Teaching and Learning Law Page Professor Glesner's Home Page
COMPETITION AND THE CURVEProfessor Barbara Glesner Fines
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ARTICLE OUTLINE
I. The Meaning and Uses of Grades
C. Grades as Tools for Motivation and Discipline
II. Fair Game: The Arguments For The Curve
A. The Curve and the Legitimacy of Easy Graders and Hard Graders
B. The Curve as Institutional Equity
III. Institutional Values In Law School Grading
A. The Privileged Values of Competition and Control
B. Underprivileging the Value of Learning
C. Underprivileging Equality & Justice for All
D. Underprivileging Professionalism
IV. A Subversive Guide To Beating The Competition And The Curve
B. Individual Faculty Responses
Introduction
In judging pedagogical issues, most law professors favor their own
experiences as students: the best way to teach is the way they were taught. I
suspect that I am no different in this respect. Unlike most faculty, however, I
was taught without the grading game playing a central role in my education. My
undergraduate education was at a small, public, interdisciplinary, liberal arts
college, with no departments, no majors, no curricular requirements to speak
of, no tests and, most critically, no grades. I loved my education. It stays
with me today. I attribute that retention and enthusiasm to the learning
environment of my college. And I attribute that environment largely to the
absence of competitive grading structures.
I went on to a law school that worked diligently to avoid a
competitive atmosphere--there was no ranking, many academic rewards were distributed
without a primary reliance on grades, and diversity of student opinion and
background were cherished. I finished my student career by obtaining my masters
in law at a law school with no rankings, and the most generalized grading
system one can find in the United States: pass, fail, honors. I believe that
the de-emphasis of grades and ranking in my educational background encouraged,
for most students, creativity of thought, academic integrity, intellectual
enthusiasm, and deep learning.
Naturally, then, I will argue here that law schools rely too much
on grading systems (as opposed to evaluation systems); that requiring
norm-referenced grading undermines an effective learning environment; and that
ranking is wholly counterproductive in a program designed to prepare
individuals to serve justice. I begin with the question: why grades? I conclude
that the primary reasons for our reporting of grades are not educational but
economic: we grade because we need to sort our students for the marketplace. Part
two of the article then examines the arguments and assumptions supporting
institutionalized grading norms as a basis for that sorting. Part three
explores what the choice to rate and rank students reveals about the values law
schools prefer and the values that are discounted. The final section of the
article provides some thoughts on change and resistance. For those readers who
agree with the thesis that the grading practices of most law schools have
profound negative effects, what reforms--institutionally or personally--can
mediate these effects?
I. THE MEANINGS AND USES OF GRADES
The process of
"grading" has two parts. One part consists of the various processes
used to assess students and their work. [1] The second part is the
reporting of a portion of those assessments. An informed discussion of grades
and grading should distinguish the assessment process from the reporting
process. This section of the article will describe these two processes,
particularly as used in legal education, and define grades in this context. The
justifications for "grades" as defined will then be explored.
A. Some Definitions
There are many methods of assessment: from the informal, at times
almost subconscious, evaluations of the preparation and ability of students
based on their oral analysis in class discussions, to the highly structured
critique of a student's written analysis on a final examination or paper.
Unfortunately, law faculty are notorious for limiting their assessment options
to these two extremes. Short quizzes, reaction papers, and the like are not as
common as in many other educational settings. Perhaps the increasing
availability of technological resources, such as e-mail discussion lists and
computer-assisted instruction will change this picture. [2] The purpose of this
article, however, is not to lament once again our barren assessment methods, [3] nor to catalogue
suggestions for improvement.
[4] Nonetheless, we must recognize that often we
employ only a small portion of the available tools for assessment.
Moreover, we report on the outcomes of even fewer of those
assessment tools. Some of our assessments may not be reported to others at all,
but are used to improve our own teaching. Surely all faculty have had the
experience of realizing, after reading a set of exams or listening to student
response to a series of questions in class, that students were hopelessly
confused about a particular concept. Faculty might use this realization, drawn
from the evaluation process, to adjust their teaching of that subject in the
future. Several legal writing instructors reported in a recent e-mail
discussion list that they frequently use their prior year's grading and comment
forms as resources in designing the next year's class, thus clarifying the
criteria for student evaluation and improving the instructor's teaching. [5] How often assessment is used to evaluate
teaching is difficult to discover, since we studiously avoid sharing our
assessments with others for this purpose. Perhaps the only instance in which we
even begin to think about using the assessment of students as a tool for
examining our own (collective) teaching effectiveness is when bar exam results
are unfavorable. [6]
When we do report on our assessments, we may limit our audience to
the students alone. For example, faculty may have students complete a short
exercise to determine whether the students have absorbed a particular concept
or to reveal misunderstandings or confusions. If feedback is provided while the
learning process is still underway, these types of evaluations can communicate
critiques to the student about his or her own learning The "practice
midterm" is an excellent example of a common assessment tool with a
limited reporting range. Again, the extent to which faculty report assessments
for formative purpose is unclear. Likely one would find this type of reporting
most often in first-year classes, as a response to the extreme anxiety of
students, and in "skills" courses, where this formative evaluation is
more traditional.
We rarely refer to this reporting of assessments to internal
audiences as "grading."
Rather, when we speak of "grades," we refer to the reporting of
assessments to outside audiences, such as academic administrators, employers,
parents or those who provide financial assistance to students. Just as there
are a variety of assessment systems, so those assessments can be reported out
in a multitude of formats: pass/fail, contracted grading, multiple marks to
reflect performance on a variety of measures within one class, narrative
evaluations, or dossiers. [7] Yet if the range of
assessment tools used by law schools is narrow, the range of reporting systems
used is even narrower. With few exceptions, law schools use symbolic
codes--numbers, letters, or categories--to report their assessments. [8] In this article, I will
be using the term "grades" to refer to this predominant method of
reporting in law schools--that is, a symbolic code.
With only slight consideration of the broader alternatives for
either assessment or reporting, law faculties debate our grading methods:
normalization methods, numbers versus letters, curves and distributions,
inflation and reliability. We rarely ask, however, "why do we grade at
all?" What would happen if we rid ourselves of these marks? Conventional responses
to this question would assert that grades are necessary to set educational
standards, to motivate and discipline students, and to sort and rank students
for distributing wealth.
B. Grading and "Standards"
In the debate over grading systems in law schools, particularly in
discussions of "grade inflation," one is likely to hear an appeal to
"standards." [9] Anyone proposing that
we abandon grades must address the effect of an ungraded system on standards of
educational quality. The argument favoring grades goes like this: grades are
necessary for establishing and enforcing our standards of quality--without
grades no one, including the students, will know or care about the quality of a
student's education. Notice that
when faculty make these arguments, they are not referring to setting standards
for, or controlling the quality of, their own teaching. Indeed, law schools and
law faculty are especially skeptical of the ability of any numerical system to
accurately reflect the quality of their own institutions [10] or teaching. [11] Rather, the standards are those the individual
faculty set for the students. Grades are then used as a means of communicating
those standards to the students and to the outside world.
This standards argument assumes that, without grades, students and
others will conclude that faculty lack standards of quality. This further assumes,
of course, that grades mean the same thing to everyone: an A is an A and an F
is an F. However, grades have as many meanings as the criteria with which we
test. Different instructors produce grades in different ways, taking into
account different criteria, including comparison to peers, comparison to
evaluative criteria, effort, growth, or behavioral compliance (e.g., tardiness
in assignments or class attendance and participation). The integrity of grades
as tools for communicating standards depends on the clarity with which we
identify and communicate these criteria. [12] In many instances, our criteria may be only
vaguely defined. In other instances we may have clearly defined criteria, but
we may not have communicated those criteria to the students. Even if one is
truly testing against a set of clearly conveyed criteria, however, a symbolic
grade does not communicate those criteria to anyone outside the classroom. In
sum, there are too many variations in teaching and testing to be able to say
that grades have a fixed meaning outside the classroom.
My purpose here is not to say that evaluation systems are
unnecessary or invalid. Clearly one can have standards. Faculty can develop
criteria against which student achievement can be measured. This is by no means
an easy task- some may say impossible. [13] Yet in recent years, law faculties have begun
educating ourselves more about teaching and about our students. Within the past
three years, the American Association of Law Schools has sponsored major
workshops of teaching and learning and endorsed a new section on Academic
Support. [14] The Gonzaga Institute
for Law School Teaching was established to provide support for research and
exchange on pedagogy. [15] These efforts all
attest to increased faculty interest in crafting pedagogically sound
instructional objectives, procedures and evaluations. [16] But developing
specific, assessable instructional objectives for these goals within an entire
course and for each individual lesson is not enough. These objectives and
procedures, once developed, must be communicated to students to create the most
effective environment for learning. Finally, we must tailor our evaluation
methods to match those instructional objectives.
Surely this process
of developing, communicating and then testing criteria would provide for the
competency standards that we may be seeking through grades. However, that
criteria-referenced evaluation systems (i.e. standards) are possible does not
support the additional argument that enforcing those standards requires
translating those evaluations into a single numerical or letter symbol and reporting
that symbol. One could devise a system in which grading is criteria-referenced
and the reporting of assessments would include an explanation of that criteria.
[17] Without this context,
however, single-symbol grades have no meaning in communicating standards. [18]
Another strand of
the standards argument posits that grades are necessary, not to prove that we
have (undefined) standards or to communicate those standards, but rather to motivate
students to meet those standards. The merits of this argument require careful
scrutiny. As the next section of this article points out, arguments about
student motivation are often grounded on generalities, ill-supported by any
evidence. Given the observational standpoint of most faculty, however, these
fallacies often go undetected. Since grades worked for most faculty, we assume
they work for our students and are wont to blame the students, rather than
ourselves, for failures.
C. Grades as Tools for Motivation and Discipline
Even if we
acknowledge that grades do not serve as a benchmark of quality with clear
meaning, they do operate as a powerful incentive. Grades are the basis for
distributing a multitude of rewards and punishments. [19] Students use grades to define themselves in
positive or negative fashion, as in "I am a B student." [20] Many faculty would
assert that, without grades, students won't work.
A pure behavioralist
model tells us that individuals will respond to reinforcement. That
reinforcement model is the basis for the argument that grades are required to
motivate student learning. [21] Reinforcement however
can come from a variety of sources. Educators and motivation theorists
differentiate sharply between extrinsic and intrinsic rewards as motivational
tools. [22] Those who argue that
grades are necessary base their position on the power of extrinsic rewards.
The question is not
whether grades induce learning:clearly they do. Indeed grades may be one of the
most efficient methods to induce learning behaviors. "[E]xtrinsic
inducements always work more quickly and powerfully than intrinsic ones.
Students can be motivated to learn almost anything if promised a sufficiently
attractive external reward." [23] The question is, rather, whether intrinsic
rewards could provide a sufficiently powerful motivation that we could
effectively dispense with grades. Study after study confirms that grades are
not necessary to motivate learning. [24]
Faculty members who
have taught a pass/fail course in a school in which marks are given are likely
to howl in disagreement. Their experience supports the theory that grades are
necessary to motivate students:in pass/fail classes (or for students who elect
a pass/fail option for an otherwise graded class) students simply do not work
as hard as they do in graded courses. The difficulty with relying on these
experiences, however, is that they arise in a context of comparative reward
systems. Extrinsic rewards motivate in a powerful, immediate, and direct
fashion; intrinsic rewards, while equally powerful in the long run, are more
subtle and indirect in their effect. [25] Thus, in a system in
which some classes are rewarded with grades, most students are likely to direct
their efforts toward these classes and away from other, perhaps more
intrinsically rewarding subjects. [26]
Eliminating grades
entirely would do much to create the conditions for encouraging intrinsic
learning motivations. However, other fundamental reforms would likely be
necessary to truly rely on intrinsic reward as the source of motivation for
students. Intrinsic motivation cannot be forced, it can only be encouraged and
supported. Law school structures do not tend to provide the types of
flexibility and student control that would be conducive to this support. [27]
The extreme cynic of
student behavior would say that no amount of restructuring would result in
intrinsic motivation for law students. This view of students characterizes them
as so directed toward extrinsic reward that they have failed to develop any
intrinsic reward systems (such as love of learning or enjoyment of effortful
accomplishment). While individuals do vary in the degree to which their
orientations are toward intrinsic or extrinsic reward, it is an
over-simplification to suggest that individuals are exclusively oriented in one direction in all situations. [28] Nonetheless, as a
society, we may have so firmly entrenched anti-intellectualism, with its
message that one learns only for reward, [29] that encouraging learning for its own sake may
indeed be quite difficult. In its very cynicism, however, this most extreme
argument--that students simply will not learn at all without grades--is self-defeating.
For if we have truly arrived at this dismal state of anti-intellectualism, the
solutions are not to be found in grading systems but in massive cultural
change. "No curricular overhaul, no instructional innovation, no change in
school organization, no toughening of standards, no rethinking of teacher
training or compensation will succeed if students do not come to school
interested in, and committed to, learning." [30]
Even if one takes
the more moderate position that grades, while not fundamentally necessary to
learning, are simply more effective and efficient in motivating students in an
environment of formal education, the argument for grades is not settled. It is
not enough to say that grades motivate students to learn. To adequately justify
the use of grades on the basis of motivation, we must say that grades motivate
students to learn effectively and that they motivate more than they discourage.
Yet both of these conclusions are difficult to support.
First, a wide
variety of studies reveal the irony that success (as measured by citation
frequency for scholars, salary for business people, and grades for students) is
inversely correlated with extrinsic (comparative) orientations. [31] The highest achievers
according to traditional measures of success are those who are least motivated
by these extrinsic rewards. [32] For those who are
motivated by extrinsic reward, the primary motivation that grades provide is
the motivation to get good grades. That motivation is not necessarily the same
as the motivation to learn. [33] When one is learning to
get a grade, the focus is on strategies for short-term learning, and on finding
shortcuts to success. Research indicates that this approach to study is
unlikely to be effective in creating long-term learning, that it undermines
intrinsic interest in learning, and that it leads to reduced effort overall. [34] Thus, to the extent we create an academic
climate in which the external reward for learning (i.e. grades) is
overemphasized at the expense of intrinsic reward, we undermine long-term, deep
learning. [35]
Indeed, for many students the presence of powerful extrinsic
rewards can be a significant disincentive to truly effective learning. [36] As this article will demonstrate in section
III, this negative motivational impact is not distributed equally among
students. Some are discouraged more profoundly by these strong external reward
structures than others.
Even if we wish to
dismiss these conclusions and insist that extrinsic rewards are necessary, it
does not follow that grades are the necessary reward. In law schools, there are
always extrinsic rewards--the credential and the competitive advantage in
practice of having a sound education. There are external threats as well-- the
bar exam, discipline and malpractice. Thus, we could conclude that these less
immediate extrinsic rewards could be used along with more subtle intrinsic
rewards to achieve an effective learning result even without reporting grades.
But how, one might ask, would we be able judge the relative abilities of
students if we would adopt such a system? Let us turn to this final
justification for grades.
D. Grades and Sorting
If we can conclude
that grades are unnecessary, even counterproductive, for the purposes of communicating
and enforcing educational standards, or for motivating and disciplining
students, are there any additional reasons to use grades? Yes, answers legal
education, we need grades to screen, sort and rank students on a comparative
basis. This sorting serves a number of purposes. Some screening is needed for
basic administrative functions. Do students get credit for a course or need
they repeat the class? Have students met our minimum requisites for graduation?
Of course, these administrative functions rarely require a sorting beyond that
of pass or fail.
In addition to basic
credentialing, however, a great deal of wealth is distributed based on our
grade currency. [37] Financial aid may be
based on maintaining or achieving a particular grade average. Law review
membership and many of the other academic awards are distributed only to the
top percentage of the class, determined by rank. [38] If we did not sort students, how would we be
able to distribute these awards? Even if we decided that within our
institutions we could eliminate some honors or distribute them on a basis other
than cumulative grade point average (GPA) and rank in class, we would lose a
competitive edge in obtaining benefits for our strongest students.
Increasingly, financial aid opportunities are distributed based on GPA or rank.
[39] Employment
opportunities too would be lost for our students were we to eliminate grades,
or even the ranking of students. Since the most elite (large firm) employers
generally screen applicants based on their rank, eliminating ranking would
disadvantage our students vis a vis comparable schools that continue to provide
this efficient screening mechanism for employers [40] unless, of course, the school itself is ranked
high enough to give a competitive edge to all its graduates even without ranks.
Certainly eliminating grades entirely would be a risky proposition for law
school placement programs.[41]
Accordingly, there
are very powerful arguments that law schools need grades and sorting in order
for their students to remain competitive. [42] This competitive edge for our students
translates into a competitive edge for our institutions. We gain institutional
prestige by attracting students with high numerical credentials and by placing
those students in elite settings. We may even assume that this placement will
reap direct rewards of stronger financial support from our alumni. [43] Given the increasing
reliance of even public law schools on private funding by large firms, one
could argue that, in a sense, the very survival of a law school could hinge on
its ability to sort students. [44]
There is a less
direct way in which evaluating and sorting students on the basis of comparative
grades may be seen as critical to the competitive edge of law schools. Sorting
students is a very efficient method of grading. Proceeding under the assumption
that our purpose is simply to sort students according to their performance (or,
even less demanding of our teaching, according to their ability), we need not
concern ourselves with criteria or with teaching to that criteria. Moreover,
the effect of creating a system of competitive credentialing for external
markets is to "redirect conflict from hierarchical to lateral lines. Thus
students compete[] against one another but never collectively challenge[]
teachers or departments over the validity of their evaluative tasks as measures
of knowledge." [45] Without a need to
articulate, justify or coordinate our grading criteria, we have considerably
more time and resources for activities that are more likely to increase our
institutional prestige (the production and dissemination of scholarship) or our
individual financial reward (consulting). [46] I hate to mire myself in the cynicism that says
that we are simply paying students in the currency of credentials for their
participation in a system designed to justify our power. [47] Yet one must consider that there may be very
fundamental conflicts in the life of academic lawyers that impact their
day-to-day choices in carrying out their roles. As our colleagues in the
academy have observed:
Legal academics are, like other professional
groups, "jealous of our prerogatives, comfortable with the way things are,
and intensely conservative about matters as central to our selfhood as what and
how we teach .... We are threatened by discussions of values, by messy human
emotions, by personal involvement with students or clients ...." And we
have managed to create a structure that maximizes our autonomy and keeps
messiness at bay. [48]
II. FAIR GAME: THE ARGUMENTS FOR THE CURVE
Concluding that we
need grades to sort students and that we need to sort students to be
competitive, faculty next must consider whether the grading decision should be
constrained by institutional policies. The approaches law schools take to these
institutional grading policies can be readily categorized. Schools differ
according to the range of symbols they provide for grading, the presence of
ranking, and the approaches to constraining grading decisions. This article
will not consider those few institutions that simply do not provide grades for
sorting purposes. These schools can be found almost entirely at the most elite
end of the spectrum, where, one assumes, they have concluded that ranking and
sorting is unnecessary and even counterproductive to their competitiveness. [49] Of the rest of the
schools, most do use symbolic grades, translate those grades into a GPA, and
then use that number to calculate a rank. [50] Even those schools who do not officially rank
students often provide charts with distributions of grades according to
percentages, allowing at least a percentile ranking. [51] Further, most schools have taken the additional
step of requiring faculty to apply some standardized mean or curve in awarding those
grades. [52] The arguments for
normalization assume the necessity of grades, concede that different faculty
grade differently, and conclude that a curve is necessary.
A. The Curve and the Legitimacy of Easy Graders and Hard Graders
Advocates of
required grade curves argue that these curves are necessary to insure
consistency in grading, and thus equity in the ranking process. Some of these
arguments about equity contain hidden judgments about the greater validity of
norm-referenced versus criteria-referenced systems. When we hear arguments
about grade normalization or required curves, we often hear reference to
distributing the inequity of "easy graders" or "hard
graders." These labels are extremely value-laden and unpacking their
content may be useful to our discussion of the reasons for requiring grading
curves and normalization systems.
The characterization
"easy grader" may be used to communicate a message that the
instructor is either dishonest or incompetent. The view of easy grader as
dishonest posits that faculty whose grades are consistently higher than the
norm, regardless of the rigor of teaching or testing, are awarding grades on an
illegitimate basis:to avoid the more difficult task of differentiating students,
to curry student favor, to increase enrollments in their classes, or to improve
student evaluations of their teaching. This may indeed be accurate for some
faculty. For example, if faculty are rewarded for good student evaluations, and
if one can, by the simple expedient of giving out plenty of high grades,
increase those evaluations, the temptation is great to exercise grading
discretion in that direction.
While most research
shows a connection between student ratings of teaching and overall teaching
effectiveness, [53] many faculty perceive
that students also evaluate teaching based, in part, on the student's
prediction of the strictness or leniency of a faculty member's grades. [54] There is some research
confirming this perception. The more certainty with which a student can predict
his or her grade, the more likely that expected grade might impact their
evaluation of the instructor. [55] Thus, for example, research confirms the
suspicion of legal writing instructors that their early and frequent evaluation
of students impacts their teaching evaluations more directly and negatively in
comparison to their colleagues who do not distribute grades until after student
evaluations are completed. [56] The existence of these
perceived incentives to provide high grades creates the suspicion that easy
graders are indeed succumbing to the temptations of academic dishonesty.
Not all uses of the
term "easy grader" connote dishonesty. An alternative
characterization implied by the term is incompetency. The easy grader is
incompetent in teaching to the extent that the substantive demands on the
students are inadequate. This characterization rests on the notion that, in
order for many students to receive high grades in a class, the faculty member
must have set standards for a course too low, eliminating challenge and
learning. Alternatively, the faculty member may be lazy or incompetent in
devising examinations that are not sufficient discerning of student ability.
This position contains an entire set of assumptions about teaching, learning
and testing. One assumption is thatstudents have significantly different innate
abilities and that the distribution of those varying abilities is consistent
across categories:that is, once a 'D' student, always a 'D' student. A second
assumption is that ability determines achievement. A third assumption is that
no amount of teaching can change either ability or achievement. [57] If one accepts these
assumptions, one must conclude that grades, measuring either ability or
achievement, will reflect that "natural distribution" and that
instructors who fail to recognize this fact of life are being unfair to those
students with higher ability and are fooling no one except themselves. These
assumptions are entrenched even further by those normalization systems that
assign the first-year students to classes according to numerical predictors,
that allow for exceptions to the curve based on past grade achievements by the
students in the class, or that adjust the rank value of a grade achieved in a
course based on the GPA of other students in the course. [58]
The assumptions are
poorly supported by empirical evidence, however. Grades are poor indications of
ability. [59] Likewise, ability is
only one of several factors that correlate with grades, others being student
motivation, instructor ability and motivation, and course objectives and
organization. [60] One study for example
found that only one quarter of the variance in achievement could be accounted
for by cognitive ability. That study concluded "in stressful situations,
therefore, non-cognitive intrapersonal variables may become predominant
determinants of learning, irrespective of actual ability levels." [61] Furthermore, even when
ability is a factor, evidence seems to demonstrate that as the conditions of
teaching improve, differences in ability fade in importance in predicting
grades. [62] "Modern research
has shown that the seemingly direct relationship between aptitude or intelligence
and school achievement depends upon instructional conditions, not a probability
curve. When the instructional quality is high and well matched to students'
learning needs, the magnitude of this relationship diminishes drastically and
approaches zero." [63]
Thus, there is a
third, more positive, view of easy graders: that the easy grader is one whose
teaching and assessment methods have validity and whose students achieve at a
high level because of that teaching. Understandably, just as those faculty who
perceive leniency in grading as negative are unwilling to make these assertions
directly, lenient graders are unwilling to claim the superiority of their
teaching relative to their colleagues. Rather, in the debate over institutional
grading policies, faculty often simply allude vaguely to the "easy
graders" in our institutions. To unpack these arguments is to involve
ourselves in evaluating the honesty and competence of each other's teaching,
testing and grading.
The hard grader too
can be criticized as either incompetent or dishonest. Whereas the easy grader's
incompetency is in the substantive arena, the hard grader's incompetence is in
teaching methodology. Since the instructor is unable to translate his or her expertise
to a novice level of communication, students are unable to demonstrate any
mastery. Alternatively, these faculty have set unrealistic standards for their
students. Disdainful of the judgment of their colleagues, with a distinct
antipathy toward the careerism of today's law schools, they are still operating
in the "look to your right, look to your left" days of open
admissions and high attrition; they do not recognize the high caliber of
admittees today. Or they are dishonest. Heedless of student criticism--or
perhaps happy to keep their class enrollments low so that they will have fewer
teaching demands--they delight in the ego satisfaction of demonstrating their
superiority over their students.
Of course, there is
another view. These faculty may indeed be operating on good faith
determinations that high standards of quality can and must be maintained
through the grading process. With an increasing supply of lawyers and an
increasing criticism of their abilities--the call for greater rigor and higher
standards is not without support. [64] One might surmise, for example, that hard
graders are simply more aware of the standards of practice in the bar and
consider their fundamental role as a gatekeeper to the profession. [65] Moreover, some subjects
may be more intrinsically difficult than others, so that student achievement
will be lower. Once again, however, we are unwilling to detail these arguments,
since to do so is to rank ourselves and our teaching against that of our
colleagues.
While the terms
"easy grader" and "hard grader" often carry pejorative
connotations, the legitimacy of strict bell-curve graders is rarely questioned.
In part, this may be because faculty are unwilling to accept that criteria can
be legitimately developed and applied for the purposes of assessing grades. For
criteria-referenced graders to win the day, they must demonstrate that
legitimate standards can and do exist. It is much easier to prove the
proposition that all students are created unequal--thus providing the
legitimacy of curve grading--than that one has developed a set of criteria for
grading that has integrity. We can prove differences among students more easily
than we can demonstrate the validity of assessment criteria.
Yet the argument is
self-defeating. If we critique the criteria-referenced graders on the basis
that there is no legitimate way to evaluate and mark against a standard, we have
also conceded that our ranking of students one against each other is untenable.
For relative performance still must be measured against some benchmark. Student
A is better than student B at what? The insistence of curved grades accepts as
a legitimate benchmark only those criteria that allow students to be sorted. It
says nothing about the appropriateness of using one set of criteria over
another or of the relationship between the grades resulting from these criteria
and the overall learning goals we may have set for students. In the curve
approach to grading, the student group sets the standards for performance, not
the instructor. Any claims of educational superiority for the curved-grade
standards are just as suspect as the claims of easy or hard graders for the
superiority of their grading methods. As one educational critic has suggested,
"it is not a symbol of rigor to have grades fall into a 'normal'
distribution; rather, it is a symbol of failure-- failure to teach well, to
test well, and to have any influence at all on the intellectual lives of
students." [66]
Justifications for
institutional grading policies can mask some very potent judgments about
ourselves and each other:unspoken judgments about the honesty or competency of
our colleagues, or judgments about the arbitrary nature of grading in general.
Required norm-referenced grading is a politically acceptable but logically
unresponsive solution to the problems identified in these judgments. The
solution to arbitrary grading, to incompetence and to dishonesty, is not to
distribute the arbitrariness, incompetence or dishonesty. In some of the
arguments over grade normalization I feel as though we have devised a system in
which we distribute wealth to those who are struck by lightening and are simply
arguing about whether we should give everyone an equal chance to stand under a
tree.
B. The Curve as Institutional Equity
If the political
reality is such that we regard our sorting process as a critical institutional
function, then even if we recognize that lenient or strict graders may have
perfectly legitimate reasons for their grading practices, we may nonetheless
conclude that those grading practices should be constrained. Institutional
grading policies often are justified as necessary to even out differences among
faculty in grading practices. [67] These policies are grounded in a distributive
justice rationale--given that faculty differ significantly in their grading
practices, and given that the rewards and punishments allotted to students may
be profoundly affected by the chance of their assignment to particular
professors, normalization policies are required to achieve equity. While we are
perfectly willing to allow individual faculty members the freedom and power to
teach and assess according to whatever approach they please (assuming minimal
competence), we are unwilling to grant individual faculty the ability to
control the external distribution of rewards.
Both hard graders and
easy graders distort the competitive process. [68] Consider the effect of
those graders who give more than their "share" of very high grades.
Schools may justify required grade means or distributions on the basis of the
need to control these lenient graders. Particularly in those schools where
labor market and academic rewards are especially limited, one member of the
faculty should not have disproportionate control over the currency that grades
represent. Indeed, it is unfair if a student's chance of being chosen for Law
Review or for an interview with the elite corporate firm is based on the chance
of being assigned to one particular professor rather than on merit.
Likewise graders who
give an inordinate number of substandard grades distort the competitive
process. The likelihood of a student graduating (or graduating on time) can be
determined by the random chance of their assignment to these hard graders.
Moreover, in the intra-institutional competitions for placement of our
graduates, these strict graders have an impact. If the student who graduates at
the twenty-fifth percentile from hard grader's school has only a 3.5 GPA, one
can surmise that she will be competitively disadvantaged over the student from
a competing school with the same rank in class but a higher GPA.
Educators recognize
the power of these extreme, even if principled, grades in the competitive
reward structures of education and the employment market.
[A] zero has a profound effect when combined with
the practice of averaging. Students who receive a single zero have little
chance of success because such an extreme score skews the average. That is why,
for example, Olympic events such as gymnastics and ice skating eliminate the
highest and lowest scores; otherwise, one judge could control the entire
competition simply by giving extreme scores. [69]
If our primary justification for institutional grading policies is
to insure that the competitive process of sorting our students should operate
without this distorting impact of extreme grades, then we should craft our
normalization policies to reflect this purpose.
Often, the limited
application of many normalization policies and the variety of exceptions
allowed undermine the equity goal. For example, one of the most widely used
institutional grading policies [70]--required mean grades--is unlikely to achieve
our goal of constraining extreme grading. If all that a grading policy requires
is a "B" average for example, Professor Bunch can give very few A and
F grades, while Professor Spread can award a significant percentage of extreme
grades and still achieve the required mean. Since the unfairness of faculty
grading is felt most acutely at the extremes of the grade curve, policies
should require fairly rigid distributions of grades. [71] Otherwise, the unfair extremes in grading and
the distortions based on assignment to one or another professor will still
occur. Moreover, these policies should apply most strictly in those courses
where students are subject to the "chance" factor and where grades
are most likely to impact the distribution of reward. Consistent with this
rationale, most schools do apply these policies more strictly to first-year or
required courses. [72] The greater the equity
we desire to create in these systems, the more rigidly we must craft our
normalization policies.
Accordingly, if a
grading policy is justified by providing an equal playing field, one must be
careful in evaluating the impact of any exceptions to the policies. Many
schools create exceptions for small classes, seminars, or courses in which
exams are not the primary grade determinant. These "seminar
exceptions" may be based on two rather divergent rationales:one relies on
the randomness of ability, the other relies on the educational effectiveness of
these classes. The first rationale exempts small classes from a curve because
these classes do not provide a statistically significant sample--there is less
likely to be a random distribution of ability in these classes, so we cannot
expect a curve to result. Even if there is a random distribution of ability,
many seminar classes allow such a degree of flexibility in the products by
which students are measured (e.g. seminar papers) that we do not trust our
ability to adequately differentiate student ability in these settings. The
operative assumption here is that the purpose of law school is to test the
ability of students to perform rather than to teach the students to perform
ably. [73]
However, given that
these seminar exceptions usually do not completely eliminate the requirement of
a curve, but rather increase the required means or broaden the distribution
requirements, another rationale seems equally likely. This rationale accepts
the legitimacy of higher grades when instructional effectiveness is higher. The
rationale is well supported by educational literature. Students do truly learn
better in smaller rather than larger classes. [74] Students do learn better when they have more
formative evaluation (such as rough drafts, practice arguments, etc.) [75] Students do learn
better when they have the ability to choose their topic of study (as is often
the case in seminars). [76]
Despite the educational
justification for these exceptions, we have undercut the equity rationale if we
do not insure that the access to these seminar classes is not also equally
distributed. Otherwise, that ability of students to shop for grades (or even to
shop for education) will be based on factors irrelevant to merit: their
flexibility in scheduling, their savvy in understanding the enrollment process,
or their luck in the course lottery. We may conclude that some chance is
inevitable and we will simply choose to tolerate this degree of inequity rather
than undercut the educational effectiveness of allowing reward to follow
achievement in these small classes. A good indication of prioritization of the
value of equity against the value of merit would come in the proposal to teach
one portion of a first-year class in these seminar class formats. Would we
allow an exception to apply here? [77]
Another inequity
could be created by the distribution of students in classes. Again, assuming that
ability is one immutable characteristic, randomly distributed among students, [78] our required means and
distributions would be unfair if students are not evenly distributed by ability
in classes. Thus, some institutions attempt to even out this inequality by
assigning students to first-year classes to insure an even distribution of
their admissions numbers. [79] Likewise, exceptions to
grading policies in upper-level classes may be adjusted to reflect an unusual
distribution of ability in the class, usually to be measured by the GPA of the
students in the class. [80] The difficulty with
this extreme effort to achieve "equity" is that, not only does it
assume teaching can have no effect on performance, it also oversimplifies the
concept of "ability." Current mind-brain research reveals that
individuals who have a variety of abilities and strengths in one area do not
necessarily have equal strength in another area. [81] While it may be that law school is indeed
focussing on only one narrow range of these abilities, it seems equally
plausible that different classes may call upon students to demonstrate (or
develop) different abilities. [82] Relying on past grades to predict performance
(and to control grade allocations in future classes) is unfair to those
students whose greater abilities are not tested or revealed (or developed)
until later in the educational process. [83]
Thus, we must be
careful when we approach the equity rationale for our institutional grading
policies. Obviously we cannot entirely eliminate inequity in our sorting
processes. Some students will have an advantage over others based on the chance
of their available resources and competing demands when entering law school.
Some will have the chance advantage of a better match of professor to their
learning style. We seek to eliminate the inequities of chance resulting from
our own control over the educational process--the assignment to classes and
professors. But we cannot eliminate even this inequity entirely without
creating the inequity of students not being able to receive the rewards they
deserve based on their effort and achievement. How much inequity will we
tolerate? What reasons will we give for tolerating this inequity? In answering
these questions, we privilege certain roles and values in our educational
process over others.
The choice to retain
grades, and especially to retain a system of ranking, is justified best by our
role in sorting students for the distribution of wealth. Other educational
justifications-- setting and maintaining standards or motivating learning--are
less defensible. The choice to require means and distributions of these grades
is best justified by a concern for fairness in that sorting function. What do
these choices reveal about our priorities as educational institutions? Section
two of the article examines some of these conflicting priorities.
III. INSTITUTIONAL VALUES IN LAW SCHOOL GRADING
How an institution
grades says a lot about what it values. [84] Further, what a school values is determined in
part by the values of the society in which it operates. Educational
institutions are "socially constituted relevance systems, reflecting and
amplifying larger sets of social and cultural values in the emphases they give
to kinds or ways of knowing." [85] Thus, one can view our priorities in grading
systems as a subset of the values of the larger society. In the grading debate,
the competing values include individualism and collectivism, competition and
cooperation. "Regular swings in the number and nature of grading systems
seems to correspond to larger swings in societal concern for standards,
accountability, and the ranking of people on the one hand, and individual
growth and group consensus and support on the other." [86] This section of the article
will demonstrate that an institution's choice to retain symbolic grade
reporting systems, to emphasize grades through ranking, and to enforce the use
of ranking through normalization efforts has the effect of privileging the
values of competition and control. These same choices underprivilege other
values:learning, equality, and professionalism.
A. The Privileged Values of Competition and Control
Critics have
identified some implicit values served by legal education, such as hierarchy, [87] patriarchy, [88] or the adversary ethic.
[89] When we choose to award
grades for the purposes of ranking students, especially when that ranking is
required by a normalization policy, we further entrench the value of a
competitive, hierarchical system. [90] In part, law schools are simply reflecting the
greater society's values. From our economic and labor policies to our selection
of public officials, from the boardroom to the ballfield, our society has
prized a system for distributing wealth based on winning a battle, contest or
game. [91]
Education is no
exception:"competitive" has become a synonym for "high
quality" in our description of educational institutions. As with American
education generally, competitive learning is the norm within most law schools.
So ingrained into our education system is the norm of competitive learning,
that "most teachers misunderstand the very word cooperation; they use it
to refer to obedience .... We have another word for genuine cooperative
effort:it is cheating." [92] Yet law schools are also powerful cultural
agents themselves, amplifying these values as they distribute greater power and
prestige to those who achieve the most under these competitive conditions.
Grade normalization
policies do create and intensify a competitive atmosphere in education. If a
student asks a professor "How do I earn an A in this class?" a
professor operating under a policy of required means and distributions cannot
simply describe the criteria of a good exam answer. For a student in such a
class, fulfilling each of these criteria--no matter how specific, objective or
verifiable they may be--is neither necessary nor sufficient. The truly honest
answer is "Do more and better than 90% of your classmates in the exam
answer." Students need not perceive the niceties of the distribution
scheme to be aware of its operation. The shuffling of social order that occurs
after the first semester of law school is evidence that students are acutely
aware of their relative standing and are measuring themselves and others
according to that standing.
Some would argue that law schools are not encouraging competition
through our grading systems, but are simply meeting consumer expectations. This
argument posits that law students are highly competitive and would sort
themselves in a hierarchical fashion regardless of the grading systems used.
Thus, one could conclude that we should grade students on a curve and rank them
based on grades because this is what they expect. It may be that students who
choose law as a career are more competitive by nature than others in society.
It may even be that students expect (some may even desire) competition. Neither
of those premises, however, undermines the position that we are exacerbating
competition by meeting this presumed expectation. Educational institutions can
be agents of cultural change; yet law schools, with rare exceptions, have not
chosen to resist the cultural norms of competitive ranking.
This comparative
evaluation process serves an important function in a competitive, meritocratic
society. As one educational researcher has commented:
[Schools] may promote the notion that
competition is, if not the only way people can live, at least the best way.
Acceptance of such a system would induce students who doubt their competence to
accept their lowly place or, at least, to opt out and not challenge the system.
Academic anxiety, unrealistic levels of aspiration, and academic alienation
would be seen as necessary aspects of the process whereby students of low
attainment come to accept their place in the "natural order." In
turn, alienation, lack of effort, and pursuit of nonacademic goals might, in
the eyes of students and teachers, further justify low status and restricted
freedom and responsibility. [93]
If students judge their own abilities and opportunities based on
their relative ranking on academic tests, they are prepared to accept and
maintain a society that values competition as a basis for distributing wealth
and a society in which the terms of the competition are set by those who have
won in the past.
The competition in
law schools is controlled by winners--legal academics are, by and large, top
ten-percenters from top ten-percent schools. [94] By virtue of our achievements, we take control
of the educational process as resident experts and judges. [95] We recognize that our
control of academic programs can be an underlying cause of inequity:our
justifications for required means and distributions are based on principles of
equity in the competition for distributing grade wealth. Law school grade
normalization practices make it clear that the inequity sought to be alleviated
is that which results from the "chance" assignment to an instructor
with extreme grading practices. That chance is the result of the lack of
student control over the terms of the competition. We rarely question this
allocation of control. While the rules of professional conduct emphasize the
importance of sharing control in the lawyer-client relationship, [96] the teacher-student
relationship in law schools is one in which the teacher is clearly in charge.
Some see this
control as domination. Dean Roger Abrams' recent characterization of legal
education reflects this view:
We select the best, the brightest, and the most
interesting and diverse group of students (even in an era of declining
applications), and then we proceed to transmute this gold into straw, a reverse
alchemic process. Students learn from their professors that success flows from
elitist bullying and from the obnoxious exercise of arbitrary power. Nurturing
is not part of the educational process. Respect is a one-way street. [97]
Many faculty would
take the more moderate position that gross authoritarianism is on the wane in
law schools and there is an increasing place for nurturing in teaching.
Nonetheless, in the place that our control counts economically--grades--we
still exercise near absolute control. We consider "grade shopping" an
evil, we limit pass/fail options, and we restrict grade appeal processes or
"second chances" to the most extreme cases. We could, however,
reconsider these and many other aspects of student control over the grading
process.
Just as the proponents
of a participatory model of the attorney-client relationship emphasize the
value of individual autonomy, [98] so too autonomy would be advanced by greater
student control in legal education. Greater participation by students in
setting the terms of the competition could have significant educational
benefits for students:encouraging the development of intrinsic orientations
toward learning, [99] encouraging greater
personal responsibility, and reducing counterproductive anxiety. [100]
Any time that
educational policies encourage faculty to move from "sage on the stage" to "guide on the
side" protests arise that faculty control is necessary to insure
effective, challenging education. [101] But lowered standards or minimal expectations
need not result from a respectful and supportive relationship with students.
Indeed such a relationship is crucial to student willingness to engage themselves
in dialogue. Thinking skills can most effectively be developed in the classroom
by creating "a stress-free, cooperative classroom condition where
experimental ideas can be risked, alternative hypotheses explored, and answers
changed with additional data; where value is placed on creative problem-solving
strategies rather than on conformity to 'right' answers." [102] Just as in the
attorney-client context, participatory relationships are not inconsistent with
challenge or effectiveness, they only require a surrender of some control and
an increase in open communication.
Surrendering some control does have some significant political
implications, however. When students are given the power and responsibility to formulate
their own learning tasks, they approach learning with greater flexibility and
creativity and a greater sensitivity to nuance. "It is these aspects of
inquiry that give birth to new social movements and political orientations, and
that are central in the emergence of insight." [103] While we may not intend to stifle these
innovative or iconoclastic approaches to legal thought, the more we control our
student's learning, the more we model conformity. [104]
Our choices of
grading systems not only sustain the values of competition and control, but the
educational research indicates that these values are preferred at the expense
of other equally fundamental values. The more we emphasize the importance of
competitive grading and ranking structures, the more these detrimental effects
will result. We must take care to delineate our observational standpoint when
exploring these negative effects of ranking and competition. The narrow range
of experience with legal education that is represented on law school faculties
can lead to bias in our assessments of educational practices. [105] Those who have had
their own excellence defined in terms of their relative ranking may
"overlook the problems associated with a preoccupation with one's rank in
hierarchy of competence." [106] In learning and
teaching, in equality of learning, and in professionalism, competitive grading
systems do present significant costs.
B. Underprivileging the Value of Learning
While grades are not necessary to teaching and learning, [107] their use strongly impacts those processes. [108] One of the aspects of grading that is the most detrimental to teaching and learning is the practice of required grade curves. "Grading and reporting should always be done in reference to criteria, never on the curve. Using the normal probability curve as a basis for assigning grades typically yields greater consistency in grade distributions from one teacher to the next. The practice, however, is detrimental to teaching and learning." [109] If students are measured against each other on a competitive scale, rather than against an objective norm, competitive learning strategies will predominate. Why are these strategies so inferior in terms of real le