Zalesne, D; Nadvomey, D --- "Why don't they get it?: academic intelligence and the under-prepared student as 'other'" [2012] LegEdDig 28; (2012) 20(2) Legal Education Digest 40

• Why don’t they get it?: academic intelligence and the under-prepared student as ‘other’

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Why don’t they get it?: academic intelligence and the under-prepared student as ‘other’

D Zalesne and D Nadvomey

Journal of Legal Education, Vol 61, No. 2, 2011, pp 264-279

Law teachers today face classes filled with students from a multitude of backgrounds as well as students with profoundly different learning styles and levels of academic preparation and readiness. We believe a student’s academic intelligence is about more than simply cognitive skills; it’s akin to culture, including not only cognitive, but also affective and social skills, all of which contribute to a student’s level of success.

The idea of a ninth intelligence came from our observation, after years of teaching, that for some students, their hard work and the teacher’s best efforts were not enough for the student to succeed. That observation, in turn, led us to explore the notion that in some fundamental way, these students had become, in the language of anthropology and sociology, the ‘other’–and therefore unknowable and unreachable.

Howard Gardner, in 1983, developed a theory of multiple intelligences suggesting that the traditional notion of intelligence based on IQ testing is far too limited. Instead, Dr Gardner proposed eight different intelligences to reflect a broader range of human potential in specific settings: linguistic intelligence (‘word smart’); logical-mathematical intelligence (‘number/ reasoning smart’); spatial intelligence (‘picture smart’); bodily-kinaesthetic intelligence (‘body smart’); musical intelligence’ (‘music smart’); interpersonal intelligence (‘people smart’); intrapersonal intelligence (‘self smart’); and naturalist intelligence (‘nature smart’).’ While the traditional approach may be useful for predicting a student’s performance in a school setting, Gardner believed it had little relevance in predicting a person’s success in the world.

Borrowing from Gardner’s notion of eight context-specific intelligences, we propose a ninth of sorts – academic intelligence – an amalgam of the cognitive, affective, and social skills that we think contribute significantly to an entering student’s success in law school. These skills are ideally developed over the course of a student’s life. However, some students enter law school with part of that intelligence missing or under-developed; that student is at an immediate and serious disadvantage, not least because of the (not unreasonable) expectations of law faculty derived from their own success in law school and beyond. A student who is academically prepared (a student with ‘academic intelligence’) will have strong reading comprehension, writing, and study skills, be able to take effective notes in class, outline, and manage their time – in other words, the skills that determine, ultimately, who will be successful in law school.

Although the under-prepared student does the work (she stays up late, reads the assignments, attends class and listens, and she takes notes), her questions and responses in class and her performance on exams all indicate that in some profound way, she cannot put the material together to understand what the law is and how it works. This is the student who doesn’t see that the case she read yesterday has any connection to the case she’s reading today, but rather approaches every case as sui generis – an illustration of a unique resolution of a unique legal issue.

We posit that a student’s failure to perform adequately is not always a matter of IQ intelligence. Rather, we have observed a variety of underlying cognitive, affective, and social competencies that enable academically prepared students to succeed. Cognitively, first, is an understanding and appreciation of the role of technique. Another is the ability to move between general and specific, recognising hierarchical relationships such as between a definition and an example. A student who is unable to recognise that something is part of something else, or bigger or smaller than something else will, at a minimum, have a hard time keeping track of where the class is doctrinally. That student might not see that a rule is a manifestation of an overarching policy or understand the difference between broad and narrow holdings. The ability to categorise is a basic component of reading comprehension and critical thinking without which synthesising the first six weeks or so of law school is an almost impossible task.

For the student who arrives at law school lacking sufficient academic intelligence in the cognitive component, meta-cognition (the process of thinking about one’s own thinking and learning) can be the means by which the student develops the ability to adapt effectively to the legal pedagogy. Note taking is a good example. In the first several weeks of law school, students tend to write down everything they hear, because they don’t know what they’re listening for. In time, the academically prepared student approaches the task with more intentionality, beginning to develop a framework within which to make choices about what to write down.

The second component of academic intelligence is affective. For example, students who feel comfortable in the academic environment may be more likely to access a range of services such as teaching assistants, academic support services, and writing centres, not to mention the professors themselves. Self-regulation (the ability to stay on task), self-efficacy (the quality of believing that ‘if I do the work, I will succeed’), and developing effective time management strategies are additional affective hallmarks of the academically prepared student.

Finally, and least amenable to the influence of faculty, is the social component of academic intelligence. The way a student presents himself has real significance in an academic setting. Take the student who routinely comes to class late, often with a cup of coffee she spent ten minutes getting. Most obviously, she has missed critical instruction that either introduces, recaps, or previews material. Such behaviour might not be enough to predict a student’s level of academic success, but certainly may, in conjunction with the other components of academic intelligence, be significant.

The significance of the role of academic intelligence became apparent to us at a full-day retreat held for the City University of New York (CUNY) Law School’s faculty some years ago.

The phrase heard repeated was ‘They don’t get it.’ The teachers were accessible, they met with students individually, answered questions, and reviewed doctrine, yet were still unable to help some students succeed. Just as during the retreat the faculty reported that they felt both unknown and unknowable when they were students (albeit based on race, gender, class, and sexual orientation), they felt unable to know, or figure out, their students.

Paralleling the issues of race, gender, and sexual orientation, but different from them and beyond even different learning styles, is the academically under-prepared student as ‘other’. Traditionally, the approach to dealing with a culturally different group begins with recognising one’s own biases, followed by discussion aimed at revealing cross-cultural similarities, and ultimately reaching an understanding and acceptance of others.

The chronology from ‘otherness’ to diversity goes something like this: (1) invisibility (the under-represented group is ignored completely or mistreated); (2) activism on behalf of the under-represented group; (3) visibility (appearance within the normative group, often as a result of legislation); (4) recognition of inequality and the beginning of institutional and societal efforts to remedy it; (5) integration and accommodation; and (6) real equalisation (an actual change in what is considered normative). Of course this chronology is seriously condensed and truncated, but we think it is still useful as a framework for exploring ways to work with academically under-prepared students.

Using the chronology as a paradigm with respect to academically under-prepared students as ‘other’, it appears that we are somewhere between visibility and the efforts to remedy the inequality. The increasing presence and vitality of academic support programs in law schools across the country attest to the movement between steps three and four in the chronology. However, those programs, as constituted in most law schools (separate from the mainstream curriculum), can actually perpetuate the faculty’s perception of the under-prepared student as ‘other’ and inhibit movement beyond step three. Instead, teaching methodologies geared toward these students must be integrated more directly into the mainstream doctrinal curriculum. As in the cultural diversity discourse, doctrinal faculty members themselves must understand and acknowledge difference (not cultural here, but academic), and learn and practice sensitivity, in a way they haven’t necessarily thought to do before. As law professors, we must examine our own perceptions and assumptions about entering students, which often are based on our own academic experiences that do not parallel those of the students we are concerned with here.

Professors often complain that on exams, students consistently miss issues, provide incomplete or inaccurate rules, and use facts poorly. We want our students to develop the legal reasoning skills necessary for crafting sound legal arguments, yet the message we send them, at least on paper, is that today we are studying homicide, tomorrow theft crimes, next week and for the rest of the semester, a doctrine of some other name. The disconnect is obvious – we are assuming either that our students arrive in our classes with academic and reasoning skills sufficient to efficiently apply to the doctrine we are teaching, or by teaching doctrine in a certain way (whatever way we teach it), students will develop those skills.

Of course, most legal reasoning skills and at least case briefing are taught explicitly at most law schools in separate legal research and writing and ‘lawyering’ courses. Typically, however, neither faculty nor students consider the skills learned in these courses as transferrable to their doctrinal classes. In addition, some academic skills, such as close case reading and note taking, and some legal reasoning skills, such as issue spotting, tend to be overlooked, even in courses with a skills focus.

Students in the first year can and must learn academic and legal reasoning skills explicitly, rather than by intuition, so that they are better prepared in their second and third years to focus on the denser doctrines and more practice-oriented skills. These skills should be taught across the curriculum, incorporated directly into doctrinal classes.

The challenge for educators and administrators is to make the promise of access real by recognising their responsibility (and ability) to effectively teach to this diverse group. To do that, they need to develop classroom approaches that address not only the range of skills, knowledge, and attitudes and the range of learning styles or modes the students bring with them, as well as differing levels of academic preparation.

The key to our approach is to incorporate academic and legal reasoning skills directly into the syllabus either by name only or with a short notation, and then to teach those skills explicitly, along with the substance of the course. Students are directed to pay particular attention to a reading assignment not just for the doctrine, but also for its illustration of the skills we expect them to learn.

If we want our students to be deliberate about case briefing, why not pick a case early in the semester and explicitly teach the actual skill of case briefing while teaching the doctrine from that case?

In class, the case (and therefore the brief) is the vehicle for two related pedagogic goals: learning the doctrine, certainly, but also developing the students’ ability to read and analyse cases. Class time can be used for a number of purposes related to the student’s case brief, for example to confirm it, correct it, or expand it into realms not immediately apparent to the student. The class might also use the case brief as the jumping-off point for an in-depth discussion of case analysis.

You might hand out sample briefs for some cases early in the semester. Doing so has several advantages. It brings the process and fundamental role of case briefing out of the closet by acknowledging that it’s both difficult and possible to learn, that it takes practice, and that models (yours, not the canned briefs so many students come to rely on) are a tried-and-true mode of learning.

Ask the students to identify and characterise the differences between their brief and the sample. Ask them to identify any underlying purpose for the choices the teacher made that were different from theirs. Point to categorical differences between the two briefs, such as in structure, thoroughness, precision, substance, etc.

Another exercise that might be done over the first several weeks of the semester is regular ‘minute papers’ with various sections of the briefs. At the beginning of class, have everyone write out and hand in their issue statements, or rule sections, or holdings from a case you think appropriate. Even if you don’t grade them or use them in class, they will give you a great sense of where the students are in a relatively short time.

Issue spotting is possibly the least taught aspect of the law school curriculum. Indeed, law school course syllabi, casebook tables of contents, and commercial bar reviews, by organising doctrine and opinions by issue, all take issue spotting off the table.

The key to issue spotting is the ability to see connections between authority (including policy) and facts in complex analytic and rhetorical contexts. We have identified several aspects of issue spotting that teachers can help students with, including the baseline ability to recognise instances of facts triggering issues, dealing with complicated sub-rules, spotting hidden issues, and seeing connections among doctrines within your course and across law school courses.

On the most basic level, students need to hear explicitly that facts trigger issues. It gives them a way to begin to develop a technique of issue spotting certainly a skill critical to good performance on exams. For many students, the very notion that facts trigger issues is surprising. This is due to a number of factors. First, students tend to view the assigned opinions as monolithic narratives, without realising that the facts as found (and subsequently reproduced in the casebook) were really the product of vigorous argument. Second, the case itself is likely to identify or set out the issue in some way that ostensibly relieves students of the need to do so themselves. Finally, the casebook, by labelling chapters and sections so clearly, makes it unnecessary for students to grapple with what the issue is. Students therefore are likely to miss the organic connection between facts and rules that create the issues.

Another tricky aspect of issue spotting is the ability to recognise some of the less obvious connections among doctrines and use those connections to surface issues on an exam. Students need repeated practice at identifying issues – explicitly highlighting some of the less obvious connections among doctrines will assist this practice. After studying various doctrines in discrete units, it is useful to remind students to step back and look at the big picture, at how these different doctrines might fit together in analysing a hypothetical. After all the doctrine has been covered, you can point out issues that are likely to arise from the same set of facts.

Another aspect of effective issue spotting is that certain issues are likely to be hidden, with no obvious clues in the fact pattern that the issue is triggered.

A cohesive collapsed outline (an outline reduced to a checklist) can be critical for spotting hidden issues, reminding the students of all the issues they should consider on the exam. Teachers might also suggest to students that they annotate their outlines and checklists with a note to themselves reminding them to consider where the exam might include hidden issues triggered by the absence of facts. Giving practice multi-issue exam questions will, of course, provide a forum for discussing how to spot the hidden issues.

There are certainly many ways to teach academic and legal reasoning skills, some of which many of us already do. It may take little more than simply referring explicitly to the skill required for arriving at the answer to the question posed. Or, while discussing an opinion, you might point out the multiple appearances of the holding or the way in which the opinion follows an IRAC structure, in order to improve students’ case reading skills. The possibilities are endless.

The process of learning is too often left to intuition and happenstance. Those who figure it out for themselves, by nature, intuition, or exposure to a unique teacher, rise to the top. Those who don’t, for whatever reason, are at risk of becoming the ‘other,’ and tagged as unreachable. We believe deeply, however, that many more students can do better if the process of learning itself becomes the subject under discussion. This requires recognising the academically under-prepared students in our classrooms, having confidence that they can succeed, and being willing to bridge the gap and do what it takes to help them.