How the Curve Bleaches Out Intellectual Diversity and Entrenches Class Structure
“In the wild struggle for existence,” writes Oscar Wilde, “we want to have something that endures, and so we fill our minds with rubbish and facts, in the silly hope of keeping our place.” The Picture of Dorian Gray was not intended as a commentary on the pursuit of legal education; yet it furnishes, albeit obliquely, a portrait of what ails law students and the culture of legal practice.
Law school promotes a culture of individualism that pervades practice. It entrenches and exacerbates classism and status. Classrooms are steeped in unnecessary competition, perfectly illustrated by the vision of academic excellence—given life through 100% final exams subjected to the bell curve—bleaches outs intellectual and socioeconomic diversity.
Examining on a curve attracts a number of justifications. It’s always been done this way. It’s how to inculcate “thinking like a lawyer.” It promotes healthy competition among students, incentivizing performance and hard work. It conforms with the natural spectrum of ability and performance anyway. It’s the most efficient system we have. Facially, such arguments seem rational. Examined rigorously, however, one sees they are unjustified by facts.
There is a rich body of research on the use of bell curves. Dr. Martin Covington, a cognitive psychologist from UC Berkeley, has studied the competitive classroom dynamic for decades. Despite the prevailing rationale, the empirical result is a mixed picture. Some students are spurred to greater action because of the curve. Others are demoralized and lose self-esteem and confidence. The upshot is that the academic performance is highly complex as it relates to the mode of evaluation, verging on counterintuitive at times. Dignity and self-worth, however, are undoubtedly central components of academic success.
Humans are naturally inclined to learn through adapting to their environment. The mechanism of action in a competitive classroom is relational and game-like. Students pursue “ability status” relative to others. Often there is a minority of students who are competitive by nature, and their peers are absorbed into the culture driven by pride and shame. Some students thrive in this context, reinforcing their self-worth. Their achievement and ability status is divisive and toxic to social relations. Others subscribe to an “entity theory” of success, and believe that their failure to achieve is immutable. Learning therefore loses intrinsic value, and these students under-perform.
The curve exacts immense psychological stress, erodes dignity, and diminishes self-worth for the majority. Those adept at exam-based adjudication are also prone to a false sense of merit. So there is a culture of competition, arrogance, shame and suspicion pervading the law.
The economic consequences of under-performance can also be severe. For organized recruitment, first year grades are all that matter. In the context of Richard Herrnstein and Charles Murray’s suggestion that intelligence is linked to factors like income and socioeconomic status, the distributive implications of the grading curve are troubling.
Think of classmates who have to take care of children, work a part-time job to supplement their income, or come from a low-income family. It is intuitive that socioeconomic status plays a causal role in academic performance, taken together with other factors of course. The premise is that performance and wealth are correlative, and this relationship is reinforced by the current mode of evaluation. And so the curve mirrors and reproduces the capitalist system, rewarding those who already have privilege at their disposal and entrenching the cognitive-cum-capitalist elite.
This makes sense, since corporate lawyers are the handmaidens of the capitalist system. Not all students go that route, after all. The problem is therefore that the entire pedagogy at law school is molded to serve corporate interests. It imposes upon legal education the need for rank and recognition, whereas many practice areas are collaborative and driven by mutual gain through conflict resolution. Students who do not “fit” with this culture or thrive under this model not only under-perform, but are faced with the challenge of entering a saturated legal labour market. Exacerbating their plight is the stain of poor performance.
The curve is also an instrument of selection and admission to the business elite. Grades are a sifting mechanism, and while Bay Street recruiters have added diversity to their sales pitch, it is in the technical “check-the-box” rather than substantive in nature. While corporate giants have recently appropriated LGBT rights, nothing is said or done about disability, gender orientation or socioeconomic background.
Competitive classroom models can also visit arbitrary disadvantage. In some classes, one case citation might separate an A from a B. Moreover, professors use dissimilar methods of evaluation. Some construct elaborate matrices of laws and principles to rank exams. Others randomly check things off and “get a feel” for the answer. In some seminars, law students with an A average could be downgraded to a B to curve a dozen students. The insistence on maintaining degrees of relative difference verges on absurdity.
The most concerning part is that the curve bleaches out a diversity of intellectual approaches by rewarding just one variety. Law is a service-based profession built on the billable hour. Fact-pattern based questions essentially require examinees to play the role of a judge under severe time constraints. Like the LSAT, these exams reward a discrete skill set that is not reflective of lawyering potential or ability. The current system does not recognize the need for emotional and social intelligence, or the ability to empathize and work well in teams. Bleaching out these alternative and diverse approaches to problem-solving renders the curriculum intellectually bankrupt.
In the real world, policy is driven by fact, analyzed in comparison and improved through consistent reevaluation. Leading law schools around the world have disposed of the curve in favour of alternative methods of evaluation. Yale Law School has no formal curve. U of T Law has done away with lettered grades, and softened the grading profile. Outside the discipline, faculties like the Michael C. DeGroote School of Medicine at McMaster are innovating with small-group, clinical learning instead of the typical curved evaluation.
Canada’s economy is marked by rapid changes in digital technology, globalizing the legal labour market, and increasing competitive pressures on its newest entrants. Contemporary lawyers need the agility to navigate different practice contexts, drawing on a more comprehensive practical and ethical skill set. Meanwhile, many law faculties cling to a dated form of evaluation that has severe social and economic implications. It seems professors prefer that students avert their eyes from the writing on the wall, banning laptops from the classroom and shirking lecture recordings. Because it’s always been done this way.