1983.04.12: Leon Letwin Comments on the First Year Grading Proposal.OCR

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April 12, 1983

Comments on the First Year Grading Proposal

by Leon Lenvin

I advocate changing the first year grading system to a P/U/NC

forma t. This proposal is not intended to alter the grade standards as

they n o~’ exist. The t wo crucial distinctions–those between P and U and

between U and NCwould correspond to the lines now drawn at 65 and 55.*

Our first year grading system contributes little to the learning

process; in a number of respects it is harmful; and the benefits, such

as they are, are too cos tly.

The principal arguments for the grading system seem to be these:

(a) Sound educa tion requires students to work hard both on a daily

basis and also at the end of the semester when they need to review and

integrate the material. The graded examination provides the incentive

for the student to do both. Even if the student were to get nothing

else from the examination process, its in terrorem eff ect would be


*The question arises how, under P/U/NC, it would be determined

which students had failed to meet the minimum academic requirements. At

present that determin.a tion is based on the student 1 s numerica l grade

average. P/ U/NC g r ading, however, provides no numerica l average. The

retention decision would then have to be made i n terms of the number of

units or courses in which the student achieved less than a P grade .

How similar would the retention decisions under P/U/NC be to those

under the present system? As to the severity of the standard, P/U/NC

could be made to function about the same as t he present system does . At

present a certain number of first year students find themsel ves in

academic difficulty at the end of the year. Under P/U/NC, the same

result could be achieved by setting the critical number of less-than-P

grades at the appropriate level.

It is, however , not necessarily the case that under P/II INC., the

ver x same set of s tudents would find themselves in difficulty as under a

graded system. The reason is that P./U/NC, unlike. a graded system, is

not able to t ake account of the f a ct that a student with a large number

of u.nsatisfactor y grades has gotten a high grade in another c ourse .

P/U/NC treats all P’s and U’s as e gua l levels of accgmplishment.

Nonethe l ess ther e would probably be considerable overlap between t he

students in di fficulty under the two systems, t hough not identity. To

whatever degree a somewhat different set of students found themsel ves in

difficulty under P/U/NC, the r esult s would not be intrinsically worse

11 77/170/ch/rev/4-11-83/1

(b) Beyond its in t e rrorem effect, the examina tion informs the

s tudent ho~T he or she is doing. In par t, the grade itself does this;

ana in part, the opportunity to review the examination wi t h the

ins tructor provides qualitative feedback if the student wants it .

(c) Educational payoffs aside, the r anking of s tudent s is . useful

both to the student and the potential employer. It enables employers to

figure out which students possess the qualities they seek; and it

enhances the likelihood that students will be hired on the basis of

professional qualities rather than on non-meritocratic criteria such as

race, class, gender. “c~ctions, 11 etc. This i s especially important

given the fact that other schools provide their students with a ranking

“service.” Our failure to do so would put our students at a competitive

disadvantage in the job market at the end of the first year.

In the case of ~irst year students , the in terrorem incentive seems

greatly overvalued . There is at present tgo much fear, pressur~

anxiety and stress in the first vear. The students’ desire to learn new

concepts and methods, coupled with their fear of the unknown and their

effprts to keep up with each other wo~ld drive them ampl y even without

the carrot and stick of grades. Grades admittedly may provide ev en

greater incentive , for the students have un dergon e 16 years of

accu~turation in an educational environment tha t defines learning

·largely in terms of its external recognition through grade s. Yet

student reactions to the first year suggest that they are possessed by a

powerful drive toward mastery independent of the carrotandstick

feature of grading . Student behavior in the traditional first year

courses, I believe, demonstrates this. And it is an instructive fact

that students devote themselves to their first year l ega l writing

assignments with an energy and commitment out of all proportion to the

rewards on the transcript–no grades are given for this work.

than those under the pres ent system. Remember the arbitrariness of the

prgsent s ystem which results from the fact that the outcome may be

influenced by the student’s luck of the draw in terms of section

assignment: the instructors in one section may give more U’s than the

instructors of other sections.

Since I am satisfied tha t P /U/NC could be made to work about as

well as the present system for purposes of the retention issues, I do

not pursue the matter further. Were the faculty to adopt P/U/NC

grading, it would have to work out the de t ails of the r etention issue ,

based, I imagine, on a report from the Standards Committee .

11 77/170/ch/rev/411-83/2


To the degree that feedba ck is the justification for grading, it is

an illusion to Ulink thatour present sys tem performs that function

well. ~is well geared to rank, t o sort, and to gr ade, but it is only

minimally suited to providing s tudents with sensitive insights as to how

t hey might i mprove their learning curve . Indeed, far too many students

determine that it can’t be done. They internalize their examination

gra 4es as myst ical determinations from on high that the~ave

“the.cknack” or do not. They emerge from the first year beli eving tlt.N:…..

grades have little to do with how ha rd you try, or how much you

understand, but everything to do with some whimsical, barely understood,

and elusive talent that one can do little to enhance.

The purpose of examinations ought to be redefined so tha t they

served as genuine learning dev ices. The system should be structured to

encourage instructors t o devise examinations the success of which was

not measured by how smoothly they spread students over the mandatory

curve but by how well they enabled s tudents to understand themselves,

their accq.mplishments, and their difficulties. How this ~vould be best

accomplished is a subject that seems to me difficult; and, I am aware, I

have proposed no specific techniques for achieving these goals.

My point here is merely that our present grading s ystem diver ts us

from thinking about the problem. It subtly presses us into devising

_examinations f or the wrong reason: for their ranking potential rather

than their educational value . And these two purposes are not the same.

In the present atmosphere surrounding examinations, the nearest thing to

a disas trous exam, from the instructor s viewpoint, i s one in which

students bunch tightly and defy distribution over the curve, rather than

one which contributes little to student understanding of their own

learning process. We should, for a s t art, adopt as the goal of

examinations, especially in the first year, the advan cement of the

learning process and not the sorting of students. We could then turn

to the difficult job of figuring out how exa~inations and other writing

exercises could be better utilized to facilitate the education and

self-education of students .

Once we contemplate such a path, the following question might be

raised. How suited are we to teach students to cope with their

educati onal difficulties? Some instructors may hold the view, and it

may be a reasonable view, that our training best prepares us to discuss

legal issues in a sophisticated way; and that it prepares us least well

to help students understand why they don’t understand. Perhaps this is

a way of saying tha t we feel best able to educate students most like

ourselves , those who are “intui tively” tuned in and who find it easy to

abs orb the idea of legal analysis through exposure to repeated instances

of it rather than through direct explanation. Though this is

understandable , I don’t believe we can adopt the view that the only

11 77/170/ch/rev/4-11-83/3

choices for people in the lower portion of the class are to sink or

swim, i.e., t o learn the material on our terms or to r econcile

t hemselves to marginal status . An i mplication of broadening the

admissions criteria as we have over the years is sur ely that our

resnonsibil i ties are broadened to include h e l ping the s tudents ~ in

their ab ility to l earn . It may be, hmvever, that the logic of this

approach i s tha t the school should, among other things , cons ider hiring

s ome instructors who possess some tea ching skills tha t most of us may


Grades in the first year are neither necessary nor very useful from

a pedagogical standpoint. The case against them is, however, more

subs tantial. First, the< grading system produces gratuitous and useless

str~ Stress is, to be sure, an unavoidable part of life,

particularly in a combative profession such as ours. But the stress

res ulting from firs t year grades is l argely a useless affliction. All

too often, it doe~ not whet the students’ appetite for learning. Indeed

student concern with grades and rank interferes with a relaxed

inquisitiveness and tole r ance for uncertainty that might be

educationally far healthier .

Furthermore, the process dis torts and corrupts learning motivation

by encouraging students to attach an artificial and excessive i m ortance

to what the professor thinks is the ” r ight” answer, or as they often t

it, to “psyching the instructor out . ” To better unders tand this point,

try to imagine a classroom setting in which the instructor lacked the

power to draw fine dis tinc tions among s tudents through grading. Any

decrease in external incentive would be repaid by the great e r play it

would give to internally generated pressures for lea rning . Students

would be encouraged to focus more on the issue, “Wha t can I genuinely

leaJn from the instructor and from my student colleagues?” and less on

the question, 11Wha t is the answer that the professor wants, but

pe rve r sely hides , from me?” It is not a sufficient answer to say that

most ins tructors discourage this kind of intellectual obsequiousness.

Whether this effect is intended or not, emphasis on r ank in our

examination process contributes to a passive , authority-centered,

a t titude on the part of many students.

In . addition, the grading system fosters unhealthy attitudes on the

part of students toward each other and themselves. The winners in the

competition for grades may develop exaggerated ideas of superiority, and

fail to unders t and the limited range of lawyer talents which the

examination tests. And the losers often see themselves not only as

having lost a particular contest but as having sust ained a f undamenta l

and enduring defeat. To be sure , some students with below-average

grades will unde r stand that when they enter practice, their numerous

talents upon which they are not gr aded–hard work, their commi t ment to

their client s cause, a n ability to understand and empathize with their

client s sense of indignation, a moral vision , interpersonal t alents ,

integrity, etc. __ ,.,ill come into play and they will be successful. But

many oth e r s see themselves not as persons who happened t o get, say , a 75

in a t est of one a rea of lawyer competence, but as persons who are 75’s.

11 77/170/ch/rev/4-11-83/4



This conditions their self-concept and selfconcept all too often

becomes a self-fulfilling prophecy . A system which produces this

phenomenon is educationally counter-productive; and it is particularly

objectionable when it falls with disproportionate impact upon students

admitted on diversity criteria. Low grades are often internalized as a

sign of an intellectual second class stature and as a message t hat such

students are in law school upon sufferance without genuine entitlement

to law school citizenship. This can only undermine their learning


It may be suggested that if the proposed change were adopted, all

of the adverse effects noted would simply be transferred to the second

and third years, where the examinations and grading would take place.

To a degree this may be so, but to a far lesser degree than is the case

t~day. For by the second year, students would no longer be suffering

the< stress of the unknown. They would have a better idea of what is

expected of them and of the ways in which law school differs from what

went before. Furthermore, many students would have received validation

in< ways other than through grades-through written exercises, moot

court, clinical courses, part-time employment, having written on to law

review, etc. In short, they would no longer look at grades (and only a

few of them at that) as the sole index of achievement. They would

unde~stand that there is life after grades.

P/Uj NC grading would r7 duce some of the nr gatives associated with

grading and would help us focus more on the development of examinations

that provided students with more meaningful, qualitative feedback and

the development of a better writing component in the first year. Such a

change would probably produce no net saving in terms of faculty time;

indeed, quite the reverse, since feedback is a labor-intensive activity.

But the time would be better spent. It may be replied that part of the

time spent would not in fact be better spent . If it is assumed that

students with good grades receive adequate feedback from the present

system, any requirement that the instructor invest greater energy to

evaluate their writing would be wasteful. I question the underlying

premise–that better students would not benefit .substantially from

better evaluations–but in any event, the instructor could attempt to

tailor the time spent in evaluating the work to his or her perception of

the given student’s need.

An issue of appropriate concern is the effect of the proposed

change on the job prospects of students at the end of their first year,

especially given the fact that students enrolled at other l aw schools

will have grades. I generally share Lowenstein’s views on this issue.

It is hard to predict confidently what the effect on a non-graded first

year would be on job seekers. Ttose who would end up with high grades

on a grade9 system would be deprived of a sellin~ pojnt , partjcularly in

relation to students who get high grades at other schools . Those, on

the other hand , who would have e aded up with lower grades might have a

better crack at employment, or at any rate would end

11 77/170/ch/rev/4-ll-83/5


up being eval~a te d on t he basis of a broader r ange of criteria. I do

not t ake lightly the possible impact of the p r oposed change upon the

economic circumstances of our students; nor on the possibility that they

will be hired on criteria even less worthy than grades. But our present

grac;li.ng system can hardly be described as meritocratic t o t he degree

that it is best attuned to the educational needs of those who are least

in need of academic help . And as to the job consequences, we insis t on

many arrangements in the educational process that have an immediate

adverse economic i mpact on students, in deference to what we see as

weightie r educational conc erns. There are such c onsiderations here.

11 77/170 / ch/rev/4-11-8 3/6

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