Rice, S --- "Assessing But Not Grading" [2008] LegEdDig 16; (2008) 16(2) Legal Education Digest 5

• Assessing — but not grading

---

Assessing — but not grading

S Rice

Macq U Syd, WP2007—16, 2007, pp 1–16

Legal practice skills — however broadly defined, from drafting and office management to client interviewing and problem solving, from active listening to reflective ethical practice — can be, and are, broken down into component parts, into graduated parcels of competencies, or interlocking pieces of knowledge. Whether a student ‘gets it’ and, as we will see, to what degree they ‘get it’, is what we want to show with our assessment.

In this paper I argue that even if a law degree must be graded — and I doubt even that — there is at least one learning objective within a law degree for which clinical education is the best method, and which ought not to be graded, and should be assessed pass/fail.

Grading is a given in a law degree. It does not follow that a clinical subject ought to be graded.

To many, I know, it is remarkable that I would remark on the fact that we grade. Of course we grade our students. They deserve recognition for effort, and need an incentive to do well and they have to think of their GPA, of Honours, and of employment prospects. On analysis, however, there is little substance to these justifications, a view borne out by research such as that of Brustin and Chavkin, and by more general educational research they cite, the research of Milton Pollio and Eison: ‘significant disparities between the current and ideal purpose of grades [meant] that educational reform was necessary’.

Grading is said to be necessary for the standing of clinical legal education in the faculty: it gives it status. If so, this reflects adversely on the faculty and their impoverished conception of clinical teaching. To bring clinical teaching into line in this way merely to gain acceptance is the tail wagging the dog, and denies the pedagogical principle that method ought to suit the goals.

Grading is used — or misused — after certification in the employment market. As students are made only too aware, prospective employers use their grades as a guide to the quality of applicants, noting that “the scaled grading system allows law schools to sort students for legal employers”. It is of course a crude and unreliable guide, telling an employer little about a graduate’s ability in the particular field, and is really used as a means of culling among a pool of applicants.

A rationale for grading that comes from within the principles of assessment is that there are in fact learning objectives, and it can always be said that an objective has been reached, to some extent, in some ways. But this is self-serving. Because we can assess we see learning objectives in assessable parts. Assessment is designed to be gradable: command of the graduated parcels of competencies translates into grades of achievement, just as does command of the interlocking pieces of knowledge. In short, we set achievable objectives, so we assess for that achievement, and we grade for the degree of achievement.

If we set unachievable objectives then we can’t assess for achievement, and we cannot assess for any degree of achievement. I propose just that: that clinical legal education can be — and would I say properly is — essentially concerned with an unachievable objective.

The clinical method — any method — is justifiable in a law degree curriculum when it is the best way of achieving certain learning goals. This assumes the deliberative choice of goals, which has not always been the basis on which clinical teaching has developed in Australian law degree courses. In the past few years, the Federal Government’s enthusiasm for privatising the means of public access to law saw, along with the pro bono push, a profoundly un-pedagogically-driven push for clinical programs. This phenomenon has combined with the Federal Government’s enthusiasm for reducing public expenditure of public funds, to see community legal centres and universities stumble onto the partnership bandwagon, and team up to help each other out: law students providing legal services, and community legal centres teaching law students.

The resulting clinical programs in Australia are recent if particular examples of the clinical method being chosen for reasons other than it is the best means of achieving explicit learning objects. When clinical method is truly chosen it is because the experiential element adds to a dimension to teaching and learning that gives the student more to work with, creates context within which the subject matter can be better understood. If that is not so — if the exploration and exploitation of the experiential element is not what distinguishes the learning and the teaching — then use of the clinical method is misguided and wasteful.

Clinical method can be used for many learning goals. For most, clinical is just a good method or is even the best method. It is, however, the only really effective method for enabling students to appreciate the issues of power that are impacting on the operation of law, and the potential of law as a tool for justice.

The justice goal is commonly expressed in a variety of ways, most of which refer in some way to analysis and critique of the operation of law in society. It is, historically, a — if not the — principal rationale for clinical teaching.

In an overview of the history of clinical education in the USA in 1990, Barnhizer lists the primary themes of clinical teaching, and includes ‘the importance of developing and implementing practical conceptions of justice’, ‘instilling in students a desire to help the disadvantaged’, taking on the responsibility and ‘to challenge unjust public conduct’.

Underpinning these themes, Barnhizer sees values that include ‘the challenge to entrenched institutions perceived either as obstacles to achieving the liberal vision of a just society or as engaged in specific acts of injustice’, and he credits the liberal political vision of clinical education to the political and practice origins of early clinical teachers.

Barnhizer’s is a strong call to law teachers to engage in both the practical and theoretical dimensions of justice: ‘Failing to confront people and institutions who are responsible for injustice shirks the central responsibility of the modern intellectual, that of “speaking truth to power”. Unwillingness to develop such fundamental issues with law students, both in traditional courses and in clinical programs, undermines our society’s ability to deal with difficult questions’.

I choose to teach towards the justice goal because I am concerned it will not otherwise be learnt. If students do not take in, process and deal with ideas of justice and power, then as practising lawyers they will be taken in, processed and dealt with by a very defined concept of justice, and by the professionally covert operation of power.

Without an awareness of justice issues their reflective practice will do little more than enhance their practice skills, to their material benefit no doubt, and that of their employer and their clients. They are less likely to be agents of change, less likely to see and respond to occasions when the law effects injustice, and to opportunities for the law to redress injustice.

The practice of law does not, of its nature, encourage a justice-focussed critique of law’s operation. The likelihood that a lawyer will do that for themselves is enhanced considerably if that is in fact the stuff of their undergraduate studies.

This learning objective, I concede, can be measured. What might be best is a before and after snapshot of understandings and awareness, to confirm the occurrence of change, and hence the achievement of the learning goal. But that is to assess, not to grade.

The language of the learning goal is of process, not result, of moving, not of having arrived. The goal is not the attainment of a measurable degree of knowledge of theories of justice, it is the students’ internalising of the fact of power, their sense that they are becoming a part of a system whose currency is power, their awareness of their place in law, and their potential as lawyers.

The terms of the learning goal make grading nonsensical, and the results useless. I am not teaching to reach an end point. I fear that it is dangerous to say so in an outcomes-driven society, where we evaluate the validity of our conduct only in terms borrowed from the market. But this is a much more ambitious learning goal than merely to achieve an outcome — it is to begin, to start something that can only be embryonic, nascent, emerging.

I do not say it cannot be done. It is probably true that an ability to critically evaluate oneself and the legal system can be assessed on a comparative, graded basis. When we have to assess, we can, although plenty of authors have recorded their struggles and uncertainty with measuring clinical performance. Having described in some detail the active and continuing nature of clinical students’ learning, and the processes of formative assessment that can be used to support this, Zeigler does not know how to measure the results, saying ‘An area for scholarship suggested by this article is identifying objective measures by which to evaluate the clinicians’ success at teaching self-reflection skills’. She says this even though nothing she has said to that point leads necessarily to the results having to be measured.

So it would seem that we can find a way to grade. But because we can does not mean we should. I share Walter Bennett’s view, cited in Stuckey et al, that grading is ‘judgmental and exclusive rather than compassionate and inclusive ... The competitive grading system is a primary instrument separating students from, faculty in law schools and separating students form other students. It is a central impediment to construction of an effective law school community’.

Grading is necessarily competitive: it compare students with each other, encouraging both ambition and competitiveness, at odds with the spirit of collaboration and common purpose that distinguishes clinical legal education.

Grading is a distraction from, and a limitation on, deep learning: which Goldsmith describes as ‘a more reflective, context sensitive, and personally responsible approach to student learning’.

Grading distorts the learning and teaching processes. To assess the level at which a student has started on the journey it is to contain it, to define, it, to set limits of attainment on it that undermine the essential message that the clinical experience — indeed a law degree — is the beginning of a journey of discovery and realisation that has many years to run.

Grading cannot respect the internal and personal nature of the learning we are bringing to the students. The clinical experience makes demands of their emotional intelligence and they will respond to it in different ways and to different degrees. Because there is difference does not mean the difference should be measured. It is simply difference. It is not better or worse.

Grading exposes a student’s experience it, and strips it of its complexity and its privacy. It makes students reveal their growing understanding on our terms, and allows us to judge their values by reference to ours, their perceptions by reference to ours, to go beyond saying ‘you should think’, and to say ‘you should think like this’.

Grading undermines the collaborative role of the clinical teacher.

At times we are inadequate to the task. We don’t have a ready answer, we are challenged too.

Which brings me to a final reason to not grade: grading distracts us from our teaching, it allows us to be lazy, to substitute mechanics for dynamics, leading us to be a boss and not a colleague, to be a heroic teacher rather than a supportive one, to be a role model of hierarchy and elitism rather than of counsel and collaboration.

Grading purports to place the responsibility for learning on the student — theirs the glory of a high mark and the ignominy of failure. But grading ought be as much a measure of our teaching as of students’ learning. The imposed normal distribution of marks compounds the perception that graded results — with winners, losers and a large cohort of the ordinary — reflect good teaching.

I have never failed a clinical student. I would have failed as a teacher if I did. When to fail is to not start, then you don’t wait till the end of semester to say so. If, despite my efforts, a student just cannot or will not embark on the journey then, as is the case when anyone makes a wrong choice, I invite them to leave while they can. The occasion will arise only as often as unwilling or unable students, on notice as to the learning goals, nevertheless enrol in a subject to which they are unsuited.

Notice to the students of progress and difficulties is simply a matter of natural justice. Pass/fail assessment does not come in one big hit at the end. Assessment is as continual as our supervision, as regular as our feedback. We expect to see a student’s observations and analysis show a developing awareness of the complexity of law in society, to look beyond the immediate experience and extrapolate, reason, wonder, inquire, in terms consistent with the reading we give, the class discussions we generate, the feedback we offer. A student who fails to try, who cannot take, or rejects, this opportunity is on the path to failing to meet our learning goal.

It is true that I can say of one student that they ‘get it’. They are quick to see the complexities, and always attuned to the justice dimensions of law-related activity. They see theory realised in practice, and identify options for action that are alert to the nuances of, for example, interests, power and control.

And I can say of one of their fellow students that they struggle with the concept of justice as a higher measure of law-related conduct. Responding to my teaching, they make a conscious effort to overcome their instinct to take things at face value, to question their received acceptance that the operation of law is just, and that power and influence in society are only ever exercised transparently accountably.

My goal is to help them to discover what is in their head, their heart, their soul. I know some tricks they don’t about how to get it out, and I will facilitate their efforts. But it is a personal journey, to which I am privy. I am compromised as a facilitator of their development if I am as well an adjudicator of their relative merit.