Law School Academic Support Blog

What Goes Around, Comes Around

 

In the past week, the United States Supreme Court has solidified and endorsed institutional racism and the exclusion of LGBTQIA+ people from places of public accommodation. The 14^th Amendment that the majority cited to end Affirmative Action is the same one that they failed to use in allowing a web designer to not only refuse to serve same sex couples, but to literally put up a sign telling them that are not welcome and why. We have seen these signs before. I actually googled some to post with this blog entry, but I could not bring myself to add one here. You know the ones I mean.

These two decisions are the like the Wonder Twins of exclusion and privilege (remember when they would unite on Saturday morning TV?) If united, these decisions basically say you cannot consider race (or I suppose any protected class) in making decisions about admitting students to colleges and universities but you can consider sexual orientation (or I suppose any protected class) in determining if they can enter your business (if you claim you are in the business of “speech”).  So, the 14^th Amendment requires absolute neutrality…except when it doesn’t!? So currently, equal protection offers neither equality nor protection. Sigh. The dissents were personal, angry, and bleak.

When I was a teenager and my most difficult moments were when friends would suddenly exile me from the friend group (much more innocuous before social media, thankfully), my mother would comfort me by saying that what goes around comes around. I found this to be little comfort at the time -- most likely because it required patience, which I lacked (and still do).

And it does not solve the problems created last week by the Court either-but there is a little to it here: if we are all spending so much time and intellectual effort figuring out how to work around the Court’s decisions, then the result could be that the Court’s decisions will be less meaningful over time. Perhaps the six member majority has essentially (but not immediately) rendered the Court’s opinions superfluous. Have they relegated themselves to mere consultants about the law rather than the arbiter of what is essentially Constitutional--a power they claimed in Marbury v. Madison, 5 U.S. 137 (1803)? Will this impotence be what comes around?

I’m unwilling to be patient and just sit back and wait. I don’t need friends like the ones who signed on or concurred in those decisions.

(Liz Stillman)

Unique--and call for proposals for the AASE Diversity Conference

Unique:

For the last two weeks, I taught a class for undergraduates who wish to attend law school. I had 20 amazing students from historically excluded communities in the study and profession of law. As an ice breaker on the first day, we did a bingo game where we needed to find people who played a sport, or an instrument, or currently had nail polish on. The rules stated that you needed to find one person for each square (no doubles), and you could not count yourself. The grand prize went to someone who filled out the entire board.

One square that appeared on every board was (to find) "someone who was left-handed." There were 25 people playing this game: all the students, the faculty teaching in the program, and the program coordinators. And only one left-handed person amongst all of them. That was me. While this was a tiny and trivial example of how it feels to be the "only" in a room, the fact that everyone needed to find me in order to succeed--but I could not possibly win-- was very clear. 

Let me preface this next part by saying that I am not sure this is my story to tell. The stakes for me were extremely low and had virtually no impact on me or how I value myself. But I thought, in that moment, that it may be similar to how purely performative diversity initiatives feel to students. Do students of color (or first gen students, or any historically excluded law student) feel that everyone needs their presence to "win," but that the student cannot?

Remember, being left-handed (at least in this current time and place) is a relatively neutral difference-the stereotypes associated with being left-handed are not particularly negative (sure, feel free to think I am artistic or clumsy); and being left-handed doesn't really have implications for me academically or professionally. But the stereotypes and assumptions and micro-aggressions (or just aggressions) associated with race, gender, socioeconomic status etc. are toxic to students. Are law schools guilty of valuing the presence of a diverse student body, but still setting them up to fail? In the the game we played to break the ice, the rules were the reason I couldn't win.

Rules can be changed. 

Call for Proposals:

The AASE Diversity Committee is pleased to announce the Call for Proposals for the 4^th Biennial AASE Diversity Conference, October 11-13, 2023 at American University Washington College of Law in Washington, DC. Please see attached document or visit the following link to submit your proposal. (be sure to click through the ad if it pops up). The conference will offer an in-person and virtual experience. The theme for the October 2023 Diversity Conference is “The Choices We Make Matter: Revisioning Legal Academia’s Structures and Systems to Build More Inclusive Spaces for Historically Excluded Communities.” We welcome proposals on diversity, inclusion and belonging as it relates to legal education, academic support, bar examination and licensure. Proposals are due by July 31, 2023. Presenters will be notified no later than August 31, 2023.

If you have any questions, please contact [email protected]

(Liz Stillman)

 

Law School Diversity Professionals Annual Meeting

Small Circles

After teaching three hours of orientation classes in the long, hot days of August, one of our new students asked me if they could meet with me. At this meeting, they told me that they were concerned about being in law school. Someone in another session had told all the students that it would be imperative for them to work together and make fast friends to be successful and had added that not doing so would likely lead to failure.

I guess this was an attempt to try to build community among the 400+ strangers who had gathered to start this journey together. It isn’t a bad idea-community is incredibly important to law school success- but this student is on the spectrum, and they were considering withdrawing from law school because they knew this kind of relationship building was not something they could do easily or quickly. They were terrified that they would not be successful because group work and friend-making would occupy as much, if not more, of their mental resources in law school than learning and studying…and law school is hard enough as it is. I sat and listened to this student and their thoughtful way of going about getting information before they made up their mind. They had come to see me because they thought I would listen and give them good advice and I was touched by their early trust. The more I listened, the more I became aware of what a wonderful student they would be. It would be a real shame for them to leave before even starting.

I’m not sure if ASP me or mom me answered their questions that day. I gave the student a rundown of how every school day might look (we looked at the schedule together) and how there isn’t much time to socialize and very few forced interactions (all the social events were entirely optional). We discussed how study groups are a choice and not a requirement.  While we aren’t exactly RuPaul’s Drag Race or America’s Next Top Model where the contestants "are not there to make friends," there was no need to spend an enormous amount of time finding their people and forming alliances. The student’s people were here-and would be here for the next three years. I advised them to trust what they know about themselves and let the relationships form organically. They decided to stay and give it a try.

They stopped by today to ask me a few questions about exams. They are happy. They are successful. They had just come from an executive board meeting of a club they had chosen to join. Mom me is very, very proud. ASP me is a tiny bit sad, but mainly thrilled that they will probably never need to see me again unless they choose to. I hope they do.

(Liz Stillman)

Counter-Intuitive Research To Boost Learning

"As it turns out, there's a way to improve student learning that even sullen teenagers  won't complain about: Give them financial incentives to study hard:" so says Harvard economist Roland Fryer based on research in about 290 schools with about 36, 000 students. Fryer, R., "How to Make Up the Covid Learning Loss: Paying Students for Attendance, Behavior, and Homework Can Boost Achievement, WSJ (May 31, 2022). 

In the article describing the research team's results, the author suggests that the key was targeting inputs (reading assignments, being in class, completing homework) rather than outputs (exam scores or results) because many students don't feel like they can control results but that inputs are within their control.  Id. All told, to put such an incentive to work in public schools would cost about $700 per year, which the author suggests (in my words) is small change compared to the roughly $13,000 on average spent per student per year for education.

I'm not so sure that paying students to read, practice, and learn makes sense because it feels like it's devaluing to the learning experience.  However, "the research team found that students' achievements remained elevated even after our incentives were removed."  Id.  And, as the author suggests, we pay people to work so why not pay students to learn?

It's an interesting question.  But truth be told, regardless of the daily incentives to learn, the key determinate for success in this large scale experiment was engaged learning on a daily basis.  So, I think that the lesson for us in legal education is to incentivize learning to learn - not through cash incentives - but through making the learning experience challenging joyful and productively meaningful.  That's hard work but that's our job.  

As a suggestion on how to help incentivize learning, try building within your curriculum learning exercises using news events that relate to the subjects that students are studying.  So, for example, in a tort class, one might explore possible product liability claims against companies manufacturing pulse oximeters because research indicates that the widespread use of these devices to determine whether one needed critical covid-19 care is racially biased, leading to under diagnosis of significant populations and likely premature deaths. Mosbergen, D., " Pulse Oximeters are Less Accurate Among Black, Hispanic, and Asian Covid Patients, WSJ (May 31, 2022).  Oh, and there's another legal issue lurking in this article:  "The Food and Drug Administration last year warned of potential pulse oximeter inaccuracies when used on people with dark skin pigmentation, but didn’t change the way it regulates the devices."  Id. In other words, are there any constitutional issues against the regulatory authority?In other words, tie what we learn in the books to how we can use it to help others, now. 

That's an incentive that I can buy in to.  (Scott Johns).

 

Fly Further, Fly Together: Advancing Equity by Positioning DEI Professionals for Success

On Friday, March 4, 2022, American University Washington College of Law and Saint Louis University School of law, will partner with AMDiP and LSAC’s RISE Alliance to host Fly Further, Fly Together: Advancing Equity by Positioning DEI Professionals for Success. This will be a convening of law school leaders focused on furthering their diversity, equity and inclusion goals through the intentional design of DEI positions and support for the professionals who do the work.

Date:  Friday, March 4, 2022

9 AM to 3 PM

Themes:

• Best practices for designing and hiring for DEI positions to meet your current needs

• DEI strategic planning

• Challenges and opportunities for DEI Professionals

• Caring for the health and wellness of DEI professionals

Who should attend:

• Members of law school leadership teams

• Law school staff and faculty who have opportunities to collaborate with and support DEI professionals

• DEI Professional

Be sure to register!

 

Another Wonderful NECASP Conference!

Last Friday’s NECASP Conference on Fostering and Maintaining Inclusive Communities was amazing. It was well organized and carefully curated. I left with some amazing ideas of how I can make my ASP welcome mat larger and make students who cross that threshold feel that we are a caring community. Community=success! A special thank you to the  NECASP executive team: Amy Vaughan-Thomas, Brittany Raposa, Phil Kaplan and Danielle Kocal for a wonderful conference. I have often said, and I stand by it, that the ASP community is the kindest community in law school academics: to our students, our schools, and to each other.  The sheer talent and intellect of my colleagues is breathtaking. 

This morning I walked my dog, Leo, super early because we were escorting my son to before school physical therapy (he hurt his arm when he and his bicycle encountered a curb back in the summer and wrestling practice made it hurt more). My husband is also away on business in (what looks like heavenly) Portugal and he had previously been doing this walk. I will add that I also spent the night with this dog who would not go downstairs, takes up as much space as a human (he weighs 40 pounds, so that was surprising), and doesn’t smell as wonderful as you would hope. The ultimate chutzpah was when he barked at me to pick him up and put him on the bed because he is too short. And judging from the sentence before that, you can imagine how much resistance he got from me, and besides, the cats were unwilling to help. In any event, there I was: tired, cold, and entirely not in Lisbon when Leo and I saw this:

 

Leo and I continued on our walk under this cotton candy sky until we were almost home. As we passed the post office, we saw this bit of pink sharpied advice:

There is no greater ASP hook here except maybe we all need to be reminded to look around and make connections as we make our way through this season of grading and early darkness.

(Liz Stillman)

Pull the Goalie

*I am going to preface this by clearly admitting that I am not someone who regularly teaches bar prep and I know that what I am saying may come from a place of relative ignorance on many issues. I am sure I have missed some important nuances here-and for that, I apologize in advance.*

Recently, we got the news that my youngest child has passed all his required MCAS exams for high school graduation (MCAS is the Massachusetts Child Abuse System according to my kids, but really the Massachusetts Comprehensive Assessment System). These are the standardized tests that students in public schools start taking in third grade and take until they pass the required high school level exams for graduation. The elementary grade exams do not have any impact on grades in classes or promotion between grades-they may indicate a need for other school-based interventions or testing, but that is it. I’ve never let any of my children even see the reports that are mailed to parents.

These yearly exams are meaningless…until they have ultimate, high stakes meaning. Students cannot (without jumping through some significant, fiery hoops)graduate from high school without passing the English, Math and Science exams. Some parents complain that “teaching to the test” ruins learning for their children-which is a valid point. Some parents worry about the achievement gap between various groups of children (mainly along racial and socio-economic lines) which is a complete and unavoidable truth. If a test cannot be administered fairly, what is it assessing at all? And why would we attach such significance to an instrument that is irremediable?

And so, we arrive at the current iteration of the Bar Exam. At times, it seems to test a student’s ability to take the exam more than assessing knowledge of the concepts, theories, and skills it purports to assess. The same criticisms that are true about the MCAS are relevant here. We should not teach to a test-we should be teaching for learning. The achievement gap has not been bridged despite being widely acknowledged. And yet, the Bar is the key that opens the gate to many careers in law. With COVID and remote bar exam issues (technical, physical, and psychological), can we really say that it is an accurate instrument of assessment for practice readiness?

Has it ever been?

My thought for this Monday morning is this: since we all know people (not students, but peers) who have passed the Bar and were not ready for primetime, and we all know people who did not pass but were born ready to practice law, then how is passing the Bar a guarantee of anything? Think about it: (just about) every person who has ever been disbarred must have passed the Bar. So why not just pull the goalie here? What are we protecting when not every shot to the goal goes in--even when no one is there? The fact that law school accreditation is in some part contingent on bar pass rate shows, at best, a lack of creativity in assessment. At worst, it shows that we do not really wish to welcome all the qualified potential members into the profession.  We can do better.

(Liz Stillman)

Making Trouble - Good Trouble

It's the aftermath of the first day of the AASE (Association of Academic Support Educators) Third Bi-Annual Diversity Conference, hosted by CUNY Law.  Unfortunately, my notes are a mess, much like life I suppose.  

But I managed to jot down some key thoughts from speakers and participants that pierced my heart today, leading me to reflect deeply on what I, personally and professionally, must do next, must be next.  

So here's some of what grabbed my heart from today's conference. It's just one person's view.  And I realize I left out much. But, in case you weren't able to participate today, I share with the hope that what we learn together in community might truly be life-changing for so many of our students, left behind and hidden.

• Be willing to and make the invisible visible.
• Generosity of spirit.
• Ask questions about the learning environment, culture, the institution.
• Who's here? Who's not here? Who's rules? Who created them?
• Be a sponge - absorb.
• Be curious, especially about who's uncomfortable.  
• Reach out to student groups. Don't wait for them to reach out to you. Be the instigator.
• Build rapport and relationships.
• Grow in humility.
• Social Identify Mapping: A Tool - Use it! Share it!  Practice it! Live it!
• Humble ourselves.  
• Be willing to lose control so the others might grow and learn.
• What's your definition of academic freedom? Who is it for? What does it serve? How does it help or hinder our students and their learning?
• Are you living mission statements or mission? Truly?  Really?
• Why so hard to talk about race?  What are you waiting for?
• Crown Act - creating and crafting successful curricular ways to teach learning, build DEI, and grow in respect and appreciation for others.
• A few possible communication principles for living, learning, and growing, together: "Vegas---Wall Street---weather.com"
• There's more to academics than academics - much more.
• Pandemic Education - What worked? What didn't? What will you continue? Who did it work for? Who didn't it work for? How were you changed by it? How will you let what you learn positively impact your teaching and your students?
• Don't be afraid to let your students see you, know you.
• Create space for expression, for belonging.
• Ask more questions.
• Make Good Trouble--Yes, Be a Trouble-Maker!

Finally, thank you to the organizers and leaders of this conference - Professors Yolonda Sewell and Haley Meade - and all of the participants, speakers, and sponsors for giving so much of themselves to us for others. And thank you to Dean Hayat (CUNY Law) for your opening remarks and Dr. Spates (Kent State) for your keynote address. Truly inspirational. (S. Johns).

It's OK for Some Schools, But Not Yours

Like all mornings, an email from the Chronicle of Higher Education landed in my Inbox today.  One of its articles bore the following picture: 

Immediately, I noticed something troubling:  Unlike the other three quotes (not pictured), the visual specifically named only FIU.  Thus, out of the thousands of schools around the nation that for decades have pursued USNWR rankings, this picture chose to call out and specifically name only a school enrolling a majority of students who are nonwhite.*  In fact, several of the schools discussed in the article are those where a plurality of students are People of Color.  To make matters worse, above their article that implicitly chastises a school serving mostly students who are nonwhite, the authors affixed the heading “Privilege.”

Really digest that for a second:  The heading “Privilege” above the name of the only singled-out school, the majority of whose students are nonwhite.

Apparently, when such schools use the exact same methods as less diverse schools to improve their students’ opportunities, the method is derided as out-of-line.  And, while the article raises important issues about rankings, the choice to address those issues in this way is deeply problematic.

But today's example is just one instance of the biases, insults, and micro-(and not so micro) aggressions many of our students constantly experience:  The insinuations that their successes are somehow artificial; the assumption that they are “less well-prepared for law school” than their peers at other schools (despite their 159/160 LSAT median and 3.69 UGPA median); off-hand comments by academics specifically noting their race; my colleague Raul Ruiz being introduced at a conference as “Paul ROO-izz” and without the “professor” title accorded to other panelists.  And, today, FIU's movement in the rankings is deemed nefarious while majority- or plurality-white schools garner praise for their genius.  

In making these observations, I have to acknowledge my own white-male privilege.  My career path did not include the obstacles facing many of my students, obstacles instantiated by the brazen biases signaled by the headline above.  But I sincerely hope that I am correct in believing that this privilege should not preclude me from loudly objecting to the conditions that impede my students’ success. 

Because in law school academic support, that is precisely what we do.  Let’s do it loudly. 

(Louis Schulze, who proudly teaches at FIU.)

 

*  I purposely omit the term “minority-majority school.”  As detailed abundantly, many note that the term frustrates the goals of equality.

Academic and Bar Support Scholarship Spotlight

A plethora of recent scholarship to report:

1.  B. Templin (Thomas Jefferson), Integrating Spaced Repetition and Required Metacognitive Self-Assessment in a Contracts Course (2021).

From the abstract:

This article provides an example for doctrinal law professors to integrate metacognitive exercises into their courses in order to increase student retention and understanding of the material as well as improve exam test-taking skills. Teaching metacognition is traditionally the domain of law school ASP departments. However, when ASP methods are supplemented with required exercises in a doctrinal course, student performance can improve measurably.

2.  S. George (Suffolk Law), The Law Student's Guide to Doing Well and Being Well (Carolina Academic Press, 2021). 

From the abstract:

The ABA and most state bar associations have identified a wellness crisis in the legal profession, and called for educating students on how to better cope with the challenges of law school and practice. At the same time, students must learn how to maximize their brain health so that they perform well in law school and on behalf of their clients in practice. The same way musicians would tune their instruments, or chefs would sharpen their knives, law students must sharpen their minds. This book aims to help students “do well” in their ability to learn, and “be well” in the process, by exploring the deep connection between brain health and wellness.

3.  A. Soled (Rutgers) & B. Hoffman (Rutgers), Building Bridges: How Law Schools Can Better Prepare Students from Historically Underserved Communities to Excel in Law School, 69 J. Legal Educ. 268 (2020).

From the introduction:

This article discusses the needs of law students whose circumstances—including but not limited to economic status, race, nationality, sexual orientation, gender identity, and/or educational background—disadvantage them in relation to their classmates whose privileged environment better prepared them for law school. This article first discusses factors that affect academic performance at law school. Second, it illustrates prelaw school and law school programs that target the needs of students from historically underserved communities. Finally, this article proposes ways law school faculty and administration can help these students succeed in law school and in their careers.

4.  K. Testy (Washington), Advancing an Evidence-Based Approach to Improving Legal Education, 69 J. Legal Educ. 561 (2020). 

From the article:

Student-centeredness should not be a remarkable idea for legal education.
Yet, some educators resist student-centeredness on the grounds that such an
approach sounds too much like “the customer is always king.” Under this
line of thought, faculty members instead see their role as the expert with the
duty of deciding what the student needs. As one of my faculty colleagues once
explained to me, “Dean, you pay me to mold them, not to listen to them.”

In my experience, however, students usually do know what they need; we
can learn a great deal by listening

(Louis Schulze, FIU Law)

Think Like A Lawyer - An Overused and Misused Expression?

I hesitate to admit this: I've used this phrase so many times that it just sort of swims to the surface and color almost all that I do to include how I approach my work as an academic support educator.  However, as Professors Kris Franklin and Rory Bahadur remind us in a recent publication, this phrase is relatively meaningless as to the real purposes behind legal education. Directed Questions: A Non-Socratic Dialogue about Non-Socratic Teaching (Aug. 16, 2021).

And, I might add a bit dangerous in the sense of destructive of learning...

Here's why:

First, notice the word "a".  

That doesn't seem to leave much room for differences among our future lawyers.  Rather, it seems to suggest that there is only one type of lawyer.  Exclusive.  Not part of broader society.  One type of which I must be trained to think like.  It leaves out the "me" in lawyering.  In short, it suggests that unless I give up what is really me and become someone else, this mythical lawyer, I will not succeed; I will not belong; I will not think like a lawyer.

Second, notice the word "think".  

I do a lot of thinking, well, mostly day dreaming.  Much of my thinking is not productive.  Why not? Because I don't act upon it.  It just remains hidden from action, in my mind, silently powerless.  In fact, by suggesting that we are going to train our students to "think" like a lawyer, we are really leading them astray, because law is much more than just thinking. It also requires communication, it requires action, it requires practice, it requires leaning in and giving up of yourself for representation and betterment of others.  And, if truth be told, it requires a lot of writing, too.

Third, sticking with the word "think".

Of course, learning requires thinking, much thinking, deep thinking.  But learning takes much more than thinking because we learn through what we experience, what we try, what we fail in and what we succeed in, and how we learn to overcome and improve through and with our learning experiences.  In short, the phrase sells learning short.  It suggests that we can think our ways into being lawyers.  Like the practice of law, learning requires lots of practice too, lots of action too.

I'm not sure what should replace this phrase.  But maybe it's a lot more showing what it is like to be and serve and work and counsel and act as lawyers.  As a starting point, I just wrote our faculty and staff and suggested that they bring some of their former students, who just graduated and took the bar exam recently, back to their classrooms, their programs, and their offices to talk about how they learned in law school and what they are learning now.  In other words, there's lots of room for lots of different lawyers with lots of different ways to practice.  Letting our students know that they are allowed to be who they are and that there's room for them just as they are might just go along way to helping our students thrive as they begin the fall studies.

(Scott Johns).

Purposeful Connections

According to a recent article, research suggests that changing the way curriculum is presented and taught can improve retention of underrepresented minorities in STEM programs. Berman, Jillian, How to Get More Women Into Technology: A Number of Programs Have Tried to Steer Women Into Step--Here's What Works, WSJ (Jun 1, 2021)

The article focused on a number of programs within the STEM fields in trying to increase representation and graduation in STEM majors of women and underrepresented minorities.  The overall trends are not promising.  For example, the percentage of women earning computer science degrees has decreased in the 20 year period from 1998 to 2018, and the percentage of Black women earning computer science or engineering degreee has likewise decreased during the same time period 1998 to 2018.  Nevertheless, one comment in particular caught my eye and it has nothing to do with programs but with a person - a person making a difference.

In the article, Dr. Cara Gomally laments that courses, particularly introductory biology courses, are often taught as a "march through content with no connection of why you should care."  Id.  Sounds a bit like some introductory law school courses to me.  

That lack of connection, of a nexus to purpose, the article suggests, leaves some people behind, particularly in the STEM fields.  To remedy the deficit, Dr. Gomally is designing curriculum to focus not just on content but on the broader connections and uses one can make with the content, such as exploring questions with students as to how antidepressants work or whether students should participate in genetic testing.  Id.  

Those sorts of "why-questions" are filled with life; they create space for people to see how what they are learning can make an impact for them and for their communities and the world at large.  It's in those opportunities in exploring the why of what we are learning that we start to see ourselves, as I understand the article, as valuable participants in the enterprise of, in this case, science.  Id.

This summer, we are working with a number of recent law school graduates preparing for next month's bar exams who, for the most part, will not practice constitutional litigation or contract law or the law of future interests or defensible fees.  Consequently, much of bar prep seems like rote memory and regurgitation, without making connections or exploring meanings to something greater than the mere content and skills in which they are tested by bar examiners.  

To the extent that our graduates fail to make such connections with what they are learning to their future lives as legal practitioners, I think we are doing a disservice to them.  Because many of our graduates want to practice immigration law, I like to explore connections to the word of immigration law within the midst of the bar exam content and skills.  Let me share a few examples.  

First, take the definition of a refugee - one who has a well-founded fear of persecution based on a protected characteristic with the government unable or unwilling to protect them.  

That sounds a lot like a type of tort, perhaps both an intention tort and also a bit like negligence with the state unable or unwilling to protect the person fleeing persecution.

Second, take an article this week from the southern border about the U.S. government's decision to ask non-governmental organizations (NGO's) to designate some asylum applicants as especially vulnerable and therefore eligible to enter the U.S. to proceed with their asylum claims while leaving others behind.

That raises at least two constitutional issues, both of which are tested by bar examiners. First, there's a question as to whether vulnerability determinations by the NGO's constitute state action.  Second, there's a question as to whether vulnerability classifications used by individual NGO's violate the equal protection principle.  That's just getting started.  What about procedural due process and substantive due process considerations?  

Recently, I talked with a graduate, heading into criminal defense work as a public defender, who shared that they were not doing very well on contracts multiple-choice questions.  As to why, the content just didn't excite the person; it seemed irrelevant - totally unconnected - to their future practice as criminal defense counsel.  

In reflection, I asked whether there might be any connections b between contracts and the person's future work as a public defender.  It's just a hunch, we surmised, but we suspected that guilty pleas are contracts, which would ostensibly be governed by common law contract principles, such that if  a government withheld exculpatory evidence, that would not only be a constitutional violation but also a contract defense of unconscionability.  

To cut to the chase, the graduate said that in some ways contract law might actually reinforce the person's future clients' constitutional protections.  

In short, there can sometimes be more to the content than just mere rote learning.  Perhaps one day, somehow and someway, something from bar prep will lead to a new way of looking at how the law applies, really applies, to best protect rights and freedoms. And, in the course of exploring those possible connections with our students and graduates today, we might just be able to help them see that they belong in the legal field, that their experiences count, that they have more than what it takes to be attorneys. (Scott Johns).

 

 

 

 

 

 

 

 

Academic and Bar Support Scholarship Spotlight

M. Griggs (Washburn) & D. Rubenstein (Washburn), It’s Time to Re-Set the Bar for Online Proctoring (Bloomberg Law, March 24, 2021).  

ASP's own Professor Marsha Griggs and her colleague ask crucial questions here.  Everyone in ASP should be aware of these troubling issues.  

From the intro:

Online bar exams administered during the pandemic were marked by controversy around the use of proctoring using artificial intelligence and allegations of cheating that mostly were proved false.  Washburn University School of Law professors David Rubenstein and Marsha Griggs say regulation and best practices are needed, since online exams appear to be here to stay.

(Louis Schulze, FIU Law)

 

 

 

SALT Webinar next Friday

Society of American Law Teachers Presents:

Social Justice in Action Webinar Series

Can You See Me?
Inclusive Practices for Entry
into the Legal Profession

Friday, March 26, 2021 from 3:00 to 4:00 PM ET
From law school classes to artificial intelligence proctoring, students of color are asking, “Can You See Me?” Myriad stressors contribute to disparate bar pass outcomes that deprive the legal profession of much needed diversity. Some stressors are the costs, content, and cut scores of the bar exam; others manifest in the law school classroom.

Can we challenge and mitigate these stressors without exacerbating stereotype threat? Recent law grads, professors, and an identity researcher will address the problematic invisibility of students of color and present law faculty with interventions to promote inclusion.
Panel discussion with including Octavia Carson, Areeb Been Khan, Victor Quintanilla, Heidi Williams, and Pernell Jackson

Moderators: Marsha Griggs and Joan Howarth

Panelists will be available until 4:15 PM for Q&A.

 

 

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)

Save the Date: Teaching Multicultural Lawyering Conference

WMU-Cooley Law School is pleased to announce the online conference Teaching Multicultural Lawyering:  Development, Integration and Conversation.  There is no charge to attend.

The conference, and a recently completed textbook Multicultural Lawyering:  Navigating the Culture of the Law, the Lawyer, and the Client (https://cap-press.com/books/isbn/9781531020415/Multicultural-Lawyering) was born from their course Multicultural Lawyering.

The conference will focus on teaching stand-alone courses in the topic, infusing multicultural lawyering throughout the curriculum, teaching multicultural instruction within professional identity programs, and developing learning outcomes for the topic.  Some of the sessions will have break-out groups to facilitate small, in-depth discussions.  There will be a keynote panel sharing the experiences of faculty who have been teaching these topics for many years, with an opportunity for discussion with them as well.

The online conference will take place on Thursday, March 11 (from Noon-3:30 p.m. EST) and Friday, March 12, 2021 (11 a.m.-4:30 p.m. EST).

The conference agenda is designed to accommodate the many demands on your time by focusing on two afternoons with two sessions each day and a keynote panel discussion on Friday.

Please contact us at [email protected] with questions and if you would like to be added to our interest list to receive updates about conference registration and other details as they become available.

Academic and Bar Support Scholarship Spotlight

New Scholarship:

Sarah Schendel, Listen! Amplifying the Experiences of Black Law School Graduates in 2020, __ Nebraska L. Rev. __ (forthcoming 2021).

From the abstract:

Law students graduating in 2020 faced a number of unusual challenges. However, perhaps no students faced more emotional, psychological, logistical, and financial challenges than Black law school graduates in 2020. In addition to changes in the administration of the bar exam (including the use of technology that struggled to recognize Black faces) and delays in the administration of the exam that led to anxiety and increased financial instability, Black communities were concurrently being disproportionately impacted by the COVID-19 pandemic. The pandemic led to increased care-taking responsibilities for many, concerns over the health of family members, and a lack of quiet and reliable space to study. Black law school graduates already struggling to juggle these challenges were also confronted with a rise in anti-Black police brutality, and the racist words and actions of politicians. As a result of this unprecedented series of stressors, many Black law graduates struggled to focus on studying for the bar, with some choosing to delay or abandon sitting for the bar altogether. Many expressed anger, disappointment, and betrayal at the profession they have worked so hard to enter. This Article summarizes the survey responses of over 120 Black law students who graduated in 2020 and were asked how the COVID pandemic and increased anti-Black violence impacted their health, education, and career aspirations. It seems likely that the impact of 2020 on the presence and wellbeing of Black lawyers in the legal profession will be felt for years to come. As professors, deans, lawyers, and policymakers reexamine the function of the bar exam and confront inequalities in legal education, we need to listen to these graduates’ experiences.

Foundational ASP Scholarship:  

Paula Lustbader, From Dreams to Reality: The Emerging Role of Law School Academic Support Programs, 31 U.S.F. L. Rev. 839 (1997)

From the abstract:

Reviews the history, rationale, development, and different program structures of Law School Academic Support Programs; briefly summarizes learning theory and explains how ASP can implement those theories to teach academic skills; and suggests that notwithstanding the significance of helping students develop solid academic skills, probably the most important work that ASP professionals do is to provide the non-academic support by making the human connection to students and believing in them.

 

(Louis N. Schulze, Jr., FIU Law)

Academic and Bar Support Scholarship Spotlight

ASP Foundational Scholarship Series:  This series focuses on the seminal ASP/ Bar Exam scholarship that contributed to the development of academic and bar support best practices.  

For the first-ever post in this series, I was stuck between two choices.  So, I chose both:  

1.    Knaplund & Sanders, The Art and Science of Academic Support, 45 J. Legal Educ. 157 (1995). 

This article was one of the earliest and most robust empirical analyses of law school academic support programs.  It helped ASP faculty defend the then-controversial pedagogy of "contextualized academic support" and answer the question "Why should we spend money on an ASP?"

From the introduction:

• Our analysis of seven distinct academic support initiatives at UCLA shows that support can substantially and demonstrably improve both short-term and long-term academic performance, but the effects vary markedly across UCLA's programs.

• The variation in academic effectiveness across UCLA's programs follows distinct patterns that yield definite guidance on the pedagogy of academic support.

• We found some evidence that academic support programs can have valuable benefits apart from their impact on grades.

2.     Russell McClain, Helping Our Students Reach Their Full Potential: The Insidious Consequences of Ignoring Stereotype Threat, 17 Rutgers Race & L. Rev. 1 (2016).

Coupled with Professor McClain's conference presentations on this subject and a related TEDx Talk, this article was the first to analyze the phenomenon of stereotype threat specifically as it pertains to law students.  It serves as a crucial resource for ASP faculty, and all others, to understand their potential in ameliorating the effects of implicit bias in the law school classroom.

From the article abstract:

A psychological phenomenon may be a significant cause of academic underachievement by minorities in law school. This phenomenon, called stereotype threat, occurs as a result of the fear of confirming a negative group stereotype....  When subject to this threat — as a consequence of being confronted with environmental or explicit triggers — people do worse in academic settings than they otherwise are capable of doing. In this article, I explore the implications of the research on stereotype threat for law schools and make several recommendations to deal with the threat.

There are natural implications for law school admissions, of course. If a portion of our applicant pool is affected by stereotype threat, then we cannot trust the accuracy of the metrics we typically use in law school admissions, i.e., prior academic performance and LSAT scores of law school applicants. Indeed, those credentials actually may under-evaluate the academic potential of these applicants, who are often minority students. This should cause law schools to reevaluate their admissions policies.

After students are admitted, law school provides fertile ground within which stereotype threat can flourish. This, of course, means that the performance of minorities in law school — in class, on exams, and in other areas — is likely to be diminished, such that many minorities will not perform up to their academic capacity. And, obviously, we would expect this same dynamic to play out on the bar exam.

Law schools can address stereotype threat at each of these levels, and they should do so. This article lays out a framework for understanding and dealing with the threat.

(Louis N. Schulze, Jr., FIU Law).

 

 

Where Does ASP Fit In?

Raising some up does not diminish the work of others. Instead, it improves the whole of legal education. – Darby Dickerson

I am encouraged by the words of AALS President, Darby Dickerson, who calls out the caste system in law schools and advocates for its abolition. The caste system is an unnatural stratification that unnecessarily subdivides the legal academy in a manner that is contrary to the goals and best practices of quality legal education. Yet it prevails.

Dickerson acknowledges that there is much work to do in the quest for parity. She points out that some schools pay those with non-tenure track appointments (“NTT”) one-half or less of the average pay for tenure-line faculty, even with the same (or greater) number of credit hours taught. She also addresses the disrespect and other “affronts” that many NTT must bear, like exclusion from faculty meetings and votes.

ASPers know too well the stinging bite of having tenure-line administrators and faculty dictate which courses we teach and what the content of those courses will and will not include. Sung like the song of our collective souls, Dickerson recounts the common practice of having faculty or faculty committees change or attempt to change program design (e.g., number of credits, grading schemes, course titles, etc.) “without consultation and sometimes over [our] expert objections.” Our ideas and experience-based practices and recommendations for course revisions and program redesign are too often challenged or disregarded. Failing to acknowledge the expertise and accomplishments of non-tenure track faculty and staff is a mistake that should be avoided at all costs.

Of particular interest, is that Academic Support is neither assigned, nor expressly described by, a caste. If titles correlate to perceptions of one’s status, the omission of an entire skills discipline should sound an alarm. ABA Standard 405 makes specific reference to legal writing faculty and clinical faculty, and none specifically to ASP. Legal writing professors deserve every advance they have fought for over the years, and more. Still we cannot presume to be included in the decades-long battle to erode the hierarchy separating doctrine from skills.

Our legal writing and clinical counterparts are rarely categorized as staff. Yet many in ASP have staff classifications, despite teaching required and elective courses. Too many in ASP are denied a voice or vote in the programs they teach or direct, are physically segregated far from the faculty hallways, and are denied budget funding for travel and professional development, and have 12-month appointments that limit writing projects and scholarly pursuits. Have law schools and the ABA created a caste-in-caste system by further subdividing the “skills” faculty? Why is ASP too often omitted from the from discussions about hierarchy and status?

Dickerson asks what our law schools would look like without the labor and skill of NTT. Would our program of education be as robust? Would student class performance and outcomes decline? Would our students succeed on the bar at the same rate? Perhaps we can add to her well-voiced list of questions: 1) how would our profession look without the unnecessary stratification that law schools perpetuate?  and 2) what are we willing to do about it?

(Marsha Griggs)