Monday, July 1, 2019
This is a guest post by Prof. Catherine Christopher, a professor of law and associate dean for bar success at Texas Tech University School of Law.
My recent article, Normalizing Struggle, forthcoming in the Arkansas Law Review, critiques the many ways in which legal education inadvertently teaches students that struggling with course material is the same thing as being a failure. In the article, I reframe student struggle as a productive process that helps students build not only skills and knowledge, but also the resiliency required to be effective, healthy lawyers. I assert that individual professors and law schools as a whole should make changes to help students understand that academic struggles are normal: Lawyers constantly struggle with uncertainty, and it’s not something that can—or should!—be avoided.
Traditional legal pedagogy, with its continued reverence for the Professor Kingsfield caricature, primes students for public humiliation if they deliver less-than-perfect analysis. I’m not arguing that we should abandon cold-calling, but we should make a few things explicit. Namely, that we expect students to struggle with the material, to not have elegant or thorough answers to our questions and hypotheticals. We need to be clear that although it’s unacceptable to be unprepared for class, it’s perfectly fine to have read the assignment and been confused by it.
Many law schools have specialized academic support, academic success, and bar preparation programs, a laudable effort to assist students who find themselves at sea. The risk, however, is that by having specialized offices and personnel who deal with struggling students, law schools send the message that other faculty do not deal with struggle—“normal” students see the “regular” faculty, and struggling students see the specialists. (This risk is compounded when academic support and bar prep faculty are more likely to be female, people of color, lower-status, and less well paid than “casebook” faculty.)
My article recommends that all faculty become experts in academic support. Faculty should educate themselves on learning science, growth mindset, and belonging. We should all be attending academic support conferences. We should all be building formative assessment deliberately into our syllabi, and not just doing it so we can check a box on an ABA report. Formative assessment really helps—feedback is crucial to improvement, and if a student’s grade in a course is entirely depending on a cumulative final, struggle really can become literal failure.
Law schools need to be mindful of what institutional norms are being set. Schools should expect students to have time to sleep, to make and eat good food, to practice their religions, to relax. This down-time is incredibly beneficial to their academics, since the brain is busily processing information while the conscious mind is at rest.
At the risk of engaging in kids-these-days grousing, students are matriculating to law school without having experienced significant academic struggle—their K-12 educations were geared toward passing multiple-choice assessments, and college was largely a social experience for them. This is not their fault. They are, however, unprepared for the intellectual and emotional challenge of law school, and too many of them cope in unhealthy ways. Legal education must send clear messages to students that struggle is the sign of emotional strength, not intellectual weakness. It is beneficial, even desirable.
 Numerous articles, including mine, make suggestions on how law faculty can incorporate formative assessment in the classroom. E.g., Olympia Duhart, The ‘F’ Word: The Top Five Complaints (and Solutions) About Formative Assessment, 67 J. Legal Educ. 531 (2017); Heather M. Field, A Tax Professor’s Guide to Formative Assessment, 22 Fla. Tax Rev. ___ (forthcoming 2019); Steven I. Friedland, Rescuing Pluto from the Cold: Creating an Assessment-Centered Legal Education, 67 J. Legal Educ. 592 (2018); Karen McDonald Henning & Julia Belian, If You Give a Mouse a Cookie: Increasing Assessments and Individualized Feedback in Law School Classes, 95 U. Detroit Mercy L. Rev. 35 (2018); Gerald F. Hess, Michael Hunter Schwartz, and Nancy Levit, Fifty Ways to Promote Teaching and Learning, 67 J. Legal Educ. 1 (2018); James McGrath, Planning Your Class to Take Advantage of Highly Effective Learning Techniques, 95 U. Det. Mercy L. Rev. 153 (2017); James McGrath & Andrew Morriss, Assessments All the Way Down, 21 Green Bag 2d 139 (2018); Deborah Jones Merritt, et al., Formative Assessments: A Law School Case Study, Public Law and Legal Theory Working Paper Series No. 392 (April 19, 2017); Carrie Sperling & Susan Shapcott, Fixing Students’ Fixed Mindsets: Paving the Way for Meaningful Assessment, 18 J. Legal Writing Inst. 39 (2012).