Yordy, E D --- "Using student development theory to inform our curriculum and pedagogy: a response to the Secretary of Education's Commission on the Future of Higher Education" [2009] LegEdDig 17; (2009) 17(2) Legal Education Digest 5

• Using student development theory to inform our curriculum and pedagogy: a response to the Secretary of Education’s Commission on the Future of Higher Education

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Using student development theory to inform our curriculum and pedagogy: a response to the Secretary of Education’s Commission on the Future of Higher Education

E D Yordy

25 (1) J Legal Stud Educ, 2008, pp51–73

In September 2006, the Secretary of Education’s Commission on the Future of Higher Education released its final report entitled A Test of Leadership: Charting the Future of US Higher Education postulating that graduates today are lacking important skills such as reading, writing, problem solving, and critical thinking. In the field of undergraduate legal education, faculty members are in the perfect position to aid students in stretching their abilities and developing these basic skills if there is an understanding of student cognitive development theory and if the curriculum and pedagogical techniques have bases in those theories.

Research shows that the cognitive and ethical development of undergraduate students occurs in a step-like fashion and that students generally transition through a number of stages during their college years. An understanding of college student development for use in curriculum design and pedagogical planning is important for legal scholars to maximise our impact on the development of the skills required or desired in our graduates.

Cognitive development theories generally are based on the work of Jean Piaget and examine how students think and process information.

Perhaps the best known researcher into college student cognitive development, and the one whose work serves the basis of nearly all other college student cognitive development theories, is William G. Perry, Jr., a Harvard professor of education and founder of the Bureau of Study Counsel at Harvard. Perry distilled a nine-position theory of cognitive development after following eighty-four students throughout their university careers and conducting 464 interviews.

Perry refers to Positions 1–3 as representing the ‘Modifying of Dualism’. Moving through these positions, students begin with a worldview where right is defined by others, and blind obedience to authority will lead to success (Position 1: Basic Duality). As students enter Position 2 (Multiplicity Pre-legitimate), students believe that absolute truths still exist, but the authorities have varying degrees of competence in knowing and sharing those truths. As they progress, students acknowledge that the unknown is legitimate, and differing viewpoints exist, but believe that these differences exist because no one has identified that absolute truth that still exists (Position 3: Multiplicity Subordinate).

Students move from this realm of absolute truths to ‘The Realising of Relativism’ (Positions 4–6). Students recognise the legitimacy of differing viewpoints and ‘truths’ (multiplicity) without the need for a hidden absolute truth. Commonly, students in Perry’s Position 4 (called Multiplicity Correlate or Relativism Subordinate) view the existence of multiple truths as a pedagogical tool professors use to teach students how to think about subjects. In Position 5 (Relativism Correlate, Competing or Diffuse), students shift from viewing multiplicity as a classroom tool to an opposite view in which absolute truths are the exception rather than the rule, and there are no right answers. Professors move from ‘experts’ to moderators able to help students identify the uncertainties in their field. As students enter Position 6 (Commitment Foreseen), they begin to desire stability and wish to find their own truths.

Finally, in Positions 7–9 (the Evolving of Commitments), students begin to make initial commitments to positions in some areas and yet realise that the process of gathering information and making consistent commitments will be a never-ending process. Students commit to some answers and truths, but truly commit to the search for truth as a way of life.

Perry’s studies, and his theory, have been criticised by many. One particular criticism notes that Perry and his colleagues believed that students entered the university after the transition to Position 5. Other researchers have postulated that students enter at lower positions, closer to 2 or 3, and some do not even reach Position 5 by the time they graduate, arguing that Perry’s students who all attended Harvard and Radcliffe do not represent the majority of American students.

Where Perry and his colleagues studied predominantly wealthy white males, Belenky, Clinchy, Goldberger, and Tarule collaborated to discover and describe the ‘missing voices of women’. Belenky and her colleagues interviewed 135 women of diverse ages, ethnic heritages, socioeconomic statuses, and education levels. Rather than a position-based theory with linear progression indicating more complex thinking and learning, Belenky and her colleagues distilled the information in their interviews into five knowledge perspectives of varying complexity.

Belenky and her colleagues’ first perspective is Silence. Actual concrete experiences, as opposed to going beyond the actual to reflective thinking or imagination, characterise the thinking in this perspective. Silent women have little or no ability to evaluate a specific example and generalise themes to other circumstances. They are dependent on others for knowledge and a view of authority figures as all-powerful and often ‘blindly obey’ authorities without questioning or processing the words spoken by them.

Received Knowers develop a greater appreciation for language and learn by listening to others and contemplating their words. Information is still considered right or wrong – reminiscent of Perry’s idea of dualism – and authorities remain the source of truth and knowledge. Disagreement among authorities is puzzling and leaves women with this perspective frustrated or overwhelmed.

The recognition of insight and an appreciation for relativistic truth characterise the Subjective Knowledge perspective. Learning is viewed as a highly active process, comprising processing and analysing information to determine if it is true for her, not merely reception of someone else’s truths.

Procedural Knowers utilise a more measured and analytical approach to learning. The proceduralist female believes in multiple correct approaches to learning and knowledge. For Procedural Learners, the process of thinking may be more important than the outcome or the decision. Procedural Learners may focus objective rules and guidelines (such as the criteria for analysing a poem) and approach knowledge in an adversarial manner, attempting to disprove information and doubting all interpretations until they come to a conclusion of their own. Alternatively, Procedural Learners may focus on relationships or the feelings of others (such as what the poet intended to convey), using empathy – an attempt to understand how the other person is thinking and feeling about a subject – in order to determine if the approach to the issue is the approach to adopt.

Belenky and her colleagues called the final perspective Constructed Knowledge: Integrating the Voices. In this perspective, women concentrate on finding intellectual room for both the procedural learning and the subjective learning. Truth becomes contextual, and the learner as a person becomes an intimate part in the discovery of it.

The Belenky model is based on broad-based interviews, both in terms of participants’ demographics as well as topics covered. In contrast, Marcia Baxter Magolda, a professor at Miami University, interviewed students directly regarding their ideas about learning and their role in the learning process.

Marcia Baxter Magolda conducted a longitudinal study, interviewing 101 students (mainly Caucasian students but evenly divided by gender) throughout their university careers between 1986 and 1991. Her resulting Epistemological Reflection Model focused on students’ perceptions of how learning occurs. As a result of her interviews, Baxter Magolda proposed a progressive and stage-like theory with traditional freshman located in a stage called Absolute Knowing, while seniors or fifth-year students resided in the Independent and Contextual Knowing categories.

Students adopting the Absolute Knowing approach to learning believe that instructors have the concrete and absolute truth, and their job is to share it with the students. Education consists of the relationship between the student and faculty members, with peers playing a minor role, if any, in the acquisition of knowledge.

When a student begins to process and analyse information, rather than simply collect it, the student moves to Transitional Knowing. Students acknowledge and embrace the idea that there may be multiple right answers or that there may be no right answer. Students may feel free to disagree with or argue with an authority or expert.

The Independent Knowing stage is characterised by the development of unique and independent perspectives about issues and topics. Faculty members are to aid the students in the development of their own ideas. Students seek out different perspectives on issues, read multiple sources about subjects that interest them, and enjoy debating different ideas and approaches related to topics.

As students integrate concern for their environment – those people around them – in an attempt to find compatible beliefs or ideas, the students move to the Contextual Knowing realm, which is similar to Belenky and her colleagues’ Constructed Knowledge category. Students continue to think independently, but the opinions and beliefs of others become important as guides and tools, not just for debate and discussion.

In general, cognitive theorists agree that cognitive development is progressive and that college students enter an institution most often in a dualistic stage or approach. The call to higher education to improve the critical thinking and problem-solving skills of our students requires us to understand this developmental process and to be innovative in our curriculum and pedagogical techniques.

Like professors in all areas, business law faculty members hope that students will approach learning from an advanced cognitive developmental level. We want them to debate the nuances of the law, to tease out complex hypotheticals, and to make judgements on court opinions. Unfortunately, the research shows that most undergraduate students do not approach learning at such high levels when they begin their higher education career. It is our responsibility to assist students in developing higher-level thinking skills. We can do this through curriculum design as well as appropriate pedagogical methods.

The topical coverage in an undergraduate Business Law course can be tailored and arranged to assist students in developing higher-level thinking skills.

Professor Lampe has argued that business law students need topics such as alternative dispute resolution, risk management, and attorney relationship management. By beginning a class with the more practical and straightforward topics of hiring an attorney, managing an attorney-client relationship, and self-help law issues, faculty members can teach to the dualistic thinkers while imparting valuable information to the higher-level thinkers. Dualistic viewers will appreciate the straightforward discussions of the ‘do’s and don’ts’ of hiring and managing an attorney, while higher-level learners can evaluate the information for its practical use in their own lives. As the students become comfortable with some of the legal vocabulary that can be shared in these early discussions, faculty members can introduce new topics, such as alternative dispute resolution and ethics using appropriate pedagogical tools such as those discussed in the next section of this article. These subjects will push students to think at a higher level, beginning to see the relativity of the law and the multiplicity of disputes while allowing them to slowly begin that transition to higher-level thinking.

As students recognise and understand the complex and uncertain nature of law (which may cause dualistic students to cringe from the beginning), additional traditional legal topics can be introduced. Because law topics generally do not build on each other naturally as do math and science topics, faculty members in business law can purposefully lead students through the topics from the simpler to the more complex over the course of the semester. As the topics become more complex, the faculty member can demonstrate through lecture and moderation of class discussion how the thinking related to the topics also becomes more complex, thus creating awareness in the student that a different approach to learning is required.

Because our students come to us in very different cognitive development stages or levels, we need to be careful not to teach to one cognitive level to the exclusion of others. Teaching as if all of our students are at Perry’s Position 5 may overwhelm a freshman but be appropriate to a junior, senior, or graduate student. Teaching to Magolda’s Absolute Knowing learners may result in few high-level thinkers attending class because of a perceived lack of challenge and may allow the lower-level thinkers to maintain their concrete, dualistic beliefs of knowledge. There are some very good and very simple pedagogical tools that we can use to accommodate the needs of all of our students and continue to encourage cognitive development.

One highly effective way to visually determine the different levels of cognitive development in students is to have students stand and move around the room as a continuum of increasingly complex questions is asked. The faculty member instructs the students that one side of the room is the ‘ethical’ side, and the other side of the room is the ‘unethical’ side. Students who strongly believe that the action is ethical should move to the ethical side while students who strongly believe that the action is unethical should move to the unethical side of the room. Students who do not strongly believe either should select a space somewhere between to represent their leanings.

Students are asked to make judgements about a series of statements. In one example, the statements are as follows in the order that they are given in class. ‘It is ethical to talk to someone who works for a competitor’, ‘It is ethical to have a social life that includes regular contact with someone who works for a competitor’, ‘It is ethical to talk to someone who works for a competitor about trends in the industry’, ‘It is ethical to talk to someone who works for a competitor about pricing and market share’, and ‘It is ethical to work with a competitor to set prices or divide the market if it won’t hurt consumers’.

Most students at all levels find the first and last questions relatively easy to answer. As the middle questions are discussed, the struggles to come up with a decision increase. Some students – those who have progressed on the cognitive development scales to a high level – have their answers and have thought through the questions. Those who are at a lower level are forced to make some decision.

Key to this exercise is the discussion of rationale and thought process. After each question, students are asked to explain why they moved to the part of the room where they currently stand. The discussion should focus on the process of coming to a decision, not whether one answer was right and one wrong. Students can be asked where they developed the belief that it was ethical – is it based in religion, intuition, or logic. For students whose answers indicate high-level thinking, faculty members can follow up with questions about the different information used to come to conclusions and why the opposite approach was rejected.

Students whose answers indicate lower-level thinking can be challenged with conflicting information. For example, a student who answers that it is unethical to talk to a competitor about price or market share may be challenged to think about industry conferences or trade shows where competitors often meet and such topics may be discussed. Challenges could include posing questions where it might be in a consumer’s best interest to discuss price or market share. Students can be challenged to evaluate the ethics of two competitors of equal product quality determining a fair price in line with market demand or discussing market division so that consumers are not faced with multiple sales calls. Students often begin to realise that ethics and the law (market division as a per se violation of the Sherman Act) are not perfect and that differing opinions may be equally valid.

In teaching alternative dispute resolution, a hands-on negotiating activity can be fun and educational and can encourage cognitive development. Negotiation activities are common in Business Law courses. The key to this simple exercise is the promotion of higher-level thinking by the faculty-moderated dissection of approach and chosen technique.

A simple negotiation exercise where students are paired up with one student assigned to be a diamond seller and the other assigned to be in the market to buy a diamond ring provides an opportunity to have students look at their own assumptions and learning. Each student receives a short instruction sheet. The buyer is given a maximum price that he or she can afford ($1,850) and an ideal price ($1,500 or less). The seller receives information on the cost of the good ($1,500), a minimum sales price ($1,800) and an ideal sales price ($2,000 or higher). With the seller’s minimum sales price only $50 below the buyer’s maximum purchase price, the students have a small range of opportunity to come to an agreement. Without prior discussion about negotiation, the students are given approximately ten minutes to ‘make a deal’.

At the end of the negotiating period, the students are asked to discuss the process. The faculty member asks the following questions (and others): Who started the discussion? What dollar amount was the first mentioned? What approach was used: Did the first party use a ‘take it or leave it’ approach with the highest purchase/lowest sales price? Key to this discussion is the question, ‘Why?’ Low-level thinkers will enunciate reasons related to witnessing someone do it that way in person or on television in the past. High-level thinkers will be able to demonstrate their thought process to arrive at their approach. Class discussion can then move forward with discussion on the many strategies and techniques to negotiation, with an emphasis on analysis of the situation for selection of an appropriate technique.

Simple pedagogical tools and a thoughtful curriculum can be highly effective in assisting students to develop the higher-level critical-thinking and problem-solving skills that have been identified as lacking in our graduates. Rather than overwhelm students by demanding the highest level of thinking from their first days, we can use student cognitive development theories to understand our students’ current levels of thinking and to develop curricular tools that will help students move from dualistic thinking to the complex thinking demanded by society today.