The "Seminar Exception": Is It Defensible To Remove Smaller Law School Classes From The Grading Curve?

Here's something that gets the goat of many law students: uncurved law school classes. At most law schools with grading curves, students taking classes with roughly more than 30 students will be graded according to the grading curve. Students taking classes with about 30 students or less will not be graded according to the grading curve. So, what happens in these smaller classes (usually seminars)? Well, according to Robert M. Lloyd, Hard Law Firms and Soft Law Schools, 83 N.C. L. Rev. 667, 678 n.62 (2005):

At my institution, a report showing the average grade in each course is circulated to the faculty at the end of each semester. These show the grade disparity very clearly: in Spring 2003, 14 of 18 upperclass exam-graded courses had a mean grade below 3.3, while only one of 16 paper-graded classes had a mean grade below 3.3....All of the anecdotal evidence from other law schools confirms that higher average grades in Softer courses is a universal (or near universal) phenomenon in American law schools. For example, one U.S. News top-fifty law school provided me with a semester grade report listing two seminars in which all students received A's....While some of this grade disparity is due to schools giving more grading discretion in smaller classes and non-exam-based classes, many schools have actually mandated higher mean grade ranges in "seminars." (emphasis added).

Now, this gets the goat of many law students because some 2Ls and 3Ls load up on these smaller classes, "artificially" inflate their GPAs, and end up with higher class ranks than students who outranked them after 1L year and then took mostly curved classes in their last two years. The question is whether uncurved classes are defensible. My (tentative) answer is that they are not.

It seems to me that, as Barbara Glesner Fines noted in Competition and the Curve, 65 UMKC L. Rev.879, 893-94 (1997) there are three main grounds upon which these "seminar exceptions" might be defended:

These “seminar exceptions” may be based on two rather divergent rationales:one relies on the randomness of ability, the other relies on the educational effectiveness of these classes. The first rationale exempts small classes from a curve because these classes do not provide a statistically significant sample--there is less likely to be a random distribution of ability in these classes, so we cannot expect a curve to result. Even if there is a random distribution of ability, many seminar classes allow such a degree of flexibility in the products by which students are measured (e.g. seminar papers) that we do not trust our ability to adequately differentiate student ability in these settings. The operative assumption here is that the purpose of law school is to test the ability of students to perform rather than to teach the students to perform ably.

However, given that these seminar exceptions usually do not completely eliminate the requirement of a curve, but rather increase the required means or broaden the distribution requirements, another rationale seems equally likely. This rationale accepts the legitimacy of higher grades when instructional effectiveness is higher. The rationale is well supported by educational literature. Students do truly learn better in smaller rather than larger classes. Students do learn better when they have more formative evaluation (such as rough drafts, practice arguments, etc.). Students do learn better when they have the ability to choose their topic of study (as is often the case in seminars).

In other words, smaller classes should not be curved because (1) they might not contain a random distribution of students, (2) it is difficult to distinguish students in such classes given the flexibility of grading measures; and (3) instructional effectiveness is higher.

 

There is some merit to each of these arguments, but I think that there are also some problems. With regard to argument 1, here are my thoughts. First, aren't the current policies at most law schools underinclusive? I have two examples from when I was in law school: (a) I took a moot court class in law school with the other 31 students who had made the Moot Court team, and (b) I took Federal Courts along with many other members of Law Review, Moot Court, and the top 10% of the class. Both of these classes were curved. Neither had anything close to what I would call a random distribution of students, and I doubt that they are the only examples. If law schools are worried about certain classes not having random distributions of students, shouldn't they just review the GPAs/class ranks of students in particular classes and see whether the law school curve needs to be altered or removed from that class?

 

Second, how did most law schools reach (about) 30 as the magic number where there is no longer a statistically significant sample of students? 168 students graduated in my law school class, and classes with fewer than 30 students were uncurved. Here at John Marshall, where I now teach, classes with 30 or less students are also uncurved, but the overall class size is much larger. From what I have heard, most schools cut off their curves at about the same number, regardless of their overall class sizes. How can 30 be the magic number when overall class sizes can vary by hundreds of students?

 

Third, accepting the argument that there might be random distributions of students in smaller classes, wouldn't we expect a non-insignificant number of those classes to result in mean grades below the law school mean? And yet, based upon the data compiled by Lloyd (and my own personal observations), noncurved classes almost always end up with mean grades significantly above the law school mean. It thus seems to me that the remedy of taking smaller classes off of the curve is worse than the ailment it is intended to cure.   

 

With regard to argument 2, here are my thoughts. Initially, doesn't the flexibility of grading measures help (albeit in a different way) to counterbalance the statistical significance problem mentioned above? Most "larger" law school classes contain one point of grading: the final exam. Most "smaller" law classes (at least the ones I took) had at least three points of grading (class participation, some type of presentation/oral argument, and a paper). I always feel a bit uncomfortable giving students grades on a curve based just upon the final exam. Conversely, I would imagine that I would feel much more comfortable distinguishing between students if I had several points of grading (I haven't yet taught a seminar).

 

Also a related argument to argument 2 is the argument raised by Jeffrey Evans Stake in Making the Grade: Some Principle of Comparative Grading, 52 J. Legal Educ. 583, 601 (2002):

For a class of thirty students,...forcing the scores onto a curve will be troublesome because some of the intervals will contain very few students. For classes of the size that are common in law schools and for grading scales with more than a few intervals, forcing a specific percentage of students into each interval is riskier than mandating a standard deviation because each of the intervals involves only a portion of the class, whereas the standard deviation relates to the whole class. With the whole class, small variations will average out in a way that is not likely when an interval includes only a few students.

In other words, if a professor needs to give a certain percentage of Bs (or Bs, B+s and B-s), it can be arbitrary to force the professor to make fine distinctions where intervals might contain only 1, 2, or 3 students. This seems to me to be a valid criticism, but it seems to me that the remedy is removing intervals and not removing the law school mean. In other words, if curved classes at a school require a 3.0 mean and 10% of students getting a B-, a professor in a class with 20 students shouldn't have to adhere to the 10% B- requirement, but it seems that the professor should have to adhere to the 3.0 mean requirement.

 

Finally, with regard to argument 3 here are my thoughts. First, aren't the current policies at most law schools underinclusive? I give an ungraded midterm in each of my classes. On most of my midterms, the mean grade is in the low to mid 60s (out of 100). In my Criminal Procedure I class this semester, my students blew that mean away, beating the previous high mean by over 10 points. But even if these students repeat their performance on the final, they are still stuck on the curve despite one conclusion being that instructional effectiveness was higher than (my) usual in this class (of course, another argument is that I didn't have a random distribution of students;).

 

Second, aren't the current policies at most law schools overinclusive? Sure, many "smaller" classses are popular seminars taught by terrific professors that have less than 30 students based upon an artificial cap. But, let's face it. There are also some smaller classes that have less than 30 students because, well, the professors in those classes just aren't that great. For instance, I took a 12 student criminal law seminar in law school with an AUSA who cancelled class half of the time and based students' entire grades on a 10-12 page paper (on which I believe everyone got an A or an A-).

So, what are your thoughts/experiences? Does your law school remove smaller classes from the curve, and is (about) 30 the magic number? Has your experience been that these uncurved classes typically produce mean GPAs well above the law school mean? Do you think that making these classes uncurved is defensible? Is there a middle ground that can and should be reached?