No "folly," no "Potemkin Villages," no "wildfires"--a semester of in-person hybrid legal education

I’m wrapping up the last days of my in-person hybrid semester of law school teaching. I wanted to revisit some of the more dire claims made this summer.

Professor Dan Rodriguez described the plans as “nonsense,” “hubris,” and “folly.” He cites Professor Deborah Merritt who described plans to return to the university as “the Ptolemaic model of the universe.” Professor Tim Duane analogized the return to in-person education as “a large, dry forest after a devastating drought: a single spark or flying ember will readily spread a wildfire through this unburned woodland.” Professor Josh Blackman described them as “little more than Potemkin Villages,” anticipating that schools would “shift everything online” and face RICO actions from students.

It’s increasingly apparent these projections just weren’t true.

I taught one week in person, one week online to minimize first-year and upper-division student overlap in the building, and to use classroom space effectively. Some students opted for all online classes, as did some professors. All were accommodated.

I taught with a mask, and while students were spread around the room, the classroom environment was otherwise entirely ordinary.

I taught the end of the Spring 2020 term online, and I taught summer classes online, so I was eager to return to the classroom.

I didn’t realize how much I missed it. There’s a spontaneity that happens in the classroom, from student chatter among themselves to brief conversations before and after class. There’s a responsiveness and reaction to one another that’s missing from an online environment. I find the energy of moving about the room and using the chalkboard much better. I engage students in conversation more easily and readily than online, when I’m too easily tempted to shift into lecturing. It also meant that the relationships in the classroom more naturally translated to the online component in the other weeks.

Revisiting my August 2020 post on the topic, my reformatting worked (I think), and I was, indeed, cautious but eager. And I look forward to replicating it again this spring.

I close by noting that there were lots of nay-sayers (I highlight some above) last summer. Nay-saying would be an easily solution, to be sure. Online-only has attracted a lot of students, faculty, and institutions, and many seem to enjoy it reasonably well, or well enough, or well enough for Covid.

But, I think, it’s encouraging that in-person hybrid models were not as disastrous as others projected. There remains plenty of opportunity to think, based on an individualized institutional assessment, which models are best for which sets of students. I don’t think it’s a one-size-fits-all model. And I’m glad this in-person hybrid version of the model worked this fall.

Student-oriented reflections on the coronavirus and online legal education

I’ve read a few pieces here and there about online education (particularly online legal education) in the abrupt transition due to the coronavirus. But these often, in my view, feel unusually professor-centric, including reflections on how the students have reacted to the professor’s online experience (e.g., describing the experience as particularly “intimate” in the eyes of the professor). In my view, there are a number of significant barriers facing many students in an online environment that I’m trying to puzzle through in the event the fall term continues to drive us online. (I’ve seen some of these laid out elsewhere, so I hardly want to claim they’re novel—but I do believe they merit more emphasis than many of the takes I’ve seen.)

Access to reliable high-speed Internet. This is assuredly the largest problem students face. I’d venture to say that a quarter of my students don’t have good Internet access. Being able to participate live requires reliable high-speed Internet access. Understandably, this has been a priority of the FCC in recent years, particularly rolling out more reliable Internet to rural communities. But cities need to provide better opportunities for Internet service providers—more competition, subsidizing upgrades, whatever it might be—to make this possible. It is a dramatic barrier for many students who have to watch asynchronously, when they get a chance to find a place to download a lecture or to download it over a few hours. Indeed, I couldn’t stream from my home because the Internet is so poor, a reason I’ve had to use the law school (deemed “essential” to continue education continuity).

Streaming and note-taking simultaneously, and laptop hardware. Another challenge is the set-up for students while note-taking. Most students can take notes on a laptop while looking at the instructor or classmates in class. Now, students are trying to use the same screen for both watching the lecture and note-taking. Small laptops screens make this poor. Worse, many student-advertised laptops are optimized for low resource uses, like note-taking, not high resource uses, like streaming video. Zoom is not as resource-intensive as, say, video gaming, but it does require more effort and increases chances of lagging and crashing. If students have a second monitor—or a second computer—they are much more likely to enjoy streaming and note-taking separately.

Study spaces. Campus housing and libraries are tremendous resources for many students. It provides places away from home to live, study, and work. Without those spaces, students have had to compete for resources in the close confines of life with parents, siblings, and others living at home. Even with good Internet, they may not have the space or time to participate in synchronous classes.

Home life matters. Relatedly, it’s not that the coronavirus is draining resources from students focusing on that illness (at least, not for the majority of them). Instead, it’s that, once students return home, there are many new challenges that home life invites. There are the obvious disruptions, like child care. But, say, routine matters of family health—when living at home, you’re inclined to help out with a parent’s doctor’s appointment, whereas when living in a dorm hundreds of miles away, you couldn’t do so. For many students, school simply looks different when thrust into the ordinary every day of home life.

Now, for those students who remained living in, say, an off-campus apartment, with reliable Internet and multiple computer monitors, with a significant other or alone or a reliable roommate, life may look little different.

And even with such challenges, students are undoubtedly doing their best. I’ve done an okay job checking in with them. I should do better in the year ahead.

But I think schools need to be thinking about how to handle these myriad complications facing students in future iterations of online education. Yes, while online education often exists elsewhere and it’s hardly new, students doing so often (1) deliberately opted into ex ante, not mid-degree or involuntarily; (2) relied upon an existing support infrastructure, including child care and housing arrangements; and (3) used particular Internet and computer resources ahead of joining the class. Schools would do well to consider how to tackle these challenges in the months ahead.

Should law students publicize embarrassing or distasteful activities of their classmates that arise in the classroom?

The answer, in my view, is an obvious and resounding “no.” But a recent piece in an online subsidiary of the Graham Holdings Company suggests otherwise.

That piece (which I won’t link to) describes the actions of a law student at a selective law school in a Zoom classroom setting of a law school class. Some of his classmates found his behavior embarrassing or distasteful, described by some as “provocative” or “inappropriate.” The online piece included a screen shot of the student in the classroom, presumably captured and shared by a fellow classmate. Other classmates described this student's behavior and participation in other classes, editorializing their disapproval of his comments in other classes.

The students had enough self-awareness to speak anonymously, because their school “might punish them for revealing details of a class.”

In my view, this is not a close case. Students should not publicize the activities or comments about their fellow students in the classroom—even if they are embarrassing or distasteful.

First, while some comments or activities might be embarrassing or distasteful to some, they might not be to all. This then drives students to selectively capture and share embarrassing or distasteful remarks to a select audience to critique.

Granted, there is, I think, a distinction between activities in the classroom and comments in the classroom—the latter often being used to advance academic discourse. But this Graham Holdings piece made sure to include commentary about the student’s comments, too, with editorialized statements of disapproval.

Second, there are real questions about a student’s state of mind. What might be embarrassing or distasteful to some might simply be an accident, an oversight, or a mere lack of sensitivity. I can only think of the number of times I’ve used a word or phrase in the classroom intending no offense but adversely affecting some. Public shaming presumes culpability.

Third, there are particular concerns that arise in a virtual setting. Students inadvertently leave cameras or microphones on when engaging in any number of personal activities. Their cameras might capture the intimate contents of their bedroom. We should most strongly discourage publicizing what we perceive as embarrassing or distasteful activities in these circumstances.

Fourth, there’s a question of proper channels. If a student engages in threatening or harmful behavior, reports to the professor, the administration, and the police may be in order. If the activity is embarrassing or distasteful, a student ought to send an email or a text to the student in question with a remark along the lines of, “I don’t know if you know your camera is on, but it looks like you’re doing X, and it might not be the best thing to have on camera.”

Even assuming a student deliberately engages in provocative behavior, it’s hard for me to think of circumstances that would justify intruding upon the classroom to publicize it. Other students in the class may justifiably wonder if their activities—perhaps innocent, perhaps accidental, perhaps deliberate but in furtherance of academic discourage—would be later publicized for shaming. The slippery slope or the chilling effect is perhaps overused in legal circles. But I think it’s a justifiable concern here, where expectations of privacy in the classroom are particularly high.

Sadly, the salient feature for others in this encounter is one I deliberately haven’t mentioned until now. There is a politically-charged element to the activity, the commentary, and the reaction to the story. While that is assuredly the driving force behind the controversy at hand, I hope that the framing of my approach to this questions applies without regard to political valence. For others, the political valence is the justification or the excuse for the disclosure. For me, however, I can’t say that it is. Students simply shouldn’t publicize embarrassing or distasteful activities of their fellow students that arise in the classroom, even if they profoundly disagree on the politics.

Some thoughts about (and mostly against) pass-fail law school grading during Covid-19

Cornell Law School is reportedly among the first law schools to move to pass-fail grading for the semester. It’s very likely we’ll see many more (particularly elite schools, or at least they’ll star the trend) schools doing so. This, like many decisions made in the coronavirus outbreak and Covid-19 illness spread, will simply be a cascade. I’m mostly against such proposals (but have no influence over them!), and I thought I’d explain why.

I have small experience thinking about this, having taught during a nearly three-week evacuation from Malibu for the Woolsey fires. No classes were held remotely, class periods were compressed, and the exam period was shortened.

Grades are an imperfect measure student performance, but they do pretty well to identify students who will perform well on the bar exam and students who are most at risk. They are also deeply valued by employers, judges looking for clerks, and so on. Grades are not the only thing, of course—good grades do not guarantee good jobs. But they are usually necessary, if not sufficient. (For those privileged to enjoy special family connections or status for legal employment, grades are usually not necessary.)

Assuming a law school should grade (and some might challenge this, as a few particularly elite schools offer little more than premium “pass-fail” grading—and particularly as many law professors came from those schools), the question is what these circumstances do to change the presumption of grading into pass-fail.

Obviously, the disruption is significant. Many students are displaced physically from dorms or homes. Most classes will be taught in a new online format, either synchronous or asynchronous. Some students will not have access to their physical textbooks and need to rely on other materials. Still others hare dealing with travel restrictions, or, worse, illnesses of themselves or loved ones.

All real concerns. At the same time, there are a couple of ways to look at disruption. One is disruption that affects everyone—and if we’re all in it together, we can all suffer along together, expecting, yes, some individual resiliency that may vary from person to person, but, on the whole, grading (which is typically distributed across pre-set grading criteria) will remain largely unchanged.

Another is disruption that uniquely affects a subset of the student population. Of course, these things happen every semester—the student with a death in the family, with a significant illness, with some personal problem that disrupts the term. Schools typically accommodate the student through leave or other policies, but rarely (I think) to take a course pass-fail. It’s simply that this is happening on a much larger scale, so many more people are collectively identifying issues that may affect them.

If pass-fail becomes optional, in some ways it ends up worse. Students who opt for a pass-fail grade immediately put less effort into the course. That artificially inflates the grades of the remaining students who are taking the exam on a graded basis. Depending on which cohorts opt for pass-fail, it can skew classes in bizarre ways.

Now, maybe these reasons aren’t persuasive, and you think that shifting to pass-fail, given the seriousness of the disruption and some varying levels of uncertainty, is the right call. I want to call attention to a few sub-populations that likely will be disadvantaged by this decision.

First, students in classes where they have done well on already-graded midterms or interim assessment. Yes, that’s a rarity in law school. But for those students, they have put in work and received feedback that should, I think, be seriously considered as a component of their final performance for the sake of employers and judges looking at transcripts.

Second, academically at-risk first-year law students. Schools will place at-risk law students on probation after their first semester. A few “figure out” law school in the second semester and do well. That takes them off probation and puts them on track to graduate. Students without that opportunity are facing academic dismissal.

Third, students who “figure out” law school after one semester—often, in my anecdotal experience, those who come from professional careers with a gap between undergrad and law school. While there’s a high correlation between first semester and second semester grades, a small set of students will do exceedingly well.

Fourth, students fighting resume bias. Pass-fail makes it very easy for employers to rely on other measures like undergraduate and law school reputational quality. If they can’t rely on grades, they’ll rely on other proxies.

Back to the opening point, pass-fail is a luxurious advantage for the highest-ranking law schools. They can easily move to pass-fail and know that the vast majority of their students will experience little difference in likelihood of employment outcomes.

For many other students at the vast majority of law schools, however, I do think there will be disadvantages to moving to pass-fail.

Maybe I’m overstating it, and maybe there won’t be a significant change in judges’ or employers’ experience. Maybe the concerns of the students who I identified as potentially disadvantaged should be outweighed by the concerns of others. But I offer my own thoughts here and look forward to reading more of the robust debates in the days ahead—and to seeing how law schools react.

UPDATE: Three reflections on this. First, Prof. Maggie Wittlin writes, “The strongest argument I've heard in favor of pass/fail is that certain groups of students will be disadvantaged by maintaining grades, specifically, students with fewer resources, who can't access reliably fast internet or quiet spaces for studying.” I think this is right. It’s about certain kinds of disruption that uniquely affect subsets of the student population, and how to balance their concerns with the other concerns I laid out. No easy answers, but I don’t want to minimize the cast for pass-fail. In some circumstances or at certain schools, these kinds of factors can cut in favor of moving there. But, in my view, we’d want more than general statements before doing so.

Second, this position shouldn’t be confused with a lack of empathy for students! I don’t defend grading as some kind of “tough life lesson,” as learning to be “resilient” in the face of challenges, or so on. That feels more like a right of passage or a kind of hazing justification, which I think must fail. Instead, it’s to look at the value of grades—i.e, the value we assign to them before a disruption like this arises—and to weigh that value with the costs and benefits of switching in the midst of a challenging time like this. By all means, I emphatically defend accommodations for students, and consideration of whether, on the whole, alterations to grading should be made. It’s simply that, I think, the “solution” of pass-fail grading comes with problems that are often beneath the surface.

Third, there are more creative “optional” pass-fail structures out there, like allowing students to opt in after looking at their grades, or setting a “cutoff” and taking a pass-fail only if they perform below the cutoff. Solutions like these can help mitigate the distorting effects of an optional system by increasing the incentives for all students to work hard and help keep a more competitive performance on the exam. That said, any “optional” system invites student second-guessing, agonizing, gamesmanship, and curiosity of how decisions might affect the behavior of others—things I’ve experienced (none very good) in “optional” pass-fail settings, and things probably worthy of a separate and more extensive blog post.