Best Practices for Legal Education

in this post  you get the results of my effort to frame the questions for dealing with what seems like round 18,096 in debates over grading policies:

My  faculty colleagues disagree among ourselves about how to strike the balance among potentially conflicting educational goals.

• We all want to challenge students to aspire to and meet high standards of professional excellence.
• We know that we need to be able to communicate effectively with prospective employers about the extent to which students have met those standards.
• We want to support our students’ mental health, rather than undermine it.  (Dr. Andy Benjamin — lead author of an early study on law student psychological distress  —  plays several roles at my  law school, including counseling our students.  Thus, many of us are all too aware that rigorous empirical research shows a doubling of clinical depression, alcohol and drug abuse that surfaces after the first grades law students receive and continues throughout law school.   And that more recent evidence suggests that  a heavy emphasis on external motivators -such as grades and honors — is correlated with that distress and that an environment that promotes a sense of self-determination for law students counteracts it and promotes bar passage and motivation in the first job after graduation.)
• And we want to be “fair” to students in our  grading practices– especially for multiple sections of required courses, both for fairness’s own sake and to limit the time the administration must take responding to student concerns.

I suspect that we would all give at least lip service to each of these goals.  And I imagine that is true at many, if not most, schools.  But it’s never easy striking the balance.

Though we’re generally a collegial bunch, our disagreements over striking the  balance surface repeatedly.  The camps fall roughly into  those who prioritize grades as a motivator and a signal to employers, and those who emphasize the value of  internal motivation and student mental health.  In the 1990’s and early 2000’s my law school oscillated between different grading systems reflecting those competing concerns.  In recent years we’ve implicitly agreed not to change the broad outlines of our current grading system that doesn’t fully satisfy anyone.  But the issues never fully go away.

And that fact inevitably brings us back to recurrent questions surrounding assessment practices.

1.  Traditional Test-Based Assessment.  Are law school exams valid? Reliable?   What is it that we think we are testing for in our written exams? Do our tests in fact measure what we think they do?  Do our classes provide opportunities for our students to learn  what we think we are testing for in these exams?   Are we transparent to students about what we think we are teaching & testing?  And, perhaps more fundamentally, is what we think we are testing important? i.e. Are we testing for what lawyers will need in order to progress to performing at the highest standards?

Note that I’ve intentionally tried to side step the MacCrate knowledge-skills-values trichotomy here.  I agree with Kate Kruse‘s argument that our adherence to the MacCrate trichotomy currently reinforces the traditional theory-practice divide and in the process hinders curriculum innovation.  See her forthcoming article in the McGeorge Law Review, soon to be posted on SSRN.

2.  Alternatives to Test-Based Assessment.  What are they?  Are rubrics an alternative to test based assessment, or a potential adjunct to every assessment method?  Are alternatives to tests unreasonably time-consuming for faculty?  Do they adequately distinguish superior from adequate performance?  Are they — can they be — sufficiently objective?  (And here I must ask,challenging our frequent assumption that tests are “objective,” as compared to what?)

3. Assessment & Motivation.  What role do grades play in motivating students?  Do they sometimes undermine motivation?  If so, under what circumstances?  Are the answers to these questions changing as law school student bodies are populated by a generation of students whose academic experiences have been shaped by high stakes testing?

4. Fairness in Assessment.  Regardless of what assessment tools we use, what does fairness in assessment require?  We certainly do not and realistically cannot in the short-run evaluate each law school exam for validity in the rigorous sense aspired to by educational psychologists. The same is true for such recent innovations as the use of rubrics to evaluate performance in clinics or “skills” courses.   How do — how should —  these potential fairness concerns interact with fairness concerns driven by deviations from a curve?

Just a few of many potential questions.  And, as law schools respond to the call for curricular innovation,  l suspect we’ll be challenged in turn to respond to the

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