BY AARON SALAYMEH
The Law School’s grading system is so demonstrably arbitrary and discriminatory that its products are only relevant not as evaluative tools but as social-psychological weapons.
In “Law School Examinations,” University of Kansas Law Prof. Philip Kissam explains that, “Most law schools have developed exam systems that generate highly disaggregated class rankings” to assist corporate law firms in choosing their prospective employees. This allows students to perceive meritocractic distribution in post-graduate options that in reality only reflects systemic discrimination.
The connection between the function of grades and the interests of corporate firms cannot be overemphasized. In her Harvard Law Review note, “Making Docile Lawyers: An Essay on the Pacification of Law Students,” UCLA Prof. Sharon Dolovich observes that, “The story many HLS students tell themselves to relieve the pain of experiencing what was in all probability the first mediocre academic performance of their lives soothes with its promise of a secure, high-paying job at a corporate law firm — an option they may well have shunned in the glowing promise of fall semester.”
According to Linda F. Wightman’s 1996 LSAC Research Report, entitled “Women in Legal Education: A Comparison of the Law School Performance and Law School Experiences of Women and Men,” when compared with predictions based on their undergraduate grade point averages, women and multicultural students performed significantly worse than white male students. Kissam explains that “Following Prof. Carol Gilligan, we might say that our contemporary Blue Book language is a male code that employs rules, boundaries, game playing, speed, and numbers in order to characterize and divide many matters, interests and persons into separate and disconnected elements. This discourse ignores the more distinctively feminine patterns of thought, moral discourse and judgment that feature an ethic of caring or a morality of the web — in other words, thinking and caring about complex relations and interdependencies among persons, ideas, and situations.” New York University Law Prof. Derrick Bell offers a complementary explanation for why law school exams are structurally biased in “Law School Exams and Minority-Group Students,” noting that, “Many instructors provide what they consider the basic instructions required to succeed on their exams. This advice is seldom provided in sufficient detail, and assumes a writing style only infrequently found in persons whose school, home and community background is not upper-middle class.” The bits of information about grades that HLS deigns to reveal to the public (for example, the winners of the Sears prize) substantiate this analysis.
The overwhelming empirical evidence of discriminatory results in grading suggests the existence of serious flaws in exams, particularly issue-spotting exams. In their article on grade normalization, Downs & Levit observe: “A vast amount of research in educational testing theory suggests that the preferred method of testing in law schools is one least recommended by professional educators. A single examination followed by a course grade prevents professors from giving students repeated feedback, which many theorists say is essential to deep learning. A one-shot examination highlights inaccuracies in evaluation that may result from student illness or personal troubles, or imbalances between student coverage and selective testing.”
In his article ‘”Uncivil Procedure: Ranking Law Students Among Their Peers,” Douglas Henderson claims that “[j]udged by the standards of established psychometric theory, the law school essay is neither precise nor accurate — both of which are necessary foundations of validity.” Researchers consider the examination process to be a misrepresentation of legal practice because it ignores more complex forms of thinking. Some researchers suggest learning theory rejects stringent time limits. Kissam notes that, “Multiple grade categories can be generated and explained to students most easily by establishing the final exam as a race and then observing the order in which contestants cross the finish line.”
Adding to the internal flaws of examinations, discrepancies in grading are ubiquitous. As Henderson remarks, “The standards in grading law school essay exams vary between professors and between exams graded by a single professor. Little direct evidence is available to show how law professors evaluate examination answers.” Henderson elaborates by suggesting that “Law school policy which permits the standards to vary from teacher to teacher causes its evaluation process to be grossly misleading to the public and arbitrarily discriminatory to its students.”
In “Power and the Morality of Grading: A Case Study and A Few Critical Thoughts on Grade Normalization,” Deborah Waire Post comments that “there is even a rule which prevents faculty from admitting their own errors. Grade changes are not allowed unless there has been a mathematical or computational error. If, bleary eyed from reading exams, you skip over a very cogent discussion of a particularly important issue, if you are among the very few faculty who would be willing to admit such an error, you would not be allowed to change the student’s grade in the course.” Further, Kissam suggests that professors exacerbate the negative effects of grades by evading discussion of exams out of professorial insecurity, either regarding the value of the Blue Book exam or their teaching abilities. The sociological significance of grading is such that most students do not dare criticize it, for fear of being perceived as having done poorly. This silence, in turn, perpetuates the system’s oppressiveness.
An additional blow to any credibility that HLS’ grading system could hope to claim emerges from the analysis of stereotypes and social identity threats as articulated by Claude Steele, professor of psychology at Stanford. In an Atlantic Monthly article entitled, “Thin Ice: ‘Stereotype Threat’ and Black College Students,” he suggests that academic underperformance of negatively stereotyped groups relative to non-stereotyped groups, even when ability is statistically matched, is substantially caused by the awareness of members of a negatively stereotyped identity group that potential underperformance will be read as justifying the negative stereotype.
In several studies, Steele’s hypothesis has been borne out. In situations where, for example, statistically matched groups of students subject to negative stereotypes have taken precisely the same exam, but one group is informed that the exam is a test of ability and the other that the exam does not measure ability, the latter group performed equally well as the non-stereotyped group, while the former group performed substantially worse. Note that this effect is not limited to members of traditionally stereotyped groups. For example, some of a group of white male students that were strong in mathematics were told before a difficult exam that it was one in which “Asians generally did better than whites.” True to form, the white males who heard the comment underperformed relative to the group that did not hear it. Critically for our purposes, the people most strongly affected by stereotype threat are “the most achievement-oriented students, who were also the most skilled, motivated and confident.” Because these students have so much of their identities invested in academic performance, the costs exacted by stereotype threat are greater. Prof. Steele identifies several ways in which this threat can be lessened, but for HLS, it is most important to understand that the one-shot issue-spotting exams that we suggested above are poor evaluative/teaching tools are also the types of exams in which stereotype threat would be most pronounced. And because academic performance is so crucial to the identities of most HLS students, the effects can be severe.
So, to all the 1Ls about to receive their grades: Do not be overly concerned. The analysis you will receive is so arbitrary and discriminatory that to u
se it to evaluate yourselves would be absurd (if tempting). In our opinion, the only value of our “report cards” is as fuel for a bonfire.