BY NOAH ZATZ
The following is reposted with permission from The Faculty Lounge. Noah Zatz is professor of law at the UCLA School of Law. The post is edited lightly from a letter to the UCLA administrative and faculty leadership, and posted on his Facebook page.
I am of the firm and strong view that we should go mandatory P/NP. I have thought about it a lot over the past week, steadily moving in this direction after pausing to consider a variety of alternatives. This includes many conversations with my Section 3/4 1Ls, including after I solicited viewpoints opposing such a move to make sure I was not missing something.
These have been extremely illuminating, often heart-wrenching conversations. I have heard from students struggling with mental health difficulties exacerbated by stress, isolation, and worry. I have heard from students relocating across the country to be with family members who are extremely vulnerable, for whom they are terrified, and with whom they confess they will find it very difficult to live in close proximity, despite their love. I have heard from students in precarious economic circumstances whose ability to study has been seriously disrupted by loss of access to the library, both as a physical space in which to study relative to their marginal housing situation and as a way to access books, and who lack reliable internet access from home. I have also heard from other students sheepishly acknowledging that they have so far have suffered little direct effect, and in fact have benefited from additional time to study, as they live comfortably in LA and have their family nearby, and some of them have had the self-awareness to observe that this relative insulation actually confers additional and unfair advantage on them in any competitively structured process.
I approach this with a normative stance that this extraordinary crisis calls for extraordinary compassion, flexibility, and solidarity. My view of the essential facts are, first, that there already is, and soon will be much, much more, tremendous variation in how this crisis affects our students. Some of that will be random. Much of it will not be. The economic dislocations are just beginning to appear, but they are going to be tremendous over the next month, and of course they will track inequality and precarity. The health threats are also just beginning to be seen, and although those will be somewhat more randomly distributed, they also are likely to be quite uneven, not only along obvious dimensions of pre-existing medical conditions, but especially once one factors in access to health care.
In terms of this decision, the world that we would have had, if COVID-19 had not struck, is shattered. It is a fool’s errand to pretend otherwise and try to patch together the shards that remain and treat that as preserving what might have been. Any attempt to apply differentiating grades is going to very substantially measure differential impact of this crisis. That is totally unacceptable. Not only morally, but making a mockery of their purported function of measuring academic performance. They would lack any academic integrity.
I understand the temptation to have the best of both worlds with an opt-in system. It is a fantasy. Yes, there are many 1L students who were disappointed in their Fall grades who would lose an opportunity to redeem their GPA with spring grades as a result of going P/NP. But again, I urge you to see clearly, that opportunity ALREADY has been lost. It is devastating, to be sure. But we must not compound that devastation with denial. Many of those highly sympathetic students will themselves receive the short end of the COVID-19 stick, and so they will be differentially unable to take advantage of the supposed opportunity being offered. Others will not. Indeed, others will be able to score well when they would have received poorer grades absent COVID-19, deepening the relative disadvantage of those who do worse. Moreover, we should be most concerned about those whose weak Fall grades arose in part because of their relative disadvantage in adjusting rapidly to law school life, in ways often correlated with first-gen status, connection to the legal profession, race, disability, etc. And yet these are the very same students most likely (speaking in averages) to be disproportionately impacted by the COVID-19 crisis.
More generally, I think it is essential not to allow the hypothetical sympathetic case of Fall grade redemption to become a stalking horse for those who will be most advantaged by any differentiating grading system. Those, of course, are the students who get an opportunity to lock in their higher grades from the Fall. This includes some students who, absent COVID-19, would have reverted toward the mean in the Spring but, due to their relatively advantaged position, would do better in our transformed world. This, too, is unacceptable.
Moreover, it is essential to think through the dynamic effects of our decision on how students approach the rest of the semester and the exams. Those who know they are in a relatively good position, or expect that they will be, may be encouraged to adopt or maintain a gunner stance, and be able to execute. Those facing the most dire situations, and anticipating using the P/NP safety net, may dial back somewhat. To be clear, the latter is NOT a perverse incentive. This is exactly what I want them to be able to do, to take care of themselves, their families, their communities, while still getting the appropriate legal education that they are well-motivated to acquire. I have been moved to tears by how my students have responded to the crisis even as I have dropped accountability mechanisms to give them complete flexibility to manage their situations. They have been coming to class. They have been volunteering. In any event, the point is that this differential response to the opt-in structure will then tend to be self-fulfilling in terms of how students actually fare on the exam. Again, this undermines the fairness and academic integrity of the resulting grades, causing them even more deeply to reflect the stratifying effects of COVID-19 even while we bless them as purported indicators of academic ability. Meanwhile, this looming dynamic and stratifying effects of an opt-in system more generally will undermine the ability of any change to relieve stress on our students and will deepen their discouragement.
Finally, I am well aware of concerns about how our students will fare with employers that rely heavily on grade differentiation. This is most acute with OCI, which relies so heavily on 1L grades. Again, my view is that we should view whatever integrity that system might have had before (dubious as I find it), as utterly shattered by this crisis. We should not attempt to cover that up. Of course, we can generate nonsense grades that allow stratification for the sake of stratification. But we should not. And we should especially, ESPECIALLY resist and reject the temptation to consider how even a system of nonsense grades, while brutally unfair to our students, might nonetheless be institutionally beneficial to the school by helping us run up our placement numbers in competition with other schools. PLEASE DO NOT DO THIS. We should act in solidarity with other schools that are dropping grades, not undercut them. We should help create the space for other schools to do the same. And this is against the backdrop of how questionable it is to let OCI drive our academic standards. That is especially so given the possibility that the high-end legal market itself will collapse again, as it did post-2008.
This is a world-historical event. If ever there were a time not to take the usual constraints for granted, this is it. I urge you to think creatively and act ambitiously to loosen the constraints. There are many ideas being floated about how schools and employers could change OCI and similar sorting moments to avoid fetishizing Fall 2019 grades, etc. To take just one, why not move OCI to Spring 2L? If things have returned to some semblance of normalcy next Fall, this would allow those grades to factor in, rather than Spring 2020 COVID-19 nonsense grades. Would this be a disruption to business as usual? Absolutely! And so it should be under these circumstances. Might this require some solidarity among schools and some coordination among employers? Absolutely! That is what we should be working towards. And there will be time for that in the months to come. It does not have to all be worked out in advance, and indeed it could not be, given the scale and uncertainty of the crisis.
Thank you for listening, as we say. I hope and trust that you will help lead our school in the right direction and, above all else, not let your thinking be anchored in a status quo that already is gone.
The writer’s assertions and positions, given his bonafides, are not surprising. His argument, such that it is, merely reflects an unfortunate propagation of a narrative that would never survive the inside of a court room in western adversarial traditions of fact and cross. But leave that aside. What he perhaps unwittingly exposes is the fundamental inadequacy of the US J.D. program, including its deleterious effects generally on reason and legal thinking.
Without burdening readers here further, may I simply refer them to my academic article on law school reform, some of which the writer may appreciate. It is archived at the University of Chicago here: https://knowledge.uchicago.edu/record/2144?ln=en.
Otherwise what the writer probably doesn’t appreciate is the extent of disruption of the human expertise model, and its transition to digital AI formatting, thereby de-leveraging of the entire faculty, academy and tenure construct. The AAUP is, sadly perhaps, in shell shock and doesn’t yet realize institutionally the smoking bomb crater they’re standing in. With Regards.