Top 5 Tips for Teaching Law Online

The COVID-19 pandemic has transformed legal education.  As law professors, we find ourselves in a new era of online teaching that is fraught with uncertainties and new challenges.  We face the task of redesigning our courses while continuing to teach effectively and struggle to figure out how to design an online law course that is both effective and engaging.

As a longtime proponent of online educational programs,  I surveyed the legal academic community to identify the five most common “pain points” experienced over the last several months.  The data informed a webinar I conducted last month for the AALS Section on Technology, Law and Legal Education (click here to watch it), which I recently developed into a 3-day Bootcamp on Designing Your Online Law Course.  In this post, I address each pain point in turn, with the aim to provide strategies and highlight some advantages of online education.

Making the Experience Like a Classroom

Colleagues ask how they can replicate the traditional classroom experience.  They want to maintain lively class discussions on Zoom, but find it difficult to engage students and encourage participation.  Many struggle with multitasking between controlling the class narrative, presenting their slides, and monitoring the chat function.  So, the first pain point is how to I replicate the classroom experience using online modalities?

The answer is simple: you can’t.  Online learning is different than traditional classroom teaching.  When teaching online, we need to adopt a new mindset.  In my view, the first step in adopting a new mindset is to appreciate that “teaching” and “learning” are two different verbs performed by two distinct groups of actors.  For years, I assumed that if I taught a topic, my students learned it.  Not, I realize the mistake in that way of thinking and have started to think about teaching and learning from my students’ perspectives.  By unbundling the teaching and learning processes, we can be more deliberate about how students learn best.  I think that is the first step in building an effective online course.

 Engaging Students

Being cognizant of the learning side of the process will also guide us in engaging students.  The second “pain point” articulated has to do with student engagement; “how to I engage my students online?” The solution is to shift to a student-centered design approach.  Student-centered design is a concept I borrowed from user-centered design, a design-thinking approach that has been successfully employed by start-ups and other new ventures.

User-centered design, or design thinking, teaches us to start by gaining a deep understanding and empathizing with our end users—in this case, our students.  What do we know about our students?  We know that they are learning at home; at home they likely face many distractions, have a shorter attention span, and might be dealing with familial obligations.  If we acknowledge these realities as we develop our syllabus and engage in course design, we know that we will want to chunk up the learning into smaller pieces to keep students engaged.

Student-centered design will also guide our course design by getting us to clearly articulate the learning goals for our courses and for each unit (class, week, section).  The guiding questions here are: what do we want our students to know, be able to do, and value when they finish the course/unit?

Next, plan the assignments and readings your students can complete on their own time (cases, statutes, regulations, articles, treatises), as well as the active learning activities (chunked videos, narrated slides, podcasts, exercises, role plays, discussion boards, reflections, breakout rooms, Socratic dialogue, etc).  Lastly, give students formative assessments such as quizzes, and provide ample feedback on discussion boards and written drafts/exercises.  This may entail more planning, grading, and monitoring than in-person classes.

Assessing Learning and Providing Feedback

The third “pain point” centers around gauging student learning.  For that, online education offers a lot of options to gather feedback about and assess student learning.   You can use online tools to assess if students are moving toward the learning goals.  Indeed, online learning makes it easy to insert periodic formative assessments—either graded or ungraded – throughout the course.  In law school we are used to summative assessments.  Summative assessments, while the cornerstone of gauging law school performance, do not give students feedback as they are in the process of learning.  Learning theory tells us that students learn best when they get immediate feedback.  It also keeps them engaged in the learning process.  Moreover, the results will show you how effective your own course is—allowing for better course design, iteration and corrections, as needed.  Formative assessments come in many forms, from multiple choice quizzes to demonstrate basic remembering and understanding, to problems that ask students to apply facts to the law or analyze case holdings.  When inserted into your learning management system, you can also provide an answer key and pre-written explanations, so that the students get feedback close in time to taking the assessment.

Maximizing Your Impact

Another question that I am asked a lot by law professors relates to using our time most efficiently.  Online education certainly requires a more steady upfront investment of time.  I think that to maximize our impact as professors, we should think about how to use space and time differently.  By that I mean, we should consider what aspects of our syllabi need to be done in person, and what parts can be performed by students on their own time or in small groups.  I think that as you start to consider this question and become more comfortable with the affordances made possible through online technologies, you will find that there are lots of asynchronous ways to engage students in learning.  For example, rather than leading an entire several-hour class online, consider asking students to work independently or in small groups on problems or projects and then reconvene and debrief.  On Zoom, you can drop in intermittently into break out rooms to check on student progress.  Rather than devoting the entire class period to lecturing, consider adding active learning exercises such as working through problems, role plays, or simply answering their questions.

Working with Technology

Finally, the pain points of many professors center around using new technologies.  That is totally understandable.  Utilizing current technology can be overwhelming, especially for supporting active learning in a completely synchronous context.  The key is to start slowly by learning a few tools at a time.  Try not to overwhelm yourself or your students with lots of new technologies at once.  Use existing resources from your campus, or collaborate with colleagues to share the burden by sharing resources or using existing resources, such as those found on LegalED, Quimbee, BarBri, and CALI.  As you shift your mindset to online learning, remember that it is okay to make mistakes.  Students appreciate that you are learning as you go—just like them.

I really enjoy teaching online and hope you will, too.  If you are experiencing pain points that I missed here, please share them in the comments below.  As always, I’d love your feedback.

 

Blended Classes: The Value of Face-to-Face and Synchronous Online Teaching

Like many law professors, I found myself a few months ago teaching regularly from a laptop in my home.  With little prior online teaching, I was intimidated.  Relying on expert help at our school and in the legal education community, on lots of practice using the platforms available, and on the generosity of my students (who kindly took time to do pre-class sessions), I muddled through the semester.

               When I learned we were likely to be teaching online again in some capacity, I decided to take advantage of the available resources to help understand the similarities and differences between face-to-face classes and online classes.  I was delighted to find among these resources an article by one of my favorite educators, Gerald Hess.  His article that explored many of the questions on my mind.  See Gerald F. Hess, Symposium: The State and Future of Legal Education: Blended Courses in Law School: The Best of Online and Face-to-Face Learning?, 45 McGeorge L. Rev. 51 (2013).   (Note on a separate resource: coauthored with Michael Hunter Schwartz and Sophie Sparrow, Professor Hess’s book Teaching Law by Design [Carolina Academic Press 2009] has helped me more than any other single source in designing and teaching my courses.   It should be mandatory reading for all new law professors.)

Professor Hess’s article cites credible authority that online teaching fosters students’ development of self-directed learning.[1]  My colleague, Natt Gantt, and I have been working with St. Thomas Law School’s Holloran Center to provide tools with which law teachers can both adopt development of self-directed learning and use the materials on the Holloran Center website to achieve and measure that learning outcome.[2]   We had not, however, focused on the strengths of online teaching as a means of achieving self-directedness.  Perhaps it should have been obvious to me that, if a student knows that she will be expected to actively participate in the online class, she will take more ownership of her learning.   I had to see the online format in action to begin appreciating its benefits.

               Professor Hess’s article references not only interviews of teachers and students but also empirical evidence that evaluates how effectively face-to-face, online, and blended (combining face-to-face with online) instruction achieves learning outcomes.  The findings offer support for online as a more effective means of achieving learning objectives than traditional face-to-face classes.  However, Professor Hess cautions against exaggerating these findings because most of the empirical research did not involve on law schools (but did include graduate courses).   When one compares the ability to achieve learning outcomes through face-to-face versus online teaching, however, this evidence suggests that we keep an open mind.  When comparing face-to-face teaching with blended teaching, moreover, the results show “stronger learning outcomes than did face-to-face instruction alone.”[3]

               Professor Hess explains why such conclusions make sense.   A well-designed blended classroom encourages students’ collaboration in the learning process.  Such a class also allows students to use their strengths to their advantage while developing or improving new skills.   For instance, the face-to-face class allows students who think quickly on their feet to interact with the professor and each other.   Many students, however, feel more comfortable participating online, after having had the chance to ponder a prompt or post.  All students, moreover, must actively participate in the process of learning.

               Professor Hess’s articles sets forth General Design Principles for an effective blended class.  I encourage anyone who may be teaching a blended class in the upcoming academic year to review his design principles.  I am sure they will help to ensure a class is as effective at achieving learning outcomes as possible.   I know that they showed me I still have a lot of work to do.    However, I realize now that the effort can lead to more effective teaching and learning than in what I had come to accept as the previous norm—face-to-face classes. 


[1] See Hess, supra, at 60-62.

[2] See, e.g., Larry O. Natt Gantt, II, and Benjamin V. Madison, III, Self-Directedness and Professional Formation:  Connecting Two Critical Concepts in Legal Education, 14 Univ. of St. Thomas L. J. 498 (2018); see also Univ. o St. Thomas Law School’s Holloran Center for Leadership in the Professions, Competency Milestones: Self-Directedness, https://www.stthomas.edu/hollorancenter/hollorancompetencymilestones

[3] See Hess, supra, at 69 (quoting Means et al., U.S. Dep’t of Educ. Evaluation of Evidence Based Practices in On-Line Learning:  A Meta-Analysis and Review of Online Learning Studies 28 (2010).

Why law profs should teach law students to write for the digital reader in the age of COVID-19 (with checklist)

On behalf of Joseph A. Rosenberg, Professor of Law, CUNY School of Law

1.Introduction and Context

The author proposes that law professors teach legal writing intentionally designed for the digital reader.

The proposed framework uses visual design elements and digital functionality to overlay traditional structures of legal writing. Writing for the digital reader addresses the challenges of reading on a computer screen and amplifies best practices for legal writing. The result is a conceptual framework for written communication that helps bridge the gap between the writer’s “intention” and the reader’s “attention,” regardless of medium (paper or digital).[1]       

The COVID-19 pandemic and the move to online learning by law schools has exposed the pre-existing need to incorporate writing for the digital reader as part of the fundamental framework for teaching legal writing across the law school curriculum. Digital writing represents a “best of both worlds” approach: to write well for the digital reader is to write well for the paper reader.

Digital writing does not replace the creative, human writing process, complex narrative and analysis, or the role of “old school” technologies in that process—for example, pen and paper. Similar to the difference between a paper and digital map, writing for the digital reader adds dynamic dimensions that enhance communication between the writer and reader.        

Writing for the digital reader meets today’s law students, who are mostly “digital residents,” where they are. It facilitates “adaptive transfer” by encouraging all students to draw on their learning experiences, including oral and written communication. It is a bridge for students from their lived experiences in the digital age to the unfamiliar landscape and structures of legal writing and analysis.

In addition, the lynching of George Floyd (and many other Black people in America) and the Movement For Black Lives, has forced the U.S. and its legal system to confront its white supremacy origins. As part of this broader reckoning, law professors and law schools need to re-examine lawyering traditions and practices, including legal writing. Unless we actively practice more contemporary approaches to lawyering, include anti-racist discourse, critical modes of analysis, and different assessment practices, we will be, in the words of Professor Teri A. McMurtry-Chubb, “Still Writing at the Master’s Table.”

Writing for the digital reader prepares law students for contemporary practice: “Lawyering in the Digital Age.” In legal education, the shift to digital technology, according to Professor Conrad Johnson, “transforms the way we practice traditional lawyering skills and requires us to teach the new skills of contemporary practice.”[2] Writing for the digital reader is an example of a contemporary approach to a traditional lawyering skill.  

The author hopes to encourage law professors and law schools to help reshape the teaching and practice of legal writing to better reflect the reality of lawyering in the digital age. Law professors can use the checklist below to get started.

2. Why law professors should teach writing for the digital reader.

Written communication is a core lawyering skill for law students: in many ways, to be a lawyer is to be a writer. The fundamental concept of legal writing, and how it is taught in law schools, should reflect the reality that the audience will likely be reading on a computer screen. This includes the full range of professional writing that law students will learn and do while in law school and as lawyers.[3] Even writing that may have to be printed and read on paper, for example, “know your rights” materials and communication to clients who are detained or incarcerated, will benefit from a “digital writing” approach.   

Scholarship on visual design and the impact of digital technology on legal writing provides a theoretical and practical basis for shifting our notion of a legal document from paper to digital. For example, Professor Ruth Anne Robbins, in her 2004 seminal article, Painting with Print, and in her 2015 work with Professor Steve Johansen, Art-iculating the Analysis, made important connections among visual design techniques, legal writing, and lawyering strategy. Professor Kirsten Davis, in her 2014 article, The Reports of My Death Are Greatly Exaggerated, asserted that “all legal reading is rapidly moving to on-screen legal reading.” Professor Ellie Margolis, in her 2015 article, Is the Medium the Message? observed that, “[T]urning the traditional, linear, text-based brief into a multidimensional e-document is a key example of how the medium changes the message and suggests that it is time to rethink that classic legal document.”

Lawyers no longer have a choice about incorporating technology into their practice and ABA Model Rule 1.1, Comment 8 requires that lawyers understand the risks and benefits of technology as part of the duty of competence, and ABA Formal Opinion 477R provide guidance about the lawyer’s duty to make “reasonable efforts” to secure confidential client information when using technology to communicate.

A 2012 survey found that 58% of federal court judges read briefs on an iPad, some U.S. Supreme Court Justices have been reading briefs on computer devices since at least 2010, and recently, all three judges on the Supreme Court in New Delhi, India used laptops in a remote paperless hearing. Various courts, for example, the 7th Circuit Court of Appeals, have detailed information about the design of briefs and courts are beginning to transition from mere e-filing of scanned documents to accepting or requiring electronic briefs with expanding digital functionality.

Visual design and digital functionality can be found in the work of the U.S. Supreme Court: for example, Justice Stephen Breyer used visual design in his 2020 Opinion in June Medical Services v. Russo (bullets and annotated map, see pp. 6-9, 32-33, 37), and the Annual Report on the Judiciary by Chief Justice John Roberts is a digital document with hyperlinked citations.

Any form of legal writing, broadly defined, can be transformed from “paper” (two dimensional) to “digital” (multi-dimensional) with modest changes in design, structure, and functionality. Writing for the digital reader incorporates, accentuates, and builds upon the components, structures, frameworks, and techniques that are effective for the paper reader. Digital writing can be adapted by law professors because particular elements or tools can be overlaid, sprinkled or infused regardless of the particular document, assignment, class, or module.

Law students can use a visual design approach to both construct their written analysis in outlines and drafts (for example, by using organizational visuals to deconstruct complex rules or facts) and present in their final writing whatever digital elements are appropriate, depending on the purpose and context of the writing. A writing for the digital reader framework emphasizes and synthesizes the following interactive elements:

3. Our “brain on screen” explains the need to write for the digital reader.

In the digital age, we are challenged by massive information overload and multiple distractions. This heightens the need to understand how “screen habits” affect the way in which we process information and maintain, develop, or lose cognitive focus.

Most law students are “Millennials,“ born after 1980 and now America’s largest, most diverse, and some say progressive, generation; they are starting to be joined in law schools by “Generation Z.” Both generations are “digital residents” who, despite a persistent digital divide, have inhabited a world of computers, smartphones, and social media for their entire lives. As noted by Professors Ellie Margolis and Kristen Murray in their 2016 article, “Using Information Literacy to Prepare Practice-Ready Graduates,” these students have “grown up composing text almost exclusively on screens, [and] have a very different experience with the reading and writing process than lawyers who began practicing law in the twentieth century.”

Reading on a computer screen (including laptop, tablet, smart phone) is associated with distraction, lack of sustained attention, and diminished comprehension. Researchers and educators fear that deep learning and meaningful comprehension are threatened as we try to read and:

To meet these challenges, we need to cultivate what Maryanne Wolf calls “cognitive patience” in our students (and ourselves) and, ultimately, a “biliterate brain” that switches effortlessly among different modes of reading.[4]

Regardless of medium, law students can develop and maintain habits of mind and strategies to compensate for diminished attention and manage information overload. Metacognition—awareness of their own learning process—will help students (re)balance and self-regulate their learning strategies and improve their ability to engage in deep reading and learning, even while using computer devices.

4. Checklist for teaching law students to write for the digital reader.[5]

Learning to write for the digital reader can help students improve their writing. This checklist incorporates practical approaches that draw on visual design, best practices in writing, and digital functionality. Professors, students, and attorneys can use it as a guide for written communication.

 Meet students where they are. Most of our students are “digital residents” who have lived their entire lives in the digital age. We can help them transfer their online experiences, knowledge, and skills to academic and professional writing assignments with practical frameworks and approaches.

 Begin with a reflection exercise. Ask students to reflect on their writing, including papers, articles, texts, emails, tweets, and posts.

  • What techniques do they use to communicate in writing online?
  • In more traditional papers?
  • What makes reading online easier or more difficult?

 Writing as a process. Writing for the digital reader can help students think about their writing process.

  • How do they generate and organize ideas?
  • Do they take notes, create an outline, write in stream of consciousness, or use other approaches?
  • What technology do they use: pen, paper, computer, a combination of paper and computer?

 Writing choices flow from content. Encourage students to focus initially on the goals of the writing and their ideas, research, analysis, and content. Thoughtful analysis, strong content, and clear objectives are the foundation for effective writing. Structure and format flow from substantive analysis.

 See writing with fresh eyes. Ask students to “step back” and review an initial draft.

  • Do lines of text appear “bunched” together?
  • Does the student’s eyes “glaze over” when they are reading due to long sentences and paragraphs?
  • Do they have to struggle to find the meaning of text that is too dense and hard to follow?

 Write to overcome screen reading challenges. Research shows that when we read on a screen, we are more distracted, less able to maintain sustained focus, and our comprehension diminishes. We can teach students how to use techniques and strategies to compensate for these problems.

 Eliminate or minimize distractions. Practice focused reading in 20-30 minute blocks without checking texts, emails, or social media. Minimize notifications and any other distracting “pop ups.” Take a short break.

 Headings, topic sentences and paragraphs. Encourage students to use headings and sub-headings in the early stages of writing process and, for most writing, through the final draft. This helps organize ideas and thoughts. Headings can “announce” topics or make an affirmative point. Topic sentences and concise paragraphs will also help both writer and reader.

 Spacing, lines, and fonts. Be aware of spacing, lines, and font (typography). The size and type of the font will likely depend on the conventions of the assignment or genre of writing. Spaces between lines, and the length of the lines of text, can help or hinder the reader.

 Use visuals and media to present information.

 “Organizational visuals.” Also called “navigational” visuals, these techniques are a great starting point to help the writer’s understanding, analysis, and structure. When writing about elements, rules, and multiple items, students can express information using “tab form” to create lists with:

1. Bullets,

2. Numbers, or

3. Letters.

 Graphs, tables, & charts. These are more tools students can use to communicate information. The key is to highlight content, not format of presentation. Students can use a simple table to compare and contrast information in context with practical, side by side examples.

 Images, diagrams, & videos. Depending on the context, students can use multi-media to support & illustrate their analysis. Media can help students develop ideas & analysis, and also meet the goals of the assignment.

 Hyperlink citations. We are so used to clicking on hyperlinks that we barely notice: they are a key difference between digital & paper writing. Writing assignments should include hyperlinks to legal citations and other resources.

 Best practices for hyperlinks. Hyperlinks can help students think differently about the purposes and form of citations.

  • Does the hyperlinked authority enhance text?
  • Where should it be located?
  • What is the proper form?
  • Does the hyperlink work; what if it breaks?

 Hyperlinks, paywalls, and #NoTechForICE. Use hyperlinks to discuss public and private databases, including ethical dimensions: @thomsonreuters (@Westlaw) & @ElsevierConnect (@LexisNexis) dominate legal research, law school course websites, and sell data to ICE & law enforcement agencies.

 Bookmarks. Students can insert bookmarks in longer documents. These bookmarks enhance functionality. Students can use bookmarks without a full table of contents. Students can insert hyperlinks to bookmarked sections in a roadmap or introductory section at the beginning of a document.

 Self-assessment. As part of the thinking and writing process, students see their piece of writing as a whole.

  • Is there a balance between text and space?
  • What visual tools are used in the writing?
  • Are the visual tools appropriate for the context?
  • Do the visual tools advance the purpose of the writing?

 Continue the editing, revising, and proofreading loop. In the digital age, learning how to write for the digital reader is a necessity. Students can learn to write at the intersection of visual design, best practices in writing, & digital functionality, and also improve their screen reading. Professors can too!

5. At a glance typography for legal writing for the digital reader.

Design choiceRecommendationsComments
Typeface or fontBaskerville Bookman Book Antiqua Calisto Century Century Schoolbook Garamond New Baskerville Palatino Times New RomanSerif for body of doc Sans Serif for headings Any “Book” font good for legal writing (Some say avoid Times New Roman because designed for newspaper columns and not as legible)  
Font sizeBetween 10 & 13Depends on letter height & line length
White space (including margins)Use expansively 1.5 as default, 1.0 and 2.0 as appropriateAvoid bunching together text without enough space. Double space not as effective for screen reading
Headings & subheadingsUse headings & sub-headings Sentence format Arabic numerals (1.0) Arial Century Gothic Trebuchet CorbelUse Sans Serif font for contrast Avoid: ALL CAPS, Small Caps, Cap At Beginning Of Each Word, & underline Align with left margin (do not center) Insert extra space before each sub-heading (distances from prior section, connects with related text)
Organizational or navigational visualsUse for elements, lists, points (bullets, numbers, letters, other visual signals).Avoid “burying” items within a paragraph. Use to complement, not replace narrative text.
Page numbersUse p. 1 of 20Avoid p. # alone
Length of documentWord countNot number of pages
Line length & justificationShorter line length (6”) (margins equal to or more than 1”) Rule of thumb: line should be 2 or 2.5 times alphabet length (52 to 65 characters)Use proportional spacing

[1] Maryanne Wolfe, Reader Come Home (HarperCollins 2018).

[2] Conrad Johnson, Lawyering in the Digital Age at 308 in Bryant et al., Transforming the Education of Lawyers: The Theory and Practice of Clinical Pedagogy (Carolina Academic Press 2014)..

[3] For example, formal legal memoranda and briefs, articles, essays, emails, letters, websites, posts, tweets, blogs, “DIY” guided interviews, court forms, reports, and community education materials.

[4] Maryanne Wolfe, Reader Come Home (HarperCollins 2018).

[5] Modified from author’s Twitter thread on @JoeRosenbergLaw, March 13, 2020.

New Editors Coming to Best Practices Blog……

Back in  2007, after many retreats, research, brainstorming sessions, and national workshops, the members of the Clinical Legal Education Association’s Best Practices Committee ( thereafter renamed  Best Practices in Pedagogy  ) published the iconic Best Practices in Legal Education, timed to be released at the same time as Carnegie’s Educating Lawyers.   The first Best Practices document captured the emerging research on how to best engage law student learning. It also focused on the preparation of future lawyers in accordance with our profession’s expressed values and commitment to justice.  It did not claim to be the definitive “last word” on Legal Education.  In fact, that was the whole point.  Legal Education needed to evolve to meet the challenges of each new generation of lawyers-to-be and the world in which they would emerge.

At the inception, there was a shared understanding that work on a second edition needed to begin almost immediately and that historical wisdom should be tested in the light of an ever more diverse, global, and digitized world.  There was also an early desire to facilitate discussions in real time and to capture and share the ongoing and potentially controversial attempts to release legal education from its over 100 year old educational stagnation. Thus, the Best Practices for Legal Education blog was born.

One of this Blog’s earliest posts in 2007 was authored by the brilliant former law professor Antoinette Sedillo Lopez on Promoting Diversity.  Since then CLEA’s Best Practices in Pedagogy committee created the popular and richly informative Teaching Justice Webinar Series.   However, to consider how far we have and have not progressed please see last Thursday’s post:   Addressing Structural Racism in Law School: CUNY Law Faculty Issues Statement and Demand for Action.

Today in the turbulent summer of 2020, we evolve again to welcome new editors and crowd-source new inspirations.  I am so pleased and honored to announce that Best Practices in Pedagogy members, Professors Melanie DeRousse and Davida Finger,  have stepped into leadership and will be editors on the Blog going forward.  It has been so rewarding to work with them on this transition.  I leave this baby in good hands!

So many people – authors, assistant editors, staff, professors, Deans, colleagues – have contributed to the success of this blog over the past 13 years.  You know who you are and I thank you from the bottom of my heart.  For now, let’s look forward towards a future of “collaboration on steroids” in legal education while dismantling the structural impediments for learning and teaching which result from racism, misogyny, and other historical systems of oppression.  We can do this together!

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

Great Teaching is Great Teaching, In Any Delivery Mode

By Sara J. Berman, Director of Programs for Academic and Bar Success, AccessLex Institute Center for Legal Education Excellence

Hats off to LSAC for its important June 30th webinar featuring Berkeley Law Dean, Erwin Chemerinsky. As LSAC President Kellye Testy said at the close of the session, I too felt a longing to return to the richness of law school learning while listening to Dean Chemerinsky’s review of recent Supreme Court decisions. The session also provided a hopeful counterpart to Dean Paul Caron’s same day post, Is A Law School Meltdown Coming? Thank you, Dean Caron, for this critically important warning that I hope we all heed, and for the rays of light in between the cautionary notes.

Dean Chemerinsky showed every prospective law student —via a distance learning delivery system I might add — why the law and legal education are critically important—indeed vital to the future of our democracy. And, for all who watched and listened, or will do so when the video link is posted, Dean Chemerinsky’s Constitutional Law session provides irrefutable evidence that great teaching is great teaching, in any delivery mode.

Distance learning is not new. We have long been engaged in deep learning through books, movies, and educational television. How many of us first learned how a bill becomes a law or the proper use conjunctions because of Schoolhouse Rock? And, how many are learning important U.S. history lessons by singing the lyrics of Hamilton and watching the musical online—from a distance, not “in the room where it happened.” Thank you, Lin-Manuel Miranda, one of today’s greatest distance educators!

I am a legal ed distance learning pioneer. When people question me about the efficacy of online learning in legal education, I often point to Professor Arthur Miller. Teaching in person for decades at Harvard Law School and now at NYU, and through multiple distance formats, Professor Miller has taught more lawyers, judges, and everyday citizens than anyone could possibly ever count— about civil procedure and the American legal system— through his Federal Practice and Procedure treatise, casebooks, and hornbooks, bar review, PBS series The Constitution: That Delicate Balance for which he won an Emmy, and decades of work providing legal commentary and bringing life and clarity to legal issues on national television, not to mention the lectures he recorded for the first online law school, where I served for some fifteen years as a faculty member and assistant dean.

Quite simply, anyone who categorically dismisses “distance learning” in legal education as some sort of inferior substitute has never heard, watched, or read the teachings of Erwin Chemerinsky or Arthur Miller, or any of the thousands of other brilliant law professors across this country who are right now preparing to teach superb online courses this fall. And, this is precisely what we should be doing —preparing for the fall.

In a June 30, 2020 post, former Northwestern Dean Dan Rodriguez rightly lauds Professor Deborah Merritt, “What Prof. Merritt captures well, and what I and others have tried hard to capture as we have discussed this issue privately and publicly is this: We can and should put on a full-court-press to develop and refine our remote/online teaching abilities so as to commit to giving our students an excellent educational experience — excellent in curricular content, excellent in experiential/skill-building opportunities, and excellent in the community-building that technology can assist us with, if we are diligent and strategic, energetic and empathetic.”

And, to anyone who contests the community building part of the statement above, anyone who claims that unless we are together in person we cannot really build deep and lasting connections, let us remember that history is replete with people who have fallen in love, sustained relationships, started revolutions, and changed the world through letter writing.

The week of June 30th was indeed a busy one for legal education and distance education in particular.  In addition to the webinar and posts noted above, the Summer 2020 issue of the AccessLex Institute’s Raising the Bar (RTB) was published on July 1, 2020.  I am proud to have founded and continue to serve as managing editor of RTB. This issue is dedicated to distance learning in legal education, and features among other content, wisdom from four visionary law school deans who are at the helm of hybrid JD programs that were educating for the 21st century prior to the pandemic. I hope that readers find the issue informative and will feel inspired to continue working to develop precisely the kind of excellent educational experience in learning that Professor Merritt envisions.

As legal education continues in part or fully online in the new academic year and until this virus is eradicated and perhaps beyond, let’s work together with the same fervor depicted in Alexander Hamilton’s writing “like he’s running out of time,” to see the virtual halls of our nation’s law schools filled this fall with the brightest, most engaged minds —students from all backgrounds who are ready to learn to protect the Constitution and to ensure that our nation remains a thriving democracy, governed by the rule of law.

MORE NEWS ON STATES, BAR EXAM, AND DIPLOMA PRIVILEGES

For several months now, this blog has commented on Courts and States continuing to require a traditional bar exam for admission to practice.  It has also covered the call by law deans and law students to enact Diploma Privileges.

Since our last post on this subject Oregon has adopted a Diploma Privilege and now a New York State Senator has proposed a bill which according to its “justification” allows for “a modified form of diploma privilege. “  The bill is found here.

Senator Brad Hoylman’s Sponsor Memo reads as follows:

At this point in time, it is too early to tell with certainty whether it will be safe and feasible to hold an in-person bar exam in early September. State and local restrictions on venues being open and limiting the size of in-person gatherings may preclude the administration of an in-person test. Amid the uncertainty over the test’s administration, law graduates are reporting that the already stressful bar exam preparation has been compounded by personal challenges ranging from their own health and wellbeing to financial hardship to increased caregiving responsibilities. Allowing a modified form of diploma privilege, as proposed in this bill, would give law graduates a reprieve from further delays in admittance, while retaining the Court of Appeals’ prerogative to set standards for the profession. Under this bill, as long as there is an extent state of Emergency related to COVID-19, the uniform system of examination for admission to practice law in New York will consist of the New York Law Course, the New York Law Examination, and the Multi- state Professional Responsibility Examination, all of which can be taken online.

Nothing in the bill precludes the State from moving forward with admin- istering the Multistate Bar Examination, meaning it can remain an option for New York-based law graduates who wish to practice law in a state other than New York. Passing the MBE, however, would not be a required prerequisite to admission to practice in New York for the duration of the COVID-19 State of Emergency.

According to Karen Sloan’s article on Law.com, 2020 Brooklyn Law School graduate Claire Schapira, who is involved with an advocacy group called NY 4 Diploma Privilege hopes

that the Board of Law Examiners and Court of Appeals will act on their own, because they have the power to do that,” Schapira said. “But I think that this helps push the momentum. This is not something that graduates want because we don’t want to take the bar exam. This is an issue that has a real impact across the legal community and the community more generally.”

I agree. I spent a portion of yesterday trying to problem solve with a brilliant, hardworking, ethical and professional law graduate and accepted bar examinee.  This student also excelled in clinical practice.  Like other examinees, this immune compromised student, who is normally efficient, excellent at focus and time management, and extremely organized is being distracted from bar study by 

  • trying to keep up on what is safe to do as the virus surges again
  • changing bar expectations and information across the country
  • concern about friends and family who live in other states
  • Rent issues while studying for the bar in a safe appropriate place in the Capital NY Region 
  • Figuring out when to move to a more expensive city where a more challenging living situation but good job is waiting
  • Fear that NYS will once again punt making a hard decision by delaying exam dates until October which continues unemployment for this graduate and many others.     

It is time to provide certainty and provide New York law graduates with a diploma privilege tied to other indicators of professional promise as outlined previously on this blog here and here.

 

UPDATE: 7/8/20 See also https://news.bloomberglaw.com/us-law-week/insight-clinical-education-a-safe-and-sure-pathway-to-law-licensure

Update as of 7/13/20 – 

Letter to Court of Appeals Requesting Hearing Re Bar Exam – 07.13.2020   This letter was submitted by “United Diploma Privilege NY”, to the Court of Appeals  requesting a hearing on the safe administration of the September Bar exam.  

Also this morning, the 15 New York Law deans submitted a letter to Chief Judge DiFiore advocating for graduates taking the bar exam. 

See also other relevant news here and here

 

How Many People Will Preventably Die or Get Ill if Universities Hold Classes in Person? – Part 1

This fall, American universities will face their modern rendezvous with destiny as they make momentous decisions whether to protect large communities from death and disease.  Most universities plan to conduct in-person classes and are likely to become semester-long virus incubators if they stick to those plans.

The situation would be very different if all government leaders in the US took diligent action to stamp out the virus and virtually all citizens acted responsibly to protect people they come in contact with.

But, sadly, that’s not the case.  Here’s a headline in today’s paper:  “7-Day Average Case Total in U.S. Sets Record for 27th Straight Day.  Local officials issued dire warnings about the spread of infections, blaming outbreaks on early reopenings and saying the virus was rapidly outpacing containment efforts.”

Foreseeable Dangers
Consider the following scenarios described by Kevin Gannon, a history professor at Grand View University and director of the Center for Excellence in Teaching and Learning, in a post worth reading, “The Summer of Magical Thinking.”  He writes that administrators are treating faculty and staff as “cannon fodder.”

So…what’s your college or university doing about the fall semester?

According to the aggregate results for over 1,000 higher-ed institutions aggregated by The Chronicle of Higher Education, the most likely answer is “planning for in-person” instruction—61% of the colleges and universities in this dataset have said this is their plan.  The next most prevalent answer is some sort of hybrid model (20% of the institutions), with only 8% “planning for online” (one has to assume that a large portion of this group is the Cal and Cal State systems), and a mere 3.7% who have yet to decide.  What strikes me about this data is that out of over 1,000 institutions of higher learning, over eight hundred of them are planning on at least some degree of face-to-face instruction, with three-quarters of that cohort proceeding as if that will be the dominant mode for the fall semester.  Business as usual, apparently.

. . .

What are you going to do when folks don’t adhere to those community expectations?  What happens if a student comes to class without a mask and the instructor is immuno-compromised, so they ask that student to mask up or leave?  Who is responsible for wiping down tables and chairs between classes?  Do you really think social distancing will happen in building hallways and common spaces between classes?  What if a student tests positive for the virus, and one of their instructors decides they need to go into quarantine because of a family member’s health status?  Are you going to make your employees divulge personal health information whenever something like this happens?  What if you have a student who thinks masks are political discrimination and their parents back up their refusal to wear a mask on campus?  What if one of your instructors gets ill?  Who takes over the class?  How is that determined?  Should faculty have a “Covid Buddy” just in case?  How are you going to avoid getting sued? Even if you have people sign waivers (HA!), doesn’t the very act of seeking that release of liability serve as evidence you’re aware of the risks involved?  Has anybody involved community leaders in their strategizing about the fall semester?  Colleges and universities exist in larger communities, and the residents of these locales are going to be significantly affected by your institution’s choices; what are you telling them about how you’re trying to ensure their safety?

. . .

Faculty and staff can interact with literally hundreds of different students per day.  How is the institution making things safe for them?  What plans are in place for locations like the Business Office, Bookstore, Registrar, and Financial Aid, that are often overcrowded in normal times?

. . .

If you are an upper-level college or university administrator, you are most likely wealthy and white.  This pandemic is disproportionately affecting people who are not wealthy and not white.

. . .

Let me pose another question: if your re-opening plan was an experiment, would your institution’s IRB approve it?

. . .

That’s the hard conversation we need to have, and it’s one largely absent from the panglossian statements about how awesome we’ll be able to keep things this fall.  Yes, the financial stakes for our institutions are high.  Yes, this is existential for some of us.  Yes, remote instruction can impact enrollment.  All these are bad.  You know what else is bad?  Dead Students.  Dead Faculty.  Dead Staff.

Problems of protecting people on campus pale by comparison to predictable problems off campus.  Consider this headline and imagine what will happen this fall in campuses all around the country:  “Covid-19 Outbreak Reported in 15 Fraternity Houses at University of Washington.

How can universities credibly expect to limit the spread of the virus in fraternities, sororities, dorms, other student housing, bars, and all the parties that inevitably will take place?  Will students meeting new people in class and at parties forego having sex with strangers?  If not, how many students will wear masks and stay at least six feet apart when they do so?

Read this compelling moral argument by Michael J. Sorrell, the President of Paul Quinn College:  “Colleges Are Deluding Themselves.  Institutions are letting their financial and reputational worries cloud their judgment about when they can safely reopen.”

If there are major spikes of illness and death in university communities during the fall, presumably they will abruptly shift to online instruction as everyone did in the spring.  The universities’ financial and political interests that they are trying to protect will be harmed much more than if they plan for online instruction from the outset.  Universities holding classes in person will undertake risks of huge liability exposure.  And they will have caused countless preventable illnesses and deaths.

Some Faculty Pushback
The New York Times recently published this article:  “A Problem for College in the Fall: Reluctant Professors.  Most universities plan to bring students back to campus.  But many of their teachers are scared to join them.”  I recommend reading the entire article (as well as the Esquire article linked below).  Here are some key excerpts.

More than three-quarters of colleges and universities have decided students can return to campus this fall.  But they face a growing faculty revolt.

“Until there’s a vaccine, I’m not setting foot on campus,” said Dana Ward, 70, an emeritus professor of political studies at Pitzer College in Claremont, Calif., who teaches a class in anarchist history and thought.  “Going into the classroom is like playing Russian roulette.”

. . .

Faculty members at institutions including Penn State, the University of Illinois, Notre Dame and the State University of New York have signed petitions complaining that they are not being consulted and are being pushed back into classrooms too fast.

The University of Illinois at Urbana-Champaign campus is known for its lively social scene, says a faculty petition.  To expect more than 50,000 students to behave according to public health guidelines, it goes on, “would be to ignore reality.”

At Penn State, an open letter signed by more than 1,000 faculty members demands that the university “affirm the autonomy of instructors in deciding whether to teach classes, attend meetings and hold office hours remotely, in person or in some hybrid mode.”  The letter also asks for faculty members to be able to change their mode of teaching at any time, and not to be obligated to disclose personal health information as a condition of teaching online.

“I shudder at the prospect of teaching in a room filled with asymptomatic superspreaders,” wrote Paul M. Kellermann, 62, an English professor at Penn State, in an essay for Esquire magazine, proclaiming that “1,000 of my colleagues agree.”  Those colleagues have demanded that the university give them a choice of doing their jobs online or in person.

[C]ampuses are not fortresses, and professors in states that have seen recent spikes in coronavirus infections are particularly worried.  Hundreds of cases have been linked to universities in Southern states in recent days, including clusters among the football teams at Clemson, Auburn and Texas Tech, and outbreaks tied to fraternity rush parties in Mississippi and to the Tigerland nightlife district near the Louisiana State campus.

Last week, I sent this email to my university president urging the university to offer all classes online this fall.  He sent a very prompt, courteous reply saying that they considered all the risks I mentioned and that they would rely on “the advice of medical professionals and public health specialists to monitor the situation should we need to go online.”

In response, I asked if they set criteria for deciding to go online.  I asked how many people will have to get sick or die before the University would change course, and (not surprisingly) he didn’t specify, saying only that he would rely on expert advice and his administrative experience.

What Are You Going to Do About This?

I keep thinking about the famous (gender-neutralized) quote of John Kerry, asking about the American War in Viet Nam, “How do you ask a person to be the last person to die for a mistake?”

In these dysfunctional times, mobs of people threaten public officials when the protesters feel aggrieved by the loss of freedom to spread deadly disease.  All the while, relatively few people protest the pollution of our environment with invisible killers floating in the air we breathe.

What is your school planning for the fall?  Have faculty and community leaders been involved in the planning?  What do you plan to do about your situation?

Click here for part 2 of this series.

A Comprehensive Review of Legislation and Regulation & Administrative Law Course Requirements

In support of a few different projects, I recently asked my summer research assistant to do a comprehensive review of Legislation and Regulation and Administrative Law course requirements at ABA accredited law schools in the United States. The completed list (please see file below) updates one most recently compiled by Professor Ed Richards at LSU Law School.

At this juncture, over 30 schools require JD students to take a Legislation and Regulation course (or a similarly titled course focused mainly on the role of statutes and regulations in contemporary law). At almost all of those schools the course is offered in the first year. A handful more require a course on just legislation, statutory interpretation, or the like. In addition, about ten schools impose an upper division requirement to take Administrative Law or a comparable course.

Now, perhaps more than ever, additional schools should seriously consider adding Legislation and Regulation or Administrative Law requirements. Each of the two big crises facing our country today provides yet another example of the centrality of the regulatory state—as opposed to the common law—in our legal system, thereby reinforcing the importance of exposing all law students to the fundamentals of legislation and regulation.

First, the varying government responses to the Covid-19 pandemic are acute illustrations of regulatory trade-offs—the kind that administrative agencies in numerous sectors of our society grapple with all the time: Benefits to the economy produce a cost in human life; benefits to human life produce a cost to the economy. Also, what authority do governors, health departments, and other relevant agencies have, many law students might wonder, and how did they get that authority?

Second, as to issues of police brutality and racial discrimination, the law’s response largely has come and will come in the form of legislation (or ordinances at the municipal level) and regulation. City councils consider fundamental changes to police departments, while state legislatures and Congress debate various other policing reforms. Police commissions and review boards, which are administrative agencies, are under scrutiny. Even the judicially-created doctrine of qualified immunity, which almost always insulates police officers from liability in civil suits, may very well endure in its present state unless Congress passes a statute modifying or eliminating it.

Fundamental concepts and processes of our regulatory state, several of them center stage in the issues of our day, are the focus of required courses at the various schools on the list. May that list grow each year moving forward.

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

The Opportunity to Learn from Other Disciplines (And Maybe in our Own Backyards) About Teaching Online

This is the third of three posts about finding opportunities in the changes we are required to make in legal education because of the rapid spread of Covid-19. The last two focused on grading and employment, this one is about teaching.

The law school classroom, as we know, is a venerable if sometimes creaky battleship.  Its tendency is to keep moving on the same path and turning it is so difficult that until now all reasons for not doing so drowned out the voices of many who believed turning it was long overdue. Another barrier to change has been a lack of specific evidence combined with a deep commitment to law school “exceptionalism”-a belief that we should not adopt contemporary best practices for teaching and learning because none were developed specifically for law school. (As well, perhaps, a fear that by doing so we will make ourselves less special or less rigorous or too transparent). Going forward, this opportunity to pause and learn new things is not just about“ online teaching” but about “online teaching” as part of “excellent teaching.”

Law School Specific Resources

It is reasonable in the current crisis to seek help first from those among us who have successfully taught law online. I have learned a lot from many people and am exceptionally grateful for the generosity of people who have shared their knowledge and expertise.  Anyone who has yet watched the AALS Technology Section’s webinars  or visited Sara Berman’s AccessLex Institute Center for Legal Education Excellence and, of course, the Best Practices For Legal Education blog edited by Professor Mary Lynch with assistance from Jessica Haller and Eileen Roepe, is in for a treat and an immediate upgrade in knowledge, skills, and abilities. So many people have stepped in in specific disciplines to offer advice and share best-practices that if you haven’t gotten an announcement, it’s worth a search of the AALS website.  The Southeastern Association of Law Schools annual SEALS conference , July 30-August 5th, will offer its programs-including its always excellent teaching & learning sessions-online (as well as in person). This may also be a good time to remember that, like the Bluebird of Happiness, help can be found at home- from our colleagues who have had to go online to accommodate family moves or, especially, from those who teach students how to “do” law as well as “think about it.” They are well ahead in their use of technology–and we should be seeking their help at every turn.

Online Education Experts Outside of Law Schools

It is no diminution of any one’s expertise to say that legal education’s expertise in online education has been severely limited by the strength of opposition that until very recently limited ABA law schools from allowing students to earn more than a few credits online. That this has changed at all is due to the success of peers in other graduate and professional disciplines who have been doing high quality distance education for at least a decade.  So, 1) let’s look at the experts in online education and 2) let’s look at the materials of institutions who have devoted considerable resources to teaching excellence–and who have generously made available to all of us what they’ve developed.

Nursing education has been in the forefront of designing online education in response to the need to bring the many nurses practicing with an LPN the two years of extra college education they needed to acquire the now almost mandatory RN. Here and here are some of the imaginative things they are doing. Also, in direct response to concerns about prestige, have a look at what’s going on in business schools–which have all developed online programs. Here’s MIT, Wharton, Harvard, ,and Kellogg‘s take on online teaching. Additionally, we should look for guidance to programs at places like Stanford and  Purdue Global which offer hundreds of online post-graduate programs.  And finally, perhaps just as much for those who are now either law professors or Pre-K through 12 instructors, there is the example of Australia’s “School of the Air” which, since 1951, has been offering comprehensive education in every subject area to children who live in locations too remote to attend a physical school building as well as, in general, some very good teaching resources offered by various offices of Australia’s Department for Education.

Institutions Offering Just-in-Time Teaching Advice for “Crash” online education

In addition to those institutions with long experience teaching online, there are now many who were forced into doing so by the Covid-19 virus.  But unlike law schools, they had in place a substantial infra-structure to support teaching across the university–and they have a lot to offer us. One of my favorite sources of help & inspiration for teaching hard things to very smart students is Harvard Medical School’s Macy Institute.

Others resources to check out are from the, of course, always excellent UFL and Texas Tech and also from Columbia, Howard, the University of Texas at Austin, and, particular,  this one from Dartmouth about how to conduct remote lab activities and experiences–lots of ideas we can translate to our own experiential exercises. A quick look at the “teaching resources” of any school you’ve ever heard of may reveal a treasure trove of helpful information.

Finally, as we work to provide excellent education online we must also increase our work to make law school classrooms places that value & promote equity, diversity, and inclusion. Here are some helpful resources from Rice, UC Davis, and some info targeted directly at students with specific learning disabilities which might make online classes challenging from UNC (including some resources specifically for faculty & staff)

In conclusion, while there are excellent resources for help with online teaching specific to law, this is a great opportunity to be more open to borrowing new methods and new ideas–and I’d suggest that until we can all be together again, there is a lot out there to inspire us.

Jennifer S. Bard, Visiting Professor, University of Florida, Levin College of Law

Developing Skepticism as a Skill – Some quick thoughts on why academic support should be thought of as separate from bar preparation/bar support

This summer’s bar exam with its uncertain timing, combined with the impact of the pandemic and the growing movement to transform parts of the legal system, brings to the fore the impact of the bar exam on legal education.  The pandemic itself has adversely affected student learning generally.  The pandemic’s adverse impact exacerbates the problems associated with teaching to the bar exam, which can best be described as when a law school directs its focus to a narrow range of subjects. This narrow focus subsequently influences student learning and choice as well as the type of support we provide to students. If for no other reasons than these, academic support ought not to have as its focus helping students pass the bar; that bar exam focus should belong more uniquely to bar prep faculty.

The bar exam is an enormous hurdle, no doubt.  Through hundreds of questions over two or three days, it tests one’s basic knowledge of black letter law of roughly fourteen subjects or seven topics and pages of sub-topics depending on how you count.[i]  Generally, those MBE subjects include contracts and sales; constitutional law; criminal law and procedure; civil procedure; evidence; real property, and torts. Any jurisdiction that offers the MEE has essay questions that cover, in addition to the MBE topics, Conflict of Laws, Family Law, Trusts & Estates, and Uniform Commercial Code.[ii] Notice that these topics are fairly related and tend to cluster, though not entirely, in the general commercial law and litigation area with some exceptions. Of course, each state may have its own requirements. And, for students, preparing for this exam can be a costly undertaking. Multiple vendors provide preparatory materials, advertised online at between $1900 and $4200. Because passing this exam is still the door (in most cases) to licensure, supporting student success on the bar exam is obviously vital.[iii]

Given that the bar exam has been offered in some form from as early as 1738 (in Delaware) and in its present form by the NCBE since 1972, and that the topics tested by the bar examiners have been consistent since that time,[iv] my bar prep colleagues have essentially committed to memory all of that material – so much so, that at any given time, they can say to our students: “that topic has been assessed on every bar exam since 2000,” or “you’ll need this for the bar exam,” or “you don’t need to know that for the exam.” Those colleagues are expert in approaching the bar exam and provide tools to help students approach bar exam essay questions – both reading them and writing responses, and ways to approach multiple choice questions.  And, one of the most often heard suggestions for studying is to keep taking the practice questions.

But, there are other areas of law: Administrative Law, Environmental Law, Immigration Law, Mental Health Law, Bankruptcy Law, Indigenous Peoples Law, Disability Law, Poverty Law, Pensions and Benefits Law, Maritime Law, International Law, Intellectual Property Law, Copyright Law, Cyber/Cybersecurity Law, Identity Justice Law, Health Law, Employment Law, Voting Law, and Tax Law, to name just a few, that are not tested on the bar exam in most states. And now, there is this extraordinary transformational legal change in which we find ourselves. This long list of topics and current events beg the question(s!): ‘If we focus our attention on preparing[v] students for the bar exam, this exam with this same set of topics,[vi] what are we, as members of the legal profession saying about the law?[vii]  If our best advice is to keep taking the practice questions that lead to the same result, what are we saying about the law?  About the importance of other areas of law?’

I am confident my bar prep colleagues are doing excellent work preparing students for the bar exam.  I recognize the examiners have added practice components. I’m not saying we should add questions, though, law has developed significantly over the decades; and, I am not arguing we should not have a bar exam – although given the responses of various jurisdictions to the pandemic, there’s an argument to be made.[viii]

Putting aside whether a future bar exam should look like the one given now, what I am saying is that academic support should not focus on a bar exam. Actually, most academic support situations arise in one’s first year of law school – far distant from the bar exam. Academic support can help students learn to be skeptical and not accept the given response, to sit with ambiguity (not the ‘answer’), and to write not only proof of a conclusion, but also to write toward a developing understanding. Someone who provides academic support for law school success should not address the idea of whether a student would need something for the singular purpose of the bar exam. Instead, the person who provides academic support should encourage the student to do and learn more, both for their time during law school and after.

I recognize that many faculty teaching doctrinal courses take upon themselves the task of helping students learn the complexity of laws as well as skills needed to succeed in law school. In recognition of both the need for these skills and difficulty of incorporating them into the 1L, Harvard Law has developed the Zero-L program that introduces students to the framework around law as well as other basic skills[ix]. Even then, however, trying to fully develop such skills in a doctrinal course, especially 1L courses, is difficult. In using the Socratic method, in many instances, the professor either winds up passing over particular students or calling out particular students. Either way, the larger class does not benefit, because either the material is not covered or the class slows. Additionally, the individual student does not benefit, either because they are humiliated or stigmatized. Moreover, those who teach “bar courses,” feel compelled to devote as much time as possible teaching the material that will be covered later on the bar exam itself, leaving little time to devote to helping students at the edges of a class.[x]  This alone, this classroom and school-wide focus on the sub-topics of a course that the bar exam will test is troubling, even if practical, under the present circumstances. Academic support, though, need not focus on those same topics. Academic support can help students in some of the other levels of thinking while in law school and provide support about approaching legal topics that are less well settled than, say, “the rule against perpetuities” (that was tested as recently as 2013 – I think.)

If it is the case that one of the best ways to learn material is to practice it, to take practice “assessments,” then students will learn their material by doing just that, and practice assessments are a recognized tool for mastering a body of material.  However, learning a body of material alone is not enough for success in law school.  While academic support can certainly help students build techniques for understanding and remembering, analogizing, and distinguishing, it is uniquely positioned to explicitly help students develop the skill sets beyond memorizing such as: how to figure out what questions to ask rather than answer, and how to challenge or critique a response. Take for example a skepticism skill. Here, in addition to teasing out what a court says in a decision, students learn to ask whether what a judge says is itself supported by proof; if so, what proof, and does the proof survive the “Aw come on” test.[xi] This skill is, of course, developed in class, but students at the start of law school often confuse skepticism and critique with their own opinion. At some point, class moves on, but the students can still benefit from support – not in the doctrine itself, but in skepticism. This skepticism skill need not be topic specific and is less likely to be useful on a bar exam than other skills, but will serve them remarkably well in practice.

Academic support can of course be, and is, many other things for students.  I’m not suggesting those things change. I’m simply suggesting we think about bar support doing what it is meant to do: prepare students to take multiple choice and essay questions on a set of the same topics semi-annually.  And then, we can think of academic support as designed to help students thrive while in law school itself.

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[i] http://www.ncbex.org/pdfviewer/?file=%2Fdmsdocument%2F226   I have not included questions of the different states for their particular licensing.

[ii] The questions are drafted by the NCBE with the assistance of academics and experts in the fields being tested. The answers, as seems obvious, are based on law existing at the time the questions were created.

[iii] We support students with bar preparation programs and classes. As to the latter, the ABA has put its imprimatur on bar support to the extent of permitting students to take, as part of their academic program in law schools, with several credits of bar preparation classes depending on jurisdiction.  Bar support classes have become an integral part of law school programs.

[iv] Assessing the bar exam itself an ongoing task with studies in several states to assess the efficacy of the test format and connection to skills of practice. https://www.abajournal.com/news/article/members_of_abas_commission_on_the_future_of_legal_education_named  (2017);   https://www.abajournal.com/web/article/building-a-better-bar-exam (2020).  The National Conference of Bar Examiners has its own task force to assess the efficacy of its test. https://testingtaskforce.org/. It is schedule to release a report based on its September survey of Practice Analysis. Thus, the bar exam and bar success occupy a lot of space and time during law school.

[v] We also support student success with a growing number of student-wellness programs, and this in turn is supported by the ABA Young Lawyers Division that has a health and wellness division with resources available to law schools and their students as well as lawyers.

[vi] Topics tested for the past fifty years, though, civil procedure was recently added.

[vii] Never mind the practice of law. At law schools, we help students develop “practice ready” skills in clinics. While it appears the majority of clinics which are litigation-focused clinics, and the subject matter is far broader than the corporate-commercial law bar topic focus, there are so few if any clinics on developing policy, on ethical lobbying, or on transnational practice.

[viii] There are also arguments that the bar exam topics overly emphasize areas of law in the commercial law context to the detriment of other areas of law.

[ix] https://online.law.harvard.edu/.  This year, with the coronavirus, Harvard is offering this program “for free” to other schools. https://taxprof.typepad.com/taxprof_blog/2020/05/harvard-makes-online-zero-l-course-free-for-all-us-law-schools-due-to-coronavirus.html.

[x] And, this idea of ensuring bar coverage is common.  https://jle.aals.org/cgi/viewcontent.cgi?article=1299&context=home

[xi] I am sure this phrase, “aw come on” has been used over time by many.  I first heard it from a professor I had in a first-year, year-long contracts class.

Oregon Law Deans Urge Diploma Privilege

Law schools in Oregon are urging the Oregon Supreme Court to institute a Diploma privilege given the precarious public health moment in which we find ourselves.

The Willamette Week reported that on June 15,

the deans of the state’s three law schools—the University of Oregon, Lewis & Clark, and Willamette University—asked Oregon Supreme Court Chief Justice Martha Walters to waive the July bar exam, which new graduates from the law schools normally take.

The deans’ letter notes

We are deeply appreciative of the efforts of the Oregon State Bar and the Board of Bar Examiners to administer the July exam at multiple sites—including our law schools—in order to try to socially distance the applicants from each other in light of COVID-19,” the deans wrote. “But as the number of new confirmed and presumptive COVID-19 cases continues to increase steadily in our state, this plan becomes more imprudent.”

Advocates and bar takers compiled this google document of the health, mental health and financial harm which will be done by instituting a live in-person exam.

Meanwhile, the Oregon State Board of Bar Examiners added a new waiver requirement.  It is requiring bar takers to sign a waiver assuming all risk with respect to COVID 19.  See  COVID-19_assumption of risk.

The Deans and law students are quite reasonable and prudent in requesting this relief. Oregon’s worrisome rise in the number of new confirmed and presumptive cases of COVID-19, as well as the unequal impact of this virus on communities of color, makes the one-time issuance of a Diploma Privilege for these Oregonian bar candidates the right thing to do.

Defund the Police or Reimagine Policing

On behalf of Josephine Ross, Professor of Law at Howard University School of Law, Author of forthcoming book “A Feminist Critique of Police Stops” (Cambridge University Press, anticipated publication date mid-January 2021)

I was invited to post a blog because I have been working on a book about policing while all around us, the protests are changing the landscape. This is mostly figurative, but in some cases it is literally changing, as the streets in DC are now painted with Black Lives Matter = Defund the Police.

So I’ll start there, with the slogan “Defund the Police.” I’ve been grappling with whether the phrase feeds into the hands of Republicans by scaring people who should be allies. Why not use “Reimagine Policing” instead? Is defunding the police saying something different than reimagine? For white people like me or, as Ta-Nehisi Coates writes, “Americans who believe they are white,” we are called right now to support the dismantling of the racist power structure, the system that led to the death of Eric Gardner and George Floyd, of Trayvon Martin and Ahmaud Arbery, of Sandra Bland and Breonna Taylor. There is no sitting on the fence. In that vein, I invite us to think about what the slogan means.

Whatever its drawbacks, the slogan has already spurred some changes. The Minneapolis City Council unanimously passed a resolution to “replace the police department with a community-led public safety system.” This involves reimagining policing for sure, but it defunds the old in order start fresh, with different personnel and structure, with anti-racist professionals.

Calls to defund also force us to look at how police departments waste taxpayer money. My book builds on stories my students told me about their encounters with police. Howard law students told me about being stopped and frisked or pulled over for driving while black. None of their encounters helped make our communities safer. Stop-and-frisk is a form of sexual harassment. Just like unwanted touching at work, people who have been stopped repeatedly by police feel vulnerable just walking down the street. Repeated stops create a hostile environment, but it’s easier to quit a job to avoid a boss than it is to avoid the police. I call for the abolition of the stops and frisks (without probable cause) and argue that Terry v. Ohio was built on a lie. No more stops without probable cause. No more consent stops. No more patting people’s groins, pretending that’s where they might have hidden a small weapon that they will pull out while the officer talks to them.

When I talked to people outside the law school about what I was writing, I was often asked what would replace stop-and-frisk? The answer is nothing. Reimagine policing without harassment. The slogan “defund the police” speaks to this too, for why pay money for a system that subjugates us? If an organized patrol was set up to wolf whistle at young women on the street or harass women at work, we would call for them to be defunded. We would not seek retraining and education. We would dismantle it.

I think there’s still a need for a police-like agency that’s given a monopoly on violence. This unit must respond quickly to calls of rape or home invasions. Some type of detectives must investigate murders. The question is whether this police-like structure can be created from the same institutions that shot Philando Castile and kill approximately one thousand people each year. I remember when a Howard Law School student complained to me that “officials talk about blacks regaining trust as if we had trust before. We never had it.” It might be easier to build trust by defunding the old and creating something new.

I confess to writing Defund the Police on a sign before standing at the busy corner where my white neighbors stand (6 feet away) at 6pm to show support for the protesters. I figure that most law professors think they do more by writing and teaching. But I think it’s important to support our students, especially our black students, by adding our bodies to the sea of people calling for real change, not just the same lipstick job that’s been going on since Rodney King’s beating in 1991. I chose the Defund the Police sign because it pushes the envelope and forced me to really think about the slogan. I recommend taking some action no matter what your deadline and no matter what you draw on the cardboard. It makes us feel part of something bigger than ourselves.

Washington’s Emergency Diploma Privilege: A Practical Solution for Troubled Times

The Washington Supreme Court stands as a model for other courts to follow.  Recognizing the “extraordinary barriers” facing bar applicants this year, it recently issued an order allowing for licensure via diploma privilege as an option for graduates of ABA accredited law schools who are currently registered for either the July or September 2020 Washington bar examination. The order encompasses first time and repeat takers.  Examinees may still take the UBE if they want portable scores.

This order comes from the same court that recently wrote a powerful letter to the judiciary and legal community about our responsibility to recognize systemic issues that underlie and perpetuate racial injustice and to dismantle and disavow those systems.  As the justices noted:

“Too often in the legal profession, we feel bound by tradition and the way things have ‘always’ been.  We must remember that even the most venerable precedent must be struck down when it is incorrect and harmful”.

Numerous scholars have long argued that the existing bar exam, with its discriminatory impact, and its lack of relationship to skills needed for law practice, is a tradition that should be abandoned in favor of a licensing scheme that better measures minimum competence to practice law.

Scholars also have argued that we particularly need this year’s new lawyers because under-served communities have significantly increased pandemic-related legal needs and new lawyers disproportionately serve those needs.

As Dean Annette Clark wrote in an eloquent letter explaining why her faculty unanimously voted in favor of asking the Court to adopt a diploma privilege – this year is unlike any other.  This year, she writes, law graduates face pandemic-related health and financial issues  – issues that disproportionately impact communities of color.  This year, she notes, the murders of George Floyd, Ahmaud Arbery and Breonna Taylor, and the social unrest and calls to action that followed have affected graduates and have taken a particularly heavy emotional and mental toll on graduates of color.

This year, the mere act of taking the bar exam endangers examinees’ and their loved ones’ health– something states recognize because they are requiring examinees to sign waivers.  This year, graduates worry that after months of studying, public health issues may cause states to cancel the exam at the last minute.

While a pure diploma privilege may not be an appropriate long-term law licensing solution for most states, it is a practical solution given today’s world.   As Dean Clark states:

 “While requiring a bar exam for licensure is supported by long precedent, doing so now may be insupportable given the extraordinary circumstances these graduates are facing. The burdens of the coronavirus pandemic and the racial unrest we are experiencing are being disproportionately borne by our graduates of color as they struggle to prepare for the bar exam.  Removing the exam barrier to admission would be a step in responding to our graduates’ concerns and in bringing “greater racial justice to our system as a whole.”

Dean Clark’s  letter should be read in its entirety.  It sets forth strong arguments that should be presented to all state supreme courts with a request for re-consideration of the decision to hold a traditional bar exam this year.  It also lays the groundwork for why each state should establish a post-pandemic study group to evaluate whether the existing bar exam is the best way to determine admission to the bar.

Kudos to the Washington Supreme Court, as well as to the deans, faculty and students at the Washington law schools for their advocacy.  Their solution addresses problems faced by all of this year’s graduates while also addressing inequities that cannot be denied.

 

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