Contributors: Rebecca McDonough, Executive Editor; Nathan Truitt, Editor in Chief; J. Will Huber, Symposium & Digital Media Editor
Five years ago, in the Spring of 2015, Bill Gates gave a keynote presentation entitled “The Next Outbreak? We’re Not Ready.”[1] Mr. Gates delivered it in the wake of the Ebola crisis and he offered this stark warning:
If anything kills over ten million people in the next few decades, it’s most likely to be a highly infectious virus, rather than a war. Not missiles, but microbes … [W]e’re not ready for the next epidemic.[2]
Now, in 2020, the proverb “hindsight is 20/20” rings true.[3] Even the world’s most sophisticated governments and businesses were unprepared to respond to a massive public health crisis involving a highly infectious and deadly disease like COVID-19.[4] Similarly, law schools were unprepared. It is apparent that schools did not have a plan to accommodate an immediate transition to long-term distance learning and its related consequences. As a result, schools have been forced to improvise a response. This blog will discuss (A) the implementation of long-term distance learning, (B) grading system changes, and (C) implications for the July 2020 bar exam.
A. Implementation of distance learning
Center for Disease Control (“CDC”) recommendations against large gatherings have given rise to an unprecedented amount of distance learning. In law school, where students have heart palpitations if the professor forgets to pass around an attendance sheet, opportunities for distance learning are limited. The spread of coronavirus and COVID-19 has drastically changed this and made distance learning the new normal.
American Bar Association (“ABA”) Standard 306 allows for distance learning when circumstances “make the law school facilities unavailable or make it difficult or impossible for students to get to law school.”[5] However, law schools must evaluate school and student resources before moving in-person classes to electronic formats. This evaluation must include but is not limited to whether distance learning is appropriate for the course, whether the instructor can adapt to teaching through electronic formats, and whether the school and its students have the technology necessary for distance learning.[6]
A majority of law schools transitioned to distance learning using their existing platforms like TWEN, Course Capture, and Canvas and incorporating online video conferencing services like Zoom and Google Hangouts.[7] Zoom allows professors to lecture in real time without abandoning the much-beloved Socratic method.[8] Lectures can also be recorded and accessed later for students who are unable to attend or for students who want to review the material.[9] Although students are not physically in the classroom, these electronic mediums are comparable replicas of the classroom experience.
As students and professors adapt, so too must the curriculum. Graduation requirements include experiential credit hours and at least fifty pro bono hours.[10] These opportunities are essential to students learning “how to apply the law in real-world settings with real-world people.”[11] Experiential credit hours may be earned through participation in clinics, externships, moot court, and in-class engagement.[12] Through experiential learning, students have the opportunity to interact with lawyers, legal professionals and, perhaps most importantly, clients. Similarly, pro bono requirements introduce law students to the profession’s dedication to volunteerism and uncompensated legal services.[13]
Unfortunately, these two graduation requirements rely on interactions with “real-world people.”[14] Social distancing has ended many experiential learning and pro bono opportunities because they cannot be adapted to distance learning. To ensure graduating students fulfill these requirements, schools are providing supplemental assignments to students who are unable to complete remote assignments through externship placements.[15] At Chase, for example, some students have been tasked with choosing a pending case before the Supreme Court or a state Supreme Court, reviewing all accompanying pleadings, watching any oral arguments and drafting an opinion from the perspective of a justice on that court. While alternatives like this do not mirror the real-world experience of an externship, clerkship, or clinic, adaptive alternatives ensure that students can satisfy these graduation requirements.
In response to this unprecedented turn to distance learning, Barry Currier, Managing director of accreditation and legal education for the ABA’s Section of Legal Education and Admissions to the Bar, acknowledged that “law schools are trying to adjust their education while preserving the integrity of their academic programs.”[16] To that end, the ABA plans to “give schools some room and trust them, until they demonstrate that trust is not merited.”[17] However, Currier noted that as schools continue to adapt, so far, “they are doing some amazing things.”[18]
Many students approached this new experience with apprehension. Nevertheless, if there is one universal skill learned in law school, it is resilience. The “Zoom School of Law” is the new normal, and students will make the best of this difficult situation, while remembering that circumstances could always be worse.
B. Adoption of pass/fail grading systems
Perhaps one of the more controversial issues law schools have addressed is whether to transition to a pass/fail grading system for the Spring semester. Most law schools, including the “T-14s,” have chosen to do so.[19] Still, students remain split on the issue.
Students in favor of a pass/fail system primarily argue that grading on a traditional scale will not allow for fair and objective grading during the COVID-19 pandemic.[20] They suggest that switching to pass/fail “aligns with empathy and reason.”[21] And, there is at least anecdotal support for this position.[22] Imagine the student who did not anticipate returning home to homeschool her younger sibling full-time. Imagine the student who did not anticipate seeking employment to support her family during a period of unprecedented job loss. Imagine the student that does not have an adequate internet connection or technology to support the demands of a remote campus. These are only a few examples of unanticipated situations that place undue economic and social costs upon certain students—especially those from low-income communities—and drastically impact their ability to perform academically.[23]
Students who wish to keep traditional grading systems argue that a pass/fail system does not allow law students “the opportunity to demonstrate their excellence.”[24] In other words, a pass/fail scheme leaves students with the same GPA from the prior semester and does not give them an opportunity to improve it.[25] This presents a number of issues, especially for the graduating class. For example, they argue that prospective employers will lack the most recent measurement of a student’s academic achievement (employers can only judge a students’ academic success on five graded semesters instead of six).[26] Furthermore, they suggest that, if GPAs are the ultimate measurement of a student’s law school performance, GPAs for the three current classes might not accurately represent students with the highest proclivity for success. That is, the students who deliberately registered for “easy-A” courses before this semester will graduate with higher GPAs than students who waited until the Spring semester to take those courses. Finally, for first- and second-year law students, there are issues with whether schools would honor transfer credits for the Spring semester under a pass/fail scheme.[27]
There is at least one other grading scheme that could be implemented. Some schools have proposed a “peek-a-boo” scheme, wherein students could view their letter grade and choose whether to accept it or not.[28] At least one of the problems presented by this system is that prospective employers will interpret a “pass” for the 2020 Spring semester as a low grade, or at least one that the student did not want to appear on their transcript.[29] On the other hand, a peek-a-boo scheme would shift the decision-making power from the administration to each individual student.
All of the proposed grading systems have pros and cons and we must acknowledge that different types of students will prefer one system over the other. These unprecedented circumstances have divided law students into two camps—students who hoped to boost their GPA during the Spring semester and oppose the pass/fail scheme and students who sought to maintain their GPA and support it. One is reminded of the colloquial wisdom: “You can please some of the people all of the time, you can please all of the people some of the time, but you can’t please all of the people all of the time.” This rings especially true during a time of emergency and uncertainty. Regardless of which system a student supports, all can agree that the COVID-19 pandemic presents a serious dilemma for law schools’ grading schemes, and one without an obvious answer.
C. July 2020 Bar Exam
One of the most pressing uncertainties that graduating law students face is the uncertainty surrounding the July 2020 bar exam. Not only are students trying to finish their schooling from home, and under extraordinary circumstances, but they’re also facing the prospect of having to take the bar exam under those same circumstances. And considering current social distancing restrictions, it seems likely that the traditional method of administering bar exams is untenable.
Eleven academics recently brought national focus to this issue by publishing a working paper: The Bar Exam and the COVID-19 Pandemic: The Need for Immediate Action.[30] This paper argues that states will be unable to administer the July exam as planned because the risk to test takers and administrators will be too high.[31] But the paper warns that cancelling the exam altogether will also have profound consequences because the “COVID-19 crisis [] will dramatically increase the need for legal services.”[32] The authors provide six possible alternatives: postponement, online exams, proctoring to small groups, diploma licensure, diploma licensure with additional training, and supervised practice.[33]
In the authors’ view, the first three options are “likely to fail,” but they remain optimistic about the final three.[34] Postponement is probably unworkable because the current health crisis is likely to continue throughout 2020.[35] An online exam might address health concerns, it creates logistical obstacles for test takers who don’t have online access and it undermines the reliability of test scores.[36] Proctoring the exam to small groups might be logistically possible for states with fewer applicants, that option still fails to adequately account for health risks, especially for those with compromised immune systems.[37] In contrast, the authors argue that diploma licensure is a viable option: Wisconsin has successfully utilized this approach for many years, it’s “easy to administer,” and “risks to the public are minimal.”[38] Diploma licensure plus additional training is also viable, although the authors’ note that administering such a program might create some logistical challenges.[39] Finally, the authors suggest that states could, for example, license law graduates who complete 240 hours of legal work under supervision.[40] Regardless of which option states adopt, the authors have one conclusion: “We cannot reduce entry to the profession at a time when client demand will be at an all-time high.”[41]
It’s not clear, however, whether the National Conference of Bar Examiners (“NCBE”) is open to the recommendations of the paper. NCBE President Judith Gundersen issued a statement that the “council’s position is that bar admission should require both an ABA-approved law school J.D. degree and the passage of a bar exam.”[42] While the NCBE conceded that states may be forced to make changes in the bar admissions process, it argued that any changes “should be made thoughtfully and with consideration of both long-term and immediate concerns.”[43] Finally, the NCBE has announced that it will offer two fall exams for jurisdictions who decide not to administer the July exam: September 9–10 and September 30–October 1.[44] Ultimately, though, each state is responsible to decide for itself. So far, fifteen jurisdictions have either postponed their bar exams or have put contingency plans in place.[45] As of April 10, Arizona, Indiana, New Jersey, Tennessee and Wyoming have adopted emergency rules or amended exiting rules permitting temporary admission for supervised practice in the event the July exam cannot be administered.[46]
Importantly, law students are making their voices heard. Students in several jurisdictions are circulating petitions and open letters, urging their states to adopt the diploma licensure route.[47] For example, California’s committee of bar examiners held an emergency meeting that allowed members of the public to call in and voice their concerns.[48] However, after three-and-a-half hours of comments from law students, the chair finally closed the session over members’ objections.[49]
Despite the uncertainty, there is reason for law students to be hopeful that bar committees will keep their interests in mind. School administrators, academics, and students are highlighting the challenges applicants face and are advocating for reasonable accommodations during this crisis. There is even reason to believe students’ voices are being heard. The chair of New York’s bar committee urged students to relax, noting that jurisdictions will make sure new graduates can join the bar and begin practice, even if the process will be a little delayed.[50]
Footnotes
[1] Bill Gates, Keynote Address at TED Conference (Apr. 3, 2015), available at https://www.youtube.com/watch?v=6Af6b_wyiwI&t=80s.
[2] Id.
[3] Before this keynote address, global experts had warned for years that another pandemic whose speed and severity rivaled those of the 1918 influenza epidemic was a matter not of “if” but of “when.” Bill Gates, Responding to COVID-19 — A Once-in-a-Century Pandemic?, The Gates Foundation, https://www.gatesfoundation.org/TheOptimist/coronavirus (excerpt) (last accessed Apr. 3, 2020).
[4] See N.Y.Times, Coronavirus Map: Tracking the Global Outbreak, Nytimes.com, https://www.nytimes.com/interactive/2020/world/coronavirus-maps.html (last visited Apr. 3, 2020).
[5] ABA Council on Legal Education and Admissions to the Bar Managing Director’s Guidance Memorandum to law schools (Feb. 2020), https://www.americanbar.org/content/dam/aba/administrative/legal_education_and_
admissions_to_the_bar/20-feb-guidance-on-disasters-and-emergencies.pdf.
[6] Id.
[7] Amanda Robert, Coronavirus and Law Schools: Numerous Schools Canceling In-Person Classes, ABA J. (Mar. 11, 2020), https://www.abajournal.com/news/article/At-least-seven-law-schools-to-close-or-cancel-classes-because-of-coronavirus.
[8] Stephanie Francis Ward, Amid Coronavirus Worries, how do Law Schools Move Online?, ABA J., (Mar. 12, 2020), https://www.abajournal.com/web/article/Amid-coronavirus-worries-how-do-law-schools-move-online.
[9] Large Course Content Delivery, UC Berkley Ctr. for Teaching & Learning, https://teaching.berkeley.edu/large-course-content-delivery.
[10] Academic Policies, Chase C. of L., https://chaselaw.nku.edu/content/dam/chase/docs/students/studenthandbook
/Student%20Handbook%202019%20Academic%20Policies.pdf.
[11] Experiential and Clinical Learning, Chase C. of L., https://chaselaw.nku.edu/experiences.html.
[12] Id.
[13] Id.
[14] Id.
[15] Ward, supra note 4.
[16] Amanda Robert and Stephanie Francis Ward, Coronavirus and Law Schools: More Universities Shifting to Online Classes, ABA J., (Mar. 12, 2020), https://www.abajournal.com/news/article/coronavirus-and-law-schools-more-universities-shifting-to-online-classes.
[17] Id.
[18] Id.
[19] Karen Sloan, Remaining ‘T-14’ Law Schools Yield to Mandatory Pass/Fail Pressure, Law.com, (April 6, 2020), https://www.law.com/2020/04/06/remaining-t-14-law-schools-yield-to-mandatory-passfail-pressure/?slreturn=20200308160925.
[20] See EJ Odre, A letter to the administration from the Baylor Law student body, Change.org (last accessed Apr. 9, 2020), https://www.change.org/p/baylor-law-school-a-letter-to-the-administration-from-the-baylor-law-student-body?source_location=topic_page; Kathryn Rubino, Top Law School Changes Course On Grading Policy, Gets With the Program, Abovethelaw.com (April 6, 2020), https://abovethelaw.com/2020/04/top-law-school-changes-course-on-grading-policy-gets-with-the-program/.
[21] Sloan, supra note 19.
[22] See id.
[23] See id.
[24] Michael L. Krauss, Should Law Schools Grade Pass-Fail This Semester? Forbes.com, (March 25, 2020), https://www.forbes.com/sites/michaelkrauss/2020/03/25/should-law-schools-grade-pass-fail-this-semester/#2bd20c361b9f.
[25] See id.
[26] See Patrice, infra note 28.
[27] Jon Marcus, Pass/Fail Grades May Help Students During the COVID-19 Crisis, but Could Cost Them Later, PBS.org, (Apr. 7, 2020), https://www.pbs.org/newshour/education/pass-fail-grades-may-help-students-during-the-covid-19-crisis-but-could-cost-them-later.
[28] Joe Patrice, Notre Dame Law School Doubles Down On Hare-Brained Grading Scheme, Abovethelaw.com (last accessed Apr. 9, 2020), https://abovethelaw.com/2020/04/notre-dame-law-school-doubles-down-on-hare-brained-grading-scheme/?rf=1.
[29] Id.
[30] Claudia Angelos, et al., The Bar Exam and the Covid-19 Pandemic: The Need for Immediate Action (March 22, 2020), https://www.abajournal.com/files/barexamoptionsCOVID-19.pdf.
[31] Id. at 1.
[32] Id.
[33] Id. at 3–6.
[34] Id. at 3.
[35] Id. at 3–4.
[36] Id.
[37] Id. at 4.
[38] Id. at 5.
[39] Id. at 6.
[40] Id.
[41] Id.
[42] Stephanie Francis Ward, What alternatives to the July bar exam are being considered in light of COVID-19?, ABA J., (March 23, 2020), https://www.abajournal.com/news/article/in-light-of-the-coronavirus-crisis-working-paper-suggests-alternatives-to-the-july-bar-exam.
[43] Id.
[44] Karen Sloan, Two Fall Bar Exam Dates Set as Alternatives to July Test, (April 3, 2020), https://www.law.com/2020/04/03/two-fall-bar-exam-dates-set-as-alternatives-to-july-test.
[45] July 2020 Bar Exam: Jurisdiction Information, Nat’l. Conf. of B. Examiners (April 10, 2020), http://www.ncbex.org/ncbe-covid-19-updates/july-2020-bar-exam-jurisdiction-information.
[46] Id.
[47] Karen Sloan, Amid More Bar Exam Delays, Push for Diploma Privilege Grows, (March 30, 2020), https://www.law.com/2020/03/30/amid-more-bar-exam-delays-push-for-diploma-privilege-grows.
[48] Stephanie Francis Ward, Three states postpone July bar exam; will others follow?, ABA J., (March 30, 2020), https://www.abajournal.com/news/article/new-york-postpones-july-bar-exam-will-other-states-follow-connecticut-massachusetts.
[49] Id.
[50] Sloan, supra note 48.