Law School Academic Support Blog

The Call Came from Inside the Building

**I will issue the disclaimer (and warning?) here that this post has very little to with Academic Support and does talk about violent world circumstances. I have tried (feebly, I admit) to tie this into status issues, student self-advocacy, and the importance of belonging to student success, but again, it is extremely tangential. I promise that next week’s entry will be about exams and how you should register for the AASE Conference.**

About a week ago, I returned from Israel. I had been there to celebrate my nephew’s wedding[1].  It was surreal to be sitting in a lively European-style square next to a stunning sea having coffee[2] while also knowing that the white wispy looking lines over the water were patrol drone trails. It was similarly implausible to be at a wedding where we engaged in most of the usual marriage rituals[3] but also noting that one of the photographers had what appeared to be a semi-automatic handgun somewhat cavalierly tucked into the back waistband of his pants. There was no holster or covering; it was just positioned there for a right handed person to draw quickly. Sun, sea, joy, family, and yet an undercurrent that this was only a façade.

My brother-in-law is a faculty member at a law school in Israel. He told me how their semesters are completely off schedule due to the war. Students, faculty members, and administrators have all been called into military service and returned at times that are not in sync with the usual academic calendar. Even COVID didn’t do this. And yet, I would be entirely remiss if I did not also say that schools in Gaza are completely shut down due to the war and continued violence. Inconvenience is not the same as rubble. The destruction of schools, hospitals, and other infrastructure that assists civilians to live their lives is repugnant.

So, we went to the Saturday night anti-war protests in Tel Aviv. There were thousands and thousands of people there.[4] We were at least four teeming city streets away from the speakers, but we could see and hear everything on screens set up along the way. We stood in the shadow of IDF headquarters and loudly told them that they were doing terrible things. It was by far the most comfortable place I have sat with my feelings about this entire conflict. I could say what I thought about the egregious behavior of the Israeli government without ever having to engage my (now 24/7) filter to determine where and when some of the protests cross the line into abject anti-Semitism.  It was oddly freeing.

For context, about a  week before making this trip, I had been approached by a fellow faculty member to join a group of “like-minded” colleagues in a Faculty for Justice in Palestine group at my law school. This was not a public invitation to all the faculty; it was more of a recruiting whisper network, and I was invited because I had expressed my dismay to one colleague who fully knew about my family in Israel as well as my internal conflict. I had shared this with someone I respect and trusted. Part of me thought, “wow, they think I am cool enough to do this!,” and part of me said, “nope, I will not be their token Jewish person.”  A third part of me thought I would get listed on Canary Mission and get turned away at the border unable to attend the wedding. I am still not sure how I feel about the invitation or the people who sent it, but nonetheless, I politely declined. I can say that I felt almost completely comfortable in the space of my workplace until then and now that security has been frayed. I’m not saying that I was threatened in any way, I was not, nor am I now.  I just feel less like I belong there and, honestly, really sad about that. The folks who invited me vote on my contract.[5] The folks who did accept the invitation to attend their information session also vote on my contract.

Even as someone who always encourages students to advocate for themselves, I am at a loss as to how to repair this set of circumstances for myself. If I had tenure, I would have forwarded the email I received to everyone on the faculty and administration or asked to put it on the agenda at the next faculty meeting, but I do not feel that I can or should do that. And here’s another truth: I really do not want to know which of my colleagues did accept the invitation because I want to continue walking the halls feeling like I belong. We know, as ASP professionals, that belonging  begets community which in turn begets success.

This past Saturday night, far from the protests, we celebrated my mother-in-law’s birthday in Rhode Island while drone strikes from Iran targeted Israel. Luckily very few hit anything before being intercepted. And even luckier, my family is fine-not that anyone who asked me to join them weeks ago inquired.

(Liz Stillman)

 

[1] And really, does anything make you feel older than that--short of grandchildren?

[2] And the most amazing pistachio croissants I have ever eaten-seriously, ask me about them at the AASE Conference and bring a paper towel for the drool.

[3] It was different than American style weddings, but most of the usual components were there: the aisle, the vows, the officiant, the dancing….

[4] Real thousands, not Trump thousands.

[5] Which luckily isn’t scheduled to happen again for another five years.

Being Moved

I would be remiss if I did not start this entry by taking a moment to remember 9/11/2001 and everyone and everything we lost on that day. It was a day where the sky was impossibly blue. We lost so much: loved ones, security, peace, and years of reform on police profiling. We have tucked some of the new normal of the aftermath into our everyday jeans, but it changed us, and I am not sure I can even accurately remember some aspects of life before it as well as I can remember parts of that day that are as clear in my mind as the sky was that morning.

I spent some time over the last weekend on various sized boats that carried passengers and cars. On the larger ferry, we drove the car onto the boat and left it there--we put it in park, turned off the engine, locked it, and took a seat on the boat itself. It was clear to me that someone else was in charge of  moving us along and that was fine. On the smaller ferry, we just drove onto the boat and sat in the car. To be very clear, I am not a great boat person (I start feeling a bit queasy standing on a dock…), but I preferred the large ferry even though the ride was longer.

What I didn’t like about the small ferry, despite it being a much shorter journey, was the sense that everything about controlling the car was right there-the steering wheel, gas pedal, brakes-but I had no choice but to sit there while it seemed that the roadway was moving without any input from me. It freaked me out a bit to be in a car that was being moved when I had all the indicia of power to move it but could not engage them. Driving off the boat was also a strange feeling: now I did have control, but I wasn’t sure I knew the route once we hit land.

I wonder if our 1Ls feel this way.  I remember in my first year of law school often feeling like classes were moving forward but that I was not in charge of where they went, or how fast they’d go, and even when they would stop. And yet, at the end of the class, I’d have to immediately know where to go next or I’d cause a back-up.

First year classes seem to start so abruptly that even what is intended to be a gradual entry can seem like a full immersion that occurs before students are even aware that it is happening. As ASP faculty, we need to remember to tell students that this weird feeling of both being in and out of control is normal. Yes, they have done the reading and come to class ready to take great notes, but sometimes it is going to feel like you are just sitting there being moved along until you reach the shore and then, before you know it, you have to know where to go next with what you learned along the way. We need to acknowledge and reassure students that it (justifiably!) feels strange at the beginning--because it is.

We also need to assure students that they are not alone in feeling this way—and that after a few trips, they will feel like regular commuters. They will see the rhythm of classes and have a muscle memory of getting ready to enter and then leave the vessel. But, most importantly, we also need to tell students that if this unsettled feeling lingers for too long, ASP is a lifeline and that we will help them try to catch up rather than be left in the wake of a boat that is going to continue its set journey.

And yes, they may feel queasy for a bit, but that too will pass.

(Liz Stillman)

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)

Midterms and Midterms

After last week’s onslaught of students with legal writing questions (and some tears), I was hoping to be less busy this week. Yet, this morning I received several requests for appointments from students who just got back their first midterms as 1Ls, so a calmer week is not in the cards here. I have to admit that I spent some quality time this morning trying to decipher why a doctrinal professor wrote question marks on some parts of an exam answer, but check marks on others. I did this without a grading rubric to look at-and to be honest, it was, at best, purely speculative. So here are some things you can do with students when discussing their midterms that does not involve the use of a crystal ball or calling your psychic friends (you can save these resources for determining what might be on the final…):

1. Send the student from whence they came: not to their parents, but to the professor who placed the check and question marks on the exam. They might know what they meant-and most likely have a better idea than you do. Or even the TA, who most likely speaks the professor’s language fluently. Tell them to ask for the rubric-or even to just see it.
2. Remind students about IRAC. Sometimes the reason a student got a B- on an exam that the rest of study group got an A on is (hypothetically) because they didn’t outline any rules upfront but rather let them accumulate throughout the answer.
3. Remind students that we are not mind readers. Yes, your professor knows the rules they are testing, but no, they don’t know what you know unless you tell them. So, tell them, even it is seems obvious, or they think it should “go without saying.” Nothing should go without saying.
4. A corollary of the prior rule is do not leave any analysis in your head. Yes, the answer is clear sometimes, but again, explaining why it is clear is where the points come from. The journey > destination.
5. Be sure to tell students that midterm exams are a gift. A midterm means that the stakes are lower than just having a final for the entire assessment of the course and understanding what your professor is looking for is a huge amount of helpful information. This also makes the doctrinal professors who give them (and grade them!) incentive to continue this important practice.
6. Be sure to remind students where they can find practice essay and multiple-choice questions. Law School exam success is like getting to Carnegie Hall: practice, practice, practice! A reminder of where the exam helpful resources are is always helpful. We have a hidden place on our law library website that is honestly full of great resources, but finding it is a little like looking for the room of requirement in Harry Potter. Since everyone needs these resources, be sure to share the links you know about with students!

As to the other midterms, please go vote. Or be proud that you already have.

"Our lives begin to end the day we become silent about things that matter."
- Martin Luther King, Jr

(Liz Stillman)

Lack of Independence Day

I am not celebrating today. I am not grilling, having a party, arranging fruit to make a flag, or planning to watch the fireworks (even on TV). I am just not doing it. And unlike other things, the government actually cannot make me....

As of last week though, I could be forced to carry a pregnancy to term over my objections and regardless of the fetus’ or my health.[1] I could also be forced to send my kids to school knowing that someday[2] a person with a concealed weapon could walk in and join them. When they opened the beautiful new STEM wing of our local high school, I went on a tour and saw that the classrooms are composed of two or three walls of glass-and all I could think of then (and this was during relatively safer times) was where would the children hide if an armed person was intent on shooting them? I hated to be the person whose mind immediately went there, but I was. And now this is not an irrational fear.

This week, the swearing-in of Justice Ketanji Brown Jackson made me so incredibly happy. It was a spot of intense light on a dark horizon. As attorneys, the Justices of the U.S. Supreme Court should be our celebrities. The Justices I’ve met or even watched on the bench turned me into a babbling fangirl at the time[3]. I once almost got escorted out of the U.S. Supreme Court building for standing on a marble bench under the portrait of Justice Brennan (I was too short to get me and the painting in the same shot without the extra foot and half boost). For all I know, the U.S. Marshals have that picture in the backroom captioned, “trouble!!!” Yet, now when I think of the U.S. Supreme Court, I just sigh--not the dreamy fangirl sigh, more the elderly “things used to be better back in the day” sigh. I bet you just sighed too. The current majority on the court does not seem to have any respect for the rule of law or stare decisis—unless it suits their purposes. A court that is arbitrary and capricious in this way should not have the power to determine the constitutionality of anything.

These Justices have not, as intended by the folks who created the Court, remained independent, “[t]his independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”[4]

I know there are arguments that would take this particular quote and use it to say the Court should not have made some decisions to begin with—but Hamilton went on to say, “[t]o avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them.”[5] 

So, with thanks to the Merriam-Webster Thesaurus[6], today could be considered: Dependence Day, or Subjugation Day, or even Unfreedom Day. But I am not celebrating these either.

(Liz Stillman)

 

[1] I do live in Massachusetts where I am safe from that fear, and I am happy to help anyone who needs to come visit to go “camping” here in the Bay State.

[2] Not today, luckily, because Massachusetts will wait until the litigation is over to change anything.

[3] I’ve met Justice Souter (briefly) and seen Justice Marshall on the bench.

[4] Hamilton, Federalist Papers no. 78.

[5] Id.

[6] https://www.merriam-webster.com/thesaurus/independence

Roe is Me

Did you see the headlines yesterday? In these ongoing unprecedented times, the fact that a draft of a Supreme Court opinion was leaked ahead of the decision is mind-blowing and surprising. The fact that the current U.S. Supreme Court would overturn Roe v. Wade[1] given the opportunity is not. It is exactly like a tornado or tsunami warning: we can see it coming, and although we cannot be certain about where and when it will hit, it is going to hit. So here we are, huddled and waiting for the storm.

I’ve spent years telling my students that the belief in the rule of law is akin to a collective leap of faith, an almost spiritual way of looking at it. I have explained how the last administration made that leap a riskier venture. Today, the chasm we now need to navigate is wider and may even have sharks swimming in the murky area below. Sigh.

I will admit to thinking that the Roe decision was unnecessarily convoluted when I read it in Con. Law. The U.S. Supreme Court didn’t usually give such numerically bright line rules (the fertile octogenarian, anyone?). I thought such an important case should be clearly written and easily understood, but I loved what it stood for-I loved its place in the timeline of Griswold v. Connecticut,[2] Eisenstadt v. Baird[3], Planned Parenthood v. Casey[4]and on to Lawrence v. Texas[5]. But, in all honesty, the right to abortion was barely holding on after Casey, and here we are today.

My first reaction was to ask Amy Coney Barrett to turn in her uterus. I thought she should be banished from the sisterhood for her role in this-and then I stopped. Why am I blaming the only woman who signed on to this? Don’t get me wrong, she is not going to be invited to my birthday party this year (or any year, ever), but my hope that she was one of our own on the inside just because she is a woman wasn’t fair either. Assuming anything-- about anyone-- just because of their gender isn’t right. So, I will despise her actions exactly as much as I despise the actions of the four other justices who have purportedly signed onto this abomination.

I distinctly remember my eldest daughter asking me about abortion when she was about eight (she routinely asked me about really deep things at very inopportune times, usually while I was driving-which as you may know is already a fraught venture in Massachusetts). And I distinctly remember sitting on the edge of her bed, explaining what it was, and telling her that she would never need to worry about it because her body belonged to her.

And now I am a liar.

(Liz Stillman)

 

[1] Roe v. Wade, 410 U.S. 113 (1973).

[2] Griswold v. Connecticut, 381 U.S. 479 (1965).

[3] Eisenstadt v. Baird, 405 U.S. 438 (1972).

[4] Planned Parenthood of Southeastern Pennsylvania v. Casey,
505 U.S. 833 (1992). This was the beginning of pulling the teeth of Roe out.

[5]  Lawrence v. Texas, 539 U.S. 558 (2003).

The Kids' Table

Remember Thanksgiving when you were a kid? The adults sat at one table with endless access to the stuffing and gravy while you sat with your cousins wondering why the potatoes never got to you. The kids’ table was a fixture, but when I was middle school age, I was certain I should be allowed to join the adults and enjoy the power of the serving spoon. Perhaps Academic Support has entered that part of our growth as well.

The 2023 Best Law Schools list was recently published by U.S. News & World Report.[1] In determining these rankings, U.S. News looks at numerous factors in determining how and where schools are listed. According to U.S. News, they, “evaluate institutions on their successful placement of graduates, faculty resources, academic achievements of entering students, and opinions by law schools, lawyers and judges on overall program quality.”[2] From time to time the importance and proportional value of the various criteria are tweaked. This year, for example, the value of Bar Passage was increased, with U.S. News noting that, “[a] key change for the 2023 edition involved U.S. News more comprehensively assessing the bar passage rates of first-time test takers. “[3] The actual overall value this year was 0.03 as opposed to previous years when it was 0.0225. This doesn’t seem like a big change in the scheme of math but consider that bar passage is valued more than the acceptance rate, student-faculty ratio, and debt at graduation.[4]

The U.S. News rankings also include programs within law schools in the areas of (among others): Business/Corporate Law, Clinical training, Constitutional Law, Contracts/Commercial law, Dispute Resolution, Legal Writing, and Trial Advocacy.[5]  Academic support is neither considered in the overall rankings nor ranked independently as a program.

Just to be clear, I don’t like rankings: I even volunteered to be on a subcommittee that is examining our internal student ranking system. Yet, I understand that without a very complicated mathematical algorithm based on a long list of both objective and subjective criteria, law schools cannot brag, fundraise, um, see how we are doing overall. I get it: law schools need a way to be assessed.

But here’s the rub: I am a parent of a child with learning issues who had an IEP all the way from kindergarten through to college.[6] They were “othered” by going to the learning center, they were sometimes bullied, and they came home feeling that they were intellectually inadequate often especially in the middle school years. I spent a lot of time explaining to her how school only measured certain types of intelligence while overlooking many others. Howard Gardner’s work on multiple intelligences was something we could both cite over the years to remind ourselves that school assessment isn’t the sum of who we are.[7]

In the same way that schools tend to only assess a very limited number of student intelligences, I would argue that ignoring Academic Support Programs in ranking law schools similarly overlooks something important. Even worse, by assessing the consequential outcomes of good Academic Support programs--like employment rates and most obviously first-time bar passage rates--without looking at ASP itself means that ASP professionals are truly the unseen factotum[8] in law schools. We are taxed without being represented[9] because all the things ASP touches are considered or ranked, but ASP programs are not considered in any part of the formula.

There are, of course, some major downsides to having ASP ranked or considered in ranking without more job security (like tenure!). I wouldn’t want to outsource my yearly work evaluations to U.S. News especially if I had a contract that was up for renewal frequently (or worse yet, not have one at all). Nor would I want to be assessed based on criteria that I cannot control, like admissions decisions. Like all coins, this one has two sides.

And yet, wouldn’t it be nice to sit at the adult table sometimes?

(Liz Stillman)

 

[1] https://www.usnews.com/best-graduate-schools/top-law-schools/law-rankings

[2] https://www.usnews.com/education/best-graduate-schools/articles/law-schools-methodology

[3] Id.

[4] Id.

[5] https://www.usnews.com/best-graduate-schools/top-law-schools/law-rankings

[6] Where she is a junior who is regularly on the Dean’s List (my bragging).

[7] https://sysdesc.info/Content/Person/Gardner1989.pdf

[8] This is a real word. And so much fun! https://www.dictionary.com/browse/factotum

[9] Since my law school is located in Boston, this is a required complaint.

Baseball is a Rules Based System

Have I mentioned that I live in walking distance of Boston's Fenway Park? I live in the town just slightly west of Boston. Last night there was a baseball game at Fenway. It was an important one to Red Sox fans. Have I mentioned that I am not, proximity aside, a member of Red Sox nation? However, the Red Sox beat my team to get to this game, so since I am an adult, I decided that I am now a fan…of the team the Red Sox are playing (there are no adults in baseball, or was that crying? Either way). Yet, I live with Red Sox fans, so we were watching the game. For a very, very long time. Because it ended in the 13^th inning. I guess folks with tickets got their money worth, but they do close the beer stands after the 7^th inning which means that when this game finally became interesting to me most people down the street were either happily sober or wishing they weren’t.

You are wondering, what is the legal teaching connection? Glad you asked. Here is our fact pattern: it was the top of the 13^th inning and the Tampa Bay (not devil anymore) Rays were batting. There was a player on first base and one out, when Kevin Kiermayer came to bat and Kiermayer hit a “rocket” to the wall. Then, “[t]he ball hit the wall, struck Red Sox outfielder Hunter Renfroe in the right thigh and hopped into the Boston bullpen.”[1]The runner on first ran; Kiermayer ran. The runner on first crossed homeplate and the Red Sox fans in attendance, now long cut off from beer, were despondent. For a moment. The umpires conferred and ruled it was a double, so the runner on first could only get to third base and the run the Rays had “scored” was erased. This is the run that would have broken the 4-4 tie in the 13^th inning. Red Sox nation rejoiced. I glowered a bit.

This is where the rules of baseball come in-as they do in every game-but since there are fewer playoff games occurring than on usual nights -we were paying attention. The rule and its application were explained by Major League Baseball umpires this way: “It's item 20 in the manual, which is, balls deflected out of play, which is in reference to official baseball Rule 5.06(b)(4)(H) [which] says, ‘If a fair ball not in flight is deflected by a fielder and goes out of play, the award is two bases from the time of the pitch. Once that ball hit the wall, it was no longer in flight. Now the ball bounces off the wall and is deflected out of play off of a fielder. That’s just a ground-rule double.”[2]

The legal education angle here is that this seems to be a strict liability rule-it doesn’t matter if the ball accidentally or intentionally got put out of play. The way I plan to use this in class this week is to ask students to go through all the possible intents: willful, reckless, negligent, etc. and ask how each could have been proven in that moment. I'll poke at the idea of whether Renfroe had intentionally pushed the ball out of play to save the game knowing that his intent didn’t actually matter and wouldn’t be examined. Would he be a hero or a scofflaw for engaging the rules that way? I’ll tap the professional responsibility issue of whether the rules act as a shield or a weapon when you are player. I’ll ask why Major League Baseball tends to use strict liability rules. You can’t stop the game to have a trial, but they do have so many camera angles at every position on the field that they send off multiple videos to a third party for confirmation. I’ll also show the video of the 2013 World Series where a call by an umpire awarded the St. Louis Cardinals a run, and therefore the game, and ultimately the series, against the Red Sox for contrast…and laugh.[3]

Go Yankees!

(Liz Stillman)

 

[1] https://www.mlb.com/news/rays-ground-rule-double-in-13th-inning-explained

[2] Id.

[3] https://bleacherreport.com/articles/1826398-was-obstruction-the-right-call-to-make-on-wild-last-play-of-game-3

ASP Exciting Works in Progress

This weekend, I attended the Central States Law Schools Association Scholarship Conference and ASP was well-represented. each speaker gave a talk highlighting their current works and sought feedback from the audience of faculty members. Here is just a sampling of the ASP presentations:

Cassie Christopher, Texas Tech School of Law
A Modern Diploma Privilege: A Path Rather Than a Gate

Michele Cooley, IU McKinney School of Law
But I’m Paying for This!: Student Consumerism and Its Impact on
Academic and Bar Support

Danielle Kocal, Pace Law School
A Professor's Guide to Teaching Gen Z

Blake Klinkner, Washburn School of Law
Is Discovery Becoming More Proportional? A Quantitative Assessment of
Discovery Orders Following the 2015 Proportionality Amendment to
Federal Rule of Civil Procedure 26

Leila Lawlor, Georgia State College of Law
Comparative Analysis of Graduation and Retention Rates

Chris Payne-Tsoupros
Curricular Tracking as a Denial of the “Free Appropriate Public Education”
Guaranteed to Students with Disabilities under the IDEA

I was delighted to see so many ASPers presenting Works in Progress, and I cannot wait to read and cite your published works! 

(Marsha Griggs)

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)

 

 

 

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)

Online & Hybrid Learning: Toward Defining Best Practices in Legal Education (Sept. 30-Oct. 2, 2021)

Building on the overwhelming success of the 2019 conference, the biannual Online & Hybrid Learning Conference returns in 2021. The COVID-19 crisis proved a powerful accelerant of the trends that were identified at the 2019 conference, and much has been learned in the process. This conference seeks to bring together research derived from the Emergency Remote Teaching phase (Mid-March to June, 2020) and the more measured and planned Academic Year 2020-21, and use the data to identify emerging best practices.

Distance education and other modern learning tools are at work in legal education and have now been applied across a broad sampling of schools. Outcomes-oriented design, integrated formative and summative assessment, online simulations, asynchronous learning, and other hallmarks of distance education have demonstrated efficacy in law teaching for 20 years (though a robust empirical research agenda has yet to develop). The interesting questions continue to center around how and where these modern learning tools and disciplines can be used to best advantage in the law school curriculum. Expertise now abounds among the academy, and this conference aims to collect and share it.

Suggested topics include (but are not limited to):

• Evidence-Based Pedagogy in Online or Hybrid Teaching Environments
• Pedagogy in Practice
• Instructional Design – What We’ve Learned by Working with ID
• Achieving Professional Identity Formation Outcomes via Online and Hybrid Teaching
• Using Assessment Data in Evolving Online and Hybrid Teaching Environments
• Making our Hybrid and Online learning Environments Inclusive and Supportive of all Students
• Which Parts Go Where: Design Thinking Applied to Hybrid Legal Education
• Micro-credentials and Stacking of Credentials - Developing Program Outcomes
• Permeability of the Bricks and Mortar Building; Beyond Traditional Thinking
• What Student Can Tell Us -- Now

If you’re interested in presenting, please send a one-to-two-page proposal to David Thomson, John C. Dwan Professor for Online Learning, University of Denver, 2255 E. Evans Avenue, Denver, Colorado 80208 ([email protected]) in Microsoft Word (or the equivalent). The deadline for proposals is Monday, March 22, 2021.

New: Academic and Bar Support Scholarship Spotlight

Good morning, everyone, and a big thanks to Steven and the ASP Blog crew for inviting me here again.  Every other Tuesday, I will be posting what will be called the "Academic and Bar Support Scholarship Spotlight."  In each post, I will highlight a publication from the academic and/ or bar exam support field. 

There will be two categories:  "ASP Foundational Scholarship" and "New Scholarship."  The first category will reintroduce the seminal pieces that developed the generally agreed upon "best practices" in the academic and bar support field.  

The second category of "New Scholarship" is self-explanatory but requires a quick note.  Traditionally, academic and bar support faculty have been reluctant to self-promote their scholarship.  Perhaps arising out of the "ASPish" moniker, this norm demonstrates the humility that sits at the epicenter of who we are as a community.  But, it has also left too much ASP/ Bar scholarship out of the spotlight.  I am hoping that this series can help solve that conundrum.    

Therefore, if you publish some form of scholarship on law school academic/ bar exam support, please send me a link.  I will also promote new scholarship referred or found independently, so if you read a new piece and find it helpful, please let me know.  

The format of the piece is not important.  Books, law review articles, online law review essays, shorter pieces ... all are welcome.  I also welcome suggestions for the ASP Foundational Scholarship category.  If a publication positively contributed to your understanding of our field, such that you think others should be aware of it, please let me know and send a link.  

Later today, I will post the first installment of the ASP Foundational Scholarship series.  No spoilers here, though; you'll have to wait for it.  

(Louis N. Schulze, Jr., FIU Law) 

West Coast Consortium of Academic Support Professionals Conference (Virtual)

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)

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)

Imbroglio

Imbroglio: A complicated situation; a sequence of events so absurd, complicated, and uncommon as to be unbelievable.

Merriam-Webster might as well add a footnote to the July 2020 bar exam administration as an example of the term “imbroglio.” No other term can accurately describe the debacle that surrounds the upcoming bar exam. Blog, essays, and the exasperated cries of bar candidates—summed up in one word. One word with an applicability of meaning that has become self-evident.

A complicated situation – Our nation has become embattled by a contagion that shows no sign of relenting. Across the country, stay at home orders are in place to mitigate the spread of the deadly coronavirus. In states with large numbers of bar takers, there is no safe way to administer the bar exam in the traditional format. Yet, bar examiners and the American Bar Association insist on a bar exam as screening tool for entry into the practice of law.[1]

A sequence of events so absurd – Some states postponed the July exam. Some states canceled it altogether. Some states propose to offer a bar exam in early September; others in late September; others have postponed the exam “indefinitely.” No matter what the states propose, the National Conference of Bar Examiners (“NCBE”) will let us know on May 5, 2020 whether there will be any multistate or uniform exams released in July. States that have adopted the Uniform Bar Exam  (“UBE”) are powerless to administer any exam in July if the NCBE won’t provide the questions, because UBE states don’t write their own bar exams anymore.

Complicated – Epidemiologists tell us that the virus comes in waves. Even with proposed and announced dates for the bar exam, COVID-19 may make it impossible or unwise to administer it in the late summer or early fall. But bar takers cannot afford to wait until there is certainty to begin studying. Many will begin bar study this month, for an exam that may or may not take place. They will study in places that are not libraries or law schools, because those places are closed.

Uncommon – COVID-19 presents an unprecedented situation that will impact the flow of new attorneys into the profession at a time when there will be an increased need for legal services. Extraordinary times call for extraordinary measures, like emergency diploma privilege. Utah adopted a sensible emergency diploma privilege, but the ABA and the NCBE discourage other states from following suit.

Unbelievable – Just when we thought things could not possibly get any worse, the New York Board of Law Examiners announced that it may not have enough room to allow bar applicants from out of state law schools to sit for the exam that it hopes to administer on September 30 – October 1. In that same announcement, and with hold-my-beer momentum, the New York bar officials strongly encouraged candidates “to consider sitting for the UBE in other jurisdictions.” That this advice was given without regard for the COVID precautions of other states, and at a time when very few other states were still accepting applications, defies comprehension.

I won’t ask, “what could happen next?”

(^©Marsha Griggs)  

 

[1] ABA STANDING COMMITEEE ON BAR ACTIVITIES AND SERVICES LAW STUDENT DIVISION RESOLUTION [sic] (04/07/020) “the Resolution does not . . . modify or limit the historic and longstanding policy of the ABA supporting the use of a bar examination as an important criterion for admission to the bar.”

Will the Bar Exam Go the Way of the 8-Track Tape?

For the times they are a-changin’. -Bob Dylan

The times certainly have changed. Almost overnight, every facet of daily life has transitioned to online delivery. Telehealth and telemedicine are becoming the primary source for doctor-patient interaction during the pandemic. Law school classes are online. College classes are online. K-12 primary education is online. Church and religious services have moved to online formats. My grocery and organic farm-to-table products —gone online. Court hearings, also online. I can buy a car, entirely online. I can have legal documents notarized online.

But I cannot take the bar exam online. At least not yet.

The COVID pandemic has tested our resolve and our ability to utilize available technology. Almost every aspect of the legal profession, from court proceedings and probate administration, to law enforcement and legal education, has mobilized for remote administration. Bar examiners at the state and national levels should hang their heads in shame for not harnessing the available technology to deliver the existing exam remotely. It is an embarrassment of epic proportions that those at the helm of legal licensure are so behind the times that the pipeline for entry to the legal profession could be closed until further notice.

Relentlessly tethered to tradition, those insistent that 2020 law grads take an exam that may not be offered until early 2021 have either dropped the ball or are hiding it. It is fundamentally unfair to require an exam for licensure and at the same time withhold that exam from licensure candidates. The cries for diploma privilege and supervised practice options have sounded around the world. To which bar examiners and high courts have responded with either feigned indifference or a proposed solution that is no more than a band-aid for a gaping wound.

To become attorneys, bar candidates should not have to risk their health or the health of their vulnerable loved ones to the spread of the coronavirus. Even today, there are still more unanswered questions than answers. The majority of U.S. jurisdictions have made no announcement as to whether they will offer an exam in July or not. A number of states have canceled the July exam, but still have not announced definitive information about the date or form of the replacement exam. Candidates across the country remain in the dark as the bar exam becomes an archaic qualifier for competence. If the bar examiners hold fast to the pencil and scantron method of testing, we can expect to see it go the way of the pay phone, the answering machine, and the 8-track tape.

Two states, California and Massachusetts, have alluded to an online exam, but with little detail. It remains unknown what role the National Conference of Bar Examiners (NCBE), who produces the multistate exams used in all states except Louisiana, will play in the online exam. If the NCBE can provide an online exam for two states, why not do so for all UBE jurisdictions? And why make candidates in other states suffer the risk of exposure to COVID or career delays by withholding the online exam?  

If the NCBE has not developed an online exam, we must ask “why not” and "where has it been for the last two decades?" And we must not accept “test security concerns” as a viable response. Test security is no less of a concern to law school faculty, and to those who administer admissions exams. Yet all law school exams and the LSAT will be offered online in May 2020. The MPRE (another NCBE exam) and other professional licensing exams are already online.

Whether the bar exam effectively assesses one’s competency to practice law is a reoccurring question that will continue to resurface.  At a time when virtually every state, except maybe Utah and Wisconsin, is under fire for indecisiveness and poor communication regarding the fate of would-be July 2020 bar takers, bar examiners are justifiably under scrutiny. As is the bar exam. The future of the exam is in the examiners’ hands. We’ve only to watch and see if they’ll respond like Blockbuster or Netflix.

(Marsha Griggs^{© 2020})

The (Emergency) Return of Diploma Privilege

For decades Wisconsin has stood alone in its court-adopted diploma privilege for graduates of law schools within its state borders. However, Wisconsin is not the first state to enact diploma privilege as a means of licensing attorneys. At one point, diploma privilege was the norm, not the exception. Thirty-two states and the District of Columbia utilized diploma privilege as the principal means of licensing law school graduates until the early 1900’s.[1] When the American Bar Association denounced diploma privilege, states began to move toward examination as the gateway to licensure.[2] Many could have been left to believe that the time of diploma privilege was a bygone era. But maybe not so.

New Jersey has emerged as a leader by offering what most should consider a reasoned and compassionate compromise to address the frustratingly uncertain predicament that would-be July 2020 bar takers face. Today, the New Jersey Supreme Court entered an Order cancelling the July exam and postponing to a date uncertain in the fall. State courts in Hawaii, Massachusetts, and New York, had done the same thing days earlier. But unlike its northeast neighbors, New Jersey has granted an expanded ability to temporarily practice law under the supervision of an attorney[3] to 2020 graduates of any ABA accredited law schools who have not previously taken a bar examination. The order temporarily authorizes 2020 graduates to enter appearances, draft legal documents and pleadings, provide legal services to clients, engage in negotiations and settlement discussions, and provide other counsel consistent with the practice of law. The temporary license terminates on the date the next bar exam is given in the state of New Jersey.

Critics may point to shortcomings of the Order. To such criticism bar admission policy reform advocates will likely respond today's order was not perfect, but it was an excellent start. “At this challenging time, the public has a continuing and growing need for legal services in many critical areas,” Chief Justice Rabner stated in the order. “Newly admitted lawyers can help meet that need. The Court also recognizes that, without a means to pass the bar and obtain a law license, qualified students who expect to graduate this spring may lose job offers, be unable to find legal work, and otherwise suffer financial hardship.” Thank you, New Jersey. Thank. You.

Who's got next?

(Marsha Griggs)

 

[1] Beverly Moran, The Wisconsin Diploma Privilege: Try It, You'll Like It, 2000 Wis. L. Rev. 645, 646 (2000).

[2] Paul C. Huddle, Raising the Bar: How the Seventh Circuit Nearly Struck Down the Diploma Privilege Under the Dormant Commerce Clause, 5 Seventh Circuit Rev. 38, 40 (2009).

[3] The supervising attorney must be in good standing and have been licensed to practice law in New Jersey state courts or at least three years.