions regarding legal education, there is ample room for further
research. Much of the structure and methods of legal education has never been
systematically described or tested. As part of a research study on the use of
peer teachers, my colleague Julie Cheslik and I surveyed all the law schools
for their uses of peer teachers. This study included, in addition to the survey
of legal and educational literature, a generalized survey of the 177
ABA-approved, AALS member fee-paid law schools. One hundred fifty one schools responded,
after follow-up reminders, to the initial survey requesting information and
contact persons regarding specific listed and other uses of peer teaching.
Professor Cheslik followed up with a more detailed survey and analysis of the
use of peer teachers in legal writing programs. See Julie M. Cheslik, Teaching
Assistants:a Study of Their Use in Law School Research and Writing Programs, 44
J. LEGAL EDUC. 394 (1994). Of the 151 schools participating in the initial
survey that reported using teaching assistants or peer teachers in some
capacity:
114
(75%) use peer teachers in their moot court program
95 (63%)
use peer teachers in their legal writing program
79 (52%)
use peer teachers in legal research program
79 (52%)
use peer teachers as academic tutors
59 (39%)
use peer teachers in remediation programs
37 (25%)
use peer teachers as student clinical supervisors
32 (21%)
use peer teachers as academic mentors/partners
20 (13%)
use peer teachers to lead study groups
18 (12%) use peer teachers in
some other capacity
10 (7%)
use peer teachers to lead discussion groups
5 (3%)
use peer teachers to lead seminar groups.
Id.
[200]. In our survey of the
law schools, 77% indicated that peer teachers assisted in moot court programs.
[201]. Student law review
editors probably constitute the single most prevalent use of peer teachers in
law schools. One survey noted that each of the 153 AALS member law schools in
the United States operates one or more student-edited journals, which includes
a student board overseeing the articles produced by their underclass
colleagues. Jordan H. Leibman & James P. White, How the Student-Edited Law
Journals Make Their Publication Decisions, 39 J. LEGAL EDUC. 387 (1989).
[202]. Our survey results
indicate that 4% of the law schools have formal programs of peer teachers
leading seminar groups and 8% have peer teachers leading discussion groups.
However, since this survey was directed toward the dean's office of each
school, it likely was unable to identify the many uses of peer teaching within
the classroom itself. Moreover, follow-up calls to those respondents who
indicated that they did use peer teachers in these ways, indicated a wide range
of definitions of "seminar groups" and "discussion
groups"--from legal writing TAs leading research exercises to students
presenting seminar papers in their classes. Accordingly, the survey results
probably measure law school deans' awareness of their faculty's teaching
approaches more so than the actual use of peer teaching in the classroom.
Some notable
examples of pervasive use of peer teachers can be found in those schools which
have reformed their curriculum to provide comprehensive integration of skills
training. See, e.g., Jane E. Bahls, Teaching Law Students How to Practice Law,
STUDENT LAW. Feb. 1989, at 24, 25; John O. Mudd & John W. LaTrielle,
Professional Competence:A Study of New Lawyers, 49 MONT. L. REV. 11, 28 (1988)
(describing the University of Montana's program, designed to foster cooperation
and minimize competition, which divides first year students into law firms,
supervised by a third year student "junior associate" as well as a
faculty member); Thomas M. McDonnell, Joining Hands and Smarts: Teaching Manual
Legal Research through Collaborative Learning Groups, 40 J. LEGAL EDUC. 363
(1990); Roark M. Reed, Group Learning in Law School, 34 J. LEGAL EDUC. 674
(1984).
[203]. NEAL A. WHITMAN,
PEER TEACHING:TO TEACH IS TO LEARN TWICe 14 (ASHE- ERIC Higher Education Report
No. 4 1988).
[204]. Id.
[205]. Kenneth Bruffee,
The Art of Collaborative Learning, 19(2) CHANGE 42-47 (1987).
[206]. In a study of use
of peer teachers in medical school, the authors pointed out that the medical
school faculty were "unconsciously competent" and thus may have more
difficulty teaching procedures to students than peer residents who, having just
learned the steps of a procedure, were more "consciously competent."
WHITMAN, supra note 203, at 9 (citing THOMAS L. SCHWENK & NEAL WHITMAN,
RESIDENTS AS TEACHERS (1984)). See also John B. Mitchell, Current Theories on
Expert and Novice Thinking:A Full Faculty Considers the Implications for Legal
Education, 39 J. LEG. EDUC. 275, 283-85 (1989) (describing the difficulties of
experts teaching novices, the author notes that experts may be unable to
articulate unwritten conventions of their area of expertise because they are
conciously unaware of the conventions-- recent learners are more likely to be
conciously aware of their acquisition of these conventions.).
[207]. WHITMAN, supra note
203, at 7-8.
[208]. Bruffee, supra note
205.
[209]. For more on this
and a wide variety of other techniques for cooperative work or other active
learning strategies in the classroom, see MERRILL HARMIN, INSPIRING ACTIVE
LEARNING:A HANDBOOK FOR TEACHERS (1994).
[210]. See Tushnet, supra
note 77 (reporting on his efforts to include grading incentives and rewards for
cooperative work).