ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Monday, April 11, 2022

Why Take Attendance? Part I

I have recently been struck by some views expressed on Twitter on the subject of law professors who take attendance in class.  These views are passionate, which, given that it is Twitter, may go without saying, but I was nonetheless surprised that people, both law faculty members and law students, are passionately opposed to a practice that I consider a rather ordinary and humdrum part of my job.  Let me just say this up front.  I take attendance because I care about my students and I want them -- every one of them -- to succeed.  

Plato's academySome of them could succeed without attending regularly.  Most could not, or at least, for most of my students, it would be a big problem if they skipped two weeks of class.  They would be behind, and law school posing the challenges that it does, they would have a hard time catching up.  I can't have one attendance policy for top students and another for the rest.  Moreover, if I didn't take attendance and reach out to student who miss a week of class, students might mistake solicitude for their autonomy for indifference.  I would rather that they resent my meddling than that they grow discouraged and think that their professors and the law school don't care about their well-being.

The objections seem to come from two sources, one libertarian, and the other anti-authoritarian or perhaps Foucaultian.  The libertarian perspective is that law students are adults with agency  who are paying for their education and should be permitted to make their own decisions about their lives.  It is not for us, as law professors to make judgments about the quality of those decisions.  The anti-authoritarian perspective is that we, as faculty members, should not "police" our students.  The Foucaultian perspective, I surmise, links taking attendance with Foucault's critique the modern panopticon state that conducts various forms of surveillance as a means of social control.

BirchingI have a caveat here and three responses (in tomorrow's post).   First, the caveat.  I write as someone who teaches (and, other than some brief visiting positions, has always taught) at an unranked law school.  I might develop a different practice if I taught at a more highly-ranked law school.  The student who sat next to me in Civ. Pro. disappeared during our second week discussing the Erie doctrine.  I thought he had dropped out, but I ran into him at a year-end event.  He told me he had just had enough, and more sympathetic I could not be.  He shrugged, "She gave me a B-, and I guess that's fair enough."  I do not doubt for a moment that the gifted person in question is off somewhere living his best life.  In short, I would feel differently about taking attendance if I were confident that my students could miss class and still reach the professional goals that they enrolled in law school to achieve.  

But the bar passage rate in my state on the February bar was 47%.  In Kentucky it was 45%, and in Illinois, it was 43%.  In Tennessee and Wisconsin, it was 41%.   My students need to focus on their studies in order to pass the bar.  My having an attendance policy is not the key to them passing the bar, but if neither I nor any of my colleagues had attendance policies, a lot more of our students would prioritize other things in their lives over coming to class.  And more of them would fail the bar.  They might at that point, regret some of their choices, but by then it would be too late to do anything about it.  Given their investments, both in terms of time and money, I will do everything in my power, even if doing so is a bit paternalistic, to nudge them in directions that the evidence suggests will be in their long-term self interest.

In almost all cases, students who miss a lot of classes will do poorly in my class, and since I teach mostly bar cases, that also means they will be in danger of failing the bar.  At a certain point, I will impose penalties on them for missing classes.  If they are strong students, those penalties are light enough so that I inflict no real harm.  No employer will fail to hire them solely because they got a B+ instead of an A- in Contracts.  But I can't think of an instance in which one of my students has missed enough classes to be penalized and still earned a high grade.  If they are not strong students, the fact that they got a D instead of a C- in Contracts sends an unmistakable message.  Something has to change or they are wasting their time and money undertaking a challenging degree to which they are not devoting adequate time.

The Tweeter who started it all said that they understand that students have more important things going on in their lives that prevents them from coming to class.  I agree.  Sometimes they have work for other classes that is more important, or at least more in need of urgent attention, than attendance in my class.  That's why I allow a certain number of absences and why I never require that students explain their absences.  They are welcome to share with me their reasons for their absences if they wish, but that's just because I care about what is going on in their lives, not because it affects how I treat their absences. 

Law school is professional training.  One aspect of that training is learning how to juggle all of the different things going on in your life, allocating appropriate attention to each.  By providing a clear attendance policy, I enable students to make decisions about how to use their time, knowing all of the consequences.  For almost all of my students, it is never an issue.  They know they need to be in class.  I hope that they enjoy time spent in class or at least know that they are getting something out of time spent in class.  Another aspect of professional training is that the world of work may not embrace the notion of excused absences.  If you miss a filing deadline, the court, agency, potential contracting partner etc. may not extend it.  It really doesn't matter how good your reason was.  My daughter was recently shocked to learn that she would not be considered for a position that she likely would have gotten had she managed to get her application in on time instead of one day late.  I am not shocked, and I wish I had done more to prepare my daughter for that foreseeable consequence of delay.

In tomorrow's post, I take on the libertarian and anti-authoritarian/Foucaultian perspectives.

Commentary, Teaching | Permalink


I have an attendance system, but it is because the University mandates it and the school mandates it because the ABA accreditation system does. Nevertheless, I am probably most accurately placed in the libertarian camp, although you have not identified another, not really anti-authoritarian (and I think the Foucaultian thing is wacko), which is I am against paternalism. I think taking attendance is infantilizing. I also don’t use seating chart and let the students sit wherever they want - that I am pretty sure is anti-authoritarian because telling students where to sit is an expression of little more than the teacher’s power. Nor do I do much cold-calling, which I find largely to be a waste of time and can be abusive. (That could merit a longer explanation.)

My attendance system is about as laissez-faire as it gets. There is a link on Blackboard to a Google Docs spreadsheet with their names and the class dates. If they attend, they check the box honestly under the school’s honor code. I never look at it. The student has a policy that >7 absences can cause a student not to get credit for the course, and I tell them that the system is there for their protection in the event their attendance becomes an issue.

I do have a couple of positive reinforcements. I use Poll Everywhere questions. Many of them. PE archives student responses. They get an additional ten points for the semester if they participate in 90% of them. Particularly post-pandemic, all classes are recorded and they can watch the videos and get credit for the questions if they are ill, but not for any other reason, including (as my syllabus states) legal writing memorandum due dates, extra-curricular activities, or Red Sox opening day. And there is a multiple choice quiz on Blackboard at the end of each units; the quizzes largely focus on what went on in class and, in total, account for either a half or a third of the total grade.

Jeremy, offline you suggest that my system is no less paternalistic than taking attendance. I don't think so. Taking attendance only insures that there is a body in the seat and says nothing about the engagement of the mind. And while it purports to be a means to the end of better learning, its only consequence in the overall system is negative. My students can choose to participate or not, whether it's in class discussions or the polling questions. There are no negative consequences to not participating and there are only negative questions on the polling questions if the student chooses not to do them.

Posted by: Jeff Lipshaw | Apr 11, 2022 7:24:31 AM

Typo in the last sentence: There are no negative consequences to not participating and there are only negative consequences on the polling questions if the student chooses not to do them.

Posted by: Jeff Lipshaw | Apr 11, 2022 7:25:30 AM

I find this a wonderfully paternalistic alternative to paying attention to attendance. It is not news to me that taking attendance communicates very little information. Nor did I mean to imply that all professors who do not take attendance do not care about their students. But a body that is habitually or suddenly and repeatedly not in attendance is a red flag that I would not necessarily catch if I were not taking attendance.

Also, I'm going to call myself a libertarian today, because I also do not use seating charts or require that students sit in the same seat each day! Of course, they always choose to sit in the same seat regardless of my policy, but still, can I get some credit for not infantilizing them in that particular way?

Posted by: Jeremy Telman | Apr 11, 2022 7:49:23 AM

Keeping track of attendance (regardless whether attendance is required) does have an important benefit: If a student who normally values attending class is suddenly absent for a significant period, without notice to the prof., it could signal a problem of well-being that merits a friendly email to see if the student is okay or needs any assistance. In some cases, suicide is a risk. Maybe an extreme libertarian would say all of that is none of our business, but I think it is our concern, especially because law school is extremely stressful in ways that no one of us can completely control.

Posted by: Charles Calleros | Apr 11, 2022 10:19:51 AM

I thought the ABA had a requirement for the school to certify that the student was regularly in attendance. This was my school's basis for requiring that professors take attendance.

Posted by: John Wladis | Apr 11, 2022 1:41:05 PM

Charles, I agree completely, and that's what Part II is about (in part). John, yes indeed -- also addressed in Part II.

Posted by: Jeremy Telman | Apr 12, 2022 4:19:45 AM

Schools must certify student attendance to qualify the students for financial aid. Certifying that a student has attended class is the same as certifying that a particular employee worked X hours on a government contract.

Doing so without having any idea whether the student or employee showed up is not something I'd encourage anyone to do.

Of course, it's the school's problem, not mine. If they don't care . . . .

Posted by: Frank Snyder | Apr 12, 2022 11:55:20 AM