Best Practices for Legal Education

A recent NY Times editorial, “The Misguided Drive to Measure ‘Learning Outcomes” by Molly Worthen, prompted revisiting the purpose-driven nature of what are labeled “educational” trends and this trend in particular – especially as it relates to legal education. Although quantifying “learning outcomes” has been pushed at the secondary and undergraduate levels for a while, it is now being required of legal educators.  As a lawyer and legal educator faced with the direction to set and measure learning outcomes, I have found myself conflicted in part because I find its limitations and the funneling nature of metrics incongruous with its language of education drawn from Bloom’s taxonomies.  There is also a current of politicization in the “drive.” In the end, the unique responsibilities of law school faculty as lawyers and in planning and implementing a school’s educational program is significant. Those roles inform the use and effectiveness of setting goals and actively paying attention to our effect on students – after getting past the lingo, of course.

At the outset, I found myself skeptical of the trend’s origins as an “educational” tool at all.  As the Worthen piece points out, although the push to quantify undergraduate learning is about a hundred years old, the real drive grew in the 1980’s. That decade’s impetus for quantification of teaching came during a time known for materialism, yuppies, the rapid growth of technology, and then President Reagan’s promise to return  prayer to school. Given this origin in an era of consumerism and growing talk of “liberalism” in higher education, it is readily inferrable that assessing learning objectives was the product of accreditors and the institutions they control with financial and conservative goals; see, David Clemens “Student Learning Outcomes and the Decline of American Education,” August 31, 2016, fostering assessment less as an educational goal and more as a means of control.

Moreover, the idea of “measuring outcomes” is inherently a business or economics concept or a concept more aptly used when discussing computers; it thus seems inapposite in legal education unless education is truly primarily a business or the language is adapted.  Outcomes, inputs, and outputs are terms used when major donors, for example, look for data-driven proof that their resources produce something.  Outputs are readily measureable.  Outcomes, the effect on people served that occurs because of the resource use, are much less readily measureable.  A donor then withdraws support when outputs don’t exceed inputs or outcomes are unmet.  Worthen notes that outcomes measurement was extended to undergraduate education because of accrediting agencies that demanded a form of learning assessment as a means of demonstrating fitness to receive federal student financial aid – a sort of stand-in for the donor as fund provider.  The telling part of the development of learning outcomes measurement is its push from employers.  Worthen wrote “Employers report repeatedly that many new graduates that they hire are not prepared to work, lacking the critical thinking, writing and problem-solving skills needed in today’s workplace” quoting then President Bush’s 2006 Commission on the Future of Higher Education’s Report.  I’m hard pressed to find teachers or professors who demanded development of assessments.

The direct pressure to produce learning outcomes in legal education comes from the ABA – likewise after major law firm employers similarly decried a lack of practice readiness in student graduates. Their complaints arose concurrent with a downturn in the economy that led those same employers to reduce their internal practice training.  With law schools pushed to the consumer, business model of delivering education, the slide into measuring outcomes has occurred despite criticism.

And, much of what is written about measuring learning outcomes other than by its developers is highly critical. Several early critical articles start from the position that significant aspects of education are simply not measurable because in part, education is a process, not a product a la Jerome Bruner. Thus, they argue, attempting to “measure” learning outcomes is inconsistent with good education. E.g.,  James Mckernan, Some Limitations of Outcome-Based Education. Journal of Curriculum and Supervision. Volume 8. 343-353 (1993).  That critique suggests measuring learning outcomes assumes knowledge can be broken down into “micro-outcomes” in disregard of the epistemology of knowledge (Mckernan) as theorized by some like Herbert Dreyfus to include background and experience that cannot be readily measured. Others criticize outcomes measurements for shifting the emphasis from learning to some kind of outcome at all, thereby ignoring the open-ended nature of education and encouraging rigidification of curriculum and perspective.  E.g., The Unhappiness Principle (November 29, 2012)  https://www.timeshighereducation.com/the-unhappiness-principle/421958.article . In a related way, still others have criticized the move toward measuring “learning outcomes” because a teacher’s success is dependent on whether students learn regardless of what students bring to the classroom referencing post cognitive learning theory and because targeting “outcomes” encourages teaching to the middle or bottom of a class to meet stated outcomes while ignoring other students.

Worthen notes as criticism the “obsession with testing that dominates primary education [has] invaded universities” pointing out a focus and resource shift to assessment rather than education.  Consistent with this concern about emphasizing testing and assessment over exploration, other authors have pointed to apprehension about how pressure on students to succeed according to measured external standards without cultivating personal morality has led to law student depression and cynicism. See Lawrence Krieger, Institutional Denial About the Dark Side of Law School, and Fresh Empirical Guidance for Constructively Breaking the Silence, 52 J. Legal. Educ. 112 (2002); see also Larry Natt Grantt and Benjamin Madison, Self-Directedness and Professional Formation: Connecting Two Critical Concepts in Legal Education (draft).

At least one critique focused not on educational soundness but more on the regulatory purpose of measuring assessments.  In a piece written for a conservative nonprofit institute, the author wrote “learning outcomes and assessment are not about education at all; they are about control.” David Clemens “Student Learning Outcomes and the Decline of American Education,” August 31, 2016 https://www.jamesgmartin.center/2016/08/student-learning-outcomes-decline-american-education/.  The author went on to note how political sides view outcomes differently though both sides see the outcomes as a tool for control.  “The right sees [learning outcomes] as a way to enforce professor accountability, increase ‘productivity,’ and get rid of bad teachers and junk courses.  The left sees [learning outcomes] as a golden opportunity to promote progressivism through ideological outcomes that students must internalize in order to pass.” The same author went on to note by way of example how selecting outcomes such as “build awareness of the history and context of diversity and social justice in [the State]” are “not the sort of thing” that “my conservative friends had in mind” for student learning outcomes.

Assuming in law schools we somehow adapt the economics terminology to legal education, measuring learning outcomes seems to be a policy that will continue for a time.  In legal education, of great significance, of course, is the responsibility of faculty for setting the program of education. Even revisioning learning goals as learning outcomes, the questions remain: in law school, what is meant by education, what can and what should be measured, and what is there about law and law practice that should form the basis of legal education whether measured.    In a short piece “What is Education? Insights from the World’s Greatest Minds,” https://www.psychologytoday.com/blog/the-moment-youth/201405/what-is-education-insights-the-worlds-greatest-minds, Marilyn Price-Mitchell, Ph.D. offers, among other things, the following about education:

            “The principle goal of education in the schools should be creating men and women who are capable of doing new things, not simply repeating what other generations have done.” Jean Piaget

            “Education is what remains after one has forgotten what one has learned in school.” Albert Einstein

            “Education is the most powerful weapon which you can use to change the world.” Nelson Mandela

            The law, unlike computers and math, is like the people who make it – reasoned but imperfect, biased, aspirational, short-sighted, flawed, reflective of society, and constantly changing; legal education goals should reflect those dynamics.  Although some schools have sought regional accreditation from the same entities that accredit undergraduate schools, legal education itself remains distinguishable from education at other institutions if only because it is governed by a professional set of standards unique to legal education.  The ABA Standard 302 obligates accredited law schools to establish minimum learning outcomes in the following areas: (a) Knowledge and understanding of substantive and procedural law; (b) Legal  analysis  and  reasoning,  legal  research,  problem-solving,  and  written  and  oral communication in the legal context; (c) Exercise of proper professional and ethical responsibilities to clients and the legal system; and (d) Other professional skills needed for competent and ethical participation as a member of the legal profession.  “Micro-outcomes” are not required, and “understanding” is one of the outcomes under the ABA.  It seems counter-intuitive and inconsistent with the goals of legal education that “micro-outcomes” set for other university degrees should somehow supersede ABA standards. For example, though “understanding” seems not to be an appropriate outcome under Middle States standards, it is clearly an outcome under ABA standards. Certainly for purposes of remaining ABA compliant, it seems appropriate to read general education standards in light of the specialized standards of a legal education if only to ensure bar passage and ethical participation as a member of our profession.

Not surprisingly then, beyond knowledge, analytical, and communication objectives, the ABA requires professional skills and ethical responsibilities goals aimed at both clients and the legal system we serve. Consistent with the idea that the law is about people, the people who make and the people who serve and are served by it, ABA Interpretation 302-1 further states that other law schools may determine other professional skills including, among others, “cultural competency.”  Thus, it would seem that while “build[ing] awareness of the history and context of diversity and social justice” may not have been what was initially in the minds of those who pushed for measuring learning outcomes as a way of “increasing productivity,” awareness of cultural differences and building cross-cultural competencies is nevertheless a specifically enumerated learning outcome that law schools may set. Any outcomes created under ABA standards are significant to the how students may come to learn not only the rules, but to view the law in context and in practice.

Despite the economics origin and terminology of “measuring” “outcomes,” and the difficulty in measuring some learning goals in law school – at least those goals in addition to passing the bar exam – perhaps as a colleague suggested, we might recognize the opening to address the context in which law is made and practiced more.  Consistent with our oath’s commitment to uphold the Constitution and ethical participation in our profession, decide what can be achieved in addition to knowledge and understanding of procedural law and practice skills.  Start with the aspirational; establish goals that begin with awareness that can be measured, and then hope for the enlightenment that comes from the experience after awareness all the while recognizing we may not need to measure everything.

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