Muller: Thoughts About (And Mostly Against) Pass-Fail Law School Grading During Covid-19

Following up on my previous posts on law school grading policies for the Spring 2020 semester in the wake of the coronavirus (links below):

Derek Muller (Pepperdine), Some Thoughts About (and Mostly Against) Pass-fail Law School Grading During Covid-19:

Pass-fail is a luxurious advantage for the highest-ranking law schools. They can easily move to pass-fail and know that the vast majority of their students will experience little difference in likelihood of employment outcomes.

For many other students at the vast majority of law schools, however, I do think there will be disadvantages to moving to pass-fail.

Maybe I’m overstating it, and maybe there won’t be a significant change in judges’ or employers’ experience. Maybe the concerns of the students who I identified as potentially disadvantaged should be outweighed by the concerns of others. But I offer my own thoughts here and look forward to reading more of the robust debates in the days ahead—and to seeing how law schools react.

UPDATE:  Three reflections on this. First, Prof. Maggie Wittlin writes, “The strongest argument I've heard in favor of pass/fail is that certain groups of students will be disadvantaged by maintaining grades, specifically, students with fewer resources, who can't access reliably fast internet or quiet spaces for studying.” I think this is right. It’s about certain kinds of disruption that uniquely affect subsets of the student population, and how to balance their concerns with the other concerns I laid out. No easy answers, but I don’t want to minimize the cast for pass-fail. In some circumstances or at certain schools, these kinds of factors can cut in favor of moving there. But, in my view, we’d want more than general statements before doing so.

Second, this position shouldn’t be confused with a lack of empathy for students! I don’t defend grading as some kind of “tough life lesson,” as learning to be “resilient” in the face of challenges, or so on. That feels more like a right of passage or a kind of hazing justification, which I think must fail. Instead, it’s to look at the value of grades—i.e, the value we assign to them before a disruption like this arises—and to weigh that value with the costs and benefits of switching in the midst of a challenging time like this. By all means, I emphatically defend accommodations for students, and consideration of whether, on the whole, alterations to grading should be made. It’s simply that, I think, the “solution” of pass-fail grading comes with problems that are often beneath the surface.

Third, there are more creative “optional” pass-fail structures out there, like allowing students to opt in after looking at their grades, or setting a “cutoff” and taking a pass-fail only if they perform below the cutoff. Solutions like these can help mitigate the distorting effects of an optional system by increasing the incentives for all students to work hard and help keep a more competitive performance on the exam. That said, any “optional” system invites student second-guessing, agonizing, gamesmanship, and curiosity of how decisions might affect the behavior of others—things I’ve experienced (none very good) in “optional” pass-fail settings, and things probably worthy of a separate and more extensive blog post.

TaxProf Blog coverage of law school grading policies in Spring 2020:

• Karen Sloan (Law.com), Law Schools Adopt Pass-Fail Grades As They Move Online Amid COVID-19 (Mar. 19, 2020)
• Jon Adler (Case Western), Grading In The Time Of Coronavirus: For Most Law Schools, Pass/Fail Is A Mistake (Mar. 23, 2020)
• Josh Blackman (South Texas), Law Schools Should Not Abandon Standard Grading Policies For All Students Due To The Coronavirus (Mar. 23, 2020)
• Josh Blackman (South Texas), Law Professors Quietly Oppose Pass/Fail Grading (Mar. 25, 2020)
• Josh Blackman (South Texas), Law Students Quietly Oppose Pass/Fail Grading (Mar. 26, 2020)
• Karen Sloan (Law.com), 'People Are Pissed': Pass/Fail Grading Controversy Roils Law Schools (Mar. 26, 2020)
• Karen Sloan (Law.com), Law Students Share Anxiety, Support On Reddit Over Grading Policies In Wake Of Coronavirus (Mar. 27, 2020)
• Noah Zatz (UCLA), The Case For Mandatory Pass/Fail Grading In Spring 2020 (Mar. 28, 2020)
• Derek Muller (Pepperdine), Thoughts About (And Mostly Against) Pass-Fail Law School Grading During Covid-19 (Mar. 29, 2020)
• Michael Krauss (George Mason), Should Law Schools Grade Pass-Fail This Semester? (Mar. 29, 2020)

For complete TaxProf Blog coverage of the coronavirus, see here.