ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Tuesday, April 12, 2022

Why Take Attendance? Part II

BirchingIn yesterday's post, I introduced the topic of why I take attendance.  I began with a caveat, which boils down to, I might feel differently if I taught at a different kind of school.

Today, I offer three responses to what I call the libertarian and the anti-authoritarian/Foucaultian arguments against taking attendance.

The first and least satisfying (but also not as dumb as it seems) is that I take attendance because the ABA requires me to do so.  The second and third turn on what I think is an unfair and implausible imputation regarding the motivations of faculty members who take attendance.   That is, people seem to think that law professors who take attendance do so in order to assert control over or discipline students.  I don't know why other professors take attendance, but control and discipline are not my primary motivators.

The ABA requires that law schools have an attendance policy (Standard 308a).  That Standard is very vague, but most law schools (in my experience) adopt a requirement that faculty must take attendance and must require that students attend 75% or 80% of class sessions.  Also in my experience, skills and experiential learning courses are, for understandable reasons, less forgiving about absences.  I have no idea why the ABA has its policy, but I know that, as a result of the ABA's policy, there is a person at every law school with a title like "Dean of Students" or "Assistant Dean for Student Affairs," and that person spends a lot of their time tracking down students and trying to figure out why they aren't coming to class.  I make that person's job a lot easier when I take attendance and shoot an e-mail to the appropriate administrator saying, "So and so has missed two classes and didn't turn in their last assignment.  Do you know what's up with them?"  Such calls can lead to early interventions that help the student and thus help the administrator as well.  The worst that can happen is that a student got pestered.  I'll take that risk.  

Gym 1900One libertarian perspective argues that our students are paying us for a service, and they are free to make as much or as little use of the service for which they are paying as they choose.  The analogy offered was a gym membership.  One's gym does not have an attendance policy.  Well, what if they did?  Actually, my gym offers a discount if you use it more.  I like the model.  Our students learn of the attendance policy during orientation if not sooner.  Even libertarian students can constrain their wills through private legislation.

But ultimately I just reject the notion that my relationship with my students is akin to that of a service-provider.  I am building a life-long relationship with my students, or at least I hope to.  I keep in touch with some of my law school professors.  I have in recent years reached out to two of my college professors.  Both remembered me (from the 1980s!).  Both were glad to hear from me, but they shaped my sensibilities and my life journey in ways that I can barely articulate much less adequately acknowledge.  I can't say that about any of the people with whom I have interacted in the many gyms in which I have engaged in ritualistic forms of exercise. 

Moreover, I owe duties as an educator to constituencies other than my students.  Law schools fail.  I've seen it happen.  That's something I never want to experience again.  Even if I weren't committed to my students' success for their sake, I would be committed to it for the sake of my institution.  I also owe more attenuated but still significant duties to the legal profession, to my students' future clients, to my law school's alumni and supporters, and to the parents and others who are supporting students financially and through their encouragement.  My students and I are not ships passing in the night, or at least I hope that we are not.  The cash nexus does not define our relationship.  It's hard for me to imagine that any conscientious law professor would think that it does.

Finally, often students are not paying their own way or they at least have help.  They have scholarship money or, if they attend a state institution, part of their tuition might be underwritten by tax dollars.  Early in my teaching career, I had a good friend who taught at a community college in South Carolina.  Tuition was almost nothing.  One of her feckless students tried to make the "I'm paying for this education and so . . .  " argument.  She responded, "Actually, my tax dollars are paying for your education, and right now, I'm not getting my money's worth."  Nothing about that conversations was right, but I still admire her to this day for that snappy comeback.  

Michel_Foucault_1974_BrasilTo the Foucaultian/anti-authoritarians, I concede that in taking attendance and having an attendance policy that can -- in rare cases -- penalize students for poor attendance, I am engaged in policing and social control of my students in a very broad sense.  But my relationship to my students is not that of the police to potential lawbreakers, nor is it that of the watchful state to its law-abiding citizens who are law-abiding in part because their conduct is shaped by their constant awareness that they are being or could be under surveillance at any time.  My relationship to my students is also not that of a parent to a child. 

And yet it is also not true that my relationship to my students bears none of the characteristics of the police to the criminal, the state to its citizens, or the parent to a child.  My students are mostly still emerging adults, which means that they are a little less boundedly rational than I am.  I want what is best for them.  I have views about what is best for them.  I also respect their autonomy.  They will make their own decisions, but I will contribute to the environment in which they make those decisions in (at least) one small way -- by encouraging them to come to class.  

To my colleagues at other law schools who say that they will not police their students, I would like to know how you avoid doing so and still perform your role as a law professor.  The minimal policing I do by taking attendance is nothing compared with the policing I do by grading them.   I suspect that my non-attendance-taking colleagues also grade their students and thus serve as the guardians of the path into the profession.  There is no shame in it. Not every admitted student will become a lawyer.  Perhaps others want to throw open the profession to all comers.  I don't have to have a view on that subject.  The bar exam exists, and it will keep some students out.  Performance in first-year contracts is a pretty robust predictor of likely success on the bar.  I happily provide to students, whom I recognize as independent agents, a useful datapoint to consider as they make choices about re-enrollment.

But returning to my earlier point, neither my attendance policy nor my custom of giving students grades exist to punish students.  Both are structures to help guide them along a path that they have chosen.  Faculty members who do not take attendance miss an opportunity to check in with students as they proceed along that path, and their failure to take attendance creates more work for those who do.  It is not uncommon that when I e-mail a dean of students or student affairs coordinator, my report is the first they have heard of the student's absence.  When a student who hears nothing from a professor when they miss multiple class sessions, does that silence communicate respect for students' autonomy or indifference?  

It is no doubt true that some students regard themselves as adults who resent calls from the law school when they are dealing with some crisis.  "Professor so-and-so doesn't even take attendance," I have heard them gripe.  I will not disparage a colleague in front of a student.  "I'm sure Professor so-and-so has their reasons."  And that is truly what I believe.  I draw no conclusions about my colleagues' motivations for doing what they do, nor do I assume that my colleagues who do not take attendance care any less about their students than I care about mine. 

But I do want those colleagues to know this: by far the more frequent response I get from the missing students with whom I check in is gratitude.  They are fine.  They don't need anything.  They just had something they had to deal with, and they are grateful to me for checking in and asking, as I usually do, whether there is anything they need to stay on top of the class material.  And then, every once in a while, my intervention with a student in crisis helps them get over that crisis and re-commit to their professional path.  Or perhaps they were always committed, but they were having a personal crisis and they just needed to know that somebody at the law school cared enough to reach out.  

Law students are under an incredible amount of stress.  COVID has not helped.  I don't know how we can know how students whom we do not see are doing if we don't have some means of catching warning signs.

So yes, I take attendance.  Yes, it's a bit paternalistic.  But the alternative seems to me much worse.

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