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The Trouble With Grades

A Law School Report

NO WRITER ATTRIBUTED

(The following are excerpts from a report by a group of first-year law students on grades and their effects on education at the Law School.)

For many years the Law School has had confidence in the precision with which grades take the measure of the man. "If one fellow got 76 and another 76.5," said Felix Frankfurter, "there's no use saying, 'The 76 man is better.' Maybe so, but how do you know he's better?" For Frankfurter, who entered the school in 1902, Harvard Law was and remained "the most democratic institution I know anything about" largely because everyone's work was measured by the standard f grades. Regardless of background, a man could prove his worth by doing well on first-year exams. Grades left no room for racial, religious, or class bias. All students could compete on an equal footing and be judged impartially. The system, said Frankfurter, "creates an atmosphere and habits of objectivity and disinterestedness, respect for professional excellence, and a zest for being very good at this business which is the law."

But a system which served well is Frankfurter's time has grown increasingly inadequate. Last year's study of the grading system indicated that the problem concerned all at the Law School and had to be solved by students and faculty working together. Many of us feel that problems discussed in that study are still present. For the past month more than 150 first-year students have been actively discussing the atmosphere created by the present grading system, and examining proposals for change. We have found that our views of the Law School coincide to a remarkable degree.

Our perspective differs from Frankfurter's. He viewed the Law School as a meritocracy in which graded examinations and rank in class served to obliterate subjective discrimination. Grades hindered the temptation of school organizations and employers to select members according to irrelevant biases. While we recognize that the present system has helped to establish a tradition of evaluating students on the basis of merit and has fostered Harvard's reputation for academic excellence, we are convinced that in the context of our day, with students who differ greatly in backgrounds and abilities from those of Frankfurter's day, the utility of the old system has reached the point of diminishing return.

We believe that the system draws critical distinctions among students prematurely, at the expense of developing talents over a three-year period. We believe that the system is a detrimental force in the lives of many first-year students; that it creates unnecessary tension, anxiety, and fear of failure in the minds of many of our classmates; that it encourages us to compete, to score points on each other, rather than to communicate and work in cooperation with one another. We believe that the system offers to some the incentive to develop the skill of examinationship, while it offers no incentive to others. We believe that individual talents and interests go unrecognized and are often inhibited by the monolithic structure of the first year and its over-emphasis on final grades. Finally, we believe that the present grading system offers students too little evaluation too late.

Under the current system, year-end examinations assert the definitive judgment of our capacities while providing us no evaluative feedback during the year. Grades create a status hierarchy with few winners, but many losers. The current procedures are unjustifiable at a time when the school is attracting so many highly-motivated, well-qualified students. As the ones who stand to lose by this system, we want to see it changed before we experience the unhappy effects of it; but we also recognize that the issues we raise deeply affect an educational process that is the central concern of a faculty devoting their lives to teaching law.

When Felix Frankfurter was deliberating about joining the Law School faculty he called Harvard the "most hopeful center, the rightful leader" in producing men who would be the leaders of tomorrow. But he went on to say that, "As a matter of fact, it has been creatively stagnant for almost a generation. Since Langdell and Ames did their epoch-making work in the revolution of the method of teaching, nothing has been done except the perfection of technique."

What follows is a report on our deliberations over the current grading system and the effects it has on our legal education, as well as a flexible and open-minded proposal for change. Though we differ with the late Mr. Justice Frankfurter on what the best educational system would be, we take hope in his faith that the student body is an essential source of energy for developing a better community at Harvard Law School.

Why Grades?

1) To Evaluate Students?

The current grading system limits evaluation of a student's ability to the results of four-hour examinations at the conclusion of each course. Examinations appraise an important skill--the ability to respond to legal problems with speed, accuracy, and endurance, given limited resources and under extreme pressure. They expose to some degree the quantity and quality of a student's preparation, as well as his competence in mastering the first-year curriculum. They also measure such things as how well he feels that day, how well attuned he is to a given professor's expectations, and how well his nerves can adjust to the artificially created tensions for which exam period is famous. Thus the student who has prepared assiduously for these few hours may find his career and self-image seriously damaged because he could not get to sleep the night before the contracts exam. Too much is at stake in having only one four-hour exam per course.

Final exams ignore the evaluation of the student's ability to research a problem and analyze it under non-exam conditions, his ability to exercise sound judgment in considering problems of social policy, his ability to communicate and reason orally, and his ability to work with other people. All of these are skills central to a lawyer's career. Moreover, this pressure-cooker form of evaluation is very unlike that which occurs after graduation. That evaluation--whether in a law firm, government, or teaching--takes place over time and is based on cumulative efforts.

An evaluation system should point out students' weaknesses in time for them to be overcome. The present system never gives the student any feedback about how well or poorly he is doing until it is too late to respond. Apart from the practice exam, there are no points along the way where the student is challenged by quizzes, written work, or group projects. At no point, even after his grades are handed to him, does he receive any constructive guidance about how well he is absorbing the law and what his relative strengths and weaknessse are. A student whose basic problem is that he does not understand how to study law generally is not likely to find any assistance under the present system. In fact, under this system he may not even realize he has a problem until he receives his grades. It is disheartening for a student to go through a year of hard work only to be told by a letter grade that he approached the law incorrectly.

A study at the University of Wisconsin Law School, in which the general problems encountered by first-year students were explored, discovered that this lack of feedback was a major cause of student frustration. "This initial fear of failure was intensified as the semester progressed because the first year student was unable to get feedback. . . . This intensified fear of failure interfered with the student's ability to succeed. It caused the student to rely on false feedback, encouraged ineffective study, inhibited informal education available by contacts with student colleagues and professors, and most importantly, interfered with actual academic success."

2) To Provide 'Incentive'?

The current grading system rewards those who master it in the first year and punishes those who do not. This is the traditional carrot and stick approach. While such a system has merit in forcing many students to do the disciplined work vital to proficient legal analysis, it has serious drawbacks.

Grades provide an incentive--to get good ones. They do not provide the student incentive for thoughtful legal scholarship. They do not provide incentive to think through questions presented in class unless they relate to the course material directly. They do not provide incentive to continue working once the grades are recorded. Primarily, grades provide the incentive to do well on four-hour exams and to ignore or put off other work, however valuable, that does not seem likely to be tested.

Grades do not provide an incentive to work throughout much of the first year. The prize of good grades at the end of the year is probably too remote for many law students to use as a motivation to full application throughout the school year. Gearing their entire first year's performance to six exams at the end of the year is unnecessarily unpleasant and sometimes dehumanizing. Many students decline the challenge and meander through the year, hoping only to get by." Some find themselves distracted by the atmosphere of tension and isolation, and they resent it. Others feel they have no choice but to work toward the system's goal, but they find that that goal--high performance on exams--has only a tangential relationship to their mastery of the law. They find the system of meting out rewards and punishments at the end gratuitous, even insulting.

The current grading system provides almost no incentive to develop over three years of law school. Once awarded, grades become counterproductive for a large segment of the class. For students at the top, grades cease being an incentive, for such students do not have to do as well during the next two years. They have made it into one of the honoraries and are busy with other activities. As for those in the middle and bottom of the class, the school offers little encouragement for development over a two or three year period. Last March, the editors of the Law Review took note of "the feeling that the fate of a man's legal career is irrevocably determined during two weeks of June in his first year of law school."

The present grading system encourages alienation and a sense of hostility. The first-year system fosters ex-

The present system at the Law School encourages us to compete, to score points on each other, rather than to communicate and work in cooperation with one another. cessive and sometimes ruthless competition. Everyone is taking the same courses and competing for the same positions and grades. One person's success depends upon the failure of many others. Competition is a reality in our lives, now and in the future, but the competition at the Law School is extraordinary. It is an institutionalized competition which many of us did not bargain for when we made our decision to study law. It causes many of us to compete against our mates in an atmosphere of isolation, suspicion, and hostility unmatched at almost any other educational institution. Serious students such as those in law school have a great deal to contribute to each other. It is our misfortune that the grading system and perhaps the first year structure in many instances act as a bar to such communication.

Four-hour exam grades are one kind of incentive, but they are not the only kind. To the extent that they operate as an incentive, they also tend to undermine a student's better motives. Students admitted to this law school have been trained to work hard. Most are efficient and eager to add to their understanding of any new, complex subject. Most would feel inadequate and uncomfortable unless they attempted to master the material offered in the first year.

3) A Service to Employers?

Grades are one convenient means of providing corporate firms and other employers with one relatively objective basis for making hiring decisions. They are not the only criterion now used, nor are they a foolproof means for stopping those determined to discriminate. And the current use of grades with respect to employment carries three problems. First, the heavy reliance on first-year grades constitutes a premature judgment of abilities. Second, and consequently, there is little premium on development over the three years of law school. This is especially true when much hiring for second-year summer jobs is done before Christmas and those jobs often lead to permanent employment after graduation. Third, examinations simply do not provide the full picture of a student's talents.

Any changes in the current system must retain bases of evaluation which allow employers to make substantive judgments of students. Convenience to employers, however, should not determine the educational policies of the Law School.

4) Needed for Honorary Societies?

The use of grades to select members of the honoraries is a major source of frustration for first-year students. It impresses upon those who wish to distinguish themselves (and this includes the majority of any class) that first-year exams are the most crucial part of law school. This is a major reason why the competition is so in-ordinately fierce. If success means making Law Review and making Law Review means being near the very top of the class-positions that cannot be occupied by everyone -- most first year students, by their own definition, are going to be failures for the first time in their academic lives.

The current system of selecting members for the honoraries is arbitrary, to say the least. What is the justification for assuming that the twenty-five top performers on first-year exams are those most interested in and best suited to writing for a scholarly journal or that those who score a few points lower should prepare Ames cases? Nor is it clear why grades should be deemed the sole measure of competency for most places in Legal Aid.

We submit that grades fulfill their functions very imperfectly. For too many people they tend to produce confusion and unnecessary competitiveness and, for some, a disdain for their years at Harvard Law School. First-year grades become the definitive judgment of a student's work. They open or close the doors of the honoraries. They enhance or hinder chances for jobs. They establish academic and social hierarchies which reign over the following two years and beyond. Thus, grades become fixed in the minds of many as the most important part of their law school careers. This is an unfortunate and unintended aspect of grading, but it is inherent in the present system.

Any system for evaluating law students should:

* Stress the importance of a student's development over three years rather than his achievements or failures after one;

* Encourage as far as possible cooperative work among first-year students and a decrease in the level of tension;

* Create a system of feedback which will provide substantially more information on our progress without the awesome penalties which now exist; and

* Break down the monolithic quality of our education by encouraging individual and small-group research and writing.

To implement these goals, we propose the following:

* Periodic evaluation of students performance throughout the first year.

* More complete communication to students of professors' evaluations of first-year exams.

* Notation on transcripts at the end of the first year of either "pass" or "fail" in each course.

* A similar system of evaluation in the second and third years.

The considerations which motivated this proposal might well lead to a reassessment of other aspects of the first year.

Under the current grading system; some professors use small sections to go deeper into material covered in class, but warn students they will be graded on a different curve than other members of the section. Other professors inform students that the small section will not discuss material covered in class, since that would give members of the small section an advantage in taking the final exam. If the proposed system of evaluation were adopted, professors might want to reapraise the use to which they now put small sections. Some might want to replace small sections in whole or in part with the small groups suggested above, in which students would work much more closely with each other with less direction from the professor.

With a first-year class one-third the size of Harvard's, Yale has more than twice as many teaching fellows. While financial limitations would obviously be a problem, some thought should be given to the hiring of recent graduates to supervise group work and evaluate written work of first-year students.

While many, perhaps most, professors believe that a final exam is indispensable for aiding a student in pulling together a course, some professors, under the proposed system, might wish to consider whether in certani courses a paper or take-home exam would be a more effective means.

The faculty might consider whether some release from the burdens of the current six-course load in the second semester should be given to students who undertake major individual research on their own. Supervision of such research would be facilitated through hiring of more teaching fellows and greater use of upperclass students.

We believe that students in the second and third year have much to contribute to first-year students. But the energies and abilities of upperclass students are not now utilized as extensively as possible, and the lack of contact with upperclass students contributes to the isolation that many students feel in the first year. Through an increase in the functions and membership of the Board of Student Advisors--or the creation of a new organization--upperclass students might be encouraged to participate on a voluntary basis in evaluating and advising first-year students.

Merits of the Proposed Change

The major advantages of the proposed system can be briefly summarized with respect to the functions of grading.

1) The proposed system would also offer a student far more extensive evaluation of skills in problem solving, writing, group work, analysis, and argumentation than are now measured in exams. Students would no longer feel that many of their abilities were being overlooked, and that the Law School regarded examsmanship as the most important legal skill.

Evaluation under the proposed system would tend to minimize, rather than reinforce, the tensions and hostilities caused by competitiveness among law students. Some competitiveness is inevitable. The proposed system, however, would avoid the most destructive consequences by emphasizing individual development and eliminating the unitary status hierarchy imposed by the current grading system.

Finally, consistent feedback would remove a student's nagging doubts about how well he was doing, and allow him to devote more energy to learning legal skills. Evaluation would no longer serve as a punishing judgment which offers no help in the first year and discourages work thereafter.

2) The proposed system would make better use of students innate willingness to work and desire to improve. Top performance would be induced by:

* Peer group influence. Both in small groups and in individual assignments exchanged with classmates, students would be strongly motivated to produce work worthy of careful consideration by others and reflecting well on themselves.

* Pride of accomplishment. Most students in this law school are, if anything, over-achievers who will work hard on any assignment.

* Interest in the work. The student's initial enthusiasm is dampened, as it is now, by ever-increasing tension. A student would know how he was doing, and would retain confidence that he could continue to develop proficiency over three years. In addition, assignments under the proposed system might become increasingly flexible as the year progressed, so that a student could concentrate on points that particularly interested him.

3) The proposed system would bar employers from relying on first-year grades as the most important criterion in hiring decisions. Instead, the student would be free to submit to prospective employers such indices of ability as the student feels best reflect his ability. The most important of these would be samples of his written work done either in or out of class. A portfolio of the student's work might, at his option, include exam papers on which he had done well.

We believe that the proposed system would give Harvard graduates substantial advantage in competing for jobs with graduates of other schools. Employers turn to Harvard now because of the quality of education here. Nevertheless, Harvard prematurely labels a large number of students as failures, giving a prospective employer the idea that these students are mediocre. The proposed system would stress that all Harvard graduates will make very competent lawyers. In addition, the top students here--if not most students here--will be able to compile sufficiently impressive portfolios of class work to compete at no disadvantage with top students from other schools.

4) If the proposed system of evaluation were adopted, membership in these organizations would be determined by considerations other than class rank. Honoraries must be removed from the arena of first-year exams.

Lack of first-hand knowledge of these organizations makes it difficult for us to do more than suggest how new members might be selected. The Law Review might choose all new members by means of a writing competition. (The Yale Law Journal now recruits all members by means of a writing competition, in which students not elected receive course credit for their work.) The Review might also consider having more than one competition a year, and expanding the number of members it elects.

We have already suggested that the Board of Student Advisors might consider increasing its membership and its activities. Legal Aid might recruit all members on the basis of interest.

Already, we know of a broadly based concern in our class that the current system of grading is grossly inefficient. Harvard attracts an abundance of first-rate students each year, but has become obsessed with discriminating among us, rather than developing us to our fullest capacities. Fundamental change in the grading system is central to reversing these priorities.

We ask that the Dean appoint faculty members to meet with representatives of this committee to discuss the ideas contained herein. We believe that changes along the lines we have suggested must be made this year. They must be made in time for grade-based organizations to consider alternative means for selecting members. And they must be made in time for this class to approach the end of its first year thinking about law and not grades

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