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Law schools should inflate grades

By JOSHUA M. SILVERSTEIN SPECIAL TO THE DEMOCRAT-GAZETTE

This article was published October 6, 2013 at 3:42 a.m.

In American graduate schools, C grades are generally failing marks. When a student’s GPA falls below the B or B- level, the student flunks out. This has been standard practice for decades.

But there is one exception: law schools. Most, including the University of Arkansas at Little Rock, William H. Bowen School of Law, where I work, treat Cs as passing grades. Law students typically must maintain a GPA in the C range to stay in school. Law schools award far more Cs than other graduate institutions, and the average grade in legal education is much lower than in other programs.

Law schools should adopt the grading practices used by the rest of the academy. More specifically, every law school should set its flunk out GPA at the B level. This will substantially eliminate Cs in legal education and push up the average grade, bringing us into line with other graduate programs.

There are two reasons law schools should inflate grades in the manner I propose. First, and most importantly, it will lead to greater fairness in the job market. There is significant variation in grading practices among law schools. Higher-ranked institutions generally award better grades than lower-ranked schools. And schools of comparable rank often differ greatly in their grading practices.

These disparities cause unfairness because legal employers often consider a job candidate’s GPA when making hiring decisions. Students from schools that award lower marks are at a disadvantage when competing for jobs with those who attend institutions that give higher grades. In light of the recent contractions in the legal employment market, law schools that award lower grades are hurting their students’ job prospects. If all law schools adopt a B- flunk out line, the grading differences across schools will largely disappear, leading to a fairer placement market.

The second reason is that C marks injure students psychologically. Law students often perceive Cs as failing grades even though law schools use such marks to indicate the achievement of basic proficiency. As a result, when students get Cs, their stress level is exacerbated in unhealthy ways and their self-esteem is eroded. Unhealthy stress and reduced self-esteem frequently compromise the educational process by discouraging students and causing them to withdraw rather than put in a full effort.

Why do Cs have these negative impacts? I believe it is because today’s law students grow up in a grade-inflated world. The high schools and colleges they attend often reserve Cs for particularly poor performance. And law students seldom receive C grades during pre-law education. This leads the students, logically enough, to perceive Cs as failing grades even when they are not.

Let’s now consider some objections to my recommendation that law schools set the flunk out line at B-. George Leef, director of research at John William Pope Center for Higher Education Policy in Raleigh, N.C., and a leading opponent of undergraduate grade inflation, attacks my employment-based argument by pointing out that my proposal will not improve everyone’s position in the job market. That’s not a problem; that’s a design feature. My proposal is not intended to increase the total number of entry-level legal jobs. Instead, the B- flunk out line will facilitate a more equitable distribution of the jobs that are available by largely eliminating the unfair advantage that currently accrues to graduates of high-grading schools.

An alternative objection is that grade disparities do not cause unfairness in the labor market because the schools that award higher marks are more prestigious. These schools have students with better admissions credentials. Accordingly, such students deserve higher grades. There are multiple problems with this reasoning:

—As noted above, there are significant grade disparities among schools of comparable prestige and substantially identical student bodies.

—We lack the evidence necessary to accurately compare the performances of students across law schools. Admissions credentials are only predictive. They are not a measure of actual outcomes. We do not know to what extent students at more prestigious schools deserve superior grades.

—Assume that students generally do perform better at higher-ranked schools. Any such performance is already accounted for in the labor market because employers give a “prestige-bump” to students who attend such schools. If the students also receive higher grades because of the same superior performance, then that performance is unfairly double-counted in the competition for jobs.

Perhaps the most common objection to my psychological well-being argument, and one endorsed by Leef, is that adult students should have the mental fortitude to handle receiving Cs. If they don’t, how will they deal with the criticisms they are going to get from “partners, judges, opposing counsel and others”? There are two problems with this objection. First, most law students are adolescents rather than adults. That is an established, scientific fact. The maturing of the human brain from adolescence to adulthood continues into the mid to late 20s, and most law students are in their early- to mid-20s. Second, Cs convey to students (inaccurately) that they lack the skills necessary to become competent practitioners. That is a significantly more devastating message than just about any criticism they will receive once they are adult, practicing lawyers.

There are three more general objections to my grading proposal. The first is that students should not receive B grades for C work. Leef appears to advance this claim when he states that students will not receive accurate feedback if law schools adopt my recommendation.

This objection is fatally flawed because there is no such thing as “C work” per se. To think otherwise is to buy into one of the oldest and most widely held fallacies about grading—that grades have objective, absolute meaning. They don’t. The meaning of grades varies by teacher, by department, by school, and by academic field. And this is true at every level of education—from elementary school up to graduate school.

The second general objection is that if law schools substantially eliminate Cs, then almost everyone must get a mark in the A or B range, rather than in the A, B, or C range. Such a reduction in the number of passing grades will make it impossible to properly distinguish among the performances of our students.

To the extent this objection has any merit, there is an easy answer: Schools can switch from letter grades to number grades. Rather than awarding A+, A, A-, etc., schools can award 4.0, 3.9, 3.8, etc. Number systems with a B- flunk out line have significantly more passing grade levels than do letter systems with a C or C- flunk out line. However, while I strongly support the adoption of number grading, it is not necessary. Letter-grade systems with a flunk out line in the B range have worked throughout the rest of graduate education for decades. There is no reason to believe they will not work in legal education.

The final general objection is that inflating grades will cause a critical drop off in effort among average and below-average law students. If B grades are qualitatively different from C grades in the minds of our students, then some students might settle for a B or B- under my proposal, even though they would not settle for a C or C- under a less generous system. Leef is one of the leading proponents of this argument, and

I consider it to be the most

plausible critique of my recommendation.

But the critique ultimately fails. Students still have

incentives to do their best in an

inflated grading system, such as their desire to learn the material, achieve a good class rank, and not flunk out. And many average and below-average students will actually work harder in an inflated system because they will seldom receive the type of grade that often discourages hard work—a C. Finally, even if there is a decrease in the overall effort put forth by law students after grade inflation, there are compelling reasons to believe the drop off will not outweigh the benefits of raising grades.

High grades have been the standard practice at more prestigious law schools and in virtually all other graduate programs for decades. From all accounts, such marks have not seriously interfered with the educational mission of these institutions—i.e., their students are sufficiently motivated to work. There is no reason to believe that students at mid-level and lower-ranked law schools are the only subset of the academy where grade inflation will have truly deleterious effects. As a result, the job placement and mental-health benefits of better grades outweigh any concerns about the impact on student work-ethic.

Joshua M. Silverstein is a professor of law at the University of Arkansas at Little Rock, William H. Bowen School of Law. This piece is adapted from his article, A Case for Grade Inflation in Legal Education, recently published in the University of San Francisco Law Review.

Perspective, Pages 83 on 10/06/2013

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