Let’s Take this Unprecedented period of Rapid Change to Consider What Can We Learn from the Delay of Fall On-Campus Interviewing: Further Thoughts on Equity and Inclusion

Posted on June 11, 2020 by jennifersbard

 

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

In Tuesday’s post I suggested that we take the opportunity of dramatic, unexpected, and unwanted change delivered to legal education by the arrival of the Covid-19 virus and the need to rapidly revise decades, if not centuries, of conventions regarding grading and ranking that are tailored to the needs of a majority culture representative of the Harvard Law School Class of 1880 for whom it was created.

I also suggested that these historic grading conventions encouraged the persistent lack of diversity in our profession.

Today, I look at the opportunity that the likely delay of Fall (late summer) On-Campus Recruiting provides to evaluate one of the justifications for these grading practices which is the need to support our students’ ability to compete for the most high paying post-graduate jobs: employment at a “Big Law” firm (usually defined as one of about 200 firms employing more than 200 lawyers).  I take as a starting point the foundational point of this post: we don’t have the information we need to make good decisions about the consequences of the curricular conventions common to almost every U.S. law school.

We do know, however, that despite efforts (at varying levels of success) among law schools  to diversify their student bodies, this has had little effect on the diversification of the legal profession.  There is, moreover,  persistent evidence,  that discrimination plays a role in the interviewing practices of Big Law Firms and impacts the careers of those who are hired.  This could be intensified by the Covid-19 related slowdown of the economy.

What if our current  student grading and ranking practices are both 1) not in the best interests of the education of most of our students and 2) are playing an unwitting role in the lack of diversity in the legal profession by over-emphasizing early success?

The  first hint that a nearly universally adopted grading system based on sorting students for the benefit of Big Law firms may not be in anyone’s best interests is the absolute lack of uniformity in the role that Big Law plays in the employment of law students.  Consider, for a moment,  what we would think of a medical treatment that was administered to all patients but developed to help only 20% of patients or a restaurant that served food that would be appealing to only 20% of its customers–not much probably.  Yet despite serious efforts by many smart and caring people, the basic structure of legal education is exactly that.  81% of the roughly 190 (ties play a role in the count) law schools ranked by the otherwise defunct magazine, U.S. News & World Reports, send less than 20% of their graduates to Big Law firms. Only 9 law schools (all within the top 15) had 70% or more of their graduates employed at graduation with big law firms. Stick with this list of numbers, because it may surprise you.

The next 5 law schools had 60% of its students working in Big Law, 7 had 40%, 7 had 30%,  9 had 20%, 2 had 19 %, 4 had 18%, 6 had 17%, 6 had 16%, 5 had 15%, 2 had 14%, 4 had 13%, 2 had 12%, 11 had 11%. 10  had 10% and the rest-80 more law schools,-had less than 10% of their students employed by a Big Law firm at graduation.  Of that 80, thirty had less than 5% and 14 had zero.  Yet despite the vast differences in the likelihood that any student at any class rank will be hired by a Big Law Firm, almost every one of these schools has some form of grading curve and comparative ranking.

What would happen if most law schools took a step back-and just stopped?  What if they developed a grading system best suited to their educational goals of having the most students reach the highest possible level of legal competency?

The cynical answer is that Big Law would simply by-pass them in favor of the few that continued ranking.  But not so fast.  While there’s no basis to say that Big Law is unhappy with the pool they get from this practice, they certainly are aware that their hiring practices are very inefficient, and are giving increasing thought to how they might do better. Perhaps the pyramidal business model of today’s Big Law firm is an  historic accommodation to their hiring methods,  not a desirable outcome.  Also, current hiring methods are not resulting in the kind of diversity that their clients are asking them to achieve.  Indeed, many law firms, notably Holland & Knight, are working hard to increase diversity.

They also probably know how atypical their reliance on grades is among comparable organizations hiring graduate students. Kellogg Business School Professor and Sociologist Lauren Rivera’s book Pedigree recounts her research based on “embedding” herself in the hiring practices of law firms, banks, and consulting firms.  What she finds is not surprising—all three industries are more interested in the prestige of the graduate school than in the actual ability of any individual student.  But only law firms fail to incorporate any kind of competency based evaluation in the admissions process.   At least in part, this is because prestigious business school have long refused to even release grades to employers.  Thus, employers have had to develop an interview process that involves analyzing case studies, behavior based interviewing, and answering technical questions. We see similar retreats from grade based hiring in medical residency programs.

Would the tests that law firms themselves develop be any more equitable than the ones that, cumulatively, make up a GPA?  Maybe not.  But they could be more targeted toward what students learned in law school, rather than what they brought in with them.

So, given this opportunity for a pause in the hiring cycle and a freeze, for many schools, in the first year ranking process we could partner with our university collogues who conduct research in higher education, such as that on the curricular barriers to the success of underrepresented populations in STEM education, to see if what we are doing achieves the results we want.  And if not, to start the process of working with the legal profession to achieve something we both want: a diverse and equitably recruited cohort of lawyers who provide the highest possible quality of representation for their clients.

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Let’s Take This Period of Unprecedented Change to Consider How Grading Practices Can Affect Issues of Diversity and Inclusion in Our Law Schools

Posted on June 8, 2020 by jennifersbard

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

For the last half of spring semester 2020, law schools all over the country were forced to change their method of instruction, delivery of final exams, and (in many cases) grading practices because of the demands for physical isolation following the outbreak of Covid-19.  Now that the semester is over, there is a further round of disruption as many states have delayed or even cancelled their bar exams, some have granted graduates diploma privileges, while others bravely go ahead in the face of a possibility that they will have to cancel at the last minute because of ever-rising rates of infection. 

Like the opportunities that may arise when a river is drained and a ship revealed, there may never again be such an opportunity for us to consider what role we play in the glacially slow diversification of the legal profession and how we can make our law schools more equitable, inclusive, challenging, and effective for all of our students—not just those for whom it has been particularly well suited.

With many things to choose from, my starting point for looking at things we rarely question is the marrow deep belief that we owe it to our students to sort them for the benefit of large law firms—even when our employment profile shows that very few of our students will ever work at such a place.  Since the threshold for this opportunity is a top 5 or perhaps 10 percent class rank, it may seem odd, on reflection, that we have designed a curriculum designed to compare students that may have many undesirable consequences including undermining self-esteem, discouraging learning for learning’s sake, and contributing to the lack of diversity in the legal profession.  

Over the years, other justifications have been added such as the need to motivate students or assess their progress but never have we had such a good opportunity to see what law school is like without grades or, more to the point, comparative curves.

Here are some Practices We Might Question

The Primacy of First Semester Grades

One result of the decision to go pass/fail (or some variation of the words) was to “freeze” first year first semester class ranks because it was impossible to produce comparative curves. 

The resulting phenomena gives us a chance to ask ourselves  some tough questions:

  1. Do First Semester Grades Reflect What Students Bring to Law School Rather Than What We Bring to Them? OR Do Students Who Come in Knowing the Rules Get Better First Semester Grades?

Many students, very often First Generation Students, but also some facing racial or gender identity or expression based discrimination, frequently tell us (and the many researchers who study first generation college students) some version of “everyone knew the game but me and by the time I figured it out, it was too late.” And while students living with disabilities might intersect with any of these groups, they also are often using new adaptive equipment and certainly facing new challenges that they may have been able to mitigate in college.

Certainly many of our students do know the game from the start.  The recent AALS survey “Before the JD” found a disproportionate number of students who ended up going to law school had parents who were either lawyers or professionals. While students have, themselves, created organizations to support each-other usually with the enthusiastic support of the law school it may not be enough.

Our challenge going forward is that history is told by the victors.  We can see the students who were not comfortable the first semester but then continued to graduate “at the top of their class” (a vague term that usually means somewhere in the top 20%), but we don’t hear from the ones who didn’t draw attention through academic distress, but also didn’t thrive.

It would be helpful to know more–and many schools do know more about their own students.  But so little of this information is published.

Much is being done in supplemental programs- to name them is to leave many out- such as pre-first semester programs, orientation programs  and excellent pre-law institutes like the Tennessee Institute for Pre-Law , and in wonderful conferences organized by the National Black Law Students Association,  Lavender Law, the National Association of Law Students with Disabilities,  and so many others.  

But how much more effective would it be to have a curriculum that was truly equitable and inclusive – all the way through?

2. Did Pass/Fail Grading Help Learning, Hinder Learning, or None of the Above?

Across the board pass/fail grading that makes no effort to compare students to each other is so unusual as to make any observations worth considering. The expectation was a distressing list of bad results-students putting in less effort during class, performing worse on exams — but did that really happen?

3. Ditto Open Book Exams

As above, it would be interesting to test, in the fall, the content knowledge of students who took open exams.  Not so much as to compare them with past classes, but to see what how much they learned.

4. What Will Be the Long Term Effect of the Delayed or Cancelled Bar Exams–and How Might that Change Our Curriculums?

The opportunity presented by the necessary changes to the bar exam is already in very good hands, (thank you AccesLex) but it’s still worth considering what the future will look like in states which choose provisional or full licensure.  Even decisions to delay the bar exam could raise issues of an on-going, career long licensing process, much as many doctors (but not all) must take requalifying exams every ten years to retain their “Board Certificate.” What would that mean for law schools?

To Be Continued: Part II: What Can We Learn from the Delay of Fall On-Campus Interviewing?   

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