Thursday, January 7, 2021

Adam Lamparello: A Reply to Of Socratic Teaching and Learning Styles: Exposing the Pervasiveness of Implicit Bias and White Privilege in Legal Pedagogy

I invited Adam Lamparello, a legal education expert and former Associate Dean for Experiential Learning and Associate Professor of Law at Indiana Tech Law School, to write a reply to the implicit bias portion of the Bahadur and Zhang article below.  Dean Lamparello has previously written an article on implicit bias, The Flaws of Implicit Bias -- and the Need for Empirical Research in Legal Scholarship and in Legal Education.

 

After reading “Of Socratic Teaching and Learning Styles: Exposing the Pervasiveness of Implicit Bias and White Privilege in Legal Pedagogy,” I commend the authors, Rory Bahadur and Liyun Zhang, for writing a timely and well-written article that addresses important questions regarding legal education and pedagogy. Indeed, this article can and should promote discussions on legal education, curricular reform, and student success. Having said that, I’d like to offer the following comments on the authors’ arguments:

First, the authors do not address sufficiently the substantial empirical evidence largely debunking and thus discredited learning style theory.[1] Indeed, there is a mountain of empirical evidence concluding that learning style theory is fatally flawed. The authors should explain precisely why this research is flawed, whether due to methodological problems, sampling size errors, a failure to consider other variables, or other limitations. Unfortunately, the article selectively cites sources that support the authors’ position but do not address the many sources that profoundly and credibly disagree with their position.

Second, the authors fail to operationalize “white privilege” or control for variables in the law school learning context that may affect whether whites enjoy any privilege at all. For example, how does white privilege benefit whites who are raised in poverty? Who have diagnosed mental illnesses? Who have diagnosed learning disabilities? Who have substance abuse issues? Who were raised in abusive households? And why should we assume that the Socratic Method inherently benefits all or even most whites? In short, the issue of whether “white privilege” exists in the law school learning environment, and whether this alleged “privilege” exists across all or most law schools, is an empirical question. Generalized statements, such as those claiming that the curriculum benefits white males and is the product of white privilege, are tantamount to making allegations without any proof whatsoever.

Third, the authors make no attempt to operationalize “implicit bias” or address the substantial empirical evidence suggesting that implicit bias theory is fatally flawed.[2] For example, the authors do not address the many studies demonstrating that implicit bias does not predict biased behavior and that the Implicit Association Test has little, if any, ability, to predict biased behavior. For example:

Researchers from the University of Wisconsin at Madison, Harvard, and the University of Virginia examined 499 studies over 20 years involving 80,859 participants that used the IAT and other, similar measures. They discovered two things: One is that the correlation between implicit bias and discriminatory behavior appears weaker than previously thought. They also conclude that there is very little evidence that changes in implicit bias have anything to do with changes in a person’s behavior. These findings, they write, ‘produce a challenge for this area of research.’[3]

Additionally, the authors fail to consider whether other variables, such as explicit bias (e.g., over racism, sexism, and homophobia) produce biased behavior, or attempt to quantify implicit bias’s role in biased behavior when considering these factors. Furthermore, the article selectively cites sources that support the authors’ position, but do not address the many sources that profoundly disagree with their position.

Fourth, the authors fail to quantify the causal or correlative effect between white privilege, implicit bias, and law school success. For example, how do white privilege and implicit bias manifest in a first-year Torts or Contracts class at a particular law school? How do white privilege and implicit bias manifest in specific law schools and what is the degree of this manifestation among law schools? Surely, the existence or prevalence of such privilege, if it impacts law school performance and the quality of legal education, likely differs based on factors including, but not limited to, the diversity of an incoming class, the diversity of a law school’s faculty, the quality and accessibility of the professors, the quality of a school’s academic support program, incoming class profile (e.g., LSAT and GPA medians), and the policies regarding grading and attrition. Without such quantification, the authors’ arguments consist of normative generalizations absent sufficient factual justifications. And once again, the article selectively cites sources that support the authors’ position but do not address the many sources that profoundly disagree with their position.

Fifth, the authors’ condemnation of the Socratic Method lacks merit. The Socratic Method trains students to think analytically, which is perhaps the most important skill students need to be competent lawyers and which many students, especially those with low LSAT scores (yes, the LSAT matters), often lack.  Of course, the Socratic method alone is not sufficient, as active and engaged learning (as the authors rightfully endorse), formative and summative assessment, outcomes-based pedagogy, and professional identity and practical skills courses are all critical to developing competent graduates. But the Socratic method is a valuable and indispensable component of legal pedagogy because if students cannot think analytically, they will not succeed professionally.  

Sixth, the authors’ criticism of legal education and endorsement of learning style theory begs the question: what specific curriculum would the authors propose to address their concerns, maximize attainment of learning outcomes, increase bar passage rates, and produce competent lawyers? Unfortunately, the authors propose no such curriculum. Had they done so, they need not reinvent the wheel. Florida International University, which for several years has had the highest bar passage rate in Florida, is the best evidence of a curriculum that trains students to be excellent law students and lawyers. FIU does not admit students with woefully low LSAT scores. FIU provides robust academic support and bar preparation courses. FIU uses an outcomes and assessment-based pedagogy that relies on studies in cognitive neuroscience to maximize student learning.

Seventh, the authors disregard a simple but relevant fact: a law student’s success depends in substantial part on the individual choices that a student makes regarding, among other things, the time and effort dedicated to achieving success in law school and the legal profession. In short, mindset matters. Choices matter. Decisions matter. Relatedly, law schools must stop admitting students who are unlikely to succeed in a program of legal education or pass the bar exam. Otherwise, some law students will find themselves saddled with six-figure, non-dischargeable debt and struggling to find a job that pays above minimum wage. 

Ultimately, I commend the authors for writing about an important subject and sparking a timely and necessary discussion on issues confronting legal education. But the authors’ contentions lack empirical support. They present no empirical studies to supports their contentions and the articles on which they rely largely fail to do so. Without addressing the nuances and complexities of these issues – in an empirically-sound manner – little progress will be made.

[1] See, e.g., Kirschner, Stop Propagating the Learning Styles Myth, Computers and Education 106 (2017) 166-171; American Psychological Association, Belief in Learning Styles Myth May Be Detrimental (May 30, 2019), available at: Belief in learning styles myth may be detrimental (apa.org); Newton, P., The Learning Styles Myth is Thriving in Higher Education, Front. Psychol., 15 December 2015 | https://doi.org/10.3389/fpsyg.2015.01908. This is just a small sample of the many empirical studies suggesting that learning style theory is meritless. Instead, the authors critique a single article to support their contention that students possess different learning styles. See Deborah Borman & Catherine Haras, Something Borrowed: Interdisciplinary Strategies for Legal Education, 68 J. LEGAL EDUC. 357 (2019).

[2] See Bartlett, T. (2017). Can We Really Measure Implicit Bias? Maybe Not. Retrieved from: https://www.chronicle.com/article/Can-We-Really-Measure-Implicit/238807; see also Brandie Jefferson, Change the Bias, Change the Behavior? Maybe Bot (Aug. 2019), available at: https://source.wustl.edu/2019/08/change-the-bias-change-the-behavior-maybe-not/.

[3] Id. (internal citation omitted).

(Scott Fruehwald)

https://lawprofessors.typepad.com/legal_skills/2021/01/asam-lamparello-a-reply-to-of-socratic-teaching-and-learning-styles-exposing-the-pervasiveness-of-im.html

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