Monday, April 25, 2022
This semester I changed up my assessments for my undergraduate law class. In the past, I had done oral arguments as a final assessment, but after witnessing paralyzing anxiety from more than a couple of students last semester, I decided that I was assessing mental health rather than legal argumentation skills. No one should be graded that way. So, this semester, students are writing a judicial opinion (pretending to be a U.S. Supreme Court justice) in the case of Carson v. Makin. This is a fun case for my undergraduates because it took place here in the First Circuit (nearby in Maine) and it is about high school (also temporally nearby for undergrads). The case is about Maine’s program for students in very rural areas that do not have a local public high school. Maine’s law allows parents to choose another public school in a different district, or a private school so long as the private school meets certain criteria in terms of state required curriculum, attendance, and our sticking point: that the school is “non-sectarian”. The case is a great example of free exercise clause litigation and students are really getting into it, but the very complicated issue of standing is one I have had to take off their plate because it is a bit too much for students who have not taken a course in Federal Courts. Essentially, the plaintiffs are parents who would like to send their kids to sectarian schools but because of the Maine law, they haven’t even tried to use the tuition assistance program. The schools that the parents want to send their children to have not agreed to follow Maine's other requirements either. So, you may be asking, how have they been injured? The attorneys for Maine asked this as well, in more than one case, and each time the District Court and First Circuit found that there was standing because, “[T]he plaintiffs’ injury in fact inheres in their having lost the “opportunity.”" It seems a little like tap dancing in the rain to find standing here, but there it is: a lost opportunity is sufficient injury to get the case before a court.
This decision made me think that we may be injuring our students who are on Academic Warning, Probation, guided curriculum, or whatever your school might call it. We do, of course, intend to help these students in terms of bar readiness and supervision to prevent further academic mishaps. We have a compelling academic interest in having students take this path. Our studies and experience show that it works. I really have no doubt that our process does improve our students’ chances overall. To that end, we have students take bar tested courses like Evidence, Commercial Law, Family Law, and Trusts and Estates once they have a GPA below a certain threshold.
But…these students are required to take another set of large, grade-curved classes that tend to have one high-stakes summative assessment at the end. This might be where things initially went wrong for them, so more of it may just dig the hole deeper for some. We also occupy their schedules with required courses that monopolize their time and credits each semester. Students in academic difficulty do not often get the green light to take a credit overload. There is less space, after satisfying the requirements, for courses that are not bar tested and may have alternate assessment schemes. Students who do well in their first year can then go on to choose courses that allow them to keep up or substantially improve their already good GPAs. Students flagged for warning or probation after the first year have a much harder time moving up in class rankings in subsequent years. Students in academic difficulty know that on-campus recruiting is not going to even consider them. Clinical opportunities may also be lost because of scheduling or because of academic status or both. Some students really need to take the engine apart and put it back together to understand how it works-and some students need to see what lawyering really is to reignite their underlying enthusiasm for continuing in law school. There is a hopelessness we are creating because these opportunities are lost.
Don’t get me wrong, I am not advocating that we abandon this process altogether. We do students a grave disservice if they are misled throughout law school to believe that they are on track for bar passage only to fail. We similarly do students no favors by continuing to take their tuition money when law school is clearly not for them. Perhaps, though, we can re-evaluate our methods. There are no easy answers here-just a request to be mindful of students who feel that they are drifting further away even as we are throwing them a lifesaver. They don’t want to just survive; they want the opportunity to get back on the ship.
 Carson v. Makin, 979 F.3d 21 (1st. Cir. 2020)
 Me. Stat. tit. 20–A, § 2(1) (2022).
 Carson, 979 F.3d at 26.
 Id. at 30 (citing Eulitt v. Me. Dept. of Educ., 386 F.3d 344 (1st. Cir. 2004)).
How’s my citation? Call 1-800-Bluebook to report it.
 Is this ideal for bar passage? Perhaps not.