Using What We’ve Learned About the Effect of Racism and Economic Disparities on Law Students During the Pandemic

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

In my last two blog posts, I wrote about how law school’s structure unfairly benefits students who come in knowing how the game is played and those with the resources to play it under the best possible conditions.  I’ve also linked legal education to the systemic bias of the legal profession.

Our current situation, a still spreading deadly pandemic that has so far claimed over 250,000 lives in the U.S., has intensified those inequalities for everyone.  The evidence is already coming in of how the Pandemic is harming first-generation students.  

But it has also provided a clearer window into what was always apparent to student services professionals but not so much to faculty–how much harder the law school experience is for students who come to it with fewer resources of every kind.   

For example, online learning is only as good as the environment in which students learn and we are already seeing effects on students with the least resources. In normal times, all of our students have near 24/7 access to quiet, safe, comfortable places to study, engage in co-curricular activities, meet with faculty, and even take exams. Places without pets, younger siblings, or household chores.  They have lightning fast internet, large monitors, bulk printers, and IT support for when things go wrong.

But of course a lot of what’s going isn’t visible in a 50 minute Zoom session.  On campus, students have access to food either directly, by attending events, or can sometimes be signed up for university meal plans.  But in a world where by some estimates, pre-pandemic as many as half of all U.S. college students experience food insecurity hunger is an increasing peril as is homelessness.   The end of the moratorium on evictions means that as many as 8 million people will lose their homes over the next four months. 

We  also know that during the pandemic college students are facing worse mental health and that for many of our students home is not a safe place as they face abuse from parents and domestic partners. Research is emerging that like other segments of the population, students are drinking more during the Pandemic and are likely part of the increase in overdose deaths.

And then there’s the virus itself. As we all know (and have known for a long time), it very much does infect young adults–and it can hit them hard.   All the factors that contribute to racial bias in health care are magnified by those that put Black, Indigenous, Latino communities at greater risk of infection and, once infected, at greater risk of dying.  In addition, the harm caused by the uncertainty, fear, and loss triggered by living in pandemic conditions.  These are only magnified by our law students who have faced trauma as bar examiners  are caught flat footed and many of the pathways to employment, such as in-person summer placements, were disrupted.

Layered on top of economic disparities issues of systemic racism, sexism, and homophobia, these economic disparities mean that students come into law school with very  different levels of debt. Which itself is affected by racial disparities.   These factors are magnified in law students who come to us after four years of borrowing money for college. (The best information on law school debt is at Accesslex).

The Pandemic will end, and law students will once again have full access to law school facilities. But this glimpse into the real differences in backgrounds and resources should be a starting place for us to look at the law school experience, the gateway to the legal profession.

If any good can come from the experience of being so much closer to our students’ day to day lives, it should be an increased urgency to think about how we can make law school more inclusive. 

In my next post, I will be more specific starting with a proposal reduce the cost of a law degree by moving a year of course work to the undergraduate level.  Doing that would reduce the barriers to entry in the legal profession that saddle lawyers with debt and deprive most individuals in need of legal help from those best trained to assist them. 

Best Practices in 2020

Sean M. Scott, President and Dean – California Western School of Law

As a dean, I have spent a tremendous amount of time over the past six months contemplating best practices as regards to students and how to manage the challenges wrought by COVID 19.  Should we move to pass/fail grading?  How can we incorporate best practices for online learning and teaching into our classrooms?  What are best practices as to the administration of exams? We have spent less time as a community discussing the impact of the virus on faculty, particularly untenured faculty.  The virus has intensified the existing tension between the demands of career and the demands of family.  For those faculty with school aged children, or elderly relatives, those competing demands are likely to negatively impact the faculty member’s ability to diligently pursue their research and scholarship.  What should the legal academy’s response be to those whose research and writing have been derailed because they are home schooling, or caring for elderly relatives whose isolation and physical vulnerabilities create increased demands on caregivers?  The faculty most likely to be facing this dilemma are women, as women regardless of sexual orientation, remain primarily responsible for childcare and elder care. 

Anecdotally, my conversations with my dean colleagues reveal that they are addressing these issues on a case by case basis.  Some faculty on the tenure track are approaching their deans seeking an extension of the tenure clock.  Other faculty are reluctant to seek such an extension, fearful that the request will be detrimental to their bids for tenure.  COVID has exacerbated this long-simmering tension between work and family demands.  What should a best practice be under these circumstances?  My recommendation is that we take the burden off of individual faculty members to make specific requests from their deans, and move towards a policy of granting a blanket one-year extension of the tenure clock for all pre-tenure faculty.  Faculty could opt out of the extension, rather than having to seek an individual accommodation.   As a best practice, it would reflect a profession wide recognition of the sacrifices that faculty who are caregivers must make, and takes a stand that they should not be penalized for meeting the immediate needs of family, the byproduct of which may be the delayed ability to focus on their research and writing. 

Dean Darby Dickerson — on Equity, Security, and Status

Many of us were inspired to hear AALS President Darby Dickerson, Dean, UIC John Marshall Law School speak about “caste”, “candor”, and “change” during her address at the January 2020 Annual Meeting.

In this new article, first posted in the AALS Newsletter, she follows up with some worrisome data from the 2019-2020 CSALE study, works through potential harms to schools and students, and issues a call to action to address issues of pay equity, security, and status.

We value the conversations and discussions that often happen live and informally at in-person conferences as we share our progress (or lack thereof). So, dear readers, please let us know in the comments about any promising practices or initiatives at your schools. How are leaders addressing pay equity, security, and status in an era of hiring freezes and financial insecurity? What changes are you working toward?

Warmly,

Davida and Melanie

Could We Create a New Bar Exam?

Deborah Jones Merritt, Distinguished University Professor and John Deaver Drinko/Baker & Hostetler Chair in Law, The Ohio State University.

A few weeks ago, Logan Cornett and I published a major study of the work that new lawyers do—as well as the knowledge and skills they need for that work. John Lande has already offered two thoughtful posts about the study (thanks, John!). We think the research offers important information for legal educators, bar examiners, and workplace supervisors: we need to align education, licensing, and supervision to improve the service that new lawyers provide clients.

Will it be possible to achieve that alignment? In particular, can we make the bar exam a more valid assessment of the knowledge and skills that new attorneys need? I hope so. Neither states nor the National Conference of Bar Examiners (NCBE) have ever validated the current exams; that means we have no evidence that the skills and knowledge assessed on the exams match the ones that new lawyers use in practice. NCBE’s current attempt to validate the exam—through survey evidence—does not capture sufficient detail about the ways that new lawyers use their knowledge and skills in the workplace. Our study, based on 50 focus groups held in locations across the country, provides those more detailed insights. Combining our findings with those from NCBE’s study and other research could yield a valid licensing process.

An invalid exam would be embarrassing enough for a profession that prides itself on logic and reason, but our current bar exams have another flaw: they pass white candidates significantly more often than candidates of color. An exam that has never been validated, yet discriminates against candidates of color, is unthinkable in the modern age—and yet, we have tolerated these exams for decades.

It’s time to change, but will we have the courage to do so? Our profession has a deep attachment to closed-book exams, multiple choice questions, and time-pressured tests. The research that Logan Cornett and I did convincingly shows that none of these assessment methods are appropriate for the legal profession. Entry-level lawyers work from sources, not memory; they gather information to solve open-ended problems rather than choosing one canned answer from four; and, although they often practice under time pressure, the time constraints on the bar exam are dangerously unrealistic.

We need to challenge all three of these obstacles to a valid licensing process. Our report suggests many ways to accomplish that end. Here’s just one modest proposal that would significantly improve the validity of the bar exam:

  • Maintain the Multistate Professional Responsibility Exam (MPRE), which tests knowledge of basic principles of professional conduct, but make the exam open book. No one can wind their way through the dense rules of professional conduct and commentary without previous study, so an open-book exam won’t make the test “too easy.” On the contrary, an open-book exam would encourage new lawyers to check the rules and commentary whenever they face a conduct issue. That’s a habit we want to encourage, not discourage.
  • Maintain two performance tests like the ones currently prepared by NCBE, but allow 3 hours (rather than 90 minutes) for each test. Expanding the time frame would make these tests more realistic measures of minimum competence. It might also make grading more reliable because graders would be faced with real-world products produced under realistic time constraints.
  • Create a 3-hour research exam that consists of multiple-choice or fill-in-the-blank questions. This exam would test the kind of quick research that lawyers do routinely: What is the statute of limitations for medical malpractice in Ohio? Does a will need witnesses to be valid in Texas? Give candidates access to any online tools they desire to do this research.
  • Create a 3-hour, multiple-choice exam that tests (a) basic understanding of U.S. legal processes and sources of law OR (b) a single substantive subject (such as civil procedure, contracts, business law, or family law). If the latter, consider giving candidates a choice of the area in which they wish to test.

Our research suggests that the final doctrinal component of this exam should be open-book; new lawyers simply don’t work from memory. Instead, they internalize basic principles that allow them to identify issues in a client problem and find the specific rules they need to address that problem. But if bar examiners insist on a closed-book exam component, they could make this portion of the exam closed-book. Memorizing the rules related to a single subject—especially if the subject reflects an area in which the lawyer hopes to practice—more closely parallels the work that new lawyers do than memorizing the rules that govern ten or more fields.

A bar exam with the four components listed above could be administered according to our current schedule. I.e., candidates could take the MPRE on one occasion and the other three components over two days in late July or February. Alternatively, the proposed exam could be divided into five different components (the MPRE, each of two performance tests, the research test, and the doctrinal test) and states could allow candidates to take the components at different times and in any order. Breaking the exam into components would relieve some stress and give candidates more flexibility. It might also allow candidates to determine, while still in law school, that they lack skills needed for law practice—and either choose a different career or remedy those deficiencies through more coursework.

Our report offers other options for licensing, including a rigorously structured diploma privilege. We also recommend that states complement any written exam by requiring candidates to complete law school clinics and courses in client counseling and negotiation. Those experiences assure instruction, practice, and feedback on skills that are difficult to test through a written exam.

It’s time to get serious about aligning legal education and licensing with the work that new lawyers do. Only then will we fulfill our mission of protecting the public.


Davida Finger (Loyola New Orleans) and Melanie Daily DeRousse (Kansas) Begin Work as Editors for Best Practices in Legal Education Blog 

As Mary Lynch announced in her July 13, 2020 farewell post, we are taking over as the editors of the Best Practices in Legal Education Blog. Mary’s post tells us about the Blog’s birth and growth out of CLEA’s Best Practices Committee’s work on the Best Practices in Legal Education book and the collaboration that led to the publication of Building on Best Practices.

Now that we have spent a little time looking back, we are excited to share a little about who we are and where we are headed.

Who we are:

  • Davida Finger is a Clinic Professor and Associate Dean of Students and Experiential Learning at Loyola New Orleans College of Law. She founded the Community Justice section of the Law Clinic where she and her clinic students have represented on housing, special education, and other civil rights matters with a focus on movement lawyering. Davida received the Bellow Scholars award from the AALS Clinical Association for her empirical research on New Orleans eviction geography that documented the discriminatory impact of evictions. She is the founding director of the College of Law’s Incubator Program for solo practitioners working for social justice. Davida recently completed a 2-year term as the president of the Society of American Law Teachers (SALT) and is currently teaching the externship course.
  • Melanie Daily DeRousse is a Clinical Associate Professor and Director of the Legal Aid Clinic at the University of Kansas School of Law. Melanie began work at KU in 2015 after she responded to a job posting that invited essays on how candidates would reinvent the then-47-year-old clinic by applying the principles in Best Practices in Legal Education. In her second term as a CLEA board member, she co-chairs the Best Practices in Pedagogy committee and serves on the Elections committee. She presents on legal education pedagogy with other Best Practices committee members at regional and national conferences, and also recently worked on the planning committee for CLEA’s 2020 New Clinicians’ Virtual Conference. Her clinical work focuses on juvenile justice, criminal defense, and child welfare; outside the clinic, she teaches and writes about family law and engages in university work on promotion, tenure, and pay equity, among other things. Before joining KU Law, Melanie represented survivors of intimate partner violence in family law matters through Legal Services of Eastern Missouri. She was a racial justice fellow in the inaugural class of advocates through the Shriver Center’s Racial Justice Institute.

Where we are headed:

It is humbling, to put it mildly, to be at the helm of such an insightful and collaborative group of contributing authors. As Mary mentioned, this Blog continues to evolve and spark “collaboration on steroids” as new ideas are generated, implemented, assessed, and modified. It is a powerful home for vetting ideas about teaching. We hope to continue to nurture the imaginative, inquisitive, and aspirational tone the Blog has cultivated over the years. As we focus our work as editors, we note the emergence of three main content areas worth highlighting:

  • Teaching justice by doing justice work: we will highlight efforts around inclusion, diversity, and radical change to upend structural racism in legal education and academic institutions;
  • Pedagogical (r)evolution: we will continue the Blog’s intense discussion of legal education reform and seek to emphasize emerging ideas about how we teach in ever-evolving classrooms with a priority on justice ideals; and
  • Large scale policy changes affecting teaching: we will share advocacy around big-picture issues in legal education – changes in ABA standards, forthcoming CSALE studies, structural changes in higher education that impact legal education.

In addition, we hope to use the tools of social media to encourage greater engagement in these discussions and feature prominently the voices of colleagues teaching diverse topics across the legal education curriculum. We welcome new authors, voices, and comments as we seek to broaden the conversation. CLEA is self-reflective and self-critical in understanding that, as an organization, it must do more to amplify and expand all manner of justice including through this Blog.

And, finally, a thank-you and a goodbye:

Finally, thank you to Mary Lynch, founder and 13-year editor of the Blog. We knew from reading the Blog that she was a very busy and involved editor; but during this transition, we had the first opportunity to see just how much she does behind the scenes to keep the conversation interesting, interactive, inclusive, and meaningful. She has been as thoughtful and supportive in this transition as could be possible. We are grateful that she will stay on as “Editor Emeritus” as the Blog continues to grow. Mary, thank you for all that you have done to create a space to engage all legal educators in a thoughtful and productive discussion about why, how, and what we teach, and why it matters.

 

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.

 

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

 

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.

“Take-Aways” from Day 1 of Drexel Conference

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

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

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

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

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

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

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

General 

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

Community Building Ideas

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

Experiential

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

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

New York State Bar Association Leads with Bar Exam Questions

Patricia E. Salkin*

On April 4, 2020 the New York State Bar Association once again delivered a resounding thumbs down to the Uniform Bar Exam (UBE) as a measure of competency to practice law in New York.  Five years earlier, the Association’s Committee on Legal Education and Admission to the Bar delivered a report that was overwhelmingly approved by the House expressing the sense of the profession that a move to the UBE was a bad idea. 

The NYSBA Committee on Legal Education and Admission to Bar (CLEAB), which had long studied the bar exam, hosted a session during the annual meeting on January 16, 2019 titled, “A Question of New York Law: Should It Be Taught in Law Schools and Tested on the Bar Exam?”  A preview to that discussion, “The Role of State Law in Legal Education and Attorney Licensing,” was published in the New York Law Journal the week prior.  In April 2019, the NYSBA Task Force on the Bar Exam was appointed by President Michael Miller, “to investigate and report on the experience and impact of New York’s adoption of the UBE.”  Then president-elect Hank Greenberg stated, “New York law has long been the gold standard in American jurisprudence. The bar exam should play an important role in ensuring that newly admitted lawyers appreciate the importance of New York law, and have an appropriate grounding in it.”

On March 5, 2020, following a series of statewide hearings on the bar exam, the Task Force, chaired by the Honorable Alan Scheinkman, Presiding Justice of the Appellate Division, Second Department, released its report and recommendations.  The report contains an accurate and detailed description of meetings, stakeholders and the decision-making process that ultimately led the New York Court of Appeals, under the leadership of former Chief Judge Jonathan Lippman, to abandon the New York Bar Exam (NYBE) in favor of the UBE; and the report starkly concludes that “…since the adoption of the UBE, the fundamental purpose of the bar examination has been lost.” (emphasis added)

Accompanied by analysis of findings and explanations to support their positions, the Task Force made the following recommendations to chart a path forward for the licensing of new attorneys in New York:

  • Eliminate the New York Law Exam and replace it with a rigorous exam on New York law as a prerequisite to admission to the New York bar.
  • Conduct an independent psychometric analysis of the grading and scaling of the UBE.
  • Allow those who do not wish to practice law in New York to take only the UBE and allowing those who only wish to practice in New York to take only the Multi-State Bar Examination section of the UBE and the rigorous New York test.
  • Consider a New York law Certification program that would allow people to forego the bar exam entirely. Under this program, ABA-accredited law schools inside and outside of New York would offer courses that include New York law-based content.
  • Consider an experiential learning pilot program, which would allow second and third-year law students to spend time counseling clients, working with practicing attorneys and learning other practical skills so that a portfolio of work is created and assessed every semester.

These recommendations are welcome, especially the last two items which get to the heart of what many thoughtful national experts have maintained are the more accurate measures of competency to practice law. While under normal circumstances, degree privilege plus programs that incentivize curricular choices (in this case more New York law) and require client-focused legal skills experiences are the better measures of basic competencies, the strange confluence of the timing of this report and the COVID-19 pandemic has created a fortuitous opportunity to test some of the recommendations in the report.

The fact that this Task Force was in existence and already working on bar exam issues led NYSBA President Hank Greenberg to ask the group to separately opine on the challenges surrounding the then-scheduled July 2020 uniform bar exam in New York. Greenberg has been a staunch advocate for the soon-to-be members of our profession noting, “Graduating law school students are experiencing high levels of anxiety and distress as their lives and potential livelihoods have been significantly disrupted, and we are focused on making sure that their concerns are being heard and responded to by policymakers.”  The Task Force recommended postponing the July 2020 bar exam until early September and if the exam is still impossible at that time, then to expand practice orders to enable new graduates to begin supervised practice while waiting for a bar exam to be administered. 

While the Court of Appeals under the leadership of Chief Judge Janet DiFiore has accepted the State Bar recommendations, much more needs to be done to clarify the status of the developing procedures for licensing lawyers from the Class of 2020.  Another blog dedicated to pragmatic discourse on how to best license new lawyers who are getting ready to take their first bar exam during the COVID-19 pandemic is documenting the thoughtful and reasoned ways in which many state licensing jurisdictions are rethinking the value of the traditional bar exam limited to the unique challenges presented during the COVID crisis.  Law deans and faculty, law students and members of the profession, importantly including the leadership of the State Bar, are engaged in thoughtful dialogue on this topic with the Court of Appeals to arrive at a fair and just resolution for the Class of 2020. 

Some may think it unfortunate for the NYSBA Bar Exam Task Force to have issued its critique of the UBE at the same time that we are experiencing an unprecedented disruptor in the practice of law and in the administration of justice. However, this is precisely the time that New York can lead the country with piloting alternative ways to license lawyers with a reasoned roadmap prepared not under the pressure of the pandemic, but rather after a year-long focused study that supports the concept that there are different and equally effective, if not better, ways to assess candidate competency for admission to the bar in New York.

*Patricia Salkin is Provost of the Graduate and Professional Divisions of Touro College. She is a legal educator and a past co-chair of the NYSBA Committee on Legal Education and Admission to the Bar.     

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CORE KNOWLEDGE AND REFLECTIONS

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

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

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

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

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

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

Effective Education includes

CORE LEARNING VALUES

Growth Mindset 

Inclusion and Diversity

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

Wellness  

Collaboration and Innovation

Integrity 

Character 

Justice

Situational Excellence

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

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

 

 

 

Best Practice Contributors Highlighted in Best Articles of 2019

A big congratulations to our very own bloggers, Jennifer Bard and Benjamin Madison, for being featured on the TaxProf Blog!

Jennifer Bard’s article, “Are the Students Failing the Bar Exam Today Canaries in the Coal Mine warning us of a More General Need to Change Legal Education?” and Benjamin Madison’s article, “New Rubrics Available to Help Law Schools that Have Adopted Learning Outcomes Related to Professional Identity Formation” were both listed as TaxProf Blog’s “Best Legal Education Articles of 2019.”

Building an Ethos of Self-Directedness Among First-Year Law Students

By: Mary Walsh Fitzpatrick, Assistant Dean for the Career and Professional Development Center at Albany Law School

Background

I attended a workshop on professional identity formation sponsored by the Holloran Center for Ethical Leadership in the Professions last June. In preparation for the workshop, I read a number of articles on professional identity formation, including “Self-Directedness and Professional Formation: Connecting Two Critical Concepts in Legal Education.” The article posits “[f]or law students to move towards real professional identity formation in their career, they must be self-directed.” Self-directedness, some of the hallmarks of which are self-reflection, goal setting, seeking and receiving feedback, and using sound judgment, is integral to finding meaningful employment and career satisfaction. I know from first-hand experience working within law school career development for the past 13 years, students who are most successful in gaining meaningful employment take ownership of their experiences and make intentional choices early in law school. I believe self-directedness more than any other factor, including grades, leads to meaningful careers for law school graduates. The challenge is to cultivate self-directedness in all law students by creating an ethos of self-directedness with regard to career development beginning in the first year.     

While at the Holloran Center workshop, I devised a career development program to introduce first-year students to professional identity formation with emphasis on self-directedness. I subsequently shared the proposed program with my team at the Albany Law School Career and Professional Development Center and we collaborated on the program presentation and exercises. At Albany Law School, students are assigned an individual career counselor with whom they work one-on-one over the entire course of law school. Thus, in planning and implementing the program my colleagues and I chose to each lead the program for our sections separately, beginning individual relationships with our students and setting expectations.     

We decided upon a method of teaching that would allow students to practice self-reflection, seeking and receiving feedback, and using good judgment in the context of career development. The overarching goal of the program was to help students recognize self-directedness as a key component for successful professional identity formation leading to meaningful careers.

The Program – Setting the Stage

We communicated the program as a mandatory one-hour program and emailed to first-year students several weeks before the program the Individual Career Plan (ICP), a self-assessment tool we created several years ago, and our handbook for developing a legal resume. The students were asked to complete their ICPs and draft their legal resumes in preparation for the program. 

  • Reflection

We began the program by introducing professional identity formation and self-directed learning, emphasizing curiosity, initiative, feedback, self-reflection, resilience, judgment and ethics. We provided students with the Holloran Competency Milestones Assessment of Student’s Ownership of Continuous Professional Development (Self-Directedness) and asked them to take a moment to reflect upon and identify their current stage of development on the continuum. Recognizing each student comes to law school at a different stage of self-directedness we did not ask students to share their findings with the group, rather we called attention to law school providing students with the opportunity to move along the continuum with the goal of graduating competent learners who take full ownership over their careers by setting goals and seeking resources to meet those goals.

Next, we asked students to form small groups and to reflect upon and share with each other why they chose to attend law school, skills they hope to build, and experiences they hope to gain during law school. After this breakout session we asked one student from each group to report back some of the group’s findings. Two distinct motivations for attending law school emerged from this exercise, students: wanting to utilize existing strengths they identify as befitting a legal career; and wanting to acquire the skills necessary to be catalysts for change. Notably, both motivations evidence students’ strong desire to align their skills and values with meaningful employment.

  • Seeking and Receiving Feedback

In the second portion of the program we focused on seeking and receiving feedback in the context of career development. We began by educating students on critical thinking skills sought by legal employers, such as analyzing, evaluating, reasoning, and problem solving. We then asked students to provide peer-to-peer feedback on their resumes utilizing the resume handbook we provided before the program and tools we discussed during the program. Students worked in couples or groups of three to seek and provide each other with constructive feedback on how to better formulate existing resume descriptions for a legal audience. After the exercise we asked students to contribute one piece of valuable feedback they received.    

  • Judgment

In the final portion of the program students were divided into groups and provided three different hypotheticals related to career development decisions. Each group was asked to analyze the issues and report back how they would address the situation presented. The hypotheticals included issues of reneging on a job offer, misrepresenting grade point average on a resume, and failing to follow up with a professional connection. Through dialogue following the exercise we emphasized the importance of reputation, impact of reputational damage, building professional relationships, and the imperative of follow-through.  Many students acknowledged although no single hypothetical scenario would necessarily determine success in finding meaningful employment, the decisions made with regard to these issues could impact one’s professional reputation and future opportunities.   

Conclusion

We hope to have initiated student appreciation for the impact of self-directedness on professional identity formation that is integral to beginning meaningful careers after law school. The next step is for each student to take the initiative to complete an online strengths assessment, the VIA Character Strengths Survey, make a first career counseling appointment where they will receive individualized feedback on the ICP and legal resume and identify next steps in planning their careers.  

Teaching What You Don’t Know—Wonderful Book with a NSFW Title

Teaching What You Don’t Know by Dr. Therese Huston is the most helpful teaching book I’ve ever come across.  It combines theory, practical advice, and reassurance in short and helpful chapters.  It has something for everyone who teaches law school at any level.  While the title might be off-putting to those being taught (maybe keep it home), as she explains it, “Teaching what you don’t know is an increasingly common reality for a majority of academics.”  To paraphrase, the only people who don’t teach what they don’t know are adjuncts hired for single classes and very senior research professors who buy out their teaching time.  The rest of us, very much including law professors who she acknowledges throughout, are essentially teaching survey courses in which it would be impossible to claim expertise for every point and chapter.

All that said, this book is truly a life-saver for the times when we truly, really are teaching what we don’t know either because we have taken on someone else’s class in an emergency or more naturally, when starting out when we are asked to teach a class for the first time. “Knowing” an area of law and “knowing how” to teach it are two very different things.  It’s also helpful when you are new at an institution and the students don’t know you.

In a few very short chapters, Dr. Huston provides practical advice for every challenge—very much including how to prepare and how to present yourself and your state of expertise in the class.  The section on “Establishing Credibility” is a must for anyone teaching something or somewhere new.  It can also help navigate the very choppy waters of teaching evaluations—which as we are all now aware reflect first impressions and often dovetail societal biases.

It’s worth some quotes— “Your knowledge of the field may be the primary way that you earn credibility from your colleagues, but you have a different relationship with students and you establish credibility, respect, and trust in different ways.  Research shows that instructors tend to lose credibility with their students when they:

  • “Show up late for class
  • Lack familiarity with the text
  • Cannot explain difficult concepts
  • Rarely ask if students understand their explanations
  • Does not make any attempt to answer students’ questions
  • Fail to follow course policies”

And even more helpful “there are several things you can do to create the kind of credibility that matters to students”

  • Show up on time for class, preferably early, so you have a chance to connect with students and find out if they have any questions
  • Periodically ask students if they understand the material

That first suggestion is gold.  I urge it on everyone.  It can work like magic.  And make your class more welcoming and inclusive. Research suggests that students care that you care—and the simple act of arriving early (even if the classroom isn’t available, you can mingle) allows you to interact informally with students who might never rush the podium after class or certainly not make the pilgrimage to office hours.

It’s also great for those who want to adopt new teaching methods.  There are a lot of teaching books—all with value.  But sometimes reading about 150 techniques for active learning is overwhelming.  Dr. Huston’s advice is highly curated, clearly explained, and very doable. I’ve given this book away several times since discovering it in the education section of a London bookstore and can’t count how many times I’ve read it and recommended it to others.  I don’t know why it isn’t better known.  Despite its title and its value to beginners and those who find themselves teaching something truly new, what the book really provides is sound, research based advice of value to everyone interested in teaching excellence-—even when teaching things you really know quite well. 

Jennifer S. Bard,J.D., M.P.H., Ph.D.,Visiting Professor at the University of Florida’s Levin College of Law

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