Grades, Law, and Love in the Time of Pandemic: Pass/Fail with Written Evaluations

On Friday, I sent my first-year students an email titled “Law and Love in the Time of Pandemic.” I had sent them an anonymous survey about grades, asking for their thoughts on whether to keep letter grades or switch to pass/fail. I received 60 survey responses and at least two dozen emails from current (as well as former) students, and they were evenly split. (The ranked-choice voting was also evenly divided along a spectrum of five options, roughly 20% each). I appreciated how candidly, respectfully, and openly they shared – both anonymously and non-anonymously. A lot of students are struggling out there, in ways professors can imagine, and in ways professors might not imagine. Going home for some is easy. For others, going home is much harder, and some cannot get home or have no family home to return to.

Tonight, I read Jonathan Adler’s thoughtful post “Grading in the Time of Coronavirus” on Reason. I have a lot of respect for Jonathan and his valid points. His bottom line: “A better alternative is to allow students pass/no-credit option (either before, or even after, receiving their grades).” 

My bottom line: The better alternative is mandatory Pass/Fail, with a formal requirement that professors write a reasonable amount of short letters of evaluation for students who excelled on the exam and/or performed well despite particularly challenging situations. They can be used like mini-letters of recommendation if the student so chooses.

(As a compromise, I would be open to Honors/Pass/Fail. I find it only a second-best, but better than pass-fail without sufficient faculty participation in written evaluations).

Many colleges offer evaluations instead of grades. It would be completely unmanageable for law schools to try this for all students, especially in these circumstances. But in these circumstances, we should be able to step up and accommodate both a pass/fail necessity in a worsening pandemic but also incentivize and recognize impressive work and resilience.

Let me first acknowledge one problem with law schools switching to pass/fail now: There is a perception, fair or unfair, that law schools switching to pass/fail say they are serving students, but on some level are also serving themselves. It certainly would make my life easier not to have to grade 90 exams and 20 papers this spring. It has been a lot more work for all of us to move our classes online, and many of us suddenly have children at home indefinitely. But many of us also have more time due to cancelled workshops, conferences, etc. Hopefully by May and June, we will have more time to write evaluations. Whether that number of short written evaluations means 20% or 40% or more of our students, and how long each would be, can be left to our discretion or some explanation to our dean based on our circumstances, taking the health of the faculty member or the personal disruption of the pandemic into account.

First, all of our students want and deserve more feedback than we give them. Not only do they lose an opportunity to get a good grade, they also lose an opportunity to see if they are improving from first semeseter to second semester, so they can have more preparation and wisdom for their second year. And now, this second year becomes all the more significant given the disruption in their first year.

Second, our students deserve some extra incentive to stay focused, to excel, and to have some structure, because many students thrive with continuity of structure and expectations. Perhaps it helps them maintain normalcy in a harrowing time. We accommodate those students with some continuity for engagement. Then we reward those who do excel, as well as those who perform well in the face of extraordinary challenges.

Third, we need to acknowledge the unfairness of putting even more weight on the grades from first semester, once the grades second semester are essentially meaningless. I have always told students about the inequities and the relative unrepresentativeness and “noisiness” of first semester grades in law school.  There are many reasons why students have such different learning curves. Some 1Ls majored in pre-law or in areas like political science or history with a concentration in law or constitutional structure. Some 1Ls majored in totally unrelated arts and sciences. Some 1Ls have been out of school for many years and are readjusting. Some 1Ls come from families full of lawyers, and some are the first in their family to attend college or graduate school. These different circumstances flatten out over time, but they are sharpest in the first semester. The second semester is more accurate and more representative as students get acculturated and acclimated at different rates. It seems to me that the second semester tends to be more reflective of students’ abilities. But the pandemic is wiping it out as a reliable measure for everyone. 

Those are reasons to emphasize second semester letter grades in normal times, but these are not normal times. It seems to me that some inequalities may be exacerbated, not ameliorated in this time. And some new challenges are unrelated to structural inequality, but are the inevitable randomness of living situations and health. Some students were immediately able to take a train or flight back to a quiet home and physical distance from the pandemic risks.  Many students were not. I have heard from current and former students, and I have also heard from colleagues, about so many challenges and difficult choices.

Some students are going home to a noisy house full of young children whose schools are closed indefinitely, and their families expect them to help with those who need care. Some students are going home to help with older relatives or high risk relatives. Some students have family members who have tested positive for the virus – and those situations are only going to increase. Students faced a difficult choice about leaving the U.S. to go home… to a country even more affected than the U.S. at that time. Who would be able to go from the U.S. to China, Spain, or Italy in early March?

And we should not overlook how many students have underlying disabilities or propensity for depression and anxiety that have been manageable in typical school environments, but can become suddenly unmanageable in these extreme circumstances. Students spend years learning how to manage Obsessive-Compulsive Disorder, anxiety, depression, other mental health challenges. But a viral pandemic with social distance, isolation, and a lack of access to professional care and medication can lead to a new level of difficulty.

Let me please note here: our universities offer support for mental health. If you are struggling, please contact your law school for support. Fordham’s services are here.

We need to make one clear decision about grades, keeping in mind the possibility of worsening conditions.

Let me address a few reasonable alternatives. Jonathan suggests students might have class-by-class options to take the exam pass/fail. An option of grades or Pass/Fail sounds good in theory, but in practice, there are some foreseeable and unforeseeable strategic gaming problems. “More choice” often sounds appealing, but how is it implemented on a curve? Giving such choices could produce either a much lower, less favorable curve for those who choose grades (if the Pass/Fail students are not counted for the curve) or produce a much higher curve (if the Pass/Fail students are counted in the curve, and those students obviously do not try as hard). And students understandably would strategize to figure out who is opting for or against grades in which classes to take advantage of better or worse curves. Extra time spent on such strategies is inevitable but unproductive and also exacerbates inequalities.

Even the possibility of considering this choice reflects some degree of randomness, health, and privilege, which are the problems we are trying to mitigate.

Moreover, the grade-or-pass/fail option would also require likely with an explanatory note, and thus those A and A- grades become less meaningful anyway. Some suggest giving a student the choice to turn a disappointing letter grade into a “Pass” after receiving the grade. I think this policy risks making every Pass look like a C or a D, when it reality, I can imagine some students feeling paralyzed and torn about a B-. And there are “blessings in a B-,” as they say, especially a B- for a student who overcame serious challenges. I want that student to be able to feel like they can keep that B- or C+ on their transcript in these difficult times. Other students might have good reasons to turn a B- into a P. I don’t feel like I could give good advice about this choice in an extraordinary time. I don’t feel like anyone could advice confidently about that choice. Again, their ability to make such a stragetic choice is going to benefit those with networks and connections for advice.

And I worry students with less confidence and more underlying anxiety might prematurely choose the Pass option over a B-. I don’t think students need more of this pressure and anxiety this spring.

In the end, I think the possibility of a written evaluation for some students who perform very well (or as a reasonable compromise, an Honors in a Honors/Pass/Fail system) accommodates Jonathan’s points about incentives, rewards and “those students who benefit psychologically and emotionally from having something else to focus on.” Many students will benefit from the goal of the Honors or such a positive evaluation, with much less risk if they are not in a good position to achieve such goals.

Jonthan’s second point is that “such a [Pass/Fail] policy is that it penalizes those students who are capable of excelling under these circumstances. If a student is capable of mastering material and learning in trying circumstances, don’t we want to acknowledge that?” The problem is that for some students, these circumstances are far less challenging than they are for others. How can we claim that these letter grades are a measure of who found themselves in more or less fortunate positions during a crisis? Whose learning styles were best matched to whatever inadequate online pedagogy we threw together on the fly?

Jonathan adds, “When I write letters of recommendation I often note when students have excelled despite particular disadvantages or hardships because I know many employers value that. Why would we want to take away being able to distinguish some students in that way?” My response is: then we just write that letter of recommendation for some students to explain these circumstances. A grade certainly does not reflect any of this context.

Jonathan says the Pass/Fail switch would “remove or reduce those opportunities that are available to high-achieving students.” My understaning is that law firms are now grasping the depth and breadth of this crisis. I have heard that there is a dramatic change in law firms’ expectations, such that they seem to think grades are not particularly meaningful in these circumstances, for the reasons I outlined above. What does an A or A- signify on a transcript during a historic pandemic, without any other context?

Now let me take a step back from the details of grades. I think the choice between staying with grades or switching to pass/fail is an opportunity to talk about perspective in the face of a crisis. Yes, excellence matters. Job opportunities matter, of course. Please do not take these observations as condescension from a place of privilege, but an observation about the world.

Grades do not matter nearly as much as we think they do in the middle of a semester. When we are in the middle of law school, we tend to think grades will make or break us. But we have more choices than we imagine we do. We have more opportunities to define our own opportunities, to define success and failure for ourselves. Let me share that, as I talk to lawyers and my friends who are lawyers, from all kinds of backgrounds and now doing all kinds of work, we often comment to each other about how much we thought grades mattered when we were students, and how much less they mattered than we thought they did. I try to remind myself in these moments to have perspective about what matters most, and to be sensitive to those in our community who are struggling the most.

In times of challenge, I’ve turned to what is most important: family, friends, balance, and love.  So yes, that’s why I titled the email to my students “Law and Love in the Time of Pandemic.”  Now more than ever, we need to keep our perspective.  Please be kind to yourselves.

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and American politics, and another project on the origins of independent agencies in America.

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