Disparate Impact Magnified: Holding a Bar Exam during the COVID 19 Pandemic year of 2020

Yesterday the Harvard Law Review blog posted an excellent piece by a powerhouse group of legal educators who describe the prospect of a “licensing abyss” just when non-privileged folks and small businesses will need extra legal assistance to navigate the health, employment, housing and government benefits legal landscape.  On the same day, the ABA also urged states that cancel or delay the bar exam to  license law grads on an emergency basis “to help address the increase in legal needs for individuals and businesses caused by this pandemic.”

The Harvard blog authors note, in addition, the the reluctance of bar examiners and courts to find alternatives to the “closed-book, two-day exam anchored in 200 multiple-choice questions” despite the option of so many good alternatives that may well better predict competence to practice law. The authors ask,

Why do our courts and bar examiners place so much faith in this high-stakes exam to predict who is competent to practice law?

This question has puzzled readers and contributors of this blog particularly in light of the discriminatory nature of “speeded” exams  and the economic call for practice-ready lawyers. It is also puzzling when the profession itself is so deficient in diversity and standardized tests are used in ways that preference the privileged.

For 2020, the issue of disparate impact with respect to timed, closed-book exams anchored in multiple choice questions is further exacerbated by law students’ quarantine and sheltering conditions while studying for the bar exam- see the excellent piece  in the NYT on how students returning home to attend classes removes the veneer that all are equal. Even more disturbing and heartbreaking is the information surfacing this week about the horrific disparate impact of COVID19 deaths on Americans of color.  Pre-existing disparities in trauma, housing, employment, healthcare, opportunity, discrimination and historical DNA exacerbate the distress and fatalities for communities of color and for those whose families and friends are populated by people of color.  Some of us – particularly our students of color – will be affected in disproportionate ways and in ways no one can predict or control over the course of the coming months.

As the authors of the Harvard Law Blog wrote, “Crises challenge assumptions and demand action. For this year, emergency licensing based on diplomas and periods of supervised practice would offer proof of competence.”  To do otherwise would demonstrate an inability of our profession to adapt and experiment, and a shocking refusal to recognize and correct disparate impacts.

 

NYS Law Students Urge Highest Court to Expeditiously Announce Alternatives to September Bar Exam

Throughout the country all of us are being asked to change, adapt and respond in unprecedented ways as we experience global pandemic, quarantine, loss, fear, empathy and grief.  New York’s situation seems at this moment most dramatic as the deaths due to the virus surpass those from September 11th.

Two days ago, on April 1st,  law students from the 15 New York law schools eloquently and compellingly argued for the highest court to recognize this unprecedented moment and act accordingly in their Student Letter to Chief Judge DiFiore . In addition, the 15 deans of New York Law schools co-wrote and submitted a similarly persuasive Letter from New York Law Deans to Chief Judge DiFiore.

Yesterday, April 2nd,  the National Law Journal published Judith Wegner’s An Immodest Proposal. Professor Wegner, the innovative co-author of the pathbreaking Carnegie report Educating Lawyers calls for state bars and courts to:

  1. Recognize the factors that are impeding meaningful responses;
  2. Mitigate immediate problems through supervised practice rules;
  3. Consider adopting an emergency provisional licensing system; and
  4. Recognize that other options also deserve attention.

It is incumbent upon the New York Court of Appeals to act swiftly and with innovative  measures to effectively respond to the informed voices of  New York’s law students and law deans.

Adapting to the New Normal: Tips for Socialization While Social Distancing in Law Schools

I don’t think any of us realized that the day before spring break would be the last day we would be able to walk the halls of Albany Law for a while – I know I didn’t. In fact, I couldn’t have been more excited to escape that building in anticipation of vacation. But now, I miss waving to friends, catching up between classes, and the feeling of being in the Rochester Moot Courtroom. No one expected to have to transition the entire law school online to keep loved ones safe from COVID-19.

What we need now in this time of crisis is leadership and yes, even law student leaders can play a part. In light of the current situation, student leaders at Albany Law School put on their creative thinking hats to try to maintain a sense of community by offering “virtual events” and a list of online resources. Having a sense of community brings us together and keeps us feeling connected when we can’t physically be with one another. It keeps our relationships developing and our heads kept high. Most importantly, it provides a space for support, which is something we desperately need right now.

I thought of the idea for “Pet Happy Hour” when I was experiencing my first “Zoom” class. It was just a “test” class, so there was no substantive material being discussed. Then, several students “brought” their pets to class. Everyone in the class immediately started to smile – like instant therapy! I thought about how special our pets are and how animals can help us destress. Then I thought it would be fun to host a virtual event where students could show off their pets and wind down from the week with one another (and grab a drink). Since the inception of this idea, my student group has teamed up with two others to promote this therapeutic space to the rest of the student body. I’m excited to admire everyone’s pets and of course, show off my own!

Here are a list of the events/resources, which you could potentially recommend for your school:

  1. “Pet Happy Hour” – Several student groups teamed up to host a virtual pet happy hour on Zoom, where participants are being asked to bring their pet (or come admire other pets), grab a drink, and hang out.
  2. “Virtual Murder Mystery Night” – A student group will be hosting a virtual murder mystery game night. Participants are asked to sign up beforehand on a public google spreadsheet to ensure they receive character information before the game. (Note: there is a small cost associated with purchasing the game packet. ~$2 a person).
  3. “Virtual Meditation” – One of Albany Law’s very own professors leads a meditation session on Zoom every Friday at 12PM.
  4. “Virtual Exercise” – The Wellness Initiative at Albany Law is hosting a virtual yoga session and HIIT class for students on Zoom.
  5. “Rise in Wellness Blog”The Wellness Initiative at Albany Law has a blog with many resources listed including resources specific to COVID-19. A post by our Director of Communications and Marketing provided 5 excellent pieces of advice for working from home. Here they are quickly summed up:
    1. “Create a routine”
    1. “Keep a dedicated working space, if possible”
    1. “Make ground rules”
    1. “Take advantage of technology”
    1. “Stay positive”

It’s certainly a stressful time, but I think it helps to know that none of us are alone – we’re all in this together. Just because we are social distancing, doesn’t mean we can’t still stay connected. I urge other law schools to use some of the resources I’ve provided or find other creative ways to keep that connection with students. If your school has some other ideas, I would love to hear them in the comments!

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.

 

 

 

From Professor Griggs: A thank you and a request to bar examiners

Professor Marsha Griggs wrote an eloquent blog on the ASP blog site.  She both thanks bar examiners for their hard [and often under-appreciated] work and she urges them to listen to ideas from students, deans, and the legal community when it comes to thinking outside the box  during this pandemic.  The blog is worth a read.  

Top 5 Tips for Synchronous Learning for Law Students

Top 5 Tips for students participating in online synchronous law courses

By Michele Pistone, Villanova University Charles Widger School of Law

  1. Comfort: Select a comfortable place to engage in the class – a quiet location is ideal, otherwise use headphones.
  2. Video: Turn on your video so that your professor and class colleagues can see you
  3. Sound: Moot the sound on your computer when not speaking
  4. Chat: Chat is a great way to connect with your professor and fellow students, ask questions, respond to questions, and stay active during the class session. You can chat publicly, your professor or to anyone in the class.
  5. View: You can change the screen to see only the speaker or all the participants. The function is in the top right corner of your screen

 

Resources About Transitioned Classes and Online Simulations

Noam Ebner (Creighton) has been doing online teaching for a long time and he provided the following information for faculty teaching dispute resolution, but it is generally applicable to all law faculty:

 

The video of the webinar that Sharon Press and I gave last week on conducting simulations in courses transitioning to Zoom and other videoconferencing platforms is now available here.  The question about setting up breakup rooms in zoom in advance, asked at about minute 29:00 in the webinar, is answered here.

Once again, our thanks to the ABA’s Section on Dispute Resolution for hosting the webinar!

A few further resources:

Here’s the essay we mentioned in our talk.  It discussed the issues covered in this webinar and includes links and resources to material you can use in your course:

Pandemic Pedagogy II: Conducting Simulations & Role Plays in Online, Video-Based, Synchronous Courses.

For a basic intro to teaching online with Zoom, here is the Mitchell Hamline Best Practices for Online Teaching program mentioned in the webinar.

For a basic intro to “What do I need to consider while transitioning courses online?” read ‘Next Week, You Will Teach Your Courses Online’: A Reassuring Introduction to Pandemic Pedagogy.

In general, you can find material on negotiating and mediation online, essays on negotiation and mediation pedagogy, and simulations to use for teaching online negotiation and mediation, on my SSRN page.

It was such a thrill to see so many of you online! I hope the webinar, live or recorded, and this further material helps you to weather the transition and the semester.

Best of luck to all, and stay well.

Noam

Noam Ebner
Professor of Negotiation and Conflict Resolution
Negotiation and Conflict Resolution (NCR) Program
Creighton University, Department of Interdisciplinary Studies

In addition to the materials in Noam’s post, you might check out the materials that Touro’s Legal Writing Institute posted, as shared by the AALS Section on Teaching Methods.

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