Law School Academic Support Blog

Cut Scores Impact Racial Diversity of Profession without Protecting Public

The UBE is spreading through the country faster than any legal education reform in recent memory.  A few short years ago, multiple people with information on Oklahoma's decision making thought the UBE would never happen in Texas, and following their lead, Oklahoma would also be one of the last states to adopt it.  Oklahoma disavowed scaling just a few years ago, and then, Texas followed the UBE lemmings.  Once Texas joined the crowd, the Oklahoma Supreme Court created a committee to study adopting the UBE.  One major question for the committee was whether the UBE, through scaling, would impact diversity.  The court also wanted to know if certain cut scores would impact diversity.  At that time, no one had a great answer.  No study looked at both the bar's impact on diversity along with cut score implications.  For Oklahoma, any information was even more irrelevant because Oklahoma was one of only a few states not scaling essay scores to the MBE.  The court proceeded to adopt the UBE without much information on that issue.

At that moment, there was a complete lack of information on critical topics.  Thanks to AccessLex and a team of researchers, we now have a quality study on cut scores' impact on diversity.  AccessLex offers grants for research on legal education issues.  You can read numerous interesting articles on their grant page.  The most recent article on California bar exam cut score is especially interesting.

The article Examining the California Cut Score:  An Empirical Analysis of Minimum Competency, Public Protection, Disparate Impact, and National Standards considers the impact of California's cut sore on diversity while also asking whether cut scores really protect the public from incompetent or unethical lawyers.  The analysis is very interesting.  I encourage everyone to ready the study.  We are in a unique period for bar exam reform and UBE expansion.  We should definitely ask whether the bar accomplishes its intended goal of protecting the public, especially if the impact functionally prohibits diversity of the profession.

(Steven Foster)

 

Becoming More Culturally Proficient

A foundational part of our professional lives as ASPers is providing feedback to students. As we engage students to provide feedback, it is likely that we will sit across from people who differ greatly from us. Try as we might to avoid judging them based on stereotypes or in-group favoritism, we all have implicit biases that may thwart those efforts (even if we like to think we conduct ourselves in an identity-neutral manner).

Some may read this and think: “No, not me. I believe in justice and equity, and strive to treat everyone fairly. I deal with diverse students daily. I’m good.” In truth, however, a person can simultaneously be committed to those principles and largely avoid conscious expressions of bias, yet still have student interactions that are influenced by their implicit biases. We all have blind spots, despite any attempts to “use introspection to acquit ourselves of accusations of bias, while using realistic notions of human behavior to identify bias in others.” Richard A. Posner, How Judges Think 121 (2008). 

Acknowledging this reality is critical if we are to fully leverage opportunities for growth. To that end, the reflection questions below are a helpful starting point for those interested in identifying their orientation/preferences for communication and collaboration.

• How do you like people to communicate with you?
• How do you like to lead?
• How do you like to be led?
• How do you like people to resolve conflict with you?
• How do you like people to collaborate with you?

After reflecting on these points, consider: (1) how your preferences inform the way you provide feedback to students, (2) how your preferences might differ from students’ preferences, (3) how having preferences that differ from students might affect your ability to effectively engage them, and (4) how you can leverage any takeaways in future interactions with students.

References:

Lory Barsdate Easton & Stephen V. Armstrong, How to Minimize Implicit Biases (and Maximize Your Team’s Legal Talent), 58 No. 9 DRI For Def. 80 (2016).

(Victoria McCoy Dunkley)

Final Fridays Webinar "Difficult Conversations on Racial Equity When Educating Law Students"

The AALS Section on Academic Support’s next Final Fridays Webinar, titled “Difficult Conversations on Racial Equity When Educating Law Students,” will focus on facilitating difficult conversations in law school.

On Friday, July 24 at 1:00 EST, panelists Yolanda Sewell (Cooley), Russell McClain (Maryland Carey Law), and Goldie Pritchard (MSU) will provide concrete suggestions on how start difficult conversations around racial equity. We will also discuss who bears the responsibility to facilitate discussions on racial equity and pointers for how to successfully facilitate such conversations. Afton Cavanaugh (St. Mary's) will moderate the discussion. 

Though you will have the benefit of participating live as well, we also ask that you submit questions ahead of time at this link: https://forms.gle/y1RFEUPTnZPJDeYE6. The panelists will address these questions throughout the webinar. 

AALS-ASP Final Fridays Webinar Series “Difficult Conversations on Racial Equity When Educating Law Students” July 24, 2020 1:00 – 2:30 p.m. EST Join Zoom Meeting https://stmarytx.zoom.us/j/8694378868?pwd=bGNtZit2VU1ELytmYnNUcE9SYjNaZz09 Meeting ID: 869 437 8868 Password: AALSASP1 One tap mobile +13462487799,,8694378868# US (Houston) +12532158782,,8694378868# US (Tacoma) Dial by your location         +1 346 248 7799 US (Houston)         +1 253 215 8782 US (Tacoma)         +1 669 900 6833 US (San Jose)         +1 929 205 6099 US (New York)         +1 301 715 8592 US (Germantown)         +1 312 626 6799 US (Chicago) Meeting ID: 869 437 8868 Find your local number: https://stmarytx.zoom.us/u/abN34LLMKX Join by Skype for Business https://stmarytx.zoom.us/skype/8694378868

Participation is free and open to all. The webinars will also be available for on-demand viewing later, via the members-only section of the AALS Section on Academic Support webpage.  The benefit of participating live is the ability to ask questions of our panelists and to engage in the discussion.

Sincerely,

The AALS Section on Academic Support Executive Board

Chair: Jamie Kleppetsch, DePaul University College of Law

Chair-Elect: Melissa Hale, Loyola University Chicago School of Law

Secretary: Kirsha Weyandt Trychta, West Virginia University College of Law

Treasurer: Joe Buffington, Albany Law School

Board Member: Afton R. Cavanaugh, St. Mary's University of San Antonio School of Law

Board Member: Maryann Herman, Duquesne University School of Law

Board Member: Haley A. Meade, City University of New York School of Law

Board Member: Herbert N. Ramy, Suffolk University Law School

My Lifelong Frenemy

As I sat down to put fingers to keyboard for my first blog post, I found myself overwhelmed. Overwhelmed by the sheer number of ideas swirling around in my head. Overwhelmed by my thinking that this post must be perfect, thoughtful, groundbreaking, and transcendent. I was convinced that this post must be rainbows and unicorns rolled into one, it must be as mellifluous and powerful as Aretha Franklin’s voice, it must be everything to everyone, and it must be nothing to no one. 

It took me about 20 minutes to ask myself the obvious question (beyond the other obvious question of why I would set the bar anywhere near the otherworldliness of ‘Retha): “why, exactly, must your first blog post be all of these things?” In that moment, I realized the pressures I felt are traceable to a lifelong frenemy that, much like a phoenix, continues to rise from the ashes: imposter syndrome. Imposter syndrome is characterized by one’s persistent feelings of inadequacy and self-doubt about their abilities or achievements, coupled with a fear of being exposed as a fraud despite those achievements and ongoing success.

Thinking about my old frenemy­ brought to mind a conversation I once had with a student. For the last couple of years, I have served as a panelist during our 1L orientation diversity and inclusion program. At the end of last year’s program, a student approached me to, among other things, thank me for sharing my 1L experience with imposter syndrome. 

I am a Black woman and first-generation college graduate who grew up with few socioeconomic advantages. To say law school was a culture shock would be an understatement. I spent most of my first year convinced the admissions office had erred in admitting me to the law school and much of my second and third years dismissing my achievements as “luck” and “waiting for the other shoe to drop” (i.e. for someone to realize that I was a fraud and did not belong at the law school).

At the end of my conversation with this student, they asked “when did you overcome imposter syndrome?” I do not recall what my answer was in that moment, but the question has triggered several deeply personal moments of introspection. When I think of that conversation, I know the honest answer to that student’s question would have been (and still is): “I’ll let you know.”

If I’m still trying to figure out how to consciously uncouple from vanquish my lifelong frenemy, it is incumbent upon me to be cognizant of similar challenges experienced by students and supportive in helping them work through—or past—those feelings of inadequacy.  To this end, today I renew my commitment to: name my frenemy unapologetically, serve as a sounding board and source of support for students battling imposter syndrome, remind those students of their strength and accomplishments, and encourage them to be kind to themselves.  I also commit to taking my own advice. 

(Victoria McCoy Dunkley)

You Say My Existence Matters, Now What?

This is my leap of faith to be transparent with the hope that I am the voice of someone’s situation. Previous posts by me on diversity on this platform garnered unexpected responses, not in a positive way. I hope that the openness I see around me will allow all who read to receive my words. One thing I learned from my mother is to speak when you feel it is necessary and know that every word and action is a risk. Today, I feel it necessary to write. Let me forewarn you, this may be raw and heartfelt for some but not out of the ordinary for others.

I am a Black woman in law school academic and bar support. As simple as this seems, it is a weighted statement. I contend with a myriad of impressions, judgments, expectations, and stereotypes projected on me by virtue of being black, by virtue of being a woman, by virtue of being in a law school environment, and by virtue of being in academic and bar support. The word count does not permit me to fully explore each aspect but generated here is an outline for a paper. Expectations thrust on me in the professional environment about how I should carry myself, how I should dress, and how I should speak are abundant. Also thrust on me are expected and projected limitations in my ability to be successful and thrive professionally are daunting. I balance this all while carrying the weight of expectations of immediate family, extended family, adopted family, and community because “I made it”. Why didn’t I matter earlier when I expressed the struggles I carry?

I am touched by the individuals around me who check-in, ask if I am okay, tell me I am valuable, show care, express anger, and even apologize. I used to say I am okay but lately, I say I am not okay.  It is not because of all the happenings on the news, though I am significantly impacted by it, it is because those around me only seem to hear my voice now, but I am still invisible to them. I understand that for some it is too “real” to have a conversation that might highlight the fact that you injured me by your actions and inactions and made me feel less than and undervalued even though you thought you supported me. When will we have that conversation? Will you still be invested in me a month from now? Six months from now? Therein lies why I am not okay. Your silence makes me fearful that you are not committed.

As academic support and bar professionals, our focus and heartbeat are our students. I was once a black student, a female student of color. We need to examine ourselves and ask if we do not provide our colleagues of color with the care and support, then are we truly living up to the mission, values, and origins of law school academic support. I challenge my academic support colleagues and others who do not identify themselves as individuals of color or of indigenous populations to evaluate how they engage with colleagues of color and students of color. Please be proactive and intentional. Do not simply say you are an ally and you care but have no action to support your statement. Be courageous and willing to stand for and endure the consequences for something or someone you say you care about.  If you value me, you will see me, you will hear me, you will try to understand me, and you will empathize with me.

My experiences and life are not a trend; I am a human being just like your grandmother, mother, sister, cousin, and daughter. Please show-up as an ally and not simply as a bystander as I am destroyed by others. Someone once said, say what you mean and mean what you say. Honestly, I do not have all the answers and my concerns may be very different from the next person, but I call you to action and challenge you to:

• Read and implement information from Law Deans Antiracist Clearinghouse Project on the AALS page[1]
• Read the #BlackInTheIvory, while focused on higher education, information is applicable to black, brown, and indigenous colleagues and students in the legal arena[2]
• “Cite Black Women”, persons of color or indigenous persons[3]
• Use your power to occasionally give up your seat for the next person
• Dismantle the “isms” for the rest of your life
• Notice a silenced voice and amplify it
• Share the microphone and spotlight
• Be uncomfortable
• Mean what you say
• Use your power
• Take a risk

If you expect the process to be perfect, I am sad to tell you it will not be. You are going to mess up and you might mess up a lot. You must start so start with someone who is open and will tell you the truth. I can be blunt on occasion and don’t speak for everyone, but you are more than welcome to start with me.

True change starts with you!

(Goldie Pritchard - Guest Blogger)

 

[1] https://www.aals.org/antiracist-clearinghouse/?fbclid=IwAR2Gh40j-iVhV1mnlfnX-qqNnl3-_vXBEfxc7DhbNWtrB4Olio6R-YJStQM

[2]#BlackIntheIvory was co-founded by Dr. Sharde Davis and Joy Melody Woods

[3] ”Cite Black Women” created November 2017 by Dr. Christen A Smith to push people to engage in citation that acknowledges and honors Black women’s intellectual product

What I've Learned

One year ago this month, I wrote my first post for the ASP blog. And while it seems like only yesterday that I began my quest to bombard readers with my weekly musings, I have decided to step aside to make room for other voices to be heard through this forum. Today will be my last post as a regular contributing editor, and I will use this opportunity to reflect on the wonderful learning and growth experience that the year has brought.

I’ve learned that:

Education and advocacy are not parallel paths, but rather an important intersection at which the most effective teachers are found. I left a high stakes commercial litigation practice for a role in academic support. I naively believed that an effective teacher had to be dispassionate and objective and more focused on pedagogy than on legal advocacy or controversial topics. However, I grew to realize that the very skills that made me an effective lawyer still guided me in the classroom to teach my students and to open their minds to new perspectives. My realization was affirmed when ASP whiz, Kirsha Trychta, reminded us that the courtroom and the law school classroom are not that different.

Anger can have a productive place in legal education and scholarship. I don’t have to conceal or suppress my passion to be effective as a scholar. I am angry on behalf of every summer (or fall) 2020 bar taker. I am bothered by states that are so tethered to tradition that they refuse to consider the obstacles and challenges of preparing for a bar exam during a pandemic. It troubles me to see law schools close the doors to their libraries and study spaces, and yet expect 2020 bar takers to perform without the benefit of quiet study space and access to internet and printing. I am flat out disgusted by the notion of forcing law students to assume the risk of death to take the bar exam. And I waive my finger to shame the states that have abandoned exam repeaters and that waited or are still waiting to announce changes to the exam dates and format after the bar study period has begun. These states have essentially moved the finish line mid-race, and our future lawyers deserve better. But thanks to the vocal efforts of others who have channeled their righteous anger into productive advocacy and scholarship, I’ve seen states like Indiana, Michigan, Nevada, Utah, and Washington emerge as progressive bar exam leaders in response to a crisis.

Silence is debilitating. Like so many others, I was taught to make myself smaller, to nod in agreement, and avoid topics that would make others uncomfortable. The untenured should be seen, not heard. I am the person that I am because of my collective experiences. Stifling my stories and my diverse perspective would be a disservice to my calling and to the next generation of lawyers who need to be met with a disheartening dose of racial reality. As soon as I showed the courage to speak up and step out of other people’s comfort zones, I found that I was not alone. My ASP colleagues, like Scott Johns, Louis Schulze, and Beth Kaimowitz and others, were right there speaking out too.

Glass ceilings become sunroofs once you break through them. In the last few years, I have seen more and more of my ASP colleagues earn tenure or assume tenure track roles. And while a job title or classification, will never measure one’s competence or value, our communal pushes for equity are visibly evident. ASP authors continue to make meaningful contributions to scholarship in pedagogy and beyond. Thank you to Renee Allen, Cassie Christopher, DeShun Harris, Raul Ruiz, and the many, many, many others who I can’t name but whose work I’ve read and admired. With varied voices, we are paving the way to enhanced recognition and status in the academy, and with mentorship and writing support we are forming the next wave of formidable ASP bloggers, scholars, textbook authors, and full professors.

(Marsha Griggs)

What If . . . ?

But opportunity is real, and life is free, equality is in the air we breathe. – Langston Hughes

Today I see my country, my life, my career, and my future through the convoluted lens of multiple opinions. My aspirations, both professional and private, are crowded by polarized expressions of rage, shock, and dissatisfaction. As I fight the soul soothing desire to escape the madness that for me is today, yesterday, and tomorrow, I retreat into a self-denying sense of duty that is my temporal high calling – to help others. To help others pass the bar exam and to succeed in law school is the calling of academic support. I am one of a wonderful community of academic support professionals who work tirelessly to help law students and law graduates develop the skills for academic success and bar readiness. As I ponder this special calling, I ask myself, what if countries were like ASP?

What if we had ASP-like programs and opportunities that were available to all members of society? What if coaching, and other resources were made equally available to every and any person who wanted or needed them? What if governments sought out the weakest and most vulnerable members of society to make sure that those most in need of extra help were aware of the resources available? What if national communities were organized in the most ASP-ish of manners, so that support resources could be shared freely, and various cities and states could benefit from this system of open-access without costs or competition? What if all members had the benefit of practice exams and test drives that carried no lasting consequence other than early exposure and preparation for the true tests of life?

For those unfamiliar with the term ASP, Cornell Law School provides some guidance. ASP, or “Academic Support Programs, are available to help all students develop the skills necessary to succeed in law school.” Law schools are purposely, and rightly, inclusive in the scope and description of their academic support services. CUNY School of Law is “committed to providing academic support services to all students who need them.” These descriptions are both accurate and aspirational. ASP is for everyone and anyone who wants or needs it.

Yet, those of us who lead and direct institutional academic support programs know that, although available to all, not all students take advantage of ASP. In fact, the students who we serve most commonly, or rather those who are most often targeted for inclusion in our programs, are the ones most in need of the supplemental opportunities provided by ASP. We willingly make resources available to all, but the success of our programs will be measured, inter alia, by the degree to which we mitigate the “failure-risks” presented by some students based on admissions indicators or law school performance.

As I again consider my precious and special calling and my wonderful ASP colleagues and the many students in whose lives we make real differences, I ask – what if ASP were like countries? What if we could not single out the students for whom our programs were created? What if we were not permitted to tailor the focus of our programs for those with the greatest academic need and those with socioeconomic disadvantages? What if we were forced to dilute the quality and quantity of remediation for the ones at risk of academic dismissal, to prevent the appearance of non-inclusiveness? What is ASP “for all” was interpreted to mean that ASP “for some” was exclusionary and an affront to the importance of the entire student body? The notion of academic support available to all is not cheapened or compromised by the calculated and deliberate act of making sure that the reach of our services extends to, and includes, those for whom denial of such services would make legal education far less likely. After all, ASP exists to level the playing field and make a diverse and inclusive legal profession more likely, not less.

In the end, I guess I am glad that ASP is not like the countries that I know of, and I am left to wish that countries could be more like ASP.

(Marsha Griggs)

Constitutional Disregard

I've taken the title to this little blog from a phrase in the recent post of Prof. Marsha Griggs, calling us, all of us, to action and resolve to fight, work, and promote justice. Griggs, M., "Despicable Us," Law School Academic Support Blog (June 2, 2020).  As Prof. Griggs reminds, it's our oath, and in that oath, we say that we are committed to safeguard justice for all.  But what if there's little to safeguard?  What then?

The horrific brutal torture and killing of another innocent person just last week makes one wonder.  There have been so many others, not just in the U.S., but around the world.  What is it that leads so many to blindly look away, to not care or empathize, to sit on laurels when, frankly, the laurels are all dried up?

I'm tired of calls to come together and talk.  And, in light of the ongoing protests, it seems like I am not alone.  But as Prof. Griggs points out, most are silent.  

So often I'm that one - the silent one.  I'm not sure what I can do or say but I know that I hold a position of great responsibility, which obligates me to spring to action to make the world as right as it can possibly be.  That takes real work, not trite talk.  I'm worried that so few really want to do that work, that so few are really eager to change, that so few are so wedded to the present that there's little promise or hope for a brighter future. I'm worried that I'm one of those, waiting for others to right an upside down world.

I didn't know what else to do.  So I wrote letters.  First to the mayor of Minneapolis.  Then to the police chief.  Next to the mayor of Denver and the police chief of Denver.  Finally to my U.S. senators and local U.S. representative.  

Everyday counts because every person counts.  As I tried to explain to my students this summer, there are ways to move forward towards the pursuit of justice, right now.  

First, take a look at how many municipal ordinances and state laws provide for incarceration.  I think that many of those punishments are out-of-all proportion with the social harms for which criminal laws are supposed to countenance.  And, the lack of proportionality is, I think, a violation of constitutional due process because it burdens people for no reason at all.

Second, take a look at the details of what happened in Minneapolis.  A telephone call about a possible counterfeit $20 bill.  Two police show up to investigate. One draws a gun and orders Mr. Floyd out of the car.  $20 dollars.  What happened to the investigation?  It was like the police wanted to make an arrest.  The alleged crime being investigated, I think, was a specific intent crime, requiring proof of both the act of using counterfeit currency to purchase goods or services along with the mental state of intent to use counterfeit currency.  Under the due process requirement of the Constitution, that would seem to require a real investigation rather than drawing a weapon.  It sure seems like a violation just to walk up to a car and threaten someone's life with lethal force without at least asking any questions.  That's why I wrote to the city leaders and politicians admonishing them to reform criminal laws to require the issuance of citations rather than proceeding with arrests, which are by their nature acts of force and the escalation of force.  Better to proceed with deescalation, issue a citation after a thorough investigation, and then bring the issue in front of an independent magistrate. 

Third, I've read a lot of police reports.  They talk a lot about probable cause but in general have little facts to show for it.  And, because the Constitution requires both probable cause to issue a citation or to make an arrest, with reasonable trustworthy facts as support, its time to ensure that police reports, etc., list identifiable, particularized, concrete allegations of fact to support both the culpable criminal act of the crime alleged along with the culpable mental state.  In my opinion, that's a requirement of not just the Fourth Amendment but also the Due Process Clause to provide meaningful notice of the specific grounds for criminal charges.  What if police reports fail to identify such facts? It's defective and the citation, arrest, and/or indictment should be quashed, immediately.  And, the police authorities who harmed a person by failing to provide constitutional notice ought to be liable under civil rights laws for acting under the color of law without constitutional authority in explicit derogation of due process protections.  And prosecutors that pursue such defective charges ought to be held accountable by regulatory agencies, the public, and the legal system.

Fourth, according to news media, at least one of the police officers arrested and charged for the death of Mr. Floyd had previous disciplinary records, which, as far as I can tell, resulted in little action and were not available to the public at large.  When political leaders, as our representatives, appoint police officers, as our agents, and when the political leaders then arm those police officers with lethal force, the HR records of those officers should be available to us all.  Nothing should be secret; after all, the police are supposed to work for us.  But, I hesitate to add, police unions are mighty powerful.  Often times, it seems, more powerful than political leaders.  But if a union protects someone who is engaged in unlawful acts, then we should hold unions accountable too.

Perhaps my suggestions to politically powerful leaders won't make any difference.  So far I've not received any responses.  But I'm not giving up.  All of us only have one life to live.  It's up to us to choose to live it fully, wisely, and for others.   I fall short, so often, and all the time.  But with each day, we get a new opportunity.  The past need not hold us back, if only we have the courage to act.  After all, that's the constitutional duty that we've pledged ourselves to embrace on the behalf of others. To act justly on the behalf of others. (Scott Johns).

P.S. As a starting point, please take a look at Attorney General Ellison's statement and the criminal charges filed against the 4 Minneapolis police officers:

https://www.ag.state.mn.us/Office/Communications/2020/06/03_GeorgeFloyd.asp:

I quote in part the words of Attorney General Ellison from the news release:  "

"To the Floyd family, to our beloved community, and everyone that is watching, I say: George Floyd mattered. He was loved. His life was important. His life had value. We will seek justice for him and for you and we will find it. The very fact that we have filed these charges means that we believe in them. But what I do not believe is that one successful prosecution can rectify the hurt and loss that so many people feel. The solution to that pain will be in the slow and difficult work of constructing justice and fairness in our society.  

That work is the work of all of us. We don’t need to wait for the resolution of the investigation and prosecution of the George Floyd case. We need citizens, neighbors, leaders in government and faith communities, civil- and human- rights activists to begin rewriting the rules for a just society. We need new policy and legislation and ways of thinking at municipal, state, and federal levels. The world of arts and entertainment can use their cultural influence to help inspire the change we need. There is a role for all who dream of a justice we haven’t had yet.  

In the final analysis, a protest can shake the tree and make the fruit fall down. But after that fruit is in reach, collecting it and making the jam must follow. The demonstration is dramatic and necessary. But building just institutions is slower and more of a grind, and just as important. We need your energy there too. We need it now." 

 

 

Despicable Us

My house is made of candy, and sometimes I eat instead of facing my problems! – Gru, Despicable Me 2

As a nation we have problems to face, but a complacent majority seems to be turning to self-comfort and denial instead of confronting the problems head on. In the legal profession, complacency will cause the voice of the oppressed to fall on deaf ears. The greatest risk of self-regulated and unregulated professions is smug indifference to social change. As legal professionals, we are trained advocates. Trained first to advocate for ourselves and then for our clients, our students, and the protection of the rights of the commonwealth.

We took oaths to defend the Constitution and to conduct ourselves ethically. History and now recent events have proven and reminded us that silence in the face of injustice is unethical.  We are not powerless to uphold law and order. We are equipped with the voice, credibility, network, skill, education, and training to effect change and to preserve lawfulness. In our silence and inaction, we become complicit in crimes and civil wrongs against those in dire need of advocacy.

Like all of us in ASP, I am a fervent advocate for my students and alumni. I want them to have sufficient bar prep resources, and fair and reasonably transparent practices in the administration and scoring of the bar exam. One of the most important things about our bar policy advocacy is that we are advocating for positions that will not affect us personally or professionally. On a daily basis, we demonstrate staunch support and fervent advocacy for a fair exam process for bar takers, even though we already hold law licenses and don’t need to take a bar exam.

In that vein, we should also be able to lend our voices to causes that may not “seem” to directly impact us. The ABA Model Rules of Professional Conduct remind us that as lawyers, we have a “special responsibility for the quality of justice.” As legal educators we are molding the next generation of lawyers. A generation that should be shaped with more than our thoughts and prayers. Last week the world witnessed a modern-day lynching by knee, with the assailant face to camera and hands in pocket. This horrific and callous homicide and all events in its aftermath will not be brought to justice on social media or in the courts of public opinion.

If the Constitution that we are all sworn to uphold means anything, then lawyers, law professors, judges, prosecutors, clerks, and peace officers will put to use their advocacy skills, training, and public reach to bring about the justice that has continued to elude people who look like George Floyd, Philando Castile, Botham Jean, Sandra Bland, Tamir Rice, Michael Brown, Alton Sterling, and others. Unless we use our voices and our knowledge of policy, procedure, and statutory construction to protect people who jog, play in public playgrounds, drive luxury autos, travel by car with their children, and eat dinner or sleep in their own apartments, we will have progressed too far down a path of Constitutional disregard.

Our houses are not made of candy, and we cannot afford to turn a blind eye to challenges to justice and equality.

(Marsha Griggs)

We See You

The bar exam is so much more than a test. It is an arduous all-encompassing journey that begins with months of study and practice. Today, the journey comes to an end for the February bar takers. As we send positive thoughts and well-wishes to our students taking the bar exam, we should consciously acknowledge the individuality of the journey for each student, the diversity of experiences, and the sacrifices that were made to reach this point.

Bar takers of all ages and backgrounds have sacrificed, surrendered, lost, ignored, delayed, and missed so much while studying for the bar. Yet, life circumstances would not pause during bar study. Some wed, or welcomed a new child; others dealt with the loss of a pet or family member; some faced separation or divorce; while others moved in, moved away, or moved back home. There are bar takers who made the necessary decision to leave young children in the temporary care of  family or friends, while others had to find ways to incorporate parenting and family time, or perhaps elder care, into the bar study routine.

For so many, there were financial struggles. Students took out loans to pay for a bar course, to eat, to live. Some quit their jobs for full-time bar study; others lost their jobs because they could not keep up with the hours and the demands of study. Repeat takers managed the stigma and financial distress of a second, or third, bar prep period. No dollar amount can truly capture the real cost of studying for the bar. There is a toll on your body, your back, your hands, and your eyesight.

Bar takers everywhere, we see you. We acknowledge your struggle. We affirm your efforts and we cannot wait to celebrate your success!

(Marsha Griggs)

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.

14th Annual Meeting of Law School Diversity Professionals

Mentors, Students, and Student Support

I recently attended a meeting of our law school alumni to talk with them about being mentors.  We have a very energetic alumni community, many of whom participate in our school's formal mentoring programs -- one for our 1L students, to help introduce them to law school and the legal profession, and one for our 3L students, to provide guides for their transition into the working world.  Like most mentors, these alumni are eager to provide guidance and support.  Still, those of us who run the mentoring programs know that there are every year a small number of mentors whose experience in the program turns out to be awkward or even unpleasant.  Sometimes their students fail to demonstrate the zeal or professionalism the mentor had expected, and other times the student and the mentor just do not seem to hit it off.  Because our alumni mentors are such a valuable resource to our students, and therefore I don't want to lose any mentors due to a single unpleasant interaction, I offered the following thoughts:

All of our students possess varied interests, strengths and weaknesses, and past experiences, each across a broad spectrum.  Broadly speaking, though, we can divide the students who participate in our mentoring programs -- our "mentees", as we say -- into four groups, based on the extent to which they possess each of two characteristics key to any sort of networking relationship: enthusiasm and know-how.

The first group are the students who possess both.  They understand what goes into developing a professional relationship, and they are genuinely interested in working with their mentors to develop such relationships.  These are the dream mentees -- they ask lots of thoughtful questions, and they listen to your answers; they participate appropriately, whether invited to a one-on-one lunch or to a busy firm event; they know how to make eye contact, what to wear, and when and how it is appropriate to change or cancel planned meetings.  To mentors who are lucky enough to have one of these mentees, I say: Congratulations!  This is a great opportunity for you to help someone make the most of what you have to offer.  Challenge them a bit, and they will likely rise to the occasion.

The second group of mentees are enthusiastic, but they do not quite know what they are doing in a professional relationship.  In the moment, face to face, they may come across as quite interested, perhaps even charismatic.  But they are also capable of making striking faux pas -- wearing torn jeans to a business-casual luncheon, for example, or failing to show up for a scheduled meeting without calling or email to let the mentor know.  These folks are often achievers in an academic context, but have had little experience in practice.  They may want to reap the benefits of a mentoring relationship, but simply not realize that they are missing opportunities, and perhaps even causing offense, along the way.  But . . . that is one of the main reasons we introduce students to mentors -- to help them learn this kind of professional behavior that they may never have encountered before.  And even if they can be somewhat clueless, at least the members of this group do possess that enthusiastic motivation,  That is something that a mentor can leverage, by inviting participation, in the knowledge that such invitations will usually be accepted, and they by pointing out that the behaviors they are failing to demonstrate are some of the very skills they were hoping to develop.  So this group of mentees may sometimes elicit eyerolls, but by playing off of their enthusiasm, mentors can help them to overcome their deficiencies.

The third group of mentees are those in the opposite position.  They have the know-how -- for whatever reason, perhaps a previous job or perhaps just a supportive upbringing, they have a proper sense of professionalism, and in fact may come across as very worldly.  But they act as if they do not see any value in a mentoring relationship.  They do not display any particular enthusiasm, and may even seem to treat the mentoring relationship as a chore.  They may see a mentoring program as a kind of remedial finishing school for emerging professionals -- one they do not need, because they know which fork to use -- and not recognize the rich possibilities for connection and experience that a mentoring relationship holds.  But, as with the second group, at least this group does possess one asset that can be leveraged -- in this case, their ordered sense of professionalism.  A mentor could take advantage of that by inviting their mentee to participate in gatherings and events, by introducing them to colleagues, by prompting them to talk about their interests and plans.  The mentee's own worldliness will prevent them from totally ignoring all of these opportunities, and each meeting and conversation can be a wedge, opening up their minds to the realization that a mentoring relationship can be much more than a series of ritualistic interactions.

But this brings up to the fourth and final group, the most difficult group for mentors to contend with -- students who are neither enthusiastic nor knowledgeable.  These are the students who don't know how to be a mentee, and don't see why they should.  They might not even participate in a mentor program if it is not required.  These are usually students without any role models in the legal community, or perhaps in any professional community.  They can be tough on mentors, because they are the type who might miss a scheduled meeting, without warning or explanation, and then not see any reason to feel bad about that afterwards.  Sometimes mentors, seeing apparent futility in trying to encourage these mentees to participate, simply give up after a few attempts.  And this is a terrible loss to both the student and the mentor, because these are the students who need this mentorship the most, and theirs are the mentors who would justly feel the greatest satisfaction if they were able to teach these students how to be great mentees.  It can be hard to get these relationships to catch, because there is neither enthusiasm nor know-how there to leverage.  But because these mentoring relationships are, in a sense, the most valuable, these are the ones we, in student services, want to do the most to help nurture and preserve.  So I encourage our mentors to turn to us for support -- to ask us to approach these mentees from our side, so that we can nudge them into at least testing the mentorship waters, and so that, by explaining plainly what is expected of them, and what to expect from their mentors, we can lower the barriers of self-consciousness and dubiousness that might be keeping them from committing to the process.

Mentoring is, after all, only one facet of the larger construct of the legal community, and those who support our students in school can also support those who support our students out of school.

[Bill MacDonald]

Disruptive Diversity

The Chronicle of Higher Education recently published an essay by Pamela Newkirk. The article, Why Diversity Initiatives Fail, addresses the measurable lack of progress at elite U.S. universities in creating sustained diversity. The article cites that African Americans and Hispanics, who account for about 31% of the national population, are just 4% and 3%, respectively, of full-time professors. I would add to that statistic the fact that women and people classified as minorities disproportionately hold untenured and non-tenure track positions in law schools, which feeds status issues within the legal academy.

Newkirk references the millions of dollars spent on in-school diversity initiatives, but says “there is little indication that they have resulted in more diversity or less bias.” A disheartening reality, finds Newkirk, “there’s some evidence that some of the anti-bias strategies can actually make matters worse.” I am pained at the notion that many educational institutions that profess inclusive and non-discriminatory policies have not effectively confronted the systemic and implicit biases that stunt the academic, professional, and career development of their students, faculty, and administrative leaders.

“Strategies for controlling bias — which drive most diversity efforts — have failed spectacularly,” said sociologists Frank Dobbin and Alexandra Kalev in their study, Why Diversity Programs Fail, (Harvard Bus. Rev. 2016). For me, reading articles like Newkirk’s, and studies like Dobbin and Kalev’s, are like amening a sermon from the choir stand. Their published works simply add discourse to the reality of my existence. Too often, I have witnessed or experienced the dismissive nature of privilege and its righteous indignation when it dares be challenged. Inside and outside of the classroom, I have been mansplained, prof-splained, and most recently student-splained. I struggle to describe the simultaneous disbelief and frightening foreseeability that I experienced when I distinguished two legal principles in response to a student question, only to have another student repeat my explanation verbatim, but in a tone that would suggest that the student had added, expanded, or corrected my explanation in some way. The resultant outcome was a head nod and an audible “thank you” from the questioning student, and an internal eye roll from me.

Diversity, as we have come to use the term, is a disruptor of the presumption and perpetuation of privilege. To the extent that diversity promises, or threatens, to disrupt the status quo in higher education, we are all affected. Lawyers and affirmative action opponents must be confronted with the hypocrisy of their fight against race-based denials for entry into competitive graduate programs and prestigious positions. Law professors, academic support professionals, and student affairs administrators must continue to promote diversity, inclusion, and opportunity for our students even when our own statuses are minimized and disregarded.

(Marsha Griggs)

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)

The Charisma of Numbers

Today's Washington Post has a fascinating and disturbing article about the company HireVue and its signature product, an artificial intelligence hiring system through which employers can set up automated "interviews" with prospective employees.  The system "uses candidates’ computer or cellphone cameras to analyze their facial movements, word choice and speaking voice before ranking them against other applicants based on an automatically generated 'employability' score."  Based on these scores, HireVue's clients -- which include large organizations like Unilever and Goldman Sachs -- can choose which candidates they would like to bring in for actual human interaction.

The growing reliance of employers on HireVue and its competitors suggests several issues of interest to law students.  Can we expect that someday soon, they too will be forced to welcome their new computer overlords by developing another set of skills -- namely, the art of using just the right expressions and intonations to appeal to the interviewing algorithm?  How do we even know what appeals to that algorithm, and whether the appealing features actually bear any relationship to job performance, if HireVue releases no information about what it is measuring, what it assigns value to, or, indeed, even what a candidate did wrong?  (The mystery and validity issues echo some complaints about the UBE, but at least bar examinees are told their scores.)  Like it or not, this Pandora's boxing ring is now open, and it's only a matter of time until young attorneys are sent in to altercate.

To get some perspective on the rigor of the HireVue system, the Post reporter spoke to researchers in applicable fields, including Luke Stark, an AI researcher who was

skeptical of HireVue’s ability to predict a worker’s personality from their intonations and turns of phrase. . . . Systems like HireVue, he said, have become quite skilled at spitting out data points that seem convincing, even when they’re not backed by science. And he finds this “charisma of numbers” really troubling because of the overconfidence employers might lend them while seeking to decide the path of applicants’ careers.

The charisma of numbers is something I feel I run up against over and over again.  And I say this as a person who values data and statistics!  I believe it is difficult to make consistently effective decisions or to take wise action without obtaining and evaluating relevant numerical information.  And, true, in a field in which our success is largely measured numerically (GPAs, retention rates, bar passage rates), numbers can possess either star power or infamy.

But, notwithstanding their dazzle and clout, numbers should only be powerful if they are attached to something meaningful.  If they are being misused or misunderstood, that can mean mistaking the sizzle for the steak.   Figures can be seductive when they seem rounded, or extravagant, or provocative, or revealing.  It's easy to jump on the conspicuously appealing numbers -- the highest GPA, the apparently significant pattern in MBE scores, the increase in median starting salaries -- just as it's easy to be attracted to the confident, well-spoken cutie who walks into the party.  But the GPA might be based on a disproportionate number of generously graded courses; the MBE pattern might be statistically insignificant; the median salary increase might represent slippage, not advancement, if similar schools are seeing an even larger increase.  Causes, reliability, and context all matter.

The danger of the charisma of numbers is that sometimes, even when a person is only looking at the surface, they don't feel like they are being shallow, because numbers are supposed to be scientific and rational.  We need to remember, and teach our students and colleagues, that, even with the most alluring numbers, you should really spend some time with them first, get to know their flaws and idiosyncrasies, before you commit to them.

[Bill MacDonald]

Talk to Me

As Bill MacDonald reminded us in yesterday's post, this is the time of academic potential and progress. It's also the time of raw nerves. While there's no panacea, there's a good starting place -- and that's talking it out. (And a little patience and humility help, too.)

In the first flush of excitement at the beginning of fall semester, we all tend to be on our best behavior. Faculty and staff want to show 1Ls that they chose the right law school; 1Ls and transfer students want to show the law school that its faith in admitting them was justified. Every person -- whether faculty, staff, upper-division student, or incoming student -- wants to put her or his best foot forward. It is the honeymoon phase of law school. At the end of the semester, as final projects wind up and exams loom, and as we have come to understand each others' foibles, we are too engaged in the big stuff to pay much attention to minor shortcomings. Like a long marriage, there is a sense of understanding and acceptance, even when we acknowledge that the relationship may not be not perfect. 

But the middle of the semester? That's when mannerisms which at first seemed charmingly awkward now grate on your nerves. That's when the workload, initially so manageable, now seems to loom over every hour of the day and night, weekday and weekend. That's when instructors, instead of praising every good-faith effort, now critique openly or press for more concise and precise answers in the classroom and for more tightly-reasoned, well-constructed written work product. That's when the e-mail deluge threatens to overwhelm every person in the law school, with every message being urgent and needing immediate attention, even while you must attend more mandatory meetings and respond to more. So the stress level goes up, and up, and up, and tolerance for others can plummet.

In A Short & Happy Guide to Being a Law Student (which I'd submit is also a pretty good guide to being an ASPer), Paula Franzese suggests, "Give everyone and everything the benefit of the doubt. . . . People will rise or fall to your level of expectancy about them. When someone disappoints you, simply say to yourself, 'She wasn't in her right mind just then. She'll get back to good.'" 

To Professor Franzese's wise words, I'd add a second piece of advice, which is to go to the source. Did the professor (or student) say something which seemed inappropriate? Are they doing something that is making it hard for you to do your best? If it feels safe, try talking with them directly.

If you don't feel safe, the conversation cannot be direct. For example, if a person screams in your face and punches a fist through the wall, or invades your personal space and growls, "I know where you live, and I'm watching you" (both happened to me in my law school career), you cannot have a safe direct conversation.

Notice I didn't say "If it feels comfortable." Because hard conversations are often uncomfortable, but having the direct conversation often makes matters better. So if a person made an insensitive remark, or someone is wearing so much body spray you can't be in the same room, or if an instructor is piling on what seems to be an excessive amount of homework, or -- well, you can fill in scores of other examples -- then the best way to address the problem is usually the direct approach. Go talk with them, and listen to them. Assertive speech and active listening aren't just skills for the classroom -- they are skills for life, and for the practice of law. Act on the assumption that most people are of good will and don't want to offend you or sabotage your work. Moreover, the folks who have (usually inadvertently) caused you discomfort will appreciate hearing from you first-hand rather than hearing of your disgruntlement from others. They can apologize or explain directly to you, rather than involving others or going through layers of bureaucracy. So respect yourself and respect others by talking with them. You'll probably be pleasantly surprised.

(Nancy Luebbert)

Be-Long-Ing! It's Critical to Success!

It's never too late to make a difference…a positively meaningful difference...to improve academic performance for students, and, in particular, for underrepresented students.  

You see, as demonstrated by social science research from psychologists Gregory Walton and Geoffrey Cohen, a sense of belonging - as a valued participant within a cooperative learning community - is critical to academic success.

Indeed, belonging changes lives.  

And, there's more great news.  

According to the research, just a "brief social-belonging intervention" can make all the difference. A Brief Social-Belonging Intervention Improves Academic and Health Outcomes of Minority Students.  And, that brief intervention is especially valuable for African-American students. Id.

So, here are the details, at least as I paraphrase the research findings.

Preliminarily, the researchers hypothesized that a brief intervention in the first week of undergraduate studies - to directly tackle the issue of belonging in college - might make a measurable impact with respect to academic performance and health outcomes.  As background, previous research had suggested that a lack of a sense of belonging was particularly detrimental for academic success in college. 

The research intervention was threefold.

First, the researchers directly shared survey information with students, showing that most college students "had worried about whether they belonged in college during the difficult first year but [they] grew confident in their belonging with time." Id.

Second, the students were encouraged to internalize the survey messages about belonging by writing a brief essay to describe "how their own experiences in college [in the first week] echoed the experiences summarized in the survey." Id. 

Third, the students then created short videos of their essays...for the express purpose of sharing their feelings with future generations of incoming students, so that participating students would not feel like they were stigmatized by the intervention (but rather that they were beneficially involved in making the world better for future generations of incoming students - just like them). Id.

According to the research results, surveys in the week following the intervention indicated that participating students sensed that the intervention buttressed their abilities to overcome adversities and enhanced their achievement of a sense of belonging.  

And, the impact was long-lasting, even when participating students couldn't recall much at all about the intervention.  

The researchers then used the statistical method of multiple regression to control for various other possible influences.  

As documented by their research findings, the intervention was particularly beneficial for African-American students - both in terms of improving GPA and also for improving well-being.  In short, a brief intervention led to demonstrable benefits with students outperforming such traditional academic predicators such as standardized admission test scores.  That's big news.

That brings us back to us ASPers!  

As ASPers, we have a wonderful opportunity to engage in meaningful interventions...by sharing the great news about social belonging.  

But, there's more involved than just sharing the news.  

Based on the research findings, to make a real difference for our students, our students must not just see themselves - in the words of the research psychologists - as just "beneficiaries" of the intervention...but rather as "benefactors" of the intervention. Id.  

In short, the key is to empower our law students with tools to share with future generations of students what they learned about adversity, belonging, and overcoming…and how to thrive in law school.  

Wow!  What a spectacular opportunity…and a challenge too!

(Scott Johns)

P.S. Here's the research abstract to provide a precise overview of the research findings:  

"A brief intervention aimed at buttressing college freshmen’s sense of social belonging in school was tested in a randomized controlled trial (N = 92), and its academic and health-related consequences over 3 years are reported. The intervention aimed to lessen psychological perceptions of threat on campus by framing social adversity as common and transient. It used subtle attitude-change strategies to lead participants to self-generate the intervention message. The intervention was expected to be particularly beneficial to African-American students (N = 49), a stereotyped and socially marginalized group in academics, and less so to European-American students (N = 43). Consistent with these expectations, over the 3-year observation period the intervention raised African Americans’ grade-point average (GPA) relative to multiple control groups and halved the minority achievement gap. This performance boost was mediated by the effect of the intervention on subjective construal: It prevented students from seeing adversity on campus as an indictment of their belonging. Additionally, the intervention improved African Americans’ self-reported health and well-being and reduced their reported number of doctor visits 3 years postintervention. Senior-year surveys indicated no awareness among participants of the intervention’s impact. The results suggest that social belonging is a psychological lever where targeted intervention can have broad consequences that lessen inequalities in achievement and health."

Gregory M. Walton, et al, Science Magazine, 18 Mar 2011: Vol. 331, Issue 6023, pp. 1447-1451.

 

Let Me Use Words You Can Understand

Last year, one of my international students brought to me a response she had written to a mid-tern exam question.  She was wholly perplexed, because the professor had given her a low score on this particular response, and yet, even in looking at the notes the professor had written on her paper, she could not fathom where she had gone wrong.  Bizarrely, the more the two of us discussed her essay, the more confused I became about why she had written what she had written.  Finally, and wholly by accident, I stumbled across the source of the trouble.  At one point the exam question referred to someone being "served", and my student had not recognized this usage as being connected with "service of process".  The latter term she understood, but she read the off-hand and abbreviated statement that "X was served" as some form of hospitality, not legal action. ("Have some tea!") This was partly because English was her second language, and undoubtedly also partly because she did not grow up watching movie and TV shows in which frumpy anonymous operatives walk up to the protagonists, slap envelopes against their chests, and say, "You've been served!"  For much of our discussion, it had not even occurred to me that this could be a source of confusion, and of course there was no way the student could have known it herself.  

I thought about this episode last week, when I was attending a conference hosted by the NCBE, in which some of the presenters were discussing the ongoing evolution of the development of MBE and MEE questions.  Part of that evolution includes the elimination, or at least minimization, of the use of terms whose meaning was not tied to the practice of law and might not be recognized by all of the examinees.  An example given involved a torts question involving a car that had been damaged in a collision.  In the original question, the defendant was identified as "Union Pacific", and it was apparent that the rest of the question was written with the assumption that examinees would recognize Union Pacific as a company that operated railroads, and that therefore the collision under consideration was between a car and a locomotive.  The newer, improved version of the question simply referred to the defendant as "a railroad company", thus providing the information needed for proper analysis to all examinees.

Discussion at that point livened up a bit, as presenters and participants brainstormed about other terminology that question writers should considered changing in order to make their questions more accessible.  These tended to fall into a few categories:

• References to people, businesses, locations -- generally, things that could be identified with proper nouns -- that might be recognized by some people (but not all people) as possessing some characteristic relevant to the legal analysis.  For example, a question that named Gregory Hines as a plaintiff in a case in which his feet were injured might reflect the expectation that examinees would recognize Hines was famously a dancer, and that therefore a foot injury might generate greater damages to him than to an average person.  A question that mentions "Reno" might rest on the assumption that everyone knows Reno is in Nevada and gambling is legal there.  
• References to technology, fads, or news items from two or more decades ago that most of us who were alive and adult at that time would instantly recognize, but the significance of which might be totally lost on people currently in their 20s.  A question that depends on the operation of an answering machine or the effect of a slap bracelet may only be accessible to a portion of the testing population.
• Specialized terms for everyday objects that nevertheless are not commonly used in conversation.  A question that depends on knowing the difference between a banister and a balustrade, or between a lintel and a gable, is probably going to lose a portion of the examinees.  

It can be hard, when writing exam questions or practice questions, to resist the temptation to make a clever reference or to give examinees the chance for a moment of recognition.  But our tests are not supposed to be tests of any vocabulary but legal vocabulary.  If an examinee misses the opportunity to demonstrate that he knows the appropriate rule, and can apply it skillful to relevant facts, because he did not have access to the full meaning of the fact pattern so that he could recognize the issue that leads to that rule, then the examinee has been unfairly denied a chance to shine.

[Bill MacDonald]

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).