The spread of COVID-19 has upended nearly all aspects of life in America, and legal education has not been spared. In fact, 100 percent of law schools have moved to online instruction for the reminder of the academic year. This change to normal modes of instruction has sparked a subsequent debate about whether law schools should also change their grading to pass-fail for the semester.
Some schools have already made the change. In a public memo on March 16th, Cornell Law School announced that it will move to a pass-fail system. Several other law schools—including Berkeley, Harvard, Michigan, and Stanford—have also announced some form of changes to their grading policies for the semester. And there has been at least one call, from Brian Frye, to go even further and eliminate grades permanently.
It’s understandable that law schools are considering (at least temporary) changes to their grading policies. After all, the disruption that students and faculty are currently facing is unprecedented. Students are facing a complete upheaval to their normal study patterns at the same time that they, and their families, are experiencing stress over their health, safety, and finances. Similarly, faculty are facing a move to online instruction while juggling new obligations like providing full-time childcare. Moreover, these burdens are not equally distributed. Moving to pass-fail assessment is thus one way to help alleviate anxiety, ensure fairness, and free up time for students and faculty to focus on other pressing concerns.
But it’s important to remember why we grade students. At the most basic level, grades are a product we offer our students. This product has value to them for two reasons: they create incentives to learn and they provide assessments that can be used by employers, admissions committees, or other decisionmakers. Both of these things continue to be valuable, even during these chaotic times.
First, it is important to ensure students still have incentives to learn, especially when there are more things than ever competing for their attention. And, even under the best of circumstances, it would be difficult to pay attention to lectures that are delivered via zoom. It would be understandable for anyone to check out when staring at hours of online lectures every day. Grades provide some accountability that will help students find a way to focus.
Second, it’s important we provide grades so employers and other decisionmakers can assess students. If we do not provide grades, it does not mean that people will stop screening students. They will just be screening students using different information. For instance, law reviews will still have to decide which 1Ls are elected as editors, they’ll just be deciding based entirely on first semester grades. Law schools that elect to not grade this semester are thus depriving students of the opportunity to improve their standing.
And students should want the opportunity now, more than ever, to be able to provide reliable signals of their quality. The reason is simple: a recession is the legal market is now all but inevitable. Legal hiring is thus likely to be down in the fall, and failing to grade students will just make it more difficult for those students to get jobs. Law schools that are deciding not to grade their students are not saving their students stress; they are just moving that stress to next fall, and beyond, when the employment market will be tight. Moreover, not all schools are making the decision to move to pass-fail. Schools that make the move while their peer schools still offer grades are essentially ensuring that their students will have difficulty competing for a dwindling pool of good jobs.
To be clear, neither of these considerations—the incentives to learn or the need for reliable assessments—are themselves sufficiently important to make it obvious that we should not switch to pass-fail grading. Instead, they are considerations that should weigh on the other side of the ledger.
If we can no longer offer a reliable product, I’ll be the first to agree we should stop grading. And it might be the case that that the product will be unreliable this semester because grades will be too noisy, too biased (e.g. the burdens are borne too unequally), or impose too high of costs on students. All of these pressures on the reliability of grades may become sufficiently strong that grades become more noise than signal. At that point, there will be no choice but to switch to pass-fail.
But making that switch will have real costs to students’ learning and employment outcomes. So I hope that students understand that law schools that are continuing to grade them are not doing it as a punishment. Or that their schools are unaware that they are going through an extremely stressful and scary time. Law schools are continuing to grade students because they have paid a lot of money for a valuable product, and we shouldn’t take it away from them lightly.