Looking Ahead: The Performance Test on the Bar Exam Post Covid-19

Even amidst great uncertainty as to how the Covid-19 pandemic will impact future bar exams, we have already seen a few “when the dust settles” articles addressing how best to move forward with bar exams after the effects of the pandemic have waned.[i] While there are justifiable calls to rethink the exam entirely, especially in light of disparate outcomes based on race,[ii] multiple commentators have highlighted the need to enhance the exam’s focus on the performance test.[iii]

A telling indicator of the importance of the performance test appears in the Phase One Report of the National Conference of Bar Examiners’ (NCBE’s) Testing Task Force, which is conducting “a future-focused study to ensure that the bar examination continues to test the knowledge, skills, and abilities required for competent entry-level legal practice in a changing legal profession.”[iv] Among the points made most frequently by various bar exam stakeholders during listening sessions were the following: “The MPT [Multistate Performance Test] is the strength of the current exam” and “Lawyering Skills should be emphasized over subject matter knowledge.”[v] The performance test remains the only vehicle on the bar exam that directly evaluates lawyering skills and not subject matter knowledge of—some would say rote memorization of—law, which is tested by both the Multistate Bar Exam (MBE) and essay questions. As such, it ranks high as to testing validity and has great potential as an evaluator of competence. 

The NCBE, which currently provides the testing instruments used on the vast majority of state bar exams,[vi] is an influential force in the bar exam world, and it approaches change at a glacial pace.[vii] Hence, there is good reason to think that, while the pandemic might lead to changes in the manner of exam administration (e.g., remote administration in lieu of in-person), the heavy majority of states will continue to use the NCBE’s three tests: the MBE, the Multistate Essay Exam (MEE), and the MPT. Hence, a closer look at the most important of those three, the MPT, and ways in which performance testing can be improved is in order. What follows is a review of the current status of the performance test on bar exams in the United States and some thoughts on enhancing performance testing moving forward:

What is the performance test, and what is its purpose?

A performance test assigns a specific written lawyering task (e.g. memo, brief, or a letter), to be completed by the examinee relying on a closed universe of provided factual and legal materials. Performance tests, unlike essay questions and MBE questions, require no advance memorization of doctrine, as they provide a Library, which includes all the needed legal authorities in the form of cases, statutes, rules, regulations, or some combination thereof. The facts are presented in the File, usually through assorted documents such as transcripts of witness interviews, correspondence, etc. The allotted time for completion of a single performance test is 90 minutes.

The performance test is a creature of the ABA’s landmark 1992 MacCrate Report, which called on law schools to enhance training in assorted fundamental lawyering skills.[viii] The NCBE responded to the MacCrate Report by crafting the MPT as an instrument to evaluate six of the fundamental lawyering skills listed in the report: (1) Problem Solving, (2) Legal Analysis and Reasoning, (3) Factual Analysis, (4) Communication, (5) Organization and Management of a Legal Task, and (6) Recognizing and Resolving Ethical Dilemmas.[ix] The NCBE began offering MPT items to jurisdictions in 1997.[x]

How is the performance test currently being used on the bar exam?

The NCBE continues to produce the MPT, and 44 states administer it on their bar exam.[xi] Thirty-six of those states administer two MPT items, pursuant to their administration of the Uniform Bar Exam (UBE).[xii] Some of the remaining eight administer one MPT, and some administer two. In addition, Pennsylvania creates and administers its own performance test,[xiii] as does California.[xiv] In total then, 46 states administer at least one performance test on their bar exam. Only Florida, Louisiana, Michigan, and Virginia eschew performance testing.[xv]

Is the performance test evaluating all of the MacCrate skill sets adequately?

As I discussed in detail in a 2015 article, the performance test is not living up to its potential, as typical test items implicate mostly just the core skill set of legal analysis and reasoning.[xvi] It remains not at all clear that the performance test is encompassing all six of the MacCrate skill sets on a consistent basis. Most notable among the skill sets that remain under addressed are (1) Problem Solving and (3) Factual Analysis. 

Problem Solving

The MPT occasionally implicates problem solving through a test item requiring an evaluation of multiple competing approaches to a given client’s problem—for example, MPT2 on the July 2019 exam, in which examinees had to evaluate the merits of two different estate planning approaches for a mock client.[xvii] In the last several years, neither California’s nor Pennsylvania’s performance tests has presented comparable test items. 

Factual Analysis

As to factual analysis, because the source materials in the File include both relevant and irrelevant facts, the performance test does a good job of testing an examinee’s ability to identify relevant facts within a given set of materials. However, among the core competencies encompassed by the skill set of factual analysis are determining the need for further factual investigation and planning a factual investigation.[xviii] Performance tests have not encompassed these competencies. Indeed, in the past several years, no performance test has tasked examinees with identifying what additional facts would be useful and drafting a discovery plan for obtaining those facts. 

To be fair, given that the performance text currently plays a limited role on the exam, it is perhaps not possible to consistently encompass all of the MacCrate-inspired skill sets. The addition of more performance tests, or multiple-choice questions within performance tests, discussed below, could help in this regard. 

Does the performance test make adequate use of statutes and regulations as legal sources?

Of course, statutes and regulations are central to much of law practice today—so much so that numerous law schools are requiring first-year students to take a course on legislation and regulation. It would seem beyond dispute that all examinees on every bar exam should be required to display competence in reading and applying a statute or regulation without the aid of a case interpreting the statute or regulation at issue.  Neither MBE questions nor MEE questions (nor state-specific essay questions) directly require examinees to do this. In contrast, the performance test easily can. Unfortunately, however, statutes or regulations (or comparable types of non-case authorities) do not consistently appear on recent performance tests—to say nothing of the four states that do not administer a performance test at all. 

To the NCBE’s credit, at least one of the two MPT test items in each exam administration since 2010 has included at least one statute, rule, or regulation.[xix] It is not clear the extent to which examines on these various MPTs needed to reason directly from the statute, rule, or regulation (as opposed to reasoning from a provided case that interpreted the statute, rule, or regulation) to resolve an issue, but a cursory review suggests in several cases that, to a goodly extent, they did. By way of example, one of the MPT items on the February 2015 exam included only a statute and regulations in the Library, and examinees were tasked with “parsing . . . HIPAA regulations” in order to answer effectively.[xx]

 In contrast, however, since shifting to the 90-minute performance test format in July 2017, California has included only cases as authority on its performance tests through the February 2020 exam.[xxi] This reflects a major failing of the California bar exam. 

The Pennsylvania examiners have done a better job, having deployed statutes as part of the law library on several different performance tests,[xxii] the first of which (February 2017) I highlighted in an earlier post. Still, though, given that there is only one performance test on each administration of the Pennsylvania exam, each Pennsylvania performance test with only cases (and there continue to be several of those[xxiii]) represents an exam that does not evaluate the fundamental competency of reading and reasoning from a statute, rule, or regulation. 

How can bar examinations make greater use of performance tests?

Ideally, all 50 states would administer at least a bare minimum of two performance test items on every exam. Though progress is being made toward that goal, we are not there yet. 

First, as noted earlier, four states do not administer a performance test at all. One can only speculate as to what reason, aside from inertia, leads the bar examiners in Florida, Louisiana, Michigan, and Virginia to forego a testing instrument of such value.

Second, as also noted earlier, several states that use the MPT outside the construct of the UBE, as well as Pennsylvania and California, administer only one performance test, not two. The use of two test items, as required for the UBE, affords an opportunity to evaluate a greater array of lawyering skills via the performance test. The use of only one relegates the performance test to playing a minimal role on the exam overall. By way of illustration, while the two MPT items in UBE jurisdictions count for 20% of the exam score, the one MPT item in Pennsylvania counts for only 11%, and the one MPT item in Nevada counts for only 10.5%.[xxiv]

Third is the broader question of expanding the use of the performance test beyond just two test items and the current 20% allocation on the UBE. As I noted in my 2015 article, this is a tougher challenge.[xxv] The MBE counts for such a large chunk of the score on the exam—50% in UBE and most other jurisdictions—because it is a psychometric anchor for the exam. In other words, the MBE has very strong testing reliability. As a multiple-choice exam that tests knowledge of various areas of substantive law, thereby calling for rote memorization, the MBE has weaker testing validity. In contrast, the performance test has high testing validity, but, because of its size and the subjectivity inherent in grading, has lower testing reliability. The NCBE prioritizes strong testing reliability for its products and hence allots greater percentages to the MBE and essay questions, 50% and 30% respectively.[xxvi]

There are many possible approaches that could allow for increased use of, and a greater scoring weight allotted to, performance tests, but one suggested by Jason Solomon in his recent article bears serious consideration. Solomon suggests the use of multiple-choice questions, which inherently afford greater testing reliability, within a performance test format.[xxvii] Instead of, or in addition to, writing an answer, as required on the traditional performance test, examinees would answer a series of multiple-choice questions on the materials provided in the test and on the most effective ways to resolve the issues presented. Unlike MBE questions, these questions would not require examinees to recall memorized legal doctrine, but rather to carefully review the provided factual or legal materials. Multiple-choice questions within a performance test format could also be an effective vehicle for adding legal research to the bar exam, as even within a closed-book format, examines could be asked questions about the most effective research strategy to build on the provided materials.[xxviii]

Conclusion

In sum, to improve the bar exam going forward still requires a focus on the performance test. The following goals are worth pursuing and achieving:

  • Performance testing that consistently encompasses more of the fundamental lawyering skills that the test was originally designed to encompass, including problem solving and factual analysis.
  • More and consistent use of statutory and regulatory authorities in the law library of performance tests
  • Use of performance testing in all 50 states, not just 46
  • At least two performance test items in all jurisdictions
  • Research into the use of multiple-choice questions within a performance test framework, including as a vehicle for testing legal research

[i] See, e.g., Vikram David Amar, What About the Bar Exam After the 2020 Dust Settles?, Verdict, Legal Analysis and Commentary from Justia (Sept 17, 2020), https://verdict.justia.com/2020/09/17/what-about-the-bar-exam-after-the-2020-dust-settles; Jason Solomon, INSIGHT: Saving the Bar Exam By Focusing on Performance, United States Law Week (July 16, 2020), https://news.bloomberglaw.com/us-law-week/insight-saving-the-bar-exam-by-focusing-on-performance.

[ii] Several thoughtful pieces touching on racial inequities caused by the bar exam appear in volume 3, Issue 4 of AccessLex’s publication, Raising the Bar, 3-12 (Fall 2020), https://www.accesslex.org/resources/raising-the-bar-fall-2020.

[iii] Amar, supra Note i; Solomon, supra Note i. 

[iv] Nat’l Conf. of Bar Exam’rs, Your Voice: Stakeholder Thoughts About the Bar Exam, Phase One Report of the Testing Task Force, 1 (Aug. 2019), https://testingtaskforce.org/wp-content/uploads/2020/03/FINAL-Listening-Session-Executive-Summary-with-Appendices-2.pdf.

[v] Id. at 3. 

[vi] See Adoption of the Uniform Bar Examination, with NCBE Tests Administered by Non-UBE Jurisdictions, Nat’l Conf. of Bar Exam’rs (Aug 18, 2020), https://www.ncbex.org/pdfviewer/?file=%2Fdmsdocument%2F196.

[vii] The NCBE is notorious for approaching change very cautiously and incrementally. In 2012, the then President of the NCBE invoked geological metaphors to describe how bar exams evolve, writing that any evolution of the exam will be “more glacial than volcanic.” Erica Moeser, President’s Page, B. Examiner, Dec. 2012 at 4, 4.

[viii] MPT Skills Tested, Nat’l Conf. of Bar Exam’rs https://www.ncbex.org/pdfviewer/?file=%2Fdmsdocument%2F54 (last visited Oct. 20, 2020) (citing Am. Bar Ass’n Section of Legal Educ. and Admissions to the Bar, Legal Educ. and Prof. Dev. – An Educational Continuum, Report of the Task Force on Law Schools and the Profession: Narrowing the Gap 138-41 (1992) [MacCrate Report]).

[ix] Judith Gunderson, Happy Birthday, MPT!, B. Examiner, Nov. 2007, at 18. See also MPT Skills Testedsupra Note viii.

[x] Id. at 20. 

[xi] Multistate Performance Test: Jurisdictions Administering the MPT, Nat’l Conf. of Bar Exam’rs, https://www.ncbex.org/exams/mpt/ (last visited Oct. 20, 2020).

[xii] Adoption of the Uniform Bar Examination, with NCBE Tests Administered by Non-UBE Jurisdictions, supra Note vi.

[xiii] Pa. Bd. of Law Exam’rs, Bar Examinationhttps://www.pabarexam.org/bar_exam_information/bebasics.htm (last visited Oct. 20, 2020).

[xiv] The State Bar of Cal., Examinations, California Bar Examinationhttp://www.calbar.ca.gov/Admissions/Examinations (last visited Oct. 20, 2020).

[xv] Multistate Performance Test: Jurisdictions Administering the MPTsupra Note xi.

[xvi] Ben Bratman, Improving the Performance of the Performance Test: The Key to Meaningful Bar Exam Reform, 83 UMKC L. Rev. 565, 584-97 (2015).

[xvii] 2019 MPT Summaries, Nat’l Conf. of Bar Exam’rs, https://www.ncbex.org/pdfviewer/?file=%2Fdmsdocument%2F233 (last visited Oct. 20, 2020).

[xviii] MPT Skills Testedsupra Note viii.

[xix] See Free Summaries of MPTs from Recent Administrations Free MPTs and Point Sheets from Older Administrations, Nat’l Conf. of Bar Exam’rs, https://www.ncbex.org/exams/mpt/preparing/ (last visited Oct. 20, 2020).

[xx] 2015 MPT Summaries, Nat’l Conf. of Bar Exam’rs, https://www.ncbex.org/pdfviewer/?file=%2Fdmsdocument%2F175 (last visited Oct. 20, 2020).

[xxi] The State Bar of Cal., Past Exams, Performance Tests and Selected Answershttps://www.calbar.ca.gov/Admissions/Examinations/California-Bar-Examination/Past-Exams (last visited Oct. 20, 2020).

[xxii] See, e.g., Pa. Bd. of Law Exam’rs, July 2019 Pennsylvania Bar Examination, Essay Questions and Examiners’ Analyses and Performance Test, 59-61, https://www.pabarexam.org/pdf/qa/qa719.pdf (last visited Oct. 20, 2020).

[xxiii] See, e.g., Pa. Bd. of Law Exam’rs, February 2020 Pennsylvania Bar Examination, Essay Questions and Examiners’ Analyses and Performance Test, 62-70, https://www.pabarexam.org/pdf/qa/qa220.pdf (last visited Oct. 20, 2020).

[xxiv] Nat’l Conf. of Bar Exam’rs, Comprehensive Guide to Bar Admission Requirements 36-37 (2020), available at https://www.ncbex.org/assets/BarAdmissionGuide/CompGuide2020_021820_Online_Final.pdf.

[xxv] Bratman, supra Note xvi, at 605-10.

[xxvi] Id. at 608.

[xxvii] Solomon, supra Note i.

[xxviii] If and how to test legal research on the bar exam has been on the NCBE’s radar screen since at least 2006. See Erica Moeser, President’s Page, B. Examiner, May 2006, at 4, 5.

SALT Social Justice in Action series: Anti-Racist Hiring Practices

by Professor Brooks Holland, Gonzaga Law School

The Society of American Law Teachers has been proud to share its four-part Fall 2020 Social Justice in Action webinar series. This webinar program already has presented leaders in the field to address anti-racism values and practices in three specific contexts, including anti-racism in the core law school curriculum, equity and inclusion in online legal education, and anti-racist work for the long-haul. Approximately 500 people attended these first three webinars, and many more have since viewed them on SALT’s website.

The fourth installment of SALT’s webinar series will take place on October 16, 2020 at 12:00pm PT and 3:00pm ET, and it will address one of the most important influences we as educators have on the future of higher education and the legal profession: our hiring practices. We all know that law school and higher education hiring practices is one of the areas where we most struggle to fulfill our commitment to diversity and antiracist values. To explore how we better can fulfill this commitment, SALT is honored to present three highly respected leaders in legal education to share their perspectives on anti-racist values and practices in the recruitment and retention of faculty, staff, and administrators:

Tamara F. Lawson, Dean, St. Thomas University School of Law

Angela Onwuachi-Willig, Dean, Boston University School of Law

Sean M. Scott, President and Dean, California Western University School of Law

Please join SALT for this important event! You can register for this program here.

SALT Webinar Video Available on “Engaging in Anti-Racism Work for the Long Haul”

By Olympia Duhart

Nova Southeastern University Shepard Broad College of Law

            In the midst of nonstop racialized violence and institutional assaults against minoritized communities, it is no wonder that those committed to fighting racism can sometimes feel personally overwhelmed. The Society of American Law Teachers (SALT) turned its attention to this important topic at a recent Webinar. Law school leaders and a resiliency expert offered their insights and advice to law professors engaged in anti-racism work.

            The webinar, “Engaging in Anti-Racism Work for the Long Haul: Avoiding Fatigue and Burnout” was the latest in a series of Social Justice Webinars sponsored by SALT this year. The event featured Dean Mario Barnes, Toni Rembe Dean & Professor of Law, University of Washington School of Law; Nikita Gupta, GRIT Program Director, UCLA Bruin Resource Center and Carla Pratt, Dean & Professor of Law, Washburn University School of Law. More than 130 people attended the event. A video of the event is available here. Panelists explained why law school professors are in a critical position to combat racism, and talked about the importance of self-care in confronting injustice for the long haul.

The event was part of SALT’s Social Justice in Action Webinar Series. The next webinar, “Anti-racist Hiring Practices” will be held Friday, Oct. 16, 2020 at 3 p.m. EST. Registration is available at:  https://bit.ly/307SZ6M

They Should Call It Negotiation School, Not Law School

They Should Call It Negotiation School, Not Law School

Following publication of the recent ABA book, Litigation Interest and Risk Assessment:  Help Your Clients Make Good Litigation Decisions, which I co-authored, I have been giving talks related to the book.  I recently recorded a presentation entitled, “They Should Call It Negotiation School, Not Law School” for Becky Jacobs’s (Tennessee) ADR class.

This presentation points out that the vast majority of cases are negotiated, not litigated and certainly do not produce appellate opinions.  It provides a general introduction to negotiation, showing that negotiation is part of everyday interactions with virtually everyone lawyers interact with, and that negotiation is not limited to the final stage of a lawsuit.  It summarizes the major negotiation models and key variables that comprise the models.  It encourages lawyers to be “conflict diagnosticians,” helping clients identify and address the actual causes of their conflicts.  It recommends that lawyers help clients do litigation interest and risk assessments to develop bottom lines based on expected court outcomes and future tangible and intangible costs of litigation.  It urges students to develop good relationships with clients and counterpart lawyers when they are in practice.  There are links to resources throughout the powerpoint for students who want more information.

Here’s the 39-minute video and powerpoint, which you are welcome to use for your classes.

The title of the talk refers to the “hidden curriculum” in legal education implying that lawyers mostly do appellate litigation – negotiation not so much.  Generally, clients’ interests and negotiation are invisible in the hidden curriculum, and the implicit message is that they aren’t important.  Even when individual faculty valiantly include discussion of these issues, the hidden curriculum overwhelms these efforts, teaching a powerful, misleading message about what lawyers actually do.

Obviously, the idea that American law schools should be called “negotiation schools” is a big, fat lie.  Even in schools with the most robust dispute resolution programs, negotiation and other dispute resolution courses constitute only a secondary part of the curriculum.

So this got me thinking about what a “negotiation school” would really look like.  How about the following?

The required 1L curriculum might include the following introductory courses, and upperclass courses would provide more detailed instruction in these subjects:

  •          Written and Oral Communication Skills
  •          Common Law Analysis and Legal Research
  •          Working Constructively with Clients and Counterpart Lawyers
  •          Understanding Conflict and Using Negotiation and Other Methods of Dispute Resolution
  •          Strategic Case Evaluation and Management
  •          Professional Responsibility and Access to Justice
  •          History of Law and Justice in the US
  •          Technology and Dispute System Design Skills
  •          Business Transactional Skills and Practice
  •          Civil Pretrial and Trial Practice
  •          Criminal Procedure and Practice
  •          Administrative Law and Government Practice
  •          Appellate Procedure and Practice

The last four courses on this list would note that most legal cases are not finally adjudicated and would discuss how lawyers use legal procedures as part of their case management and negotiation strategies.  For example, the Criminal Procedure and Practice course would include substantial coverage of plea bargaining.

In the first year, courses might be taught in a series of short modules so that students would complete foundational courses before taking courses relying on the skills and knowledge taught in the preceding courses.  For example, students would take courses on communication, common law analysis, and legal research skills in the first few weeks of school to lay the groundwork for courses later in the year.

During the winter inter-session, schools might “shoehorn” a short course on legal doctrine such as contracts or torts.  Students would be able to count up to 9 credits of doctrinal courses toward graduation.

This curriculum would reflect the trans-substantive nature of the general skills that lawyers generally use in virtually all types of practice.  By contrast, in practice, lawyers need to regularly research, learn, and update knowledge of specific legal authority in many different subject areas.

Students would be evaluated primarily on portfolios of work-product they develop as part of their individualized learning plans.  The curriculum would dramatically reduce the use of high-stakes, end-of-semester exams that require a lot of memorization and de-contextualized application of legal rules. 

The major school competition would be in client interviewing, counseling, and negotiation instead of moot court.

Students performing well in clinical and practice courses would have the easiest time getting prestigious jobs.

To become licensed to practice law, after graduation, students would complete modestly-paid one-year internships (like Canadian articling) instead of taking a bar exam.  Since students wouldn’t take a bar exam, they wouldn’t feel compelled to take “bar courses” they aren’t interested in just to increase their chances of passing the bar.

Faculty teaching legal writing, clinical, externship, and skills courses would have the highest pay and status.  Faculty teaching subjects like Con Law would be paid less and have multi-year contracts instead of tenure.  In a few egalitarian schools, they would be allowed to vote in faculty meetings.

Scholarship focusing on the relationship between theory and practice would have the highest status.  Faculty writing about obscure topics of interest to only a handful of scholars would have a hard time getting tenure.

I realize that this idea is a bit extreme.  Perhaps students should be permitted to take up to 15 credits of doctrinal courses.  🙂 

Does this all seem too radical to you? 

Obviously, this somewhat mischievous thought experiment is intended to be provocative.  It uses some role reversal to identify unconscious assumptions that we take for granted about what is necessary or appropriate for good legal education. 

It’s hard to even imagine any substantial alternative to our system of legal education to address realities of legal practice because our curriculum is so thoroughly institutionalized with our curriculum structure, textbook industry, staffing commitments, tenure norms, bar exams, US News rankings etc.

Unfortunately, American legal education is extremely resistant to change for many reasons, and it’s unlikely that any law school would even consider these ideas.  But you might want to reflect on them and the underlying assumptions of our work.

What do you think?  How would you design a “negotiation school” or “legal practice school” or the like?

Report on the CSALE “2019-20 Survey of Applied Legal Education”

by Bob Kuehn, Professor of Law & Associate Dean for Clinical Education Washington University School of Law

The Center for the Study of Applied Legal Education (CSALE) is pleased to announce that the report on its “2019-20 Survey of Applied Legal Education” is now available on CSALE’s redesigned website:  https://www.csale.org/#results.

The report summarizes the collective survey responses from 95% of law schools and over 1,300 law clinic and field placement instructors. The 2019-20 survey, CSALE’s fifth tri-annual survey, provides the most comprehensive, accurate picture to date of clinical legal education programs, courses, and faculty.

In addition to the report, CSALE provides customized information on aspects of the data, such as how a school’s clinical courses or faculty compare to peer schools or more detailed sorting of survey question results. Requests for a customized report should be sent to administrator@csale.org.

Clinical Law Review seeks applications for five vacancies on Board of Editors

The Clinical Law Review seeks applications for five vacancies on the Board of Editors. The Board urges you to think about whether you would be interested, and to think about others whom you would encourage to apply. 

Members of the Board of Editors serve for a term of 6 years. The term of the new Board members will commence in January 2022. The primary role of the Board members is to edit articles for the Review. Because this is a peer-edited journal, the editing process is collaborative. Board members also serve as small group facilitators in the annual Clinical Law Review Workshop. There is at least one meeting per year of the Board, usually held at the annual Workshop. 

Applicants should submit (1) a C.V. and (2) a statement explaining their interest in the position and highlighting relevant aspects of their experience.  The Board seeks applications from people committed to the work of the Review and will prioritize applicants from underrepresented groups and applicants with diverse experiences in and approaches to clinical legal education. Applications must be received no later than January 31, 2021. Please e-mail them to CLRBoardApps2021@gmail.com.  

The committee to select new Board members is always co-chaired by two current Board members whose term is expiring. We (Jeff Selbin & Jennifer Koh) will be serving this year as the co-chairs of the Selection Committee. The other members of the committee will be designated by the three organizations that sponsor the Clinical Law Review — AALS, CLEA, and NYU — each of which will designate two committee members. 

We encourage you to contact us or other current or former Board members with any questions or for information about service on the Board. We and other Board members have found the experience to be very rewarding. 

The other current members of the Board are: Muneer Ahmad, Sameer Ashar, Susan Bennett, Warren Binford, Marty Guggenheim, Margaret Johnson, Jen Lee, and Alex Scherr. The current members whose terms are ending, along with ours, are: Muneer, Susan, and Warren. 

The current Editors-in-Chief are Phyllis Goldfarb, Randy Hertz, and Michael Pinard. 

Those who previously served on the Board are: Jane Aiken, Amna Akbar; Tony Alfieri, Wendy Bach; Bev Balos, Margaret Martin Barry, Ben Barton, Juliet Brodie, Angela Burton, Stacy Caplow, Bob Dinerstein, Jon Dubin, Cecelia Espenoza, Keith Findley, Gay Gellhorn, Michele Gilman, Carolyn Grose, Peter Toll Hoffman, Jonathan Hyman, Peter Joy, Minna Kotkin, Deborah Maranville, Bridget McCormack, Binny Miller, Kim O’Leary, Ascanio Piomelli, Mae Quinn, Paul Reingold, Brenda Smith, Jim Stark, Paul Tremblay, Nina Tarr, Kim Thomas, Rod Uphoff, and Leah Wortham. The Emeritus Editors-in-Chief are Richard Boswell, Isabelle Gunning, and Kate Kruse. The late Steve Ellmann was a founding Editor-in-Chief of the Review.

We look forward to hearing from you. — Jennifer Lee Koh & Jeff Selbin 

Engaging in Anti-Racism Work for the Long Haul

Society of American Law Teachers

September 18th

3 p.m. to 4 p.m. EST
Register here: https://bit.ly/2BDeToN
 
Featuring:

Carla Pratt
Dean & Professor of Law
Washburn University School of Law

Mario Barnes

Toni Rembe Dean & Professor of Law,
University of Washington School of Law

Nikita Gupta
GRIT Program Director
UCLA Bruin Resource Center

After registering, you will receive a confirmation email
with information about joining the meeting.

______________________________

Next SALT Social Justice in Action Webinar
Anti-Racist Hiring Practices, October 16, 3:00 p.m. to 4:00 p.m.
Register here: https://bit.ly/307SZ6M

New article explores legal bases for exemptions from in-person teaching during the Coronavirus pandemic

From Gary Simson at Mercer Law:

In It’s Alright, Ma, It’s Life and Life Only: Are Colleges and Universities Legally Obligated during the Coronavirus Pandemic to Exempt High-Risk Faculty from In-Person Teaching Requirements?, Mercer Law Professors Mark Jones, Cathren Page, Sue Painter-Thorne, and Gary Simson examine colleges’ and universities’ legal obligations to allow faculty to opt for online, rather than in-person, teaching during this pandemic. They focus on the group of faculty whom they believe colleges and universities have the clearest legal obligation to protect – those who, according to the Centers for Disease Control and Prevention, appear to be most vulnerable to getting seriously ill or even dying if they contract the coronavirus. In the language of the CDC, their focus is faculty members “at increased risk of severe illness from COVID-19,” which, according to the CDC, means anyone who has reached age 65 or who has one of various medical conditions, including cancer, chronic kidney disease, pregnancy, hypertension, and more.

The authors maintain that four separate legal sources are best understood as requiring colleges and universities to exempt high-risk faculty from any in-person teaching requirement. Two of the four sources are federal statutes that qualify as major statements of national policy – the Americans with Disabilities Act and the Age Discrimination in Employment Act.  The other two sources are important state-law doctrines with strong support in the American Law Institute’s most recent restatement of the law of torts – protection from intentional infliction of physical harm, and protection from intentional infliction of emotional distress. The authors express the hope that their arguments will persuade college and university leaders to exempt high-risk faculty not simply to avoid possible legal liability but also out of a recognition that a college or university policy at odds with legal sources as weighty as the four discussed speaks very poorly for the institutions those leaders are charged with leading. 

For the article, see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3684190.

SALT Social Justice in Action

A Virtual Series Sponsored by 

 The Society of American Law Teachers

SALT encourages law schools across the country to take affirmative steps to promote justice, eradicate racism and support their law school communities in light of pervasive injustices. SALT is proud to announce a virtual series featuring law school teachers sharing their expertise on how to educate the next generation of lawyers, support students of color and dismantle structural inequality and racism in the United States. We will host monthly panel discussions on ways to combat racism and promote equity in law school. This work will include presentations on the integration of anti-racist frameworks in classes, promoting equity and inclusion in online teaching, anti-racist faculty hiring practices, and racialized trauma and fatigue.


Promoting Equity and Inclusion in Online Teaching
 August  21, 2020  3:00 – 4:00 pm ET
Register here:  https://bit.ly/2DbiMli

 Featuring

Goldie Pritchard, Director, Academic Success Program, Michigan State Univ. College of Law
Tasha Souza, Associate Director of the Center for Teaching and Learning, Boise State University
Carwina WengClinical Professor of Law, Indiana University Maurer School of Law
Sha-Shana N.L. Crichton, Director, Legal Writing Program, Howard University School of Law

If you have questions for our panelists in advance of the event,
please submit them here: https://forms.gle/5PuV1LSznYKWQ4Gc9


Racialized Trauma and Fatigue Among Academic Activists
 September 18, 2020 3:00-4:00 pm ET
Register here:  https://bit.ly/2BDeToN

 Featuring

Nikita Gupta, GRIT Coaching Program Director, University of California, Los Angeles
Carla Pratt, Dean, Washburn University School of Law
Rosario Lozada, Associate Professor of Legal Skills and Values, Florida International University Law


Anti-Racist Hiring Practices
October 16, 2020 3:00-4:00 pm ET
Register here:  https://bit.ly/307SZ6M

 Featuring

Tamara Lawson, Dean, St. Thomas University School of Law 
Angela Onwuachi-Willig, Dean, Boston University School of Law 
Sean Scott, President and Dean, California Western School of Law
 

 After registering, you will receive a confirmation email containing information about joining the meeting.

Managing Expectations in the Law School Classroom

On behalf of Andrew Henderson, PhD Candidate, ANU College of Law, The Australian National University

Developing a relationship with students in an online setting is a challenge. There are the problems with technology (‘You’re muted!’) and the usual interruptions (‘I’ll come and watch Paw Patrol in a minute’). But all those usual tricks we use as law teachers to ‘read the room’, especially at the start of the semester, don’t quite work.

And that can be a problem. A recent survey of undergraduate college students found that their experience with ‘emergency’ remote teaching was not a happy one. And a lot of university professors felt the same way, especially when it came to student participation.

One of the ways I have often got out ahead of student satisfaction in face-to-face classes was to have an explicit conversation about expectations. But not just the standard, finger-wagging ‘you will do the reading’ diatribe. I ask students specifically about their expectations of me.

The idea of writing’ classroom rules’ together in schools is common.  There are lots of books, articles and blog posts about classroom agreements by school teachers.  The International Baccalaureate’s Primary Years Program mandates what they refer to as an ‘Essential Agreement’.  The objective is to establish a collective agreement – with all the buy-in that brings with it – on how the class will function.

I was an elementary school teacher. I often wondered why, when I moved to law school, law teachers didn’t do the same thing.  Especially when they’re subject to a much more explicit student evaluation process.   

There is some valuable research on whether student evaluations have value as a performance assessment or management tool.  But, where they are completed honestly and sensibly, evaluation comments tend to fall into common categories.  Usually, there are comments about assessment preparation, assessment tasks and feedback. There are often comments about what was taught or how it was taught. And there is usually something about individual teaching style.

But, by the time the comments appear, it’s generally too late to do anything about a lot of them.  Assessment tasks were locked in with the faculty board months or even years ahead. And lectures are ‘done and dusted’.

Getting that feedback earlier on would, of course, have been valuable. And in an online environment, grabbing some of those expectations can be even more useful given that both students and teachers are doing something new.  Some of the comments might even explain why law students were really engaged.  They might also explain why they performed poorly or didn’t participate. It might have had nothing to do with you at all! But it will also tell you about things that you might have been able to do, or stop doing if you had known earlier.

Traditionally, I would do this in class and usually in the first seminar. I would also get students to give their expectations to another student to encourage openness. And I have talked about that more traditional process on my own blog.

But how can you do this in an online environment where no one really wants to sit in a Zoom room for more than an hour? And how can it be done to preserve a degree of sincerity and openness, especially in a first meeting?

Maybe one of the simplest ways is to use a shared document or even create a Google form with some simple questions. The settings for Google forms can be adjusted so that the respondent doesn’t have to enter their email.  Responses are helpfully collected anonymously in a single Google Sheet that can be reproduced and published.

I have also found another tool that can do the same thing in a way which is more familiar to students. A web-based app called Parampara allows users to create a questionnaire that looks like a Facebook Messenger conversation in a web browser.  Although it seems like a conversation, responses can be pre-programmed with alternative answers depending on the options that the respondent picks. I have found it much more ‘friendly’ than a Google form. And it’s free for the basic account.

While the process of collecting expectations in the classroom was valuable, I have actually found that collecting them through an online tool even more useful. Students would appear to be happy to express themselves more freely and openly. They will often talk about their expectations and where they believe they need help with aspects of the content or skills development.

For example, students have asked for specific things to be covered in more detail because they aren’t sure they understand them. Some have asked for specific advice about particular skills, like essay writing. Some have even expressed their concerns about being called on but also suggested how I can help them manage that anxiety so that they can actively participate.

Overall, it has meant that I have been able to adapt my teaching and the content to respond specifically to students’ interests and needs. Put another way, students have been actively engaged in the development of the course.

Setting out expectations at the start of the semester can be a valuable process. From a selfish perspective, it can give an early ‘heads up’ things that can be addressed before student evaluation time. But, the more valuable outcome has been that my teaching overall has improved. Using these online tools has meant that expectations are captured accurately, clearly communicated and expressed in a way that has further enhanced my teaching.

(Parts of this post appeared in the author’s blog, The Mermaid’s Purse, on 12 February 2020)

Menstrual Products and the Bar: Advocacy Seeks to Create Equal Bar Exam Testing Conditions for Menstruators

By: Elizabeth B. Cooper, Fordham Law School; Margaret E. Johnson, U. Baltimore Law (visiting at American); and Marcy L. Karin, UDC David A. Clarke School of Law

We can all recall the stress, fear, and worry that accompany taking the bar exam.  About half of us also were anxious we would have to manage our period in the middle of this awful two-to-three-day ordeal.  Bar examiners across the country have made this prospect far more daunting than it needs to be by not treating menstruation as the natural biological process that it is.

Without proof of any test-taker having ever cheated using a tampon or pad, some states have chosen to stigmatize and potentially penalize people who have their periods with draconian policies prohibiting bar examinees from bringing their own menstrual products with them.  Other states have failed to adopt or communicate clear policies on the subject, increasing test-takers’ anxiety: one should not have to waste time researching the Bar Examiners’ hard-to-find policies  or calling their offices for answers—which may, or may not, yield consistent information. 

The harm here is four-fold: 1. It is wrong to make test-taking conditions more challenging for people based on the fact they menstruate; 2. It is wrong to limit test-takers to random products selected by Bar Examiners that could put test-takers’ health and menstruation management at risk; 3. It is wrong to exclude text-takers from any menstrual products simply because they do not use the women’s restroom; and 4. It is wrong to convey the harmful message that all people who menstruate are untrustworthy and do not belong in the legal profession. 

Some states, including Texas and Pennsylvania, prohibited exam-takers from bringing in their own menstrual products, offering to provide a limited and unpredictable set of products in the women’s bathroom.  (After much advocacy, Texas changed its rule for the September exam, though it is unclear if this is a permanent change.)  This does not solve the problems these states created in the first place by banning test-takers from bringing in their own products.  People who menstruate need their own products because menstrual products are not “one size fits all”: menstruaters require different sizes and levels of absorbency in their products to best fit their body and menstrual flow.  

Use of the wrong size product can lead to everything from pain and discomfort to toxic shock syndrome (if too large) and time-consuming, uncomfortable, and disruptive leaks (if too small). Further, some individuals require hypoallergenic products to protect against allergic reactions.  If not provided, applicants may experience vaginal itching or other problems caused by using allergen-containing tampons or pads inside or adjacent to their bodies.  All of these consequences are awful enough on their own; here, they create an unconscionable risk of derailing exam performance.

In addition, by limiting test-takers from bringing in their own products and then providing products only in the women’s restrooms, Bar Examiners relegate transgender men and nonbinary persons who may menstruate, and who may use the men’s restrooms or all-gender restrooms, to having no access to menstrual products during the bar exam.

Other states allow test-takers to bring their own products, but require them to be packaged in a clear plastic bag—with some states mandating that the product be unwrapped.  This last requirement makes no sense: the wrapper both keeps the product hygienic before being inserted into or placed adjacent to one’s body and provides an efficient way to safely dispose of used products, reducing janitorial staff’s exposure to bodily fluids.  Further, removing the wrapping exposes the adhesive on the bottom of some pads, rendering them practically useless when the menstruator tries to unstick them from the clear plastic bag.

As much as we want to destigmatize menstruation and eradicate the embarrassment and taboo of being seen with a tampon or pad, it remains an invasion of privacy to require test-takers to carry their products in a clear plastic bag, revealing to a proctor (and possibly a classmates, colleagues, or future opposing counsel) that one has or expects to get their period during the exam.  (One North Carolina bar exam test-taker reported that a proctor asked her if she “really needed those” while inspecting her plastic bag of menstrual products.)  Finally, this intrusion is even more painful for, and potentially outs, transgender men and non-binary law graduates who may not be public about their biological sex.  It may even set them up for bigoted harassment—during the biggest exam of their lives.

Other states allow test-takers to bring their own products and do not require them to be carried in a clear bag—but, they must check them with a proctor or retrieve them outside the exam room before heading to the restroom.  This “solution” means that a menstruating person with will have to take vital time away from the exam (or a break between sections of the exam) to obtain their menstrual products before using the restroom.  This “time tax” is as unacceptable as the other approaches described above.

At least some states treat people who menstruate without such bizarre suspicion, allowing them to bring in and keep their own products with them during the exam, and use them as needed during the test—without having to ask a stranger for their own personal possessions.  To date, there have been no known accusations of test-takers trying to do the impossible: write helpful information on a pad or tampon to give them an edge on the exam or smuggle in written answers inside the product’s wrapping.

The lack of uniformity of equity-based rules permitting access to one’s own menstrual products is unacceptable and must be changed. Thankfully, in the age of social media, law graduates have taken the lead on this advocacy, sharing the hurdles they are facing on social media and asking state Bar Examiners to eliminate these outrageous rules, largely under the #bloodybarpocalypse hashtag. 

Once we saw their posts, the three of us, working with fantastic former clinic students of Fordham and UDC, began advocating that all state Bar Examiners adopt better menstrual products policies.  We drafted a letter to the National Conference of Bar Examiners (NCBE)—co-signed by over 2800 law professors, law students, law school graduates, and lawyers in under 24 hours.  We also sent letters to Bar Examiners in each state that administered an in-person July bar exam and did not have a clear, acceptable policy in place.  All of these efforts led to some quick changes. 

The NCBE contacted state Bar Examiners and informed them that menstrual products were not included in the NCBE’s “prohibited paper” category and that test-takers should be able to bring in their own products.  The press started asking questions of the state Bar Examiners.  And state Bar Examiners began changing or clarifying their policies, with some confirming to examinees that they could bring personal menstrual products to the exam.  For instance, West Virginia Bar Examiners insisted that they permitted products in the exam room, even though their website said differently. Texas state Bar Examiners changed their policy from not permitting products to permitting them at its September exam.  (The state has issued contradictory statements, however, about whether this change is permanent.)

This positive change is not, however, uniform: even those states that have adopted equitable policies must be monitored to ensure they are adopting best practices.  In our efforts to get accurate and honest information from state Bar Examiners across the country, it has been deeply disconcerting to learn how many jurisdictions are silent on whether examinees may bring in their own menstrual products; have informal policies that contradict written statements about what items are allowed in the exam (e.g., not listing menstrual products in the list of items test-takers can bring in, but informally allowing them); or have stubbornly held onto their recalcitrant policies.  

Equally unacceptable, many Bar Examiners will not share the documentation that they say embodies their policies (e.g., generic letters to test-takers informing them what they can and cannot bring into the exam; postings on their web sites behind a security wall).  Without this proof, there is no accountability and the true practices of these states remain unknown.   

As we reach out to jurisdictions administering in-person exams in the coming months, our demands are clear: Bar Examiners must issue explicit policies permitting examinees to bring their own menstrual products in to bar exams, in an opaque container or on their person, and to publish these policies on their websites.  Other bar-related policies that can have disproportionate effects also must be changed.  For instance, examinees needing to pump their breastmilk must be given ready accommodations and bathroom access must not be limited as it affects both pumpers and menstruators.

To learn more about all of the advocacy efforts in this area, check out Menstrual Equity and the Bar Exam: Round Up of Op-Eds and Other Media Coverage on the Feminist Law Professors blog and follow the hashtag #MPandTheBar.  If you want to get involved in this work, let us know. And no doubt other activists working on the pumping and bathroom access issues would welcome assistance too. There is, unfortunately, plenty of work to be done.

SALT Virtual Series: Social Justice in Action: Incorporating Anti-Racism Frameworks into Core Law School Classes

        In an effort to encourage law schools across the country to take affirmative steps to promote justice, eradicate racism, and support their law school communities in light of pervasive injustices, SALT has organized a virtual series featuring law school teachers sharing their expertise on how to educate the next generation of lawyers, support students of color, and dismantle structural inequality and racism in the United States. SALT is hosting monthly panel discussions on ways to combat racism and promote equity in law school. The first webinar, Incorporating Anti-Racism Frameworks into Core Law School Classes, will be held  on July 30, 2020.  The webinar will be recorded and made available on the SALT website

THURSDAY, July 30 at 3:00 pmIncorporating Anti-Racism Frameworks into Core Law School Classes  
Register Here:  https://bit.ly/2Oewk1K
Submit Questions Here:  https://bit.ly/2ZOrMFP

Tiffany Atkins, Elon University School of Law, Dorothy Brown, Emory University School of Law, Jane Cross, NOVA Southeastern University College of Law, Hugh Mundy, UIC John Marshall Law School

NOTE:  We are collecting questions for the panelists in advance. Please submit your questions here:  https://bit.ly/2ZOrMFP

Upcoming Monthly Webinars:  Always at 3:00 pm Eastern 
August 21:  Promoting Equity and Inclusion in Online Teaching
September 18:  Racialized Trauma and Fatigue Among Academic Activists
October 16: Anti-Racist Hiring Practices   

Please share your reflections on the July webinar here.

AALS Clinical Section Virtual Conference

The Clinical Legal Education Association (CLEA) welcomed 475 clinic faculty from around the country to its 2020 Virtual Conference, July 21-23.  CLEA called on clinic faculty to join together virtually this unprecedented moment.  To view the conference program guide, please click here. To view the poster presentations, please click here.

CLEA’s call for proposals drew a large response from clinic faculty around the country.  The call: 

Streets are filled with protesters rising up in response to horrific and ongoing systemic racism manifested by the continued attack on black and brown lives, and the COVID-19 pandemic has changed our daily reality. This has and will impact our professional and personal lives in critical ways. We are called upon as clinical faculty to reflect on and approach our pedagogy and practice differently. We are in new territory trying to determine the best way to run our clinical programs with the need for all or some of our teaching, services, and advocacy to be delivered remotely. We must re-examine the best way to teach about racial injustice and leverage clinical resources to take action to bring about real, lasting change. With these challenges and the inability to connect in-person, it is our goal to build community, draw on our collective wisdom, and provide a forum for discussion.

The virtual conference included plenaries, affinity group discussions, and larger discussion formats.  The opening plenary, Facing New Suns: Futuristic Lawyering for Black Liberation (“There is nothing new under the sun, but there are new suns.” – Octavia Butler) brought together Rasheedah Phillips (Featured Speaker) and Norrinda Hyat (Rutgers).

The Black Lives Matter protests that took place in the days and weeks following the public murder of George Floyd signal a remarkable shift in the landscape of modern social movements. A New York Times article, published on July 3, remarked that at the peak of the protests, on just one day June 6, half a million people turned out in nearly 550 places across the United States. And, also, that an estimated 15 million to 26 million total people in the United States have participated in demonstrations over the death of George Floyd and other black people since May making this “the largest movement in the country’s history.” 

Some of our students and clients have now spent months in the streets advocating for an end to the status quo, a status quo that is strengthened by the curriculum and structures of most, if not all, law schools. Central to these calls are a rejection of incremental reform. In place of conformism, the protesters are calling on America to imagine, in real time, a world without police, prisons, war, or capitalism. The writings of Angela Y. Davis remind us that the abolition of systems of oppression is both a negative and positivistic project. As for the latter, the protestors call for affirmatively imagining a country with healthcare, housing, education and freedom for Black and Latinx people

As teachers of and lawyers for many of the individuals and organizations marching, this moment calls for clinicians to “decolonize our imaginations,” as Walidah Imarisha sets out in the introduction to the Afro-futurist collection of short stories Octavia’s Brood. This plenary employs the tool of speculative fiction and the lens of Afro-futurism to motivate in each of us the process of “decolonizing” clinical legal education and clinical practice. Afro-futurism has been described as “an art form, practice and methodology that allows black people to see themselves in the future despite a distressing past and present.” Radical speculative fiction explores the connections between art and movements for social change. Speculative fiction is not new. W.E.B. Du Bois’ short story, The Comet, imagines a post-apocalyptic world in which the sole survivors are a black man and a white woman. In 1972, the MacArthur ‘genius’ Fellow Ishmael Reed wrote the canonical Mumbo Jumbo. The modern godmother of this genre, Octavia Butler, wrote her first of 13 books imagining a better future for black people in the diaspora, Patternmaster, in 1976. Radical speculative fiction’s application in the law is also not contemporary. In 1992, Professor Derek Bell merged radical speculative fiction and the law in his now iconic essay Space Traders. Following in the footsteps of DuBois, Butler and Bell, by looking to the creative, this plenary queries the role of clinical legal education in facilitating the future our clients are imagining and urges us to expand our notions of what is possible to stand in solidarity with our students, the protesters and organizers for black liberation through our teaching, advocacy and scholarship. 

The second panel, Black Lives Matter and the Future of Clinical Legal Education, included: presentations by: Desiree Mims (Black Organizing Project), Alexi Freeman (Denver), Nicole Smith Futrell (CUNY), and Renee Hatcher (UIC John Marshall), Donna Lee (CUNY), Oscar Lopez (East Bay Community Law Center) 

Finally, the closing panel, Top 5 Tips for Teaching Clinic Online, featured a presentation by Michele Pistone (Villanova) 

Thoughts, discussion, and ideas for further engagement from the CLEA virtual conference are welcome!

How Many People Will Preventably Die or Get Ill if Universities Hold Classes in Person? – Part 2

Most universities plan to hold classes in person this fall despite the fact that the coronavirus is spiraling out of control in the US, unlike most other countries.  Unfortunately, our political leaders in the federal government and many state governments are not taking effective action to control the virus.  Indeed, many of their policies are likely to spread the disease even more.  Under these circumstances, it seems likely that universities holding classes in person this fall will cause preventable illness and death.

Part 1 describes foreseeable risks and some pushback by faculty around the country.

This part provides statistics about other causes of death in the US, demonstrating how covid-19 far exceeds almost all of them.  It also discusses biases that may lead to poor decision-making by university administrators, students, and faculty about the risks and benefits of holding classes in person.

Some Perspective

We may become numb as we watch the numbers of deaths grow every day.

According to the New York Times, there have been more than 140,000 deaths in the US from Covid-19 in about six months.  This number continues to grow at an alarming rate.  Lately, there have been more than 60,000 new confirmed cases per day and close to 1,000 additional deaths some days.

For some perspective, consider the following statistics.

According to the National Center for Health Statistics, here are the top six causes of death in the US in 2017.

  • Heart disease: 647,457
  • Cancer: 599,108
  • Accidents (unintentional injuries): 169,936
  • Chronic lower respiratory diseases: 160,201
  • Stroke (cerebrovascular diseases): 146,383
  • Alzheimer’s disease: 121,404

In 2018, there were an estimated 36,560 deaths from automobile accidents.

In 2018, there were 16,214 murders and nonnegligent manslaughers the US, according to FBI statistics.

These figures are for entire years, compared with six months of the current pandemic.

As a result of the attacks on September 11, 2001, 2,997 people died.

Here are the number of American military deaths in our six most deadly wars:

  • American Civil War: 655,000 (est.)
  • World War II: 405,399
  • World War I: 116,516
  • Vietnam War: 58,209
  • Korean War: 36,574
  • Revolutionary War: 25,000

Note that these wars each lasted years, compared with only six months of deaths from Covid-19.

Faulty Thinking

I assume that university administrators are working overtime, sincerely trying to figure out the best way to deal with this crisis.  Their financial and institutional fears about not holding classes in person are understandable.  Perhaps if I participated in the these deliberations, I would share their perspectives about the wisdom of doing so.

I wonder if their assessments are colored by cognitive, motivational, and social biases leading to overly optimistic perspectives.  Are they so focused on measures to limit infection on campus that they don’t make realistic assumptions about student behavior off campus?

Do people who demand on-campus instruction have realistic expectations about what the experience will be like, both on campus and off?  It probably would be nothing like the intense social interaction they imagine — at least not if everyone complies with strict public health measures.  There will be great temptation to have the kind of interactions that could put a lot of people at serious risk.

Consider this news story:  “Virus’s Spread in Fraternity Houses Raises Concerns for Campuses Opening this Fall. … ‘There is not one event, or multiple events, that we can identify as being the repository of this,’ said Johnson, who is a senior.  ‘It just spread from people living in a house, or visiting others in a house to hang out, or even just running into someone at a grocery store. . . . It was truly community spread.’”

An extensive investigative report by the Washington Post shows that university health centers are woefully unprepared to deal with the virus.  Here are five takeaways from their investigation:

  1. Many college health services appear unprepared to handle a pandemic.
  2. Student health centers are like the Wild West of medical care.
  3. Risks increase for historically black colleges and universities.
  4. Some students can’t afford care at on-campus health centers.
  5. The pandemic has set off a financial crisis for student health care.

The article states:

Students are planning to descend on campuses in a matter of weeks as many states are experiencing a surge of coronavirus cases, including an increasing number of young people who have tested positive.  Health experts have described colleges as cruise ships on land, ideal places for the novel coronavirus to spread quickly through shared dorm rooms, communal bathrooms and dining halls.

University leaders are publicly lobbying for federal protections from coronavirus-related lawsuits when they reopen, arguing that costly litigation would take away from already scarce resources needed to support students.

College health officials, meanwhile, are privately discussing insufficient stockpiles of personal protective equipment, inadequate access to coronavirus testing on campus and a short supply of rooms to quarantine students, according to interviews, emails and presentations reviewed by The Post.

Health professionals at historically black colleges and universities have said they are concerned about the risks to their students and faculty because of the disproportionate number of covid-19 diagnoses and deaths among black people.

These decisions not only affect the university communities – they affect everyone.  Infections from students, faculty, and staff ripple out to their communities and everyone who comes in contact with them.  People in the US can’t travel to many other countries without being quarantined.  Similarly, people in some American states can’t travel to other states without being quarantined.  People in many states may have to live with increasingly strict limitations on their behavior.  Continued spread of the virus aggravates our intense political and social conflict.

Since students probably wouldn’t have the experiences on campus they imagine, here’s a real opportunity to do some problem-solving thinking to safely replicate online the campus social interactions as much as possible.  And it provides the potential side effect of having students focus more on good communication, less tainted by binge drinking and unsafe sex.  Obviously, this wouldn’t be an ideal substitute.  But we’re in a crisis with only more or less bad options.

For a more thorough analysis of the situation, see Peter H. Huang & Debra S. Austin, Unsafe at Any Campus:  Don’t Let Colleges Become the Next Cruise Ships, Nursing Homes, and Food Processing Plants.

Click here for a version of this post providing links to related articles.

Davida Finger (Loyola New Orleans) and Melanie Daily DeRousse (Kansas) Begin Work as Editors for Best Practices in Legal Education Blog 

As Mary Lynch announced in her July 13, 2020 farewell post, we are taking over as the editors of the Best Practices in Legal Education Blog. Mary’s post tells us about the Blog’s birth and growth out of CLEA’s Best Practices Committee’s work on the Best Practices in Legal Education book and the collaboration that led to the publication of Building on Best Practices.

Now that we have spent a little time looking back, we are excited to share a little about who we are and where we are headed.

Who we are:

  • Davida Finger is a Clinic Professor and Associate Dean of Students and Experiential Learning at Loyola New Orleans College of Law. She founded the Community Justice section of the Law Clinic where she and her clinic students have represented on housing, special education, and other civil rights matters with a focus on movement lawyering. Davida received the Bellow Scholars award from the AALS Clinical Association for her empirical research on New Orleans eviction geography that documented the discriminatory impact of evictions. She is the founding director of the College of Law’s Incubator Program for solo practitioners working for social justice. Davida recently completed a 2-year term as the president of the Society of American Law Teachers (SALT) and is currently teaching the externship course.
  • Melanie Daily DeRousse is a Clinical Associate Professor and Director of the Legal Aid Clinic at the University of Kansas School of Law. Melanie began work at KU in 2015 after she responded to a job posting that invited essays on how candidates would reinvent the then-47-year-old clinic by applying the principles in Best Practices in Legal Education. In her second term as a CLEA board member, she co-chairs the Best Practices in Pedagogy committee and serves on the Elections committee. She presents on legal education pedagogy with other Best Practices committee members at regional and national conferences, and also recently worked on the planning committee for CLEA’s 2020 New Clinicians’ Virtual Conference. Her clinical work focuses on juvenile justice, criminal defense, and child welfare; outside the clinic, she teaches and writes about family law and engages in university work on promotion, tenure, and pay equity, among other things. Before joining KU Law, Melanie represented survivors of intimate partner violence in family law matters through Legal Services of Eastern Missouri. She was a racial justice fellow in the inaugural class of advocates through the Shriver Center’s Racial Justice Institute.

Where we are headed:

It is humbling, to put it mildly, to be at the helm of such an insightful and collaborative group of contributing authors. As Mary mentioned, this Blog continues to evolve and spark “collaboration on steroids” as new ideas are generated, implemented, assessed, and modified. It is a powerful home for vetting ideas about teaching. We hope to continue to nurture the imaginative, inquisitive, and aspirational tone the Blog has cultivated over the years. As we focus our work as editors, we note the emergence of three main content areas worth highlighting:

  • Teaching justice by doing justice work: we will highlight efforts around inclusion, diversity, and radical change to upend structural racism in legal education and academic institutions;
  • Pedagogical (r)evolution: we will continue the Blog’s intense discussion of legal education reform and seek to emphasize emerging ideas about how we teach in ever-evolving classrooms with a priority on justice ideals; and
  • Large scale policy changes affecting teaching: we will share advocacy around big-picture issues in legal education – changes in ABA standards, forthcoming CSALE studies, structural changes in higher education that impact legal education.

In addition, we hope to use the tools of social media to encourage greater engagement in these discussions and feature prominently the voices of colleagues teaching diverse topics across the legal education curriculum. We welcome new authors, voices, and comments as we seek to broaden the conversation. CLEA is self-reflective and self-critical in understanding that, as an organization, it must do more to amplify and expand all manner of justice including through this Blog.

And, finally, a thank-you and a goodbye:

Finally, thank you to Mary Lynch, founder and 13-year editor of the Blog. We knew from reading the Blog that she was a very busy and involved editor; but during this transition, we had the first opportunity to see just how much she does behind the scenes to keep the conversation interesting, interactive, inclusive, and meaningful. She has been as thoughtful and supportive in this transition as could be possible. We are grateful that she will stay on as “Editor Emeritus” as the Blog continues to grow. Mary, thank you for all that you have done to create a space to engage all legal educators in a thoughtful and productive discussion about why, how, and what we teach, and why it matters.

 

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