Is There Any Wonder Why There is White Bias in Legal Education? Part II

In Part I of this subject, I discussed a post by Deborah Jo Merritt, which suggested that there is white bias in grading in legal education.  While it is not clear why this difference exists, it is clear that minorities have lower law school gpas than white students.  I am not interested so much in whether there is a white bias, but in how we can help students from all racial and socioeconomic groups do better in law school.

Is there any wonder why there is white bias in legal education?  The predominant method of legal education used today was developed in the nineteenth century at an elite law school for elite, white, male law students who had graduated from elite colleges.

In researching my article, How to Help Students from Disadvantaged Backgrounds Succeed in Law School, I discovered that general education scholars have developed numerous methods for helping students who are poorly prepared for advanced education.  Based on this research, I believe that students from disadvantaged backgrounds can succeed in law school and become successful lawyers if law schools adopt new methods of instructing such students.  In other words, the problem lies not in the lack of innate ability of our students, but in how law schools deliver instruction to students.

First, law schools must change the mindsets of students from disadvantaged backgrounds.  Many students at all levels believe that intelligence is fixed.  Such a mindset prevents learning because it creates a defeatist attitude.  Law schools need to instill a growth mindset in their students–that with effort and the proper approach any student that is qualified to enter law school can succeed in law school.  (See Carol S. Dweck, Mindset: The New Psychology of Success (2006))

Second, law schools should help motivate their students.  Many students come to law school lacking the motivation to learn.  For some students, this is because they have been poor learners for most of their educational careers and have concluded that effort does not help them learn.  For others, they have succeeded too well, and they do not want to tackle tasks unless they can do them easily.

Third, law schools must teach their students how to be metacognitive thinkers.  Metacognition concerns thinking about thinking–controlling one’s cognitive processes.  It involves knowing strategies and when to adopt a particular strategy.  It concerns monitoring one’s learning and activities.  It requires thinking about one’s learning processes and problem-solving methods so the student can improve those processes.

Fourth, law schools must help students from disadvantaged groups become self-regulated learners.  While they take advantage of expert teachers, self-regulated learners can learn on their own.  Self-regulated learners are engaged learners, and they are fascinated by learning new things.  Self-regulated learners reflect on what they have learned.

Finally, law schools need to help students develop better study habits.  Most students use the same study habits in law school that they did in undergraduate school regardless of whether those habits worked well.  In addition, law school involves a different type of learning that requires a different approach to studying.

There are a number of other techniques law professors can use to help minority students:

1.  A law professor should develop clear and detailed goals for each course.  List the goals in the syllabus, and discuss them in the first class.  I even email my students before each class telling them what we are covering.

2. Professors should be explicit in their teaching.  Hiding the ball does not help students who come from disadvantaged backgrounds.  As one education specialist has asserted, “[t]hinking skills need to be explicitly and consciously taught and then used with many types of examples so that the skill aspect and its appropriate use are clarified and emphasized.”

3. Professors should break complex tasks into component skills.  While experts can often see how the parts fit together, novices often need help with unpacking.

4. Professors should use concrete examples and compare examples in class to help the learning of abstract concepts.  Examples make abstractions concrete.

5.  Educational research has demonstrated that students learn more with active learning, rather than listening to lectures.  Give the students exercises and problems to solve.  Teach experiential courses in the second and third years.

6. Professors can use think alouds when meeting with students.  During the think aloud, the student verbalizes all steps of the thinking process, including alternatives and dead ends.  Think-aloud exercises help students develop problem-solving skills, reflect on their problem-solving strategies, deal with new types of problems, and improve domain-transfer skills.

7. Use frequent formative assessments with detailed feedback.  Professors can adopt a variety of formative assessments, such as writing assignments, problem-solving exercises, multiple choice tests, observations, and mid-terms.

8. Have your students reflect on what they have learned.  After every class, students should review their notes and reflect on the implications of the class.  They should relate the new knowledge to what they already know, they should challenge what they have learned,  and they should think up alternatives to what they have learned.

I have written three books to help students succeed in their first year of law school.

1.  Think Like A Lawyer: Legal Reasoning For Law Students and Legal Professionals (ABA Publishing 2013).

2.  A Companion to Torts: Think Like a Torts Lawyer (2015).

3. Legal Writing Exercises: A Practical Guide to Clear and Persuasive Writing For Lawyers (ABA Pub. 2014).

These books break down tasks into component parts, they have many exercises for active learning, and they contain metacognitive and reflective questions.

There are also many books from the major legal publishers that incorporate an active approach to learning.  (listed here)  I think that the best series containing problem-solving and skills exercises is the Context and Practice series from Carolina Academic Press.  The books in this series are casebooks combined with many practical exercises.  Also very useful is the Skills & Values Series from Lexis/Nexis.  The books in this series are supplements to traditional casebooks that contain numerous extended exercises.

In sum, there is a mearsurable discrepancy between the grades of minority and white students in law school.  General educational scholarship has shown how law schools can overcome this problem.  The question is are we ready to put in the work necessary to graduate better minority students?

(Scott Fruehwald)