Law School Academic Support Blog

Best Practices for Online Bar Exam Administration

This week the Association for Academic Support Educators ("AASE") published Best Practices for Online Bar Exam Administration. AASE President, DeShun Harris, says that the best practices advocate for "procedures that ensure a fairer test for online test takers." The organization, established in 2014, urges state high courts and bar examiners to adopt these procedures.  The AASE Bar Advocacy Chair, Marsha Griggs, says "many of the best practices that we identified are things that bar examiners are already doing." Yolonda Sewell, Vice President for Diversity, adds that in addition to the great strides that bar examiners have made in deploying an online exam, we seek to make sure that the online administration does not unfairly disadvantage any bar applicant on the basis of skin tone, race, gender orientation, biophysical conditions, disability, need for test accommodations, or socio-economic resources. The Best Practices are aimed to level the playing field, both among applicants of varied backgrounds, and between the online and in-person versions of the exam."

One of several effects of the COVID-19 pandemic, was that bar examiners and bar applicants questioned the wisdom and feasibility of administering in-person exams in the traditional large group format. In response to COVID-19 limitations, the first online bar examinations in the United States were administered between July and October 2020. 

With but a few exceptions, the online exams were remotely proctored using artificial intelligence technology provided by a commercial vendor. As the exam dates approached many issues surfaced surrounding the use of facial recognition software and remote proctoring. One prominent issue was the number of complaints voiced from students who are people of color, asserting that the software did not recognize them. During and after the exam, other complaints sounded, ranging from data breaches, and poor technical support, to "flagging" hundreds or thousands of applicants for alleged cheating or "testing irregularities." At the extreme, some applicants reported having to sit in their own waste—as the exam instructions warned applicants about being out of view of the camera except during scheduled breaks—for fear of failing the exam. Additionally, there were reported issues with the technical delivery, submission, and scoring of the Multistate Performance Test,  and jurisdictional scoring errors that wrongly identified applicants who earned passing scores as exam failures, and falsely notifying others who failed the exam that they had passed.

AASE lauds the efforts of bar examiners at the local and national levels for their flexibility and willingness to provide options for remote administration. While we defer to the proven expertise of the test-makers in determining matters related to exam content, scoring, accommodations and character and fitness eligibility, we add our collective expertise in assessment delivery, performance application, and enhancement pedagogies for non-traditional test takers. We recognize that online bar exam delivery will outlive the pandemic and current circumstances. We also believe all who play roles in the process of creating and delivering a bar exam, want the exam to be fair and effective. In light of those dual goals, we think the time is ripe for adoption of additional policies that are more than performative gestures toward a more diverse legal profession.

(Association of Academic Support Educators)

Who Am I to Pass the Bar?

Bar takers, you have seven study days remaining to prepare, to take one last look at your bare bones outlines, to try to crack the code for recognizing recording statutes, and to improve your speed at performance testing.[1] Adding to the angst of sitting for an exam that will determine entry into your chosen profession, is the foreboding fact that national bar passage rates have declined and not returned to prior years heights.[2] News from bad to scary, logically, can lead to doubt and self-debasing thoughts like who am I to pass if as few as four of every 10 bar takers pass the bar in some states?[3]

The negative thoughts creep in and resound even louder to those who entered law school against the odds. Those with LSAT scores below 150; those who juggled working to provide for a family by day, and the competitive rigors of law study by night; those who managed the anxiety of chronic illness and attendance requirements; those who faced implicit biases that created a presumption of lower competence and precluded their appointment to prestigious posts; those whose humble social or financial backgrounds placed them in a daily battle with imposter syndrome; those whose law schools don't rank elite; and those who’ve found a home in the bottom quartile of the law school class are left to silently question who am I to pass?

Let these words be the fight song for the academic underdog. You entered law school, wind at your front, and made it. You fed your family and persevered. You commuted two hours to and from school and made the 8:00 AM lectures. You tutored yourself. You feared failure, but kept going. You ignored the rankings, and focused on your exams. When things got hard, you got harder. So to those who still question, who are you to pass . . . ?

I ask the better question: who are you not to?

(Marsha Griggs)*

 

[1] The Louisiana Bar Examination is administered February 17 – 21, 2020, eight days before the administration of the Uniform Bar Exam and other state bar exams.

[2] Mark Hansen, Multistate Bar Exam Average Score Falls to 33-Year Low, A.B.A. J. (Mar. 31, 2016). See also Jeffrey Kinsler, Law Schools, Bar Passage, and Under and Over-Performing Expectations, 36 QUINNIPIAC L. REV. 183, 187 (“Between 2009 and 2013, nationwide firsttime bar passage rates remained in the high seventy percentile range with three years at 79%, one year (2013) at 78%, and one year (2012) at 77%. Those nationwide bar passage numbers slid from 78% in 2013 to 74% in 2014, 70% in 2015, and 69% in 2016.”).

[3] Joshua Crave, Bar Exam Pass Rate by State, LAWSCHOOLI (Jan. 29, 2019), https://lawschooli.com/bar-exam-pass-rate-by-state.

*adapted from BarCzar Blog originally published April 2018.

Stigma and Professional Identity

Logically it makes no sense that, in today’s world, failing at something because you tried will tarnish you with a negative social label.  . . . [T]o continue evolving, the stigma associated with failure has to be shaken off and be replaced with positive personal development. When you fail at something, hopefully you can recogni[z]e why and where you failed, so that next time you can move forward accordingly. – C. Montcrieff

Bar takers in all but one state have received results from the July 2019 bar exam. Although California examinees may have to wait another week for results, with increased MBE scores reported nationally, bar passage rates (overall) are deliciously higher than recent past exams. What better way to transition to the semester wind down than with news of newly licensed attorneys joining the ranks of your alumni rosters!

I am elated and overjoyed for my students who find their names on the bar pass list. I understand the sacrifice, the grit, the fear, the pressure, the exhaustion, and the anxiety that are necessary conditions precedent to bar passage. I actually get teary-eyed as I scroll through the social media feeds of newly minted attorneys that contain expressions of joy and gratitude for the obstacles they overcame and support they received.

My joy is tempered by the heartache I feel for those who fought so valiantly and fell short of the state cut score. It never ceases to amaze me how a day that brings elation can, at the same time, end in devastation. Those of us doing ASP work must manage that range of emotions altogether in the same day. We collect data and publish articles on interventions that lead to bar success in licensure candidates with known failure indicators. We are experientially trained to manage bad news and to earnestly encourage unsuccessful students to try anew. But how does the reality of our calling square with the purpose of our profession?

We must examine the role and reality of stigma in bar exam failure and determine where, how, and if, it fits into the notion that diversity in the legal profession is not solely about racial and socio-economic inclusion. The diversity promoted by effective academic support programs includes intellectual disparities, physical and emotional disabilities, linguistic variations, and learning differences.  

The definition of academic and bar success is changing. Success for some may be sitting through a two-day exam without the testing accommodations relied upon during law school. For others, it can be completing an exam scribed in a language other than the test-taker's native tongue. For many bar takers who graduated in the bottom quartile of their law school classes and/or with low entering LSAT scores, success may be coming within 5-10 points of a passing score, that all published statistics said that they could not achieve.

I dare not suggest that legal educators dismiss or ignore bar failure, but I challenge the status quo about how we frame bar failure as part of professional identity formation. Moved by the MacCrate Report, law teachers have become more intentional about teaching, and have begun to support law students’ professional identity formation inside and outside of the classroom.¹ I see no reason for that support to end with the bar examination. As we normalize struggle², we must communicate bar failure as a temporary status and not as an indelible component of one’s professional identity.

¹ Susan L. Brooks, Fostering Wholehearted Lawyers: Practical Guidance for Supporting Law Students' Professional Identity Formation 14 U. ST. THOMAS L.J. 377 (2018).

² Catherine Martin Christopher, Normalizing Struggle, ___ Arkansas L. Rev. ___ (2019).

(Marsha Griggs)

A Federal Court Ruling on Bar Exam Accommodations in New York

With a hat tip to Prof. Chris Lasch...

This week, a federal judge issued an order, finding that the New York State Board of Law Examiners is not immune under the Eleventh Amendment in a civil action by a bar exam applicant who was twice denied testing accommodations, alleging violations of federal disability law.  T.W. v New York State Board of Law Examiners, Memorandum and Order, September 18, 2019, U.S. District Court E.D New York, Case 16-CV-3029 (J. Dearie).

According to the brief facts as stated in the court's memorandum of its order, the plaintiff failed the New York Bar Exam in her "first two tries, causing her to lose a lucrative job...and undermining her job prospects to date," although the plaintiff subsequently passed the New York bar exam when she was finally provided testing accommodations.  

The plaintiff raises two federal statutes in support of her claim that the New York bar examiners violated her rights in failing to twice provide bar exam accommodations.  First, the plaintiff asserts violation of Section 504 of the Rehabilitation Act, which, roughly speaking, prohibits discrimination by any program or activity that receives federal final assistance. Second, the plaintiff asserts violation of the Americans with Disability Act ("ADA"), which, broadly speaking and in relevant parts, prohibits discrimination by programs and activities by any public entity.

The New York bar examiners filed a motion to dismiss, contending that the federal court lacks subject matter jurisdiction over both of the plaintiff's federal statutory claims in that the State contends that the plaintiff's claims are barred by sovereign immunity under the Eleventh Amendment, which, in general, prohibits suits in federal court against states absent an exception (two of which were raised by the plaintiff in response to the defendant's motion to dismiss).  

First, with respect to the ADA statutory claim, the plaintiff asserted that Congress properly abrogated (or removed) state sovereign immunity when Congress adopted the ADA statute.  

As indicated by the Court (and as tested in law school exams and bar exams too), Congress can remove sovereign immunity provided that Congress uses unmistakably clear language and provided that Congress adopted the statute at issue pursuant to congressional power to remedy and deter constitutional violations under Congress's post-Civil War 14th Amendment Section 5 power.  

With respect to this issue, the New York bar examiners argued that Title II of the ADA was not enacted pursuant to a valid grant of constitutional authority as the commerce clause power, in and of itself, is constitutionally insufficient for Congress to abrogate state sovereign immunity.  Despite the interesting constitutional arguments over this issue, the Court did not reach the constitutional issue with respect to the ADA, explaining that the plaintiff's claim under the Rehabilitation Act was sufficient to resolve this case because the Rehabilitation Act and the ADA have the "same legal standards and remedies."  Thus, the Court focused only on whether to dismiss the plaintiff's claim under the Rehabilitation Act for lack of subject matter jurisdiction based on Eleventh Amendment immunity.

Second, with respect to the Rehabilitation Act claim, the plaintiff asserted that the State waived its constitutional right under the Eleventh Amendment to not be sued in federal court when the State accepted federal funding for some of its state court programs.  

As the Court stated in its decision, the Rehabilitation Act requires states to waive sovereign immunity as a condition of receiving federal funds for state programs for lawsuits brought in federal courts for violations of the Rehabilitation Act.  Consequently, the Court next focused on whether the state waived its constitutional rights when the New York court system received, in part, federal funding.  

In brief, the Court held that the New York bar examiners had waived sovereign immunity protections from lawsuit in federal court under the Rehabilitation Act because the New York bar examiners were organized as a sub-entity of the New York court system, which did receive federal funding, and therefore, the plaintiff's claim of violation of the Rehabilitation Act by the New York bar examiners could proceed to the next stage of litigation as the court has federal question subject matter over the plaintiff's claim.  

With respect to this issue, the decision is a bit complicated and is fact intensive, as illustrated by the Court's citations out of Wisconsin, which indicate that the Wisconsin bar examiners are distant separate entities from the Wisconsin court system.  In such cases, the particular government entity must intentional waive its sovereign immunity rights by receiving federal funding, which, apparently, the Wisconsin bar examiners did not.  

Nevertheless, with respect to New York, the Court ruled that the New York bar examiners were a sub-compnent agency of the larger state court system such that the New York bar examiners are subject to lawsuit in federal court based on the Rehabilitation Act.  As such, the Court denied the New York bar examiners motion to dismiss. Consequently, the plaintiff can proceed with a claim against the New York bar examiners in federal court for violation of the Rehabilitation Act.

For those of us in the academic support field, that raises an interesting question because, anecdotally, even in states using the identical Uniform Bar Exam (UBE), it seems as though there are wide differences with respect to granting disability testing accommodations.  But, before you counsel students to sue state bar examiners in federal court for potential violations of the Rehabilitation Act, its important to underscore that that a case in federal court might well turn on a deep analysis of the organizational and legal structure of the bar examiners, specifically, whether they are a sub-entity of a state agency that is the recipient of federal funding.  Many or some state bar examiners might not receive any federal funding and might well be independent of a state agency that does receive federal funding such that federal litigation might be precluded against state bar examiners.

Finally, for those of you working with law students (or bar exam applicants), this is a great case to raise with them because it interweaves federal civil procedure and constitutional law.  Indeed, this is a problem ripe for a bar exam question.  And, for those law students preparing for midterms in civil procedure or constitutional law, this is a great practice problem to test one's analysis.  

(Scott Johns).

 

 

Facing the Incoming Class as an ASPer with a Disability

Brad Pitt and I -- we've got something in common. It's not money, or fame, or good looks -- definitely Brad has it all over me there. No, it's an invisible disability that affects the ability to forge relationships and work effectively with others. Both Brad Pitt and I have prosopagnosia, commonly known as face blindness.  

Being able to recognize others is so important that it mostly goes without saying. In an evolutionary sense, knowing which humans belonged to your clan and which humans were competitors could help you decide whether to share prime gathering or hunting locations. In the modern world, those who easily recognize and connect with others are more successful, whether they are selling cars, cultivating allies for a political cause, or persuading jurors. Those on the low end of the scale for facial recognition labor under a distinct disadvantage. At the extreme, persons with prosopagnosia may not recognize family members or even their own faces. More commonly, those of us with prosopagnosia have experienced the awkwardness of welcoming someone to a group as a newcomer who has been there for the past two years; we may avoid receptions because of the awkwardness of having conversations with people who obviously know us when we don't recognize them, or we may steer ourselves away from people-oriented careers because we feel inadequate. And we compensate. For instance, at Orientation I listen to voices and try to memorize haircuts because frankly, most males between 20 and 40 look exactly the same to me (and ditto for females). And I e-mail a lot because I know the message will go to the right person that way.

Study after study on teaching effectiveness stresses the importance of getting to know your students, starting with learning their names. Instructors who don't learn their students' names can be perceived as remote and uncaring. Imagine, though, that names come easy enough, but the faces don't -- that every time you look at a person, you're trying to figure out not just their name, but whether this is a person you're meeting for the first time or someone with whom you had an intense hour-long meeting last week. Theoretically, if one's only interactions with students were in the actual classroom, table tents and seating charts could alleviate the problem. But the real world isn't that simple -- we interact with our students not only in the classroom, but also in the office, the hallways, the parking lot, and even in the grocery store and gas station. How heartrending it is to see a student in the hallway and not be able to tell if s/he is the one who just returned from the funeral of a loved one! 

When I work with students with a learning, emotional, or physical disability, it is common for them to tell me they feel intensely isolated by the disability. So many students who are entitled to classroom or exam accommodations decide not to take advantage of them, often to their considerable academic detriment, because they fear taking accommodations will flag them as different, and emotionally different feels like inferior, even though intellectually they realize they are the equals of all their classmates. So in a way I welcome the disabilities I have, because they allow me to better understand my students. While I certainly don't claim to understand their exact situation, I do relate to the experience of feeling like "the other" in a situation I did not create. In my case, I combat the isolation by disclosing my prosopagnosia to students from the start of Orientation; that way, they can understand I'm not disregarding them when I don't recognize them. Heather Sellers, teacher and author of You Don't Look Like Anyone I Know, says that her prosopagnosia has been a gift: 

We all have brains that are really good at some things and quite disappointing in other areas. We all need help -- with names, directions, public speaking, balancing our finances. My social thriving . . .  depends on my asking, calmly, clearly, and plainly -- no drama, no apology -- for assistance. . . .  This practice has changed my life, my relationships, my teaching. 

Since asking for help is a lawyerly skill, modeling this behavior helps my students see it as what a lawyer does. And I'm very open with students about my coping mechanisms, from liberal use of flashcards to asking them to identify themselves each time they speak with me. And as Heather Sellers says, "[A]fter learning about prosopagnosia, and coming out into the world with it, I have been absolutely overwhelmed by the goodness of people. . . . People offer to help me, always. I feel more connected . . . to my fellow humans than ever before." 

Humor can be a potent weapon in overcoming the isolating effects of many a disability. Years back, when I was first coming to terms with prosopagnosia, a student came to my office for case briefing advice. "Before we go on," I said, "remind me what you name is."  "A____ S___," she replied. I looked mock sternly at her. "I'm sorry," I said, "you are not allowed to be A.S.  I make flashcards of all the 1Ls, and I memorized six 1Ls last night, one of whom as A.S. So since I don't recognize you, you can't be her.  "I cut my hair yesterday," she laughed. "You are not allowed to cut your hair," I deadpanned. "Or change its color. In fact, for the next three years I expect you to wear the same clothes as your 1L photo so I can recognize you, although you should probably have two sets so you can launder them occasionally."  Because she laughed, and helped me, through the next three years, I eventually grew to recognize and treasure A.S. -- through many hairstyles, color changes, and a variety of clothing.

(Nancy Luebbert)

 

Obstacles or Opportunities

In an instant, my end-of-summer plans changed.  I was supposed to celebrate the end of the bar exam by backpacking with my spouse.  Instead, I'm learning to stand, hobble, and walk around a bit with the aid of a wheelchair and a walker by my side.  In the aftermath of an accident on the way to visit my mom in the hospital, of all places, I ended up in the hospital with multiple lower back fractures.  I'm told that I need to wear a back brace (sort of like a upper-body cast to immobilize my back) for the next three months.  It's given me a new appreciation for those with limited mobility or other challenges.  

Interestingly, while feeling sorry for myself, I told the physical therapist that I was sad that I couldn't go backpacking because I had worked so hard, throughout the winter, spring, and summer, to train for the grueling trek.  In response, the physical therapist stated matter of factly that had I not been exercising for all of those many previous months, I would not yet be standing or walking.  In other words, my training was not for naught.  Indeed, that training has been a big blessing in retrospect.

It seems like life - with its many unanticipated circumstances - seems to so often derail us.   I'm fortunate. I'm at home now resting and recovering.  It's not what I hoped for but the accident has given me a new appreciation for others.  Like the team of rescue workers.  I never saw them.  I couldn't open my eyes due to the pain.  But, they were there, and that's all that mattered.  Present.  Helping.  Encouraging.  And at the hospital, the emergency room staff and the nurses, and the CNA's and the transporters and the doctors.  Wow; they worked as a team.  As I regained my senses, I noticed that everywhere my stretcher bed was pushed in the hospital, from X-rays to CT scans to MRI's, people asked their coworkers - not if they could help - but rather, how they could help.  That's real teamwork.

Now that I am back home, I'm starting to realize that my world has gotten a lot smaller...and yet a lot bigger too.  It's become smaller in that I can't just hop a car or take a bus and go where I'd like to travel independently.  It takes teamwork to get my moving.  But, it's a lot bigger because I'm seeing things that I never noticed before.  Like the many obstacles that are so often in the way of those who live and move in wheelchairs.  In other words, I'm starting to notice the world, at least a bit, from the vantage point of others.  And, I'm starting to appreciate the small things in life, like a beautiful yellow butterfly that seems brush against the morning window greeting me with a hardy hello.  You see, obstacles can bring opportunities.

That brings me back to law school.  It's orientation week (or soon will be) for new 1L students.  As I think about how to relate to them, I wonder if too many years have passed such that I no longer know the excitement of the first day on campus, or the fear of whether I will fit in, or the uncertainty of whether I will even be up for the task of law school.  So, as I reflect on my accident, I think that the challenge for me as an academic support professional is to just be present to my students, to hear them out, to encourage them, to help them turn obstacles into opportunities for learning.  As I end this post, let me also say one more thing.  All of us are holding back something; we all have obstacles in our paths.  But most of the time, I don't take the time to get to know the others in my life, which means that I don't really let them become part of my life (nor let them become part of my life). As this new academic year begins, my aim is to be present; simply present.  To be listening to them; to hear them out.  To encourage them and to help them know that they belong.  Step by step.  Welcome to the new year!   (Scott Johns).

Shaking Off Self-Doubt

You can choose to listen to the skeptics or hit the ignore button. - Michael Peggs

Our students today have become adept at shunning criticism and negative input. When coaches or teachers prejudge students at any age, there is an army of protective advocates who will stand up for the wronged student and demonstrate that with the right accommodation a student may exceed the expectations of a perceived disability. We full-scale reject the haterist mindset that seeks to label learners with arbitrarily imposed limitations. Taylor Swift warned us that “haters gonna hate”. Yet, too often when the stakes are high, and especially during bar study, we stir up our own hater-aid. Over the years I've overheard students say things like: “I’ve never been good at standardized tests,” “I am never going to learn all these essay subjects,” “I’ve got too much going on to study the way I should,” and “I don’t expect to pass on the first time.”  

You may need to mute your inner monologue, if it is filling your mind with self-defeating prophecy. Each time a fear-based thought tries to creep in, hit the ignore button and block it like a call from a telemarketer. Follow Taylor’s lead and shake off the self-doubt. Use daily bar study affirmations as an exercise in mindfulness to allow you to meditate on your positive potential. For the next two weeks, the only attitude you can afford is a can-do attitude. Repeat these affirming words until they become your reality: I can and will pass the bar. I am worthy of a bar card, and right now I am making plans for my life as an attorney.

(Marsha Griggs)

First Moves

If I recall correctly, the line went something like this:  "The world is filled with lonely people waiting for others to make the first move." At least, that's my recollection of the saying from the wonderful movie entitled "The Green Book," which I happened to have the opportunity to watch on my flight while traveling to the Association of Academic Support Educators (AASE) Conference a few weeks back.  Little did I know at the time the tremendous impact someone would make by reaching out to me at the AASE Conference in Seattle.  

You see, it was the final day of the three-day conference.  With just a few more presentations available, I thought it best to focus my remaining time on bar prep sessions because that's my primary job.  But, while mingling in the hallways of the law school building at Seattle University, I got a friendly tug in another direction.  A person - who I had only briefly talked with at the conference - came marching and smiling right up to me and encouraged me to go to her presentation, which was set to start in a matter of moments.  The warm-hearted invitation got me.  Oh my golly, am I ever glad that I went!  Her presentation was earth-shattering.  It was the sort of talk from the heart that brought tears and promise.

Here's a brief snapshot.  

The presentation was entitled "Academic Skills Invented by Necessity - the Untapped Potential and Creativity of Disabled Learning, and Inclusive Teaching." Professor Karen Wade Cavanagh's story was featured as part of a documentary by Oprah Winfrey in 2015 entitled "Belief:"   http://www.bu.edu/law/featured-in-oprah-winfreys.

In short, Karen suffered a traumatic brain injury in a boogie boarding accident.  In her talk, Karen showed photos of her rescue. Twice Karen was brought back from the brink.  Life for Karen has since necessitated numerous surgeries and rehabilitation.  Much was starting over from scratch.  But, that hasn't stopped her (or others either).

Here's as an example...

Post-accident, while moving on a sidewalk in a wheelchair on her way to school, Karen was at an impasse.  You see, due to crumbling infractures, many of the intersections at city crosswalks were no longer graded to allow rolling back up.  Karen went down to cross the street...but couldn't get back up due to curb.  Stopped in the roadway in the crosswalk, Karen noticed joggers and walkers run and walk past her, up the curb, and back onto the sidewalk.  So, what did Karen do?  She stuck her thumb out to the next passer by.  That jogger came alongside and pushed her up and over back onto the sidewalk.  Success.  She was soon at school.

Life has tough spots for all of us.  But, as Karen's story reminds us, it's sometimes difficult for us to see the tough spots that others are facing.  

The first lesson I learned is that when I am in a tough spot, I need to just go ahead and stick my thumb out.  

The second lesson I learned is to keep my eye out for others.  Try to look at life from their perspective, not mine.  And, be ready to reach out to others.  

Life is not meant to be lived alone but rather in community with others.  To be frank, as an ASP'er, I often tend to approach the issues that my students are having from my vantage point, usually with the idea that a particular academic study tip might be of help.  But, I am often too quick to the draw with suggestions such that I miss seeing what is really going on.  That's because I am too quick to talk instead of  listen.  But, in my experience, most of the time, so-called academic issues are not academic at all.  They are life issues instead.  And, life issues requires me to open up, to be vulnerable to others, and to live within the perspective of others (and not just myself).  In short, being an ASP'er requires me to live life in "being" with others. I think that is what it means to not just be an ASP'er but truly a human being too. (Scott Johns).

P.S. Thanks Karen for making a mark that will live with me forever!

How Much Do You Know About Dyslexia?

EdWeek Update recently ran a quiz that readers could take to test their knowledge about dyslexia. After taking the quiz you can review your answers with explanations for the correct answers. To get your answers and explanations, you will need to register. It was worth it to find out some interesting things about dyslexia and what is going on with K-12 education in this regard. The link to the quiz is Knowledge on Dyslexia Quiz. (Amy Jarmon)

New Study Disputes a Commonly Held Student Belief Regarding ADHD Drugs

It is a commonly held student belief among many non-ADHD undergraduate and graduate students that ADHD drugs will help them improve focus as well as their performance and neuro-cognition. Illegally obtained ADHD medications are used by non-ADHD students to get a competitive edge. Inside Higher Ed recently posted about a new study that suggests that this student myth about performance is inaccurate.

The pilot study was small and needs to be replicated. Increased focus and attention from the medications did not translate into better reading comprehension or fluency and actually negatively influenced working memory. Elevation of mood and physiological effects were what would be expected with these drugs. The hyperlink to the post (which includes a link to the study itself) is New Study. (Amy Jarmon)

Are C&F Mental Health Questions Still Too Broad?

In April, Virginia Public Radio aired a news story entitled "Law Students Challenge Need for Mental Health Question" on the character and fitness application.  The law students contend that the mental health questions on Virginia's character and fitness application have perversely incentivized law students to forego mental health treatment as a means of ensuring that they do not have to affirmatively disclose any mental health treatment on their character and fitness application.  (Read the full story here.)  

The law students' challenge comes in the wake of the American Bar Association's 2015 resolution to eliminate "any questions that ask about mental health history, diagnoses, or treatment and instead use questions that focus on conduct or behavior that impairs an applicant’s ability to practice law in a competent, ethical, and professional manner." 

Despite the ABA's recommendation, the Virginia character and fitness application asks three broad mental health related questions: 

• Within the past five (5) years, have you exhibited any conduct or behavior that could call into question your ability to practice law in a competent, ethical, and professional manner?
• Do you currently have any condition or impairment, including, but not limited to, (1) any related to substance or alcohol abuse, or (2) a mental, emotional, or nervous disorder or condition, which in any way affects your ability to perform any of the obligations and responsibilities of a practicing lawyer in a competent, ethical and professional manner? “Currently” means recently enough so that the condition could reasonably have an impact on your ability to function as a practicing lawyer.
• Within the past five (5) years, have you ever raised the issue of consumption of drugs or alcohol or the issue of a mental, emotional, nervous or behavioral disorder/condition as a defense, mitigation, or explanation for your actions in the course of any of the following [proceedings...]?

If the applicant answers "yes" to any of these questions, they are then prompted to supply detailed supplemental information including dates and contact information for any treating physicians.  The applicant must also obtain a verification from the treating physician indicating that in the physician's opinion the applicant possesses the requisite character and fitness to practice law.  Notably, Virginia's application questions are almost identical to the National Conference of Bar Examiner's sample application. 

It appears that the first question aligns squarely with the ABA's resolution, but the other two questions go well beyond the narrow sphere recommended by the ABA.  It will be interesting to see how the Virginia Board of Bar Examiners (and, perhaps other jurisdictions who have adopted the same application) respond to the law students' challenge.  Stay tuned.  (Kirsha Trychta)

National Mental Health Day is March 28

"The ABA Law Student Division has selected March 28 as the official National Mental Health Day at law schools across the country. Law schools are encouraged to sponsor educational programs and events that teach and foster breaking the stigma associated with severe depression and anxiety among law students and lawyers."  To help law schools plan events, the ABA offers a 43-page downloadable Planning Toolkit, links to organizations like the Lawyer Assistance Programs and David Nee Foundation, and a robust list of internet resources (including this blog!).

Unfortunately, mental health issues are prevalent in law school.  A 2014 survey of "law student well-being found that one quarter suffered from anxiety and 18 percent had been diagnosed with depression. More than half of the law students surveyed said they had gotten drunk at least once during the past 30 days."  Moreover, a 2016 follow-up study "found that those problems don’t stop in law school.  Fully one in five lawyers are problem drinkers and nearly half have experienced depression at some point during their careers."  

In February 2018 at the ABA midyear meeting, in response to the research, the American Bar Association’s House of Delegates adopted a resolution urging law firms, law schools, bar associations, lawyer regulatory agencies and other legal employers to take concrete action to address the high rates of substance abuse and mental health issues.  The report recommends that law schools deemphasize alcohol at social events, have professional counselors on campus, and have attendance policies that help schools detect when students may be in crisis.  The 2018 resolution expands upon a 2017 recommendation that "approved changes to the Model Rule for Minimum Continuing Legal Education that require an hour of substance abuse and mental health CLE every three years."  (Kirsha Trychta)

 

Disabled in Grad School - A Blog Series

Over at Inside Higher Ed, a doctoral student named Alyssa has started blogging about what it is like to attend graduate school with a disability, namely autism.  The author's posts highlight the problems disabled students encounter, how students deal with them, and what we as professors can do to make things easier for graduate students with disabilities.  Interestingly, as a graduate student with substantial teaching responsibilities, the author is able to talk about testing accommodations from two perspectives simultaneously: that of a student and that of a professor. 

The author's first post back in October 2017 explained how disabled students feel "When [Professors] Tell [] a Disability Story" or announce their personal feelings about whether certain accommodations are appropriate, generally.  Unsurprisingly, the author's not a fan. 

The following month the author revealed that "[They], Too, Dread the Accommodations Talk" because, as a student, they never know how a professor or administrator is going to respond.  Will the professor be accepting, skeptical, or downright antagonistic?

In "Mentoring," the author discusses the importance of having a disability-specific mentoring network. 

Last month, the author contemplated (How) Do I Tell My Students? The post supports the argument that disabled students benefit when they see "someone like them" at the front of the classroom.   

Most recently, "How 'Out' Do I Need to Be" explored how certain classroom policies can force a student to "out" themselves regarding their disability (e.g. laptop bans).  The author explained how some disabled students will purposely avoid certain courses or professors whose classroom policies are at odds with their accommodations, instead of taking the class with an approved accommodation. 

Unfortunately, each post seemed to reveal a new flaw in the university's accommodation procedure.   I'm not sure what the procedure is at each law school, but I'd like to think that it is fair and less offensive than what the blogger has been exposed to during their graduate program. 

At my law school, accommodation requests are all handled by the registrar (who is trained to deal with ADA requests), which limits the opportunity for individual faculty to "tell a disability story" or inadvertently "out" a student.  But, I also know at the undergraduate level of the same university, the disabled student must have the "accommodations talk" with each professor, every semester.   Fearing the talk, some undergraduates will forego using the accommodations altogether. Unfortunately, skipping out on accommodations during their undergraduate education may make it harder to establish a need later, such as on the LSAT, during law school, or on the bar exam.  (Kirsha Trychta)

The End of October is Approaching

It’s hard to believe that we are already heading towards the end of October. It seems like the Fall semester just started.

As the end of October approaches, many students are trying to figure out what they plan to wear for their Halloween parties. They are also trying to figure out what they need to do for the rest of the semester as well.

By now, 1Ls have heard of this “outlining” word. But, they may not fully understand what it means. They have read and briefed most of their cases, but they may not have a good grasp of how these cases link up with one another in their doctrinal classes. They may have been so focused on writing down and remembering each miniscule detail from their cases that they have neglected to see how each case from their individual doctrinal classes ties in with every other case in those classes. They may not be ready to attack a large final exam question that assesses their ability to analyze the various legal issues that they have covered throughout the semester.

As law school academic support professionals, we should be ready to assist 1L students as they negotiate the latter part of their first semester. Let’s remember that most 1Ls may not, at this point, fully understand the big picture law for each of their doctrinal subjects. Let’s remember that many 1Ls may not have fully practiced issue spotting and exam writing. Let’s be ready with a non-judgmental and empathic listening ear so that we can best serve each individual student. (OJ Salinas)

Dare to Disclose?

The counseling field has often highlighted the benefits of some personal disclosure from therapists to their clients. Some cited benefits include increased trust and rapport, as well validation of the clients’ experiences.

Join me this week at the Inaugural Diversity Conference for the Association of Academic Support Educators (AASE) in Baltimore, Maryland, for a moderated discussion on the benefits of academic support professionals sharing personal stories and struggles with their students.

Participants will be encouraged to share their experiences (i.e., their stories or struggles) relating to diversity and inclusion or their law school experience in general. These experiences may either be personal stories or struggles or stories related to students that the participants may have worked with in their capacity as academic support professionals. As presenters and participants share their stories, the “listening” participants will be modeling and reviewing some of the same active listening skills and nonverbal behaviors that academic support professionals should be engaging in when they work with students in either individual or group conferences.

Hope to see you in Maryland! (OJ Salinas)

Diverse Learners and Group Work

A summer article posted on Inside Higher Ed looked at whether groups work for everyone and how to improve the experiences. The post by Margaret Finnegan, Department of Criminal Justice at California State University, Los Angeles, is here. (Amy Jarmon)

Think Twice Before Banning Laptops: A Note on Accommodations and Diverse Thinking and Learning

I mentioned in last week’s blog about my inability to remain focused on our law school's voluntary pre-orientation program for incoming 1Ls due to events related Charlottesville. As I continue my efforts to remain focused, I’ll try to spend a few minutes talking about a topic that many of you likely discuss with your students, either during a similar orientation or pre-orientation program or in workshops or individual conferences: whether students should handwrite their notes or take them on a laptop.

The use of laptops in class rightfully generates much discussion on faculty and ASP mailing lists, particularly at the start of the semester. The discussion has even entered the Twitter realm (for example, here and here; H/T Prof. Ellie Margolis and Prof. Katherine Kelly).

I know there is a lot research and concerns out there relating to laptop use and taking notes. For instance: (1) students may often find it difficult to follow classroom dialogue while trying to type everything down that is discussed in class; and (2) there are potential distractions related to laptop use in class—both for the student doing something that he/she should not be doing on the laptop and for those students sitting near this student.

I don’t necessarily disagree with the research and concerns. I understand that laptops can create tempting distractions for our students.  And I agree that we don’t want students “zoned out” from using laptops in our classes.  But, we should also not want to “zone out” students who may need to use a laptop in class as a critical learning tool for them.

So, I want to caution folks before they decide to ban laptops entirely in the classroom. I want folks to remember that banning laptops may create a situation where students with an accommodation for a learning disability are forced to disclose that they have a learning disability.  This forced disclosure may not be an issue for some students—they may not complain or make much of the ban, or they might not care that they are the only student in a 70+ class who has his/her laptop out in a no-laptop use classroom. So, a complete laptop ban may not be that much of an issue for some students.  But, it could still be an issue. 

If you are a strong proponent for absolutely no laptop use in class, perhaps your student affairs office might be able to not place students who have laptop use as an accommodation in your class. Of course, this recommendation may only work if you happen to teach a course that is also offered during the same semester by a faculty member who does not have a laptop ban.

Perhaps, someone like a student affairs or ASP professional may have a chat with those students who are disengaged in the classroom to see what may be contributing to the disengagement. Is it solely the laptop? Or, as those of us in the law school ASP world know, are there other academic or non-academic factors that may be impacting the student’s ability to “follow along in class”? Are the students distracted by a laptop disengaged because the laptop is in front of them? Or, is something happening outside of the classroom that may be motivating the student to disengage on the laptop? Could it be easier for a student who is having a challenging time in law school to disengage, rather than continuing to try and fail?

One more recommendation if you are a strong proponent for absolutely no laptop use in class: maybe, reconsider why you have the no laptop policy in the first place.

Do we assume that students who handwrite their notes never disengage? Or, can a student on a social media account be just as "zoned out" as someone daydreaming or drawing an elaborate doodle on his/her notebook paper?

Do we assume that someone who has a laptop will automatically be programmed to type everything down verbatim in class and, thus, not follow along in the classroom dialogue? Do we assume that someone who is handwriting his/her notes will not automatically try to write everything (or as much) down in class and, thus, will follow along in the classroom dialogue?  I suspect we have had many students in our classrooms who prove and disprove both assumptions.

Do we assume that those students who are using a laptop are naturally worse note-takers—that they have not developed or cannot develop with guidance (from great ASP folks, like us!) effective methods for taking notes in a law school class? Do we assume that those students who handwrite their notes all have developed the proper method for effective and efficient ways to take notes in a law school class? Again, I suspect we have had many students in our classrooms who prove and disprove both assumptions. 

And, finally, are we even aware of, or do we automatically discount, the various computer applications out there that might be geared for diverse learning styles or that might help keep our students’ notes better organized?

We often try to train our law students on flexible thinking—that there may often not just be a black or white answer to things in the law; that there, frustratingly, is often a large shade of gray in the law; that the answer to many questions in the law may often be “It depends.”

Perhaps, we can practice a little of what we preach. Just because we may not be able to take effective notes using a laptop in a law school classroom doesn’t mean our students are unable to take effective notes on a laptop in class. And just because we may not have needed a laptop to succeed in law school doesn’t necessarily mean that someone else could not succeed in law school by using one. Some students may actually need the laptop to help them succeed. And a “black" or "white" law might actually say that they are entitled to use a laptop in class. (OJ Salinas)

Being Different Doesn't Mean Being Irrelevant

I have been thinking about the wonderful, varied, and interesting lives our students bring to law school.

Each student comes to our law schools with a unique and authentic experience. Unfortunately, some of these experiences are sometimes deemed insignificant. The person who has lived the experience may be too anxious or ashamed to share it. Or, others around this person may be too afraid to acknowledge that their individual experiences may not be the only way to have experienced some “thing.”

Each student comes to our law schools with an individual story that can enrich our learning environment and augment the law school experience for other students. For example, how one student responds to the facts of a particular case or identifies with the rationale or policy supporting some legal authority may provide a different insight and promote more critical thinking than the most qualified professor alone. This insight and critical thinking begins to grow, encouraging others to be more willing to take their blinders off and expand their narrow view of an issue, or better yet, of the world.

As we prepare to start a new law school semester, let’s remember what makes each of us unique and authentic. Let’s embrace, not obscure, our differences. And let’s try to foster our students’ abilities to recognize and appreciate differences. Being different doesn’t mean being weak. Being different doesn’t mean being irrelevant. Being different doesn’t mean being unworthy of success. (OJ Salinas)

Some Thoughts on the NYT article "The Lawyer, The Addict"

The New York Times recently published “The Lawyer, The Addict”—a very compelling article about a tragic event. The story describes the death of an influential Silicon Valley attorney. The interplay between (1) addiction, stress, and mental health and (2) law school and the legal profession is referenced in an honest and, for many, eye-opening manner. The article has rightfully generated much discussion on the Internet, including a fascinating conversation on my colleague Rachel Gurvich’s Twitter feed. If you are looking for further insight about the article from a variety of faculty, practitioners, and students, I encourage you to check out Rachel's Twitter feed (@RachelGurvich). Much of the conversation can be found here.

There are many interesting points one can focus on from the NYT article. Perhaps, I’ll explore some other points in the future in the blog. For now, I’ll focus today’s blog on two points: (1) Larry Krieger’s work on subjective well-being; and (2) how hard it is for students to acknowledge that they may be suffering from a problem.

1. Larry Krieger’s Work on Subjective Well-Being.

The NYT article interviewed Professor Larry Krieger and referenced his work "What Makes Lawyers Happy". As many of you know, Krieger’s work was an empirical study on “attorney emotional health” and “subjective well-being.” Part of Krieger’s findings and recommendations focused on shifting the definition of “success” for law students away from extrinsic rewards, like grades, journals, and high-paying jobs to more personal and intrinsic values and motivations.

I remember Larry Krieger's work was one of the first things that Ruth McKinney discussed with me when I arrived at UNC.  Since her retirement, we have tried to continue to incorporate the message of Krieger’s work into our pre-orientation program for incoming 1Ls.  We try to remind our students to remember the intrinsic reasons why they decided to come to law school—particularly during those times when they may feel overwhelmed, defeated, or unworthy. We also try to remind our students that “success” can mean many different things to different people and that there are many ways to “succeed” in law school. We often talk about these topics while disclosing some of our personal struggles and experiences from law school. This personal disclosure often helps build a foundation where we are better able to assist with the problem discussed in part two below.

2. Acknowledging a Problem is often a Problem.

For those of us who work closely with students, the article’s story on how law school and the legal profession can change you—physically and mentally—is not a surprising tale. We know that the combination of stress, anxiety, and the competition for external rewards can create a very challenging and intimidating environment for our students. The environment can feel crushing and insurmountable when you add difficult finances, family issues, health concerns, implicit bias, or stereotype threat to the mix.

It is not uncommon for academic success folks to work with students who are facing some significant non-academic issues that impact their academic performance. But, these non-academic issues are often not easily identifiable. Let’s try to remember that it is often difficult for our students to acknowledge to themselves that they may be going through a very problematic time. Like anyone, they have pride. They have all been successful undergrads or had elite careers prior to law school. They don’t want to think of themselves as “failures” or “unworthy” of being a law student.

Since our students don’t want to think of themselves as “failures” or “unworthy” of being a law student, they will likely hesitate before seeking help because they don’t want others to see them as “failures” or “unworthy” of being a law student (and the mental health questions on the bar exam applications don't help either, but that's a topic for another day [if you are interested, my former colleague, Katie Rose Guest Pryal has a great piece here]).

Disclosing some personal vulnerability to someone else is an added challenge to an already stressful time in our students' lives.  Think about it: if it’s hard for you to acknowledge some potential weakness or flaw to yourself, do you think it will be easier for you to acknowledge that weakness or flaw to someone else? Now think about that someone else as a law professor or administrator. I know; it’s pretty scary. That’s why we, as academic support professionals (and others who work closely with law students), should try to practice good active listening skills and remain nonjudgmental, empathetic, and encouraging when we work with our students. It’s a difficult job. But, we are lucky to be able to do it. (OJ Salinas)

Difficulty Reading - It May Be a Rare Vision Problem

Louis Sirico has had a recent post on the Legal Skills Prof Blog about a former law student whose vision problem caused reading difficulties. The happy ending includes a correct diagnosis years later and a new type of corrective glasses. The post can be found here.