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.

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.

 

Addressing Structural Racism in Law School: CUNY Law Faculty Issues Statement and Demand for Action

At law schools across the country, we are grappling with how to respond to internal and external conversations about the role of the legal profession in addressing structural racism, white supremacy, and racist policing. At CUNY Law School, Black faculty and non-Black faculty of color recently drafted and published a Statement and Demand for Action that was endorsed by the full faculty. The impressive and comprehensive statement outlines action steps, policy demands, and faculty dynamics that must change, addresses CUNY’s problematic relationship with the NYPD, and pushes for specific action to create an anti-racist campus.

As we collectively consider the path forward, what steps in CUNY’s plan resonate? What similar discussions are taking place at other law schools, and what is changing? Let us know in the comments.

 

Full text of the statement appears below this line: 

Statement and Demand for Action to Create an Anti-Racist Campus

By Black Faculty and Faculty of Color at CUNY Law

June 30, 2020

Black Faculty and Faculty of Color of CUNY School of Law issue the following statement, endorsed by the full faculty. We believe unequivocally that Black Lives Matter. We grieve with the families of Ahmaud Aubery, Rayshard Brooks, George Floyd, Tony McDade, Breonna Taylor, and every victim of anti-Black violence. We stand in solidarity with those who are demanding justice for their deaths, and who are fighting to dismantle white supremacy in all its forms, and specifically, systemic anti-Black racism. We join in solidarity with those in New York City and around the country who are challenging not only structural racism and racist policing, but anti-Blackness and racism in all of our institutions. The legal academy, including CUNY School of Law, are not exempt from these legacies of slavery and subjugation.

Statement and Demand for Action to Create an Anti-Racist Campus

As Black and non-Black faculty of color, we support the Movement for Black Lives Policy Platforms and stand in solidarity with the movement to defund and abolish police and redefine public safety and accountability through non-carceral investments in Black communities. Accordingly, we reject reforms that preserve the status quo.  As lawyers and educators, we acknowledge our profession’s history of upholding white supremacy and thwarting these demands. However, we are also uniquely situated to further them. Below are preliminary areas in which the law school must work in furtherance of these goals:

Our role in the legal profession: We heartily embrace the dual mission of our law school — to facilitate access to underrepresented communities historically excluded from the profession by white supremacy, and particularly anti-Blackness, and to act as an entrée into providing legal support to communities fighting against systems entrenched in white supremacy. Our view of social justice calls for a complete reimagining of the state and society. Accordingly, we seek to serve those students who will genuinely and fearlessly pursue transformative racial and economic justice.

We uplift and honor the legacy of W. Haywood Burns, the first Black law school dean in New York State, who was also the second dean of CUNY School of Law and tirelessly fought for Black liberation in and outside of the walls of CUNY Law. We are cognizant that among the central tools of oppression under white supremacy is the law, particularly as meted out by police, military and prosecutors of all stripes — be they police who criminalize or cage, police who alienize or deport, or purportedly protective agencies who demonize or separate families.

As Black and non-Black faculty of color, we are committed to dismantling these tools of oppression through a pedagogical approach that deploys critical and radical analyses to challenge our students and by offering a robust and humble praxis in service of movements that seek transformative and restorative justice.  We further reiterate the importance of affirming CUNY Law’s dual mission, from admission to graduation and beyond, through a commitment of  institutional self-reflection that is unflinching, inclusive, and continual.

Curriculum: Black students routinely call on the CUNY Law faculty to recognize and confront the negative impact that the traditional legal curriculum has had on Black students. We call on faculty to acknowledge the concerns of students of color and incorporate the feedback into their teaching.

To work towards becoming an anti-racist campus, we demand that, starting in Fall 2020, faculty mobilize pre-existing resources like the Race, Privilege, and Diversity and Professional Development committees toward educating ourselves across the administration and faculty — including adjuncts, visitors, tenure-track, and tenured faculty — on anti-Blackness, racial capitalism, state overreach into communities of color and abolition movements, particularly by engaging with work authored by Black people, incorporating critical frameworks like critical race feminism and queer theory, disability justice, abolition, and decoloniality, among others, throughout every course, and centering intersectional Black perspectives in the classroom.

To achieve these goals, we demand that CUNY Law provide the material resources so that all faculty may take the time necessary to engage in this learning and unlearning. To ensure accountability and transparency, we demand that these committees and others apprise the full faculty in writing each semester on their progress and any challenges encountered in this process.

Non-Curricular Policy Points

  • The various departments that constitute the law school make powerful choices that should be calibrated to center and uplift anti-racist objectives. We demand increased outreach to Black and non-Black students of color in admissions by the career planning office and heightened engagement with Black and non-Black alumni of color. Understanding that internships and initial jobs are key to a student’s ability to practice law over the long-term and practice in the frontlines of social justice movements, we also demand that the career planning office provide increased support to Black and non-Black students of color, particularly first-generation higher education students, whose resumes and cover letters can and should reflect the valuable perspectives and skills that each of our students has to offer the legal profession. We call on the relevant committees to report back on these developments to the full faculty in Fall 2020.
  • For too long we have participated in maintaining barriers to the legal profession even as we seek to break those down. Accordingly, we demand that, starting Fall 2020, the minimum LSAT requirement for all scholarships, including the Graduate Fellowship, be abolished and that the law school keep records of and make public the distribution of scholarship and summer fellowship funds by race. Similarly, we demand that admissions data collection be expanded beyond the required ABA categories to include more detailed, granular, and less reductive categories to better account for the multiple and diverse identities our students bring to the school. We call on the Admissions committee to report back on these developments to the full faculty on a bi-semesterly basis.
  • CUNY Law offers the services of a Nurse Practitioner and Mental Health Counselor on the premises, but otherwise, students are not offered health insurance and are instead invited to enroll in Medicaid programs during open enrollment each period. The limited resources made available are not sufficient for CUNY’s student body. Particularly given the dynamics described above, we call on the law school to consider allocation of funds to mental health services and other medical insurance.
  • Some of our academic standing policies — such as the threshold for academic probation — have a disparate impact on Black and non-Black students of color. We demand that those policies be immediately reconsidered and amended. We call on the Academic Standing committee to report back to the full faculty on these developments on a bi-semesterly basis.
  • We reiterate the importance of the role of Black and non-Black faculty of color on the faculty appointments committee. We call on the Committee on Committees to report back to the full faculty on developments to this end in Fall 2020.
  • Like many law schools, CUNY Law relies on faculty with non-secure positions for critical teaching positions. Our adjunct, visitor, instructor, and other non-tenure track faculty contribute immensely to our institution yet lack job security, opportunities for training and development, and other benefits that permanent faculty enjoy. We demand meaningful job security for our colleagues in these positions, especially Black and non-Black faculty of color. We call on all relevant committees to report back to the full faculty on progress to this end in Fall 2020.

Faculty Dynamics

  • Invisible institutional service and labor of Black and non-Black faculty of color: In 2019, 88% of lawyers were white and in 2018, 8 out of 10 law professors were white. CUNY School of Law boasts a more racially diverse faculty. We especially acknowledge the school’s laudable efforts to bring ten faculty of color, including 4 black faculty, onto the tenure track in the past 3 years alone. Nonetheless, we must do more to dismantle anti-Blackness in our governance. Black and non-Black faculty and staff of color, both at CUNY Law and throughout the U.S., routinely perform unrecognized labor beyond their job descriptions and in the service of their institutions, to confront anti-Blackness and other forms of racism. A wealth of research shows these contributions both sustain diversity and inclusion efforts in the academy and create additional demands that detract from the time required for fulfilling traditional expectations of all faculty.

Faculty of color devote significant time to mentoring and supporting Black and non-Black students of color, ensuring that our institution can retain the most marginalized students after they matriculate.  We advocate explicitly and in more personalized ways for Black and non-Black students of color, who suffer regular indignities, while we also abide microaggressions from colleagues, the profession, and indignities from broader society ourselves. We disproportionately bear the burden of ensuring equitable distribution of labor among faculty and scholarship and fellowship awards among students.

We highlight the lack of recognition (both in salary/pay and formal acknowledgement through evaluation, tenure, and promotion standards) of the amount of invisible institutional service and labor that Black and non-Black faculty and staff of color contribute to the law school.  We demand that similar to our institution’s commitment to recognizing advocacy work product as scholarship, CUNY Law change provisions in promotion, hiring, assignment to and distribution of labor on committees, and tenure policies to honestly and explicitly reflect the now hidden workload of Black and non-Black faculty and staff of color.  For example, we need more conscientious reappointment and annual review reporting policies and re-conceptualized categories of “teaching, scholarship, and service” across the faculty.  We call on all relevant committees to report back to the full faculty on progress to these ends in Fall 2020.

  • Recognition of privilege and power: We note the complex conditions inherent in participating in governance discussions. We demand that faculty be mindful of their privilege and hierarchies of power and reflect on the ways in which they participate in committees, faculty meetings, and other spaces — stepping back where appropriate.

Policing: Generations of faculty, students, and staff of color have repeatedly expressed concerns about the relationship between CUNY Law’s public safety and the New York City Police Department (NYPD). We demand that any memoranda of understanding governing the role or presence of CUNY Public Safety, of the NYPD, or of any other law enforcement agency on the CUNY School of Law campus be shared immediately with the full faculty, staff, and student body of the law school. In keeping with the demands and concerns of generations of students, faculty, and staff, we’re calling on CUNY Law School to discontinue any formal or informal relationship with NYPD and reimagine campus security by supporting the safety and well-being of the people on campus through divestment from punitive policing systems and investment in alternatives, including de-escalation, conflict resolution, and transformative and restorative justice training for all faculty, staff, and designated student representatives. The Public Safety committee was explicitly tasked with addressing these issues in the Fall of 2019. We call on that committee to report back to the full Faculty by October 2020 on progress to these ends.

Finally, we stand by Brooklyn College’s Black Faculty and Staff (BFS), Faculty of Color (FOC) Group, Latino Faculty and Staff (LFSO), and other caucus groups in the CUNY system, and we adopt our Brooklyn colleagues’ statement, slightly adapted to the law school’s context, as follows: This moment in our country is the culmination of systemic denial of dignity that typifies antiblackness. As lawyers fighting for racial and economic justice, we know that structural inequality cannot be addressed through empty statements of standing in solidarity and promoting “diversity.”

We advocate a transformational solidarity with an ethos of social justice that is action- oriented. Transformational solidarity means that the systemic racism, surveillance, and austerity that have become a normal feature of society is aggressively challenged on campus. Transformative solidarity understands that struggles against domination are shared and that anti-Blackness and austerity work in tandem and must be fought hand-in-hand. This is a fight that involves Albany and state politics but it begins with us on campus. We demand a shift in the current institutional logic of the administration that urges faculty and staff to do more for our students with less. By embracing this moment of profound possibility in response to this crisis, we hope to imagine and create a life-affirming campus we do not have, but require.

  • Chris Adams
  • Beena Ahmad
  • Naz Ahmad
  • Saba N. Ahmed
  • Bahar Ansari
  • Nermeen Arastu
  • Ann Cammett
  • Eduardo R.C. Capulong
  • Janet Calvo
  • Asima Chaudhary
  • Natalie M. Chin
  • Frank Deale
  • Farah Diaz-Tello
  • Pamela Edwards
  • Golnaz Fakhimi
  • Raquel Gabriel
  • Mary Godfrey-Rickards
  • Natalie Gomez-Velez
  • Victor Goode
  • Fareed Hayat
  • Julia Hernandez
  • Carmen Huertas-Noble
  • Chaumtoli Huq
  • Tarek Z. Ismail
  • Ramzi Kassem
  • Donna Lee
  • Degna Levister
  • Julie Lim
  • Gregory Louis
  • Lynn Lu
  • Shirley Lung
  • Princess Masilungan
  • Michelle Pinzon
  • Missy Risser-Lovings
  • Jeena Shah
  • Charisa Kiyô Smith
  • Nicole Smith
  • Yasmin Sokkar Harker
  • Cynthia Soohoo
  • Rafael Varela
  • Shomari Ward

 

We call on all of our faculty colleagues to endorse this statement, mindful that such an endorsement carries with it the responsibility of ensuring the statement’s implementation.

 

Endorsed by:

  • Mary Lu Bilek
  • Beryl Blaustone
  • Rebecca Bratspies
  • Sue Bryant
  • Janet Calvo
  • Nina Chernoff
  • Douglas Cox
  • Lisa Davis
  • Ryan Dooley
  • Dave Fields
  • Laura Gentile
  • Julie Goldscheid
  • Florence Kerner
  • JM Kirby
  • Jeffrey L. Kirchmeier
  • Sarah Lamdan
  • Stephen Loffredo
  • Matthew Main
  • Camille Massey
  • Andrea McArdale
  • Haley Meade
  • Laura Mott
  • David Nadvorney
  • Jason Parkin
  • Talia Peleg
  • Allie Robbins
  • Ruthann Robson
  • Joe Rosenberg
  • Merrick T. Rossein
  • Jonathan Saxon
  • Franklin Siegel
  • Richard Storrow
  • Erin Tomlinson
  • Sarah Valentine
  • Kara Wallis
  • Alan White
  • John Whitlow
  • Sofia Yakren
  • Deborah Zalesne
  • Steven Zeidman
  • Jean Zorn

Sharing Takeaways from Michele Pistone’s Bootcamp “Designing an Online Law Course”

I am posting about my experience with this  Bootcamp  for two reasons: 1) to create a space for participants to continue to share experiences and takeaways (please add in comments section below); and 2) to provide some content for those unable to participate in the virtual conference but who are interested in preparing for blended learning or online teaching in 20-21.   The hope is to form a national community of law teacher-scholars-learners as we navigate the uncharted waters of summer 2020 in preparation for the unpredictable  20-21 academic year.

I will start first.  My first takeaway is how comforting it was to discuss with other law faculty in my small Zoom breakout room group the challenges our institutions are facing, the common concerns we all have,  and the inability we have at this moment to know what August will bring.  As Michele Pistone  reminds us in her  Top 5 Tips for Teaching Law Online , we have to change our mindset — from thinking “how can we replicate what we did before” to “how do we utilize this new opportunity to ensure  student learning.”  We have to use time and space differently – thinking about class “time” as a continuum of learning interactions before during and after direct instructor contact/live sessions.  We need to prioritize pivoting and adapting from in person to virtual as the learning benefits afford us opportunities (online polling, quizzes, pre-recorded videos) and the disadvantages – ZOOM FATIGUE – constrain our usual preference for live synchronous lecture, discussion, or flipped classroom.

Preparing for the Fall Semester is akin to preparing for a camping trip or long Adirondack hike — what do I need to have in my EMERGENCY LAW TEACHING KNAPSACK?

Adirondack Hiking | Official Adirondack Region Website

I would suggest packing some handy lodestars we used today to ground our work – such as Bloom’s Taxonomy of Teaching,  VERBS Adapted From Bloom_s Taxonomy  26 Effectiveness Factors Shultz _&  Zedeck. and as my colleague Professor Christine Sgarlata Chung uses in her Bus Orgs casebook  IAALS’ Foundations for Practice.

Another takeaway from the first day of Bootcamp involved deconstructing one’s “in person” syllabus into Unit-Level Learning Goals, Learning Content and Learning Activities.  The folks in my group – who BTW were brilliant, personable and collaborative – found it made us all more intentional and descriptive in parsing our particularized goals and expectations.

Unit-Level Learning Goals

What do I want students to know, be able to do, and value?

Students will be able to: ………

Learning Content

How will the students learn?

What can help transfer knowledge from professor/expert to the student?(textbook, readings, cases, law review articles, statutes, regulations, videos, podcasts)

Learning Activities

How will the students engage with the course content?

How will students put their learning to work?(discussion, reflections, exercise, role plays)

My small breakout room group found ourselves untangling our integrated goals and content and activities to examine the pieces so we can re-assemble in a new, vibrant and effective way.

Looking forward to DAY 2 and more lessons.

I invite any and all participants to add their takeaways in the Comment Section below

MOVING FORWARD: DAY TWO OF DREXEL (and some favorite poetic quotes)

Congratulations are in order to Drexel University Thomas R. Kline School of Law, to Dean Dan Filler and to all who planned and presented at the virtual conference.  LEANING INTO UNCERTAINTY: ENSURING QUALITY LEGAL EDUCATION DURING CORONAVIRUS.  Previously,  I wrote a few thoughts about Day One of the conference.  In this post, I will focus on Day Two. But first, good news for those of you who were unable to join virtually: Drexel’s Associate Dean for Faculty Development and Research, Alex C. Geisinger, plans to create a digest of the ideas and questions raised and discussed at the conference. As law schools face the evolving uncertainty presented by both the virus and the conflicting responses of our state and federal leaders, they will benefit from the kind of collaborative efforts and stimulating exchange of ideas that the Drexel conference organizers skillfully facilitated.  As I work with my law school colleagues to plan an exciting and enriching Fall 2020 Semester, I am using the wisdom gained from the conference. A few maxims from yesterday’s gathering stayed with me:
  • Acknowledge and name your biggest WORRY.
  • In crisis, there is OPPORTUNITY.
  • There is always ANOTHER crisis, we just don’t know what it will be.
I was reminded by the wise words of William Butler Yeats

Things fall apart; the centre cannot hold  

Below I share five conference discussions which interested me. 1.  Relationships Still Matter and Matter Even More We know from LSSSE that for health and wellness and law students “Relationships Matter.”  How do we prioritize and facilitate those in a virtual or partly virtual world?
  • Phone call contact with each incoming 1L to find out worries, concerns, and hopes and model that relationships with individuals at the school matter.
  • Throughout semester, should teachers, staff, and administrators be polling the mood of the day or the week?
  • Set up a more systematic “social work case management system” to keep tabs on individual student, staff, and faculty wellness.
  • Provide in a simple format directly to each student in a personal phone call, meeting, or interaction a single document which outlines who the actual person and contact is when in trouble – academically, financially, emotionally, physically.  Maybe start this process over the summer using all employees  throughout the law school?  (CALI worked on a lesson that each school can use to modify the system or contact flow Lesson is at https://www.cali.org/lesson/18103)
  • Prioritize peer-to-peer opportunities for mentoring, collaboration, and synergy.
2.    Create Distinct “Places” for Students To Be
  • Virtual Libraries
  • Virtual Study Spaces
  • Virtual Social Spaces
  • Dedicated physical place for experiential learners to access supplies – not necessarily in clinic office space.
Makes me think of having students feel they have in the words of poet Mary Oliver’s a “place in the family of things”
Whoever you are, no matter how lonely, the world offers itself to your imagination, calls to you like the wild geese, harsh and exciting— over and over announcing your place in the family of things.
3. Anticipate Enforcing Safety and Health Regulations During A Polarized Presidential Election Season
  • Messaging and Communication of Community Rules
  • Incorporate into Student and Personnel Regulations
  • Harder to Anticipate What Will Happen in a Public School Setting
4.  What changes are Temporary? What Will Continue after the Pandemic? Although forced to engage in Remote Emergency Teaching, Professors became facile with useful pedagogical online tools and will incorporate them into their general toolbox.
  • Investment already made in technology will accelerate usage.
  • This was all going to happen anyway as part of Law School 2.0?
  • Increasing options for law students? For institutions growing online programming?
  • Will law schools and universities be more open to allowing staff to work remotely?
  • Will we better appreciate, celebrate, and prioritize the importance of presence and in-person relationship in Higher Ed Learning?
5. With the impact of COVID-19 elevating the issues of access disparity and the diverse needs of our students, how can law schools minimize the threat to learning continuity and academic success?
  • Continue to modify assessment and grading practices?
  • Financial Insecurity?
    • Loss of Employment
    • Food Insecurity  – Virtual Food Pantry
    • Rent and Housing
    • Alums offered physical space (offices) for students without good space to study and take exams.
  • Supporting caregivers and others with outside responsibilities.
  • Evolving accommodations for students with disabilities and immune-suppressed students as we change the manner and methods of teaching.
The above five are a poor summary of the many ideas and queries raised at the conference and thus I look forward to the report back. As we arrive at the end of May 2020, take courage and know we are all in this TOGETHER!
One isn’t necessarily born with courage, but one is born with potential. Without courage, we cannot practice any other virtue with consistency. We can’t be kind, true, merciful, generous, or honest.  Maya Angelou

“Take-Aways” from Day 1 of Drexel Conference

Over 1,000 legal educators are taking part in a two day conference “Leaning into Uncertainty: Ensuring Quality Legal Education During Coronavirus,”  hosted by Drexel Law School and University.  Brief opening plenary remarks were made by Northwestern Law Professor Daniel Rodriguez who cautioned against “virtue signaling” noting that today on May 26th, we don’t know the choices students, faculty and others will make in August.   He called for legal educators to work across law schools to engage in “Collaboration on Steroids!”

After very brief “framing” discussions of questions, participants were assigned into scores of breakout groups.  Today’s Roundtable topics included:

Roundtable 1: Beyond Zoom! Moving from Emergency Virtual Classrooms to a Rigorous, Engaging Online Experience

Roundtable 2: Designing Curriculum and Programs in a World of Social Distancing: Sections, Schedules and Changing Circumstances

Roundtable 3: Maintaining High Quality Experiential Learning Opportunities from a Distance

Each breakout group recorder took notes which will be compiled into a report.  The hope is to make the lessons from the conference useful this summer as legal educators re-imagine law school operations and adapt our teaching methods and designs to meet student and public health needs.

I was able to participate in Roundtable 1 and 3 and found the discussions useful in thinking about my summer course redesign, the needs of our Justice Center, and the different way different schools can adapt and innovate. I jotted down a few “take-aways:”

General 

  • Time and Space are no longer the same as they were pre-pandemic.
  • To be a good teacher virtually, just like teaching in residence,  you have to be YOU!
  • What parts of your teaching are MOST important to be Synchronous? and how do we move other parts to be asynchronous?
  • Who could we record now (besides ourselves!) that we can use for asynchronous learning this FALL .. For e.g., share a hypo with other faculty in your department, or other subject matter experts from other law schools, or practitioner experts and record their reaction to a hypothetical that you can assign students to review after having discussed the hypo in breakout groups and  reported back.
  • If we are socially distanced with masks, and spread apart in the classroom, and we are teaching both virtually (through the class streaming or recording) and in residence at the same time, what works for that kind of socially distanced teaching? Might Zoom sometimes work better?

Community Building Ideas

  • ESPECIALLY for 1L’s in building community – Use Zoom questions for registering to ask students community building questions regarding hobbies
  • Start now to create break out rooms for 1Ls pre-assigning over the summer with asking of human questions.
  • Opening up Zoom 10 minutes ahead as if you are standing by podium and can be asked questions
  • Reframe the week – conversation starts on chat or CANVAS before class and continue  into and after class. 
  • Offer off class opportunities for virtual tea, coffee, happy hours to discuss what’s happening with students generally or what’s happening in the world

Experiential

  • Take Advantage of this moment.  Clinics and experiential courses could serve as important front line workers for the unprecedented need for legal services.
  • How do we overcome barriers to actually get to the people in need and to get them what they need?
  • How do we teach students to be community and client-centered if we are not in the community but physically or socially distanced?
  • How do we prepare students and ourselves to perform competently in the world of virtual courts and lawyering when the rules, protocols and comfort level with the virtual differ across kind of state and federal courts and among different judges?
  • How do we build the people-centered core of clinical work that helps students develop skills, values and networks in interpersonal relationships?
  • How do we resource our students and clients for virtual legal practice?

Lots to chew on and looking forward to hearing more tomorrow!

Is Mandatory P/F An Opportunity to More Accurately Assess Competency to Practice Law and For Bar Admission?

As our knowledge of COVID19 and its impact becomes more extensive each day, each workplace, profession and community is facing some common and some unique questions. Those working on the front lines in hospitals – such as several of  my relatives in NYC and NJ – are experiencing the kind of trauma, shortages, emotional overload and duress that is usually experienced in wartime. It can only be weakly imagined by the rest of us.   For those of us not experiencing  people suffering and dying in front of us on a daily basis, some less horrific choices are before us:  How do we modify “business as usual”?  How do we evolve and adapt with each days new tsunmai of information and data?  How do we support our best selves and our core values in this historically momentous time on our shared planet? 

Before turning to the topic of grading and assessment, I want to pause to give a shout-out to my home institution. Our multi-talented leader Dean Alicia Ouellette has been holding  community town halls every day since Friday March 20th. (BTW Dean Ouellette  just shared on Facebook  that she had been suffering from “presumptive COVID 19” fever and symptoms but thankfully is now symptom free). During our daily town halls, my faculty colleagues and I have expressed our wonder and gratitude for the  character, resilience and grit of our law students who are balancing so much right now, and facing so many financial, tech-related, health and extended family burdens. Our students’ engaged and forgiving response to “tech-curious but not necessarily tech-savvy” teachers and their community-minded empathy for those hardest hit keeps the faculty motivated and inspired.

One of the COVID19 decisions for legal educators involves whether and how we assess and sort — which in reductive  vernacular means “grade and rank.”  Maintaining appropriate expectations, options, rigor and excellence in law teaching  may assume primacy for those  who have been long focused on ensuring that law students receive real value for the time, talent and treasure they expend on law school.   For others focused on fairness in law placement,  transparent employer signals about how they will view Spring 2020 legal education may be most influential.  For those concerned about our profession’s  reputation for lack of wellness and lack of diversity, those concerns are elevated at this moment when those least advantaged are most hard pressed.  For those struggling with equity, there are so many permutations and consequences of COVID19 – whichever choice a school makes – that voting faculty could become as immobilized as Chidi Anagonye on THE GOOD PLACE. (BTW Good idea for escape television for those who love philosophy or Kristen Bell).

On the other hand, might this be a moment to look for the opportunities for reform and improvement that only come when the status quo is disturbed and rocked to its foundations as is happening now.  Here is what I am thinking:

Might Mandatory P/F force educators and employers to admit that traditional law school grading and ranking is a misleading and reductive proxy for measuring potential success as a lawyer?

Could it force employers to use other ways to learn about the WHOLE STUDENT with all her strengths, gaps, and individual aptitudes including the situation she faced during law school?

Might it accelerate a move to a more qualitative than quantitative assessment of each law student? Or, at least might it prioritize learning which enables a school to assemble a portfolio of student recommendations ( demonstration of knowledge, skills, aptitudes, and professionalism)?

Foundational resources include of course Educating Lawyers, Best Practices in Legal Education, and Building on Best Practices: Transforming Legal Education in a Changing World, which also provide helpful wisdom points. In addition, looking back through the dozen or so years of this blog’s existence, there are lessons from which we can pull core knowledge and core values to assist in our continued educational deliberations at this turbulent time. 

CORE KNOWLEDGE AND REFLECTIONS

Valuing Legal Education over Sorting – For example, focus on the difference between assessment and grading.  Educating Tomorrow’s Lawyers conferences have brought employers, law schools, and legal education stakeholders together to tackle the disconnect between our current sorting systems (primarily used to help elite employers looking for a simple and reductive initial screening system) and the needs of society and most employers for competent new attorneys and the needs of students and the profession for fairness.

Focus instead on formative and evaluative assessment of law students and graduates

Focus on growth mindset, on reflection and learning from mistakes or experience

Recognize the limits and problems with GPA’s or LSAT scores to create a more competent profession with more able and diverse learners.

Acknowledge that the media and the academy is still stuck in a mindset that focuses on sorting methods rather than on better preparation and assessment of law students to serve clients and society.

Class rank does not predict who will become a competent, healthy and ethical lawyer

Effective Education includes

CORE LEARNING VALUES

Growth Mindset 

Inclusion and Diversity

Student-centered Learning  and the Introduction to the original Best Practices – “One of our basic tenets is that law schools should become more student-centered”

Wellness  

Collaboration and Innovation

Integrity 

Character 

Justice

Situational Excellence

There is a common theme here: P/F with alternative assessment information and measures should be seen not as temporary emergency expedients to “sort and rank”, but rather as long overdue components of a better educational program and more nuanced assessment paradigm.

I would love to hear your thoughts in the comments below.  I wish all our readers and citizens of our little blue planet moments of peace, love, safety, and compassion. May someone be kind to you today and let’s pay it forward.

 

 

 

Examples of How Law Schools are Addressing Law Student Well-Being

In a recent post, we summarized the National Task Force on Lawyer Well-Being’s recommendations for law schools. This post follows up to provide examples of what law schools are doing on the subject of student wellness. These efforts are intended to educate students and create good habits that they will take with them into practice.

Gather Well-Being Resources on a Webpage. Gathering a list of programs and resources in one place makes it easy for students to know the opportunities that are available and highlights the school’s commitment to student well-being. William & Mary Law School does a nice job of cataloging their wellness opportunities on this page, which links to another page listing “Wellness Wednesday Events.”

Curriculum. Law schools are increasingly creating classes on wellness-related topics. This blog recently discussed The University of Tennessee College of Law’s class Thriving as a Lawyer (A Scientific Approach).  Many schools have developed courses on the subject of mindfulness. For example, University of Miami School of Law offers a number of classes in its Mindfulness in Law Program, Northwestern Law’s mindfulness offerings include Mindfulness-Based Resilient Lawyering, while UC Davis School of Law offers Mindfulness and Professional Identity: Becoming a Lawyer While Keeping Your Values Intact.  The University of San Francisco School of Law and South Texas College of Law Houston both offer courses in Contemplative Lawyering.

Extra-Curricular. Extra-curricular activities can address multiple aspects of student wellness, from creating a sense of community to addressing physical health. Yoga classes (such as the weekly classes offered at Marquette University Law School) and running clubs (like those at Lewis & Clark Law School and UCLA Law) are popular at law schools. Book clubs (like the one at the Michigan Law which is promoted as a fiction escape from law books) and potluck dinner gatherings (offered for students at Tennessee Law) provide opportunities for students to connect, socialize, and recharge.

Counseling. Many law schools are connected to universities with counseling and related services available to all students; it can be incredibly helpful to make law students aware of those university resources by creating a list on a law school webpage (like the one created by the University of Missouri School of Law).  Some law schools, like American University Washington College of Law, and William & Mary Law School  have counseling and “wellness coaching” services in the law school building to make it easier for students to access.

Creating a Space that Encourages Student Health and Wellness. A number of law schools have given thought to student health and well-being as they have designed or re-designed their space. While not every school can afford a gym, many have made space for standing desks in the library, ping pong tables, and exercise bikes.

Well-Being Committees and Student Organizations.  A number of schools have created well-being committees or student organizations, often at the urging of students. For example, the Washburn Association for Law Student Health states its purpose is to “actively promote the education and awareness regarding health and wellness of the law student body, mentally and physically, while creating a community for students interested in promoting health and wellness in their own lives and in the lives of their peers.”

These examples only scratch the surface of all the things law schools are doing on the topic of well-being. If your law school is doing something that other schools may want to consider, please add it in the comments.

 

How Practice Tests Reduce Anxiety in Bar Preparation and the Exam

Sara Berman and I recently did a podcast in the ABA’s Path to Law Student’s Well-Being Podcast series. See https://www.spreaker.com/show/path-to-law-student-well-being. Anyone associated with helping applicants prepare for the Bar exam knows that the challenges they face can affect their well-being.  In the podcast, we share our experience that applicants who practice tests regularly learn not only content and skills, but also the ability to manage anxiety as they get closer to and take the exam.

            In bar preparation, students take seemingly endless sets of multiple-choice Multistate Bar Exam questions. In addition, their bar preparation companies provide opportunities to practice essays and Multistate Performance Tests (MPTs).  Applicants need to follow the Bar company’s suggestions and to get feedback on submitted work.  They should welcome critiques and suggestions, assess their own strengths and weaknesses, and improve by building on strengths and addressing weaknesses.  If allocation of time to different study methods is an issue (and it always is), applicants need to do more—not less—practice testing than reading and re-reading outlines, flash cards, and the like.  Cognitive science indicates that people retain information better when they learn a concept by applying it in a problem-based approach. See Dani Brecher Cook & Kevin Michael Klipfel, How Dow Our Students Learn?   An Outline of a Cognitive Psychological Model for Information Literacy Instruction, 55 Reference & User Services Quarterly 34 (Fall 2015).   In studying legal rules, applicants retain more by doing practice essays or MPTs because they are learning and applying rules in the context of the facts that trigger them.

            This message may be not be welcomed by an applicant who, when she writes a practices essay or MPT answer, experiences anxiety during the practice test.   Applicants often do not want to face the reality that they do not know a rule.  They falsely believe that they must have mastered a subject area before doing practice tests.   The podcast encourages applicants to practice essays and MPTs regularly and often even if they are do not feel that they have fully mastered a subject.  Using the open-book method for practicing can help someone get the process going.  The key is to break through the resistance to doing practice tests.

            If applicants get past the reluctance to embrace practice tests, they can experience reduced anxiety as they move forward.  Again, the context of our recommendation presumes that an applicant is receiving feedback from a Bar Company representative, an academic support advisor, or both.  When applicants respond to feedback in new practice test answer and see their work product improving, that reduces their anxiety.  The anxiety does not go away but remains at a reduced level—a level at which it can motivate performance rather than interfere with it.   At such a point, it is fair to say that an applicant is managing anxiety.  

            In the podcast, Ms. Berman implored law students who might be listening to apply these principles in law school.   Practicing tests—whether essays, multiple-choice, or other tests—will benefit a student.  The student of course needs to seek feedback, recognize areas in which she can improve, and be working toward that goal.   Those students who I have seen take such an approach report (1) less anxiety on graded tests and (2) that they believe they performed more effectively.  Although the days of a class hinging on one grade at the end of the semester seem to be fading, the final exam still forms a major part of student’s assessment in many courses.  Of course, ABA Standard 314 encourages formative and summative assessment and students are receiving meaningful feedback.   By doing practice tests, such as writing an answer to a potential essay, the student can apply what she has learned from feedback and seek more.

            An excellent article on practice tests concluded that such tests may improve student performance.  See Andrea A. Curcio, Gregory Todd Jones & Tanya M. Washington, Does Practice Make Perfect? An Empirical Examination of the Impact of Practice Essays, 35 Fla. St. L. Rev. 271 (Winter 2008).   The question explored in the article is whether practice essays improve performance.  The inquiry in our podcast is different.  We ask whether practice tests allow students to manage anxiety.  We entitled our podcast “Practice Makes Passing,” to counter the view that applicants must be perfect (or have completely mastered) most subjects.  Applicants need to do their best. However, they will increase their chance of passing by recognizing that practice may well be what gets them to “good enough”—i.e., a passing score.

            The ABA’s series on student well-being is an important look at a problem once viewed solely as an attorney well-being problem. Many now accept that law schools and students are an environment that can diminish or enhance student well-being, depending on choices by the school and by the students.  By learning to manage anxiety through practice tests, law students can choose to improve their well-being. Bar applicants can do the same. By spending their time wisely in bar preparation, and including a healthy dose of practice tests, the applicant will ultimately experience less anxiety and likely perform more effectively. 

Thriving as a Lawyer

The National Task Force on Lawyer Well-Being encourages law schools to develop a “Well-Being Course.” The Task Force explains that such a course can “leverage research findings from positive psychology and neuroscience” and explore the many benefits of enhanced well-being, including improved cognitive performance–in law school and legal practice.

Doug Blaze and Candice Reed developed the well-being course Thriving as a Lawyer (A Scientific Approach) and taught it for the first time in spring 2019. In creating the course, Doug Blaze drew on his 30+ years of law teaching experience (including his work as a clinician and clinic director, a Dean, and now as  Director of Tennessee Law’s Institute for Professional Leadership), while Candace Reed drew on her legal training, her practice experience, and her background in positive psychology (she holds a Master of Applied Positive Psychology from the University of Pennsylvania).

The Thriving syllabus explains why the course is needed and what students should expect to learn:

“[Lawyers’ struggle to achieve happiness] puts us at high risk for burn-out, depression, alcoholism, divorce, and even suicide. Accordingly, this course is designed to introduce law students to the scientific principles of positive psychology, while incorporating ‘hands-on learning’ through empirically validated positive interventions, which require cognitive reasoning and physical effort, encourage habitualizing behavior, involve goal-setting, and allow for self-efficacy or autonomy.”

Students are provided the following list of themes that they will study in the 2-credit course:

  1. Why are many lawyers so unhappy? How does this unhappiness or lack of thriving typically present itself? In other words, what are the symptoms of a lawyer in trouble? What are the signs someone is struggling?
  2. What are the obstacles to thriving in the law? Why is happiness in the law so elusive?
  3. Is it possible for the highest ethical behavior and client service to flourish under these circumstances? If not, should legal institutions (i.e. law schools, bar associations, law firms and corporate legal departments) encourage and promote wellbeing? If so, how?
  4. What roles do personality, emotions and character strengths play in attorney wellbeing (or a lack thereof)? Should lawyers (and their employers) take these personal characteristics into account in making career choices (e.g. type of legal job or employer, practice concentration, etc.)?
  5. What strategies/practices/habits/mindsets support lawyer wellbeing? What should lawyers do if they want to increase their own wellbeing?
  6. How can these issues be articulated in a persuasive manner to leaders of legal institutions and lawyers themselves to promote lasting, positive change?

Reed and Blaze assemble an impressive list of reading assignments for the class, including articles like these:

Thriving students are prompted to complete the VIA survey of Character Strengths, as well as several of the questionnaires (on on topics such  positive and negative affect and grit) at the University of Pennsylvania Authentic Happiness Test Center

Students do a presentation on a book on a well-being related topic. The book list includes a number of titles, including the following: 

  • Give and Take: Why Helping Others Drives Our Success by Adam M. Grant
  • The Pursuit of Perfect: How to Stop Chasing Perfection and Start Living a Richer, Happier Life by Tal Ben-Shahar
  • Spark: The Revolutionary New Science of Exercise and the Brain by John J. Ratey
  • The Anxious Lawyer: An 8-Week Guide to a Joyful and Satisfying Law Practice Through Mindfulness and Meditation by Jeena Cho
  • Wire Your Brain for Confidence by Louisa Jewell

In its 2019 rollout, one strength of Thriving was its unique format: it was taught over two 3-day weekends. Students were required to do a lot of reading, journaling, questionnaire completion, and other work before these sessions. And during the long weekend classes, students were fully immersed in the course material with their colleagues and their professors. The course received rave reviews and will likely become a regular course offering.

 

Today’s Law Student Wellness Programs

There was a time in the not-so-distance past when wellness programs in U.S. law schools primarily focused on preventing substance abuse and suicide. This programming often involved a presentation from the state’s Lawyer Assistance Program. The speaker warned about depression, substance abuse, and suicide for members of the legal profession and the availability of help. While this was important programming, it was depressing and not inspiring for most of our students.

Today, law schools, law students, and lawyers take a broader view of attorney wellness and well-being. We now recognize that students and lawyers benefit from education and opportunities to develop into happy, thriving lawyers. Law school wellness education today is not just about prevention of negative outcomes. It centers around the proactive steps law students and lawyers can take to improve every dimension of their lives.

The ABA Commission on Lawyer Assistance Programs (CoLAP), the National Organization of Bar Counsel (NOBC), and the Association of Professional Responsibility Lawyers (APRL) formed the National Task Force on Lawyer Well-Being to address attorney and law student wellness. In its report, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change (“Task Force Report”), the Task Force explains that there are six different aspects of lawyer well-being:

  • Social. Attorneys should work to develop “a sense of connection, belonging, and a well-developed support network while also contributing to our groups and communities.”
  • Occupational. The Task Force Report references the need to cultivate personal satisfaction and growth in our work. It also notes the importance of financial stability.
  • Physical. In the area of physical health, the Task Force recommends “regular physical activity, proper diet and nutrition, sufficient sleep, and recovery; minimizing the use of addictive substances. Seeking help for physical health when needed.”
  • Emotional. The Task Force Report encourages lawyers to seek support from professionals when they are struggling emotionally. It also emphasizes the importance of “developing the ability to identify and manage our own emotions to support mental health, achieve goals, and inform decision-making.”
  • Intellectual. An attorney focused on the intellectual dimension of wellness engages in “continuous learning and the pursuit of creative or intellectually challenging activities that foster ongoing development.”
  • Spiritual. The Task Force Report explains that the goal in this area is “developing a sense of meaningfulness and purpose in all aspects of life.”

The Task Force makes a number of specific recommendations for law schools. The suggestions include the following:

  • Create Best Practices for Detecting and Assisting Students Experiencing Psychological Distress.
  • Assess Law School Practices and Offer Faculty Education on Promoting Well-Being in the Classroom.
  • Empower Students to Help Fellow Students in Need.
  • Include Well-Being Topics in Courses on Professional Responsibility.
  • Commit Resources for Onsite Professional Counselors.
  • Facilitate a Confidential Recovery Network.
  • Provide Education Opportunities on Well-Being Related Topics.
  • Discourage Alcohol-Centered Social Events.
  • Conduct Anonymous Surveys Relating to Student Well-Being.

In subsequent posts, this blog will consider some examples of the wellness programs, classes, and initiatives that law schools have instituted to address these issues and other areas of need.

 

More Thoughts on the Post-Millenial Generation of Students Arriving in Law School

In two thoughtful posts from last month, here and here, Shailini Jandial George and then Andi Curcio and Sara Berman offered specific and practical suggestions of ways that we as legal educators can reach the post-millenial generation of students through our teaching. These posts bring to mind Professor Jean M. Twenge’s recently published book iGen: Why Today’s Super-Connected Kids Are Growing Up Less Rebellious, More Tolerant, Less Happy—and Completely Unprepared for Adulthood.  Twenge is probably the pre-eminent generational researcher in this country, and her empirical findings reported in the book have profound implications for legal education. What’s more, those implications are here now. Twenge defines the post-millenial “iGen” (sometimes referred to as Generation Z) as those born between 1995 and 2012, meaning the oldest among them are approaching their mid 20s—the average student age at most American law schools. In Twenge’s words, “[t]hey grew up with cell phones, had an Instagram page before they started high school, and do not remember a time before the internet. They are different from any generation that came before them.”

One concerning and challenging implication for legal education relates to the role law schools should play in inculcating basic norms of professional behavior, especially those of importance to interpersonal interaction. Given that they have spent an enormous percentage of time during their formative years on social media and elsewhere in the virtual world, most of today’s law students (those in their early to mid 20s, at least) have far less interpersonal experience than previous generations had at the same age. Speaking more broadly, as Twenge’s research reveals, they have largely avoided or deferred grown-up responsibilities that previous generations were tackling often in their teens. Much of Twenge’s research focused on high school and college students, considering such responsibilities as learning to drive, moving out of the house, and gaining financial independence. Still, as we teach and mentor law students in their early to mid 20s, we must consider what other grown up responsibilities and behaviors that we expect of legal professionals can no longer be taken for granted.

In a recent survey conducted by the Institute for the Advancement of the American Legal System (IAALS), a wide array of legal employers ranked the legal skills and professional competencies and characteristics that they believe new lawyers most need to succeed. (The study’s results are reported here. There is also a detailed accounting of the results and an explanation of the study’s role within IAALS’s broader project in the summer 2018 edition of The Bar Examiner, pp. 17-26.) The results revealed that legal employers value foundational characteristics and competencies much more than they do foundational legal skills. Among the top 20: Arrive on time for meetings, appointments, and hearings; Treat others with courtesy and respect; Listen attentively and respectfully; Promptly respond to inquiries and requests; and Exhibit tact and diplomacy. The only specific legal skill that reached the top 20 was legal research.

If we in legal education have been presuming that our arriving 1Ls possess these basic types of competencies, or at least understand their importance, I am not at all sure that we can do so any longer. The visceral reaction for so many of us, no doubt, is that it is not the job of a law school to teach students these and other very basic norms of interpersonal relations for professionals. Imagine some variation of “they should have learned that in college or high school or from their parents” or “they’ll learn the hard way in their first summer legal job.” Given legal education’s obligation to the profession that it serves, we ought to move past those mindsets. I recognize that many in legal education have done so, and I recognize that many law schools have developed programming or courses on different aspects of developing a professional identity. But professional identity, at least as it was discussed in the Carnegie Foundation’s Educating Lawyers, relates more to appreciating one’s role as a legal professional in society more broadly. It takes on a moral component. That remains important. What I raise here, however, is more behavioral and foundational: Meet deadlines, arrive on time, respond to inquiries promptly, be tactful and diplomatic with others, etc., etc.

In my 1L Legal Analysis & Writing course, I seek to instill professional behavioral norms through various course policies, all explicitly stated in my syllabus, concerning compliance with deadlines, punctual attendance at class and scheduled meetings, civil and respectful interaction with classmates and me, timely and good faith completion of ungraded exercises, etc.  A percentage of each student’s grade depends on how well he or she meets these professional standards. Two of my students missed their first deadline for an ungraded exercise last week; neither had any kind of explanation. Consistent with the underlying professionalism theme of my course, I informed these students that such behavior, if repeated, would fail to meet my professional standards, just as it would fail to meet the professional standards of any legal employer.

It will be interesting to see if and how Twenge’s findings manifest themselves in the current and future 1L classes. I strongly recommend the book; it provides an excellent foundation for putting a variety of possible student behaviors into context.

Jumpstart Outline: Ideas to Help You Make a Plan to Teach “Public Citizen” Lawyering in Any Law School Class

Best Practices for Legal Education and Building on Best Practices urge legal educators to help students develop their professional identities. One aspect of a lawyer’s professional identity is performing the role of “public citizen.” The Preamble of the professional conduct rules in most jurisdictions explains that lawyers are “public citizen having special responsibility for the quality of justice.”

We can help students begin to understand what it means to be a “public citizen” if we address the issue in concrete ways across the curriculum. The following outline provides some ideas for integrating public citizen lawyering into your course.  This is a long list, but there should be an idea or two that will work for your course, whatever its focus.

Use (or Adapt) Existing Course Materials, Exercises, and Activities to Make Explicit Connections Between the Course and the Lawyer’s Work as a Public Citizen

  • Find the Public Citizen Lawyers in Your Current Textbook. Are there lawyers in your textbook that are fulfilling the public citizen role? Discuss them when you see them.
  • Use Course Materials to Help Students Identify and Discuss Injustice. Help students become justice-seeking lawyers by helping them identify injustice. In the chapter Social Justice Across the Curriculum (in Building on Best Practices), Susan Bryant identifies seven questions that can be used in any class to help students explore injustice.
  • Discuss Needs for Law Reform in the Subject Area of the Course. When you encounter areas of needed law reform in course material, discuss how lawyers can play a part in making that change.
  • Use Writing Assignments to Give Students Experience Advocating for Law Reform. For writing assignments that require students to recommend or draft proposed changes to the law, make the explicit connection that this one way that lawyers fulfill the public citizen role: they advocate for improvement in the law. Provide them avenues to publish, discuss, and otherwise publicize their work.
  • Lawyer Speakers Should Be Asked to Discuss How they Serve. If you ordinarily invite lawyers to class to talk about course related topics, prompt them to talk about the things they do to serve the public and the legal profession.
  • Integrate Social Justice Issues Into a Course Exercise. Is there an exercise you currently use to develop knowledge or a skill in which you can introduce an issue of social justice? For thoughts on designing and debriefing that exercise, see Susan Bryant’s chapter Social Justice Across the Curriculum in Building on Best Practices: Transforming Legal Education in a Changing World, at pp. 364-66
  • Prompt “Public Citizen” Discussion in Journaling Exercises. Prompt students to reflect upon public citizen issues in their course journals. What are areas where they see a need for law reform? What could they do to address those issues now and in practice? Suggest that students talk to lawyers (with whom they work) about how they serve the public and the profession. Ask the student to reflect on those discussions in their journal.

Create New Activities and Exercises that Integrate Course Material and the Lawyer’s Role as Public Citizen

  • Prompt Students to Create a Professional Development Plan.Particularly in classes where students may have common career goals (such as in an externship or capstone class), prompt students to write about their values, interests, and strengths, and to make a plan for the future, including a plan for service.
  • Integrate Pro Bono or Service Learning Into the Class. Find an opportunity for the class to represent a client or clients or serve a community organization or population that is connected to the subject matter of the class.
  • Create a Law Reform Activity for the Class. Engage in action as a class to reform the law in an area of need connected to course material. For suggestions see Mae Quinn’s article Teaching Public Citizen Lawyering: From Aspiration to Inspiration, 8 Seattle J. for Soc. Just. 661 (2010).
  • Require Students to Interview a Lawyer. The interview should cover course-related material as well as the lawyer’s service to the poor, the public, and the profession.
  • Organize a Book Club. Identify a non-fiction law-related book with a connection to your course material and that provides a springboard for discussing the lawyer as public citizen. A great book about pro bono service and its impact on both client and lawyer is William H Colby’s Long Goodbye, The Deaths of Nancy Cruzan. A book that prompts lawyers to think about the ingredients of a happy life – including pro bono work and “serving a larger social purpose”– is Nancy Levit and Douglas Linder’s book The Happy Lawyer: Making a Good Life in the Law.

Share Information about Yourself as a Public Citizen

  • Be Inspiring. Tell an inspiring story about what another lawyer’s service meant to you or about what your service may have meant to someone else – and how that made you feel.
  • Talk About Yourself as a New Lawyer. Tell stories about your experiences as a new lawyer attempting to fulfill the public citizen role. What did you learn from those activities? Did you have mentors that inspired or encouraged you?
  • Note the Times When You Struggled. Share the times in your career when you have struggled with balancing the demands of practice, your personal life, and serving the public. What worked for you and where do you continue to struggle?
  • Incorporate Examples Connected to Course Subject Matter. Weave in examples of what you currently do to serve the public and the profession and explain why you serve.
  • Revise Your Faculty Webpage to Emphasize Your Public Citizen Work. Include your pro bono service activities, service to the profession (committees, CLEs, etc), and board service on your law school profile – not just your C.V.
  • Promote Your Service to the Public and Profession on Social Media. Alert your law school communications person to stories about your service activities so that students and alumni can learn about what you do through law school social media. Also, promote these same things in your own use of social media.

Fulfill the Public Citizen Role with Students Outside of the Classroom (Not Necessarily Connected to a Course)

  • Provide Access to Justice. Participate with students in organized pro bono events or service activities.
  • Improve the Law. Enlist students to help you prepare to testify or do research about a suggested change in the law – and bring the student along when possible.
  • Serve the Profession. Ask students to help you with a CLE – from preparation to attending and presenting with you. Or invite students to participate in a bar committee or bar event with you.
  • Identify a Need and Fill It. Work with student organizations you advise to identify a group with interests related to the organization. Find out their needs and make a plan to partner with them.

 

Forbes article focusing on law schools, competencies and skills development

Earlier this week, Forbes contributor Mark A. Cohen discussed what he calls “the interdependency — and misalignment —   of law school stakeholders.”  Cohen refers to a comment in a recent speech by Mark Smolik, the general counsel of DHL Supply Chain Americas, that  “he would no longer subsidize on-the-job-training of law firm associates.”  According to Cohen, Smolick’s remarks are an

indictment of the Academy for its failure to produce practice-ready graduates with required skillsets and a swipe at law firms for their failure to more fully invest in associate training to drive client value.

Cohen is urging today’s law students to look to the marketplace for “efficient, accessible, cost-effective, and just-in-time learning tools available to fill knowledge gaps and to teach new skills.” He boasts about one product that produces “high quality videos” and uses “flipped classrooms.”

I don’t disagree that law schools need to transform faster, provide more skill building,  emphasize the business context in which lawyers are hired to help, and prepare law students for the team realities of today and tomorrow’s economy.  And I appreciate Cohen’s raising this issue and inviting discussion. But his claim that only a “handful” of law schools are savvy on these issues – or as he put it have “yet to read the memo” – made my Irish blood boil. Maybe it is because it is the end of the week and I’m just tired? Maybe it is because I  just recently (September 13th) hosted yet another Flipping (every pun intended) workshop at our school showcasing all the great work being done by my colleagues in flipping their classroom? Maybe it is because if Cohen googled law schools and flipping classrooms,  he would have found Michele Pistone’s fabulous LegalED information? Maybe it is because he could have found this blogsite pretty high up on that google search and clicked on a number of posts such as here and here  and here and here and here  and here ?  Maybe it is because  nobody is noticing the work of folks like my faculty colleague Antony Haynes on innovative online opportunities?

I invite you to read the article, see what you think and tell us on this blog about what Cohen missed happening at your school!

Experience with Peer Support, Peer Review and Feedback on Teaching?  

We are all familiar with engagement in peer review of scholarship. Law faculty culture prioritizes peer input and review of scholarly ideas and articles. Sending drafts of articles to colleagues for feedback, “workshopping” preliminary ideas, and vetting scholarship is part and parcel of the work we do. We visit other schools, make presentations and attend conferences because we value peer discussion and  input. It is the basis by which we create and communicate knowledge.

I don’t believe, however, we have a similarly pervasive culture for formative peer review when it comes to teaching in law schools, although such culture exists at other higher education institutions. According to The University of Texas Faculty Innovation Center, an academic culture which prioritizes informed peer collaboration, review and input on teaching benefits everyone,

Good teachers continually learn and develop. Peer Review, which combines the examination of course materials with in-class observations and collegial discussion, helps prompt this learning among faculty. Ideally, these interactions and conversations can create opportunities for us as colleagues to reflect on and adapt our teaching practices in order to become better teachers and increase student learning.

Northeastern University Center for Advancing Teaching and Learning through Research recommends a four step process:

  • Initial conversation between the observer and the observed
  • The observation itself as an informal data collection and distillation process
  • Follow-up conversation in which the observer shares the observations and collaborates with the observed teacher in any kind of brainstorming or troubleshooting that the observations invite.
  • Reflective summary written by the observed instructor, integrating what was learned from the process and how this will influence future teaching.

Vanderbilt University’s Center for Teaching includes the goal of “enabling more intentional and mutually supportive communities of scholar teachers.”

It is true that we have made some progress in elevating the role of teaching in law schools in the past decade. Legal Education certainly woke up to the need for a culture change around curriculum and teaching following the publication of Best Practices for Legal Education  and Educating Lawyers.  The economic downturn heavily affected the admission process and the need to focus on student learning. ABA requirements regarding student learning outcomes also redirected attention and resources towards what students actually learn while in law school. Moreover, organized efforts such as the Institute for Law Teaching and Learning  and the AALS Section on Teaching Methods  have converted many to the idea that teaching and learning are matters worthy of scholarship, innovation and peer discussion.  Places like this blog and others support exchange of ideas, methods and innovations.

It is also true that as far back as 2008, pioneering legal scholars Gerry Hess and Sophie Sparrow studied factors which encourage or assist the professional development of law teachers including peer observation. So there are many resources available to improve teaching in law schools. Yet, across the academy, are we truly immersed in a continual process of formative feedback for law teachers? If so, the web shows little evidence of it.

I think some of the culture gap is explained by the fact that historically peer review of teaching only happened during a promotion and tenure process that resulted in an up or out decision by the faculty — hardly a formative approach. A voluntary formative program of peer support and review – not used for personnel decisions – should allay those fears.  Appropriate concerns about interference with academic freedom in the classroom might explain some of the culture gap. Except that, even more concerns about academic freedom arise with respect to peer input into “controversial scholarship,” since draft writings can be more easily captured and reproduced than can observations of a single class session. What I think explains the gap, instead, is that we have not properly trained or equipped law faculty with the tools and methods for conducting and receiving helpful peer observations.

At Albany Law, we have promoted a culture of inquiry around teaching and learning for many years now — colleagues sit in each others classrooms from time to time, our Academic Dean prioritizes teaching support, our Center for Excellence in Law Teaching showcases teaching ideas and invites collegial discussion through teaching workshops, and our Director of Online Learning and Instructional Technology facilitates flipped classrooms and other innovations. What we haven’t done is formalize a voluntary peer support and review program. This year, we are planning to revisit our very loose approach and learn from the ever evolving resources and experimentation of others.

So readers, contributors and chance internet searchers, please post here what if any processes have you implemented to support peer observation of law teaching? Is it a voluntary program as we envision at Albany? How has it worked? Or, if you have an opinion about faculty peer review programs, let us know what you think!

I hope to compile the results and report back later in the year!

P.S. If you are more comfortable with e-mail than a blog comment, feel free to contact me at mlync@albanylaw.edu. 

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