By: Christopher Corts, Professor of Law, Legal Practice, University of Richmond School of Law

To be a lawyer is to be a member of a learned profession that society entrusts with the privilege of self-regulation.[1] To fulfill their duties to society, lawyers must be effective lifelong learners. All knowledge workers, but especially lawyers, must be prepared for a career that includes lifelong learning.[2]

If being a lawyer necessarily means being a lifelong learner[3], then teaching law students the skills, values, and competencies they need to learn now to keep learning on their own for the future is an inescapable part of any law school’s educational mission. Within American law schools, one of the most important places where we collectively attend to the burdens and joys of teaching students how to identify and internalize their commitment to lifelong learning as part of their identity has been the recent movement toward education for Professional Identity Formation (PIF).

Neil Hamilton has articulated PIF’s educational mission as including “two foundational norms and values that law students and lawyers must understand, internalize, and demonstrate,” one of which is “a commitment to pro-active continuous professional development toward excellence at all the competencies needed to serve others well in the profession’s work”[4] (emphasis added).

When we embrace this learning objective as part of our PIF instruction, it raises important questions about how we ought to assess students in this work. If your school has adopted a form of assessment that includes grading, I want to suggest three goals that your program ought to adopt as you design assessments for PIF-related skills and competencies.

In a fascinating, content-rich book entitled Grading for Equity: What It Is, Why It Matters, and How It Can Transform Schools and Classrooms,[5] Joe Feldman—a graduate from Stanford, Harvard Graduate School of Education, and NYU Law School[6]—argues any system of grading ought to be accurate, bias-resistance, and motivational for every student-learner.[7]

Feldman suggests that a system of grading that is more accurate would be one that uses “calculations that are mathematically sound, easy to understand, and [able to] correctly describe a student’s level of academic performance.”[8] As applied to law school, this suggests that we need to take care to ensure that our calculations and descriptions of a student’s level of performance is made by reference to a professional standard of competence or excellence for any particular learning outcome that we publish to students and aim to teach.

This focus—on grading students by reference to professional standards of competence or excellence—is what educational literature calls criteria-referenced forms of grading. The biggest obstacle to accuracy thus defined is the law school curve, which eschews criteria-referenced assessment by imposing norm-referenced assessment.[9] Unfortunately, most law schools impose a curve, which means they remain committed by policy to using inaccurate forms of grading!

As a system of grading, a curve is a norm-referenced form of assessment—not a criteria-referenced assessment. By design, a curved grade communicates information about a student’s performance relative to the performance of other students measured in the same group (the norm). When a law student receives their curved grade, they are like a child who visits the pediatrician and gets feedback about the size of their head being, say, 99^th percentile. Does this assessment mean they are healthy or intelligent? It’s impossible to say based on the number. The number is an expression of how the child compares to others within his or her group. It says nothing about how the child measures against standards of health or intelligence.

Being a norm-referenced assessment, a curved law school grade suffers from these same flaws. It is inaccurate in the sense that it cannot directly communicate anything about professional standards of competence and excellence. It is not designed to do that.

But as Feldman shows: the curve is so much worse than just being inaccurate. It is also prone to bias and can be de-motivational to students all along the contours of the curve.

Feldman outlines myriad ways that curving harms students by running afoul of all three of the fundamental values identified in the book. Even so, he suggests some helpful ways that we can work within the curved system to create assessments, including graded inputs, that are more accurate.

For example, Feldman suggests that teachers should:

• Resist giving a “zero” as a grade when work has not been submitted. That gives students the option of not doing work! Good, poor, or in-between, a grade given ought to represent a teacher’s judgment about the degree of quality of work submitted, not a judgment about when it was submitted.
• Grade minimally. The proper focus ought to be on giving feedback without grades attached. The more we grade, the more students obsess about the grade. We need them to obsess about the quality of their performance relative to professional standards of competence or excellence. That requires feedback.
• Use a small grading scale from numbers 0-4. A small grading scale properly conveys the relative degrees of difference that separate levels of achievement along the ways to excellence. All students should expect to pass between those levels on the way to competence and, eventually, excellence. [As an avid tennis player and recent convert to pickleball, I appreciate the way that both sports use a rating system that is small-scale and incremental in the ways Feldman describes. For example: A beginning tennis player (2.5 or 3.0) is distinct from an intermediate (3.5 or 4.0) and more advanced players (4.5, 5.0 +). But the size of the rating scale adopted facilitates a growth mindset; it reinforces the belief that, with sustained attention, effort, and practice, it is possible to move up the rating scale over time.]
• Give more weight to more recent performance. A student’s performance early in the semester—before there has been much instruction, practice, or feedback—is predictably poorer for everyone.
• Grade based on individual achievement, not an entire group. This has implications for grading team-based assignments, obviously. But it also warrants against using a curve—because the curve reflects individual performance only by reference to the group’s norm, not by reference to professional standards or criteria for competence, excellence, whatever).[10]

So once we have tackled accuracy….how might we ensure our grading is more bias-resistant? When Feldman talks about bias-resistant grading, he means that “grades should be based on valid evidence of a student’s content knowledge, and not based on evidence that is likely to be corrupted by a teacher’s implicit bias or reflect a student’s environment.”[11]

Sounds reasonable. But how might we make grading more bias-resistant in these ways? Feldman gives a few suggestions; I suspect they might be surprising to some of my instructor-readers who likely have used one or more of the disfavored practices Feldman identifies as being prone to bias. Feldman argues we should:

• Grade based only upon required content. Among other implications, this means that we ought to resist any temptation to award extra credit.
• Make sure the final grade reflects the quality of work submitted, not the timing of when the work was submitted. In other words: resist the urge to give a score that reflects the lateness of the submission more than the quality of work that was submitted.
• Do not grade levels of participation or engagement separately. As instructors of future professionals, we need our students to grasp the way that their participation, engagement, and level of effort directly impacts their ability to perform competently and produce professional-level work. If we are right about that, we do not need to grade these inputs separately. If a class is well-designed, it will not be possible for someone to perform well on an assignment if they have not participated or been engaged meaningfully in the class prior to that! To grade engagement or participation separately risks double-counting; it is not necessary.

This last concern may at first sound more like an accuracy problem than a bias-resistance challenge; it risks double-counting poor participation and engagement. But there is also a serious bias problem when professors say they will grade “levels of participation” or “engagement” without clearly defining what “participation” and “engagement” mean. Similarly, a bias problem exists if professors do not adequately disclose how students can achieve that learning objective in a way that meets the professor’s expectations. The bias problem is especially challenging in large doctrinal classes, where students may only be able to speak, participate, or engage with the professor when the professor places them on call or initiates a Socratic dialogue with them about topics of the professor’s choosing.

If “participation” or “engagement” means talking in class, quiet or culturally-deferential students may be especially vulnerable to a professor’s implicit bias in favor of extroverted, alpha-type students who talk a lot, or out of turn. Especially in law school classrooms where professors retain nearly complete control over the decision of who gets to speak when and about what, it makes opportunities to demonstrate “participation” or “engagement” more difficult, particularly if those categories have not been carefully defined, if standards for achievement have not been published, and if students’ opportunities for demonstrating those inputs have not been intentionally monitored for parity.

It is not that engagement and participation do not matter. They do! They matter so much that if students shrug off their duty to participate and be engaged in a course, they will not be able to perform well on the merits. If you are concerned that a student might be able to perform well on an assignment in your course without engaging or meaningfully participating in the course work prior to the assignment….then you have a course design problem. The problem is yours.

• Only summative assessments ought to be graded. Formative assessments—such as homework or practice problems—require feedback…but not Formative assessments are especially vulnerable to being distorted by a student’s learning environment outside of the classroom (which Feldman identified as problematic when it comes to bias-resistance).

And what about Feldman’s final value: the value that grading ought to be motivational for all students? When Feldman says we need a system of grading that is more motivational for all students, he means that the way we grade should “motivate students to achieve academic success, support a growth mindset, and give students opportunities for redemption”—even (especially!) when they do not earn one of the best-available grades.[12] 

Thus described, how might we make grading more motivational for all students?

• Use rubrics and standards scales that are shared with students.
• Give opportunities for retakes and re-dos (until the student performs the assigned task at a minimum level of competency).
• Give tests without any points (but lots of feedback).
• Grade minimally, and use a 0-4 scale when we do grade, so that students can easily see the relationship between their current level of performance and desired level of performance as a gap that can realistically be closed with additional effort. In other words: instead of lecturing or nagging students about having a growth mindset, use a grading scale that makes growth from one category of performance to another appear achievable.
• Emphasize self-regulation. The more we can do to help students take responsibility for their own process of growth and learning, the better. This requires more than lecturing or telling them. By devoting precious educational time to self-reflection and meta-cognitive exercises, we can help students make critical connections, learn valuable lessons, and experience themselves as the driving agents who are ultimately responsible for their own education.
• Create a community of feedback to support students in their individual journeys of learning, growth, and improvement.
• Resist grading soft skills as separate grading inputs (unless the soft skill has been made a topic/subject of the course of instruction, such as when an entire course is devoted to “listening” or “leadership” or “communication” or “soft skills for lawyers”). In other words, if you are a Torts or Contracts professor, resist the urge to grade soft skills as part of that course.

I suspect this last suggestion might be surprising or controversial to some. To be sure, a well-meaning Torts or Contracts professor might wish to reinforce the importance of PIF’s soft-skilled competency in a doctrinal class. That might be a wise decision, but Feldman’s argument suggests that educators who care most about teaching students the soft skills they need to thrive in education and life are most effective when they give plenty of feedback but no separate grade for a soft-skilled performance.[13]

As Feldman describes it, “[w]hen we reestablish the causal relationship between soft skills and academic performance and no longer include soft skills in the grade, we increase students’ intrinsic motivation to develop those soft skills as a direct means to greater academic performance.”[14]

For Feldman, this approach is best because, in the twenty-first century, the most important and valuable soft skill of all is the skill of self-regulation.[15] Self-regulation requires “the active monitoring and regulation of a number of different learning processes: e.g., the setting of, and orientation towards, learning goals; the strategies used to achieve goals; the management of resources; the effort exerted; reactions to external feedback; the products produced.”[16] As Feldman explains it, “[w]e best teach self-regulation not by assigning points for soft skills, but instead by lifting the veil by defining soft skills, reducing biases through rubrics, delegating to students the responsibility to record soft skills and academic performance, and facilitating processes for reflection and goal-setting.”[17]

Feldman’s interest in teaching students how to be self-regulated learners brings us back to where I began this article: focused on our duty to teach lawyers how to be lifelong learners. Feldman’s emphasis on teaching self-regulation pairs perfectly with Hamilton’s articulation of PIF’s core learning objectives.[18] The arguments and ideas in Grading for Equity are much richer, deeper, clearer, and more stimulating than what this short blog post allows. Please read it! And then pass it along to a colleague.

For any willing to see it, please see it: when it comes to raising up the next generation of self-regulating lawyer-learners, we have a moral duty to use (and model) systems of assessment that are accurate, bias-resistant, and motivational. Let’s do it!

[1] See Anton Hermann-Chroust, The Rise of the Legal Profession in America Vol. 1, (1^st edition), University of Oklahoma: 1965).

[2] See Peter Drucker, “Post-Capitalist Society” at page 52 (Butterworth-Heinemann 1993) (“In the post-capitalist society it is safe to assume that anyone with any knowledge will have to acquire new knowledge every four or five years, or else become obsolete.”) Drucker later suggests that society needs “a new axiom: ‘The more schooling a person has, the more often he or she will need more schooling.’” He warns that American “doctors, lawyers, engineers, business executives are increasingly expected to go back to school every few years lest they become obsolete…” Id. at 186.

[3] My colleague, Laura Webb, makes this case effectively, using the lens of helping students how to think like teachers. Webb, Laura A., Why Legal Writers Should Think Like Teachers (August 17, 2017). 67 J. Legal Educ. 315 (2017). Available at https://jle.aals.org/home/vol67/iss1/13/.

[4] Neil Hamilton, “Introduction to the Definition of Professional Identity and the Formation of a Professional Identity,” Holloran Center Professional Identity Implementation Blog, available at https://tinyurl.com/mshz724s

[5] Feldman, J. (2019). About the Author. In Grading for equity: What it is, why it matters, and how it can transform schools and classrooms, Thousand Oaks, CA: Corwin, a Sage Publishing Company.

[6] Id. at xiii (“About the Author”).

[7] Id. at p. 27 (“Equitable grading is Accurate, Bias-Resistant, and Motivational for all students.”).

[8] Id. at 228.

[9] For a helpful history of the curve in higher education, a survey of empirically-demonstrated ways the curve impairs and impedes learning, explanations of criteria-referenced forms of grading, and pragmatic suggestions for how to implement better assessments in the classroom, see Jeffrey Schinske, & Kimberly Tanner, Teaching More by Grading Less (or Differently), 13:2 CBE–Life Science Education 159-166, available at https://doi.org/10.1187/cbe.cbe-14-03-0054.

[10] Id. at 228.

[11] Id. at 228.

[12] Id. at 228.

[13] Id. at 205. In Chapter 13, Feldman outlines “Practices that build soft skills without including them in a grade.”

[14] Id. at 224.

[15] Id. at 216.

[16] Id. at 216.

[17] Id. at 224.

[18] Neil Hamilton, “Introduction to the Definition of Professional Identity and the Formation of a Professional Identity,” Holloran Center Professional Identity Implementation Blog, available at https://tinyurl.com/mshz724s.