Avoiding a Biased Exam: Always Expect Students to Know the Law But Never Expect Them to Know the Facts

I remember being a law student and taking the class Women and the Law with the terrific Susan Grover when a topic came up that would (thankfully) inform the way that I draft my law school exams when I became a professor. The topic: Biased exams. One student brought up a Torts exam she had taken her first year that left her perplexed. The exam was in the fall of 2000, and it involved an XFL fact pattern with, if memory serves me, running back George W. Bush assaulting linebacker Al Gore either as part of a football play or immediately after it had concluded. The reason for the student's confusion was that she didn't follow football and therefore had difficulty answering this torts in sports fact pattern because she couldn't figure out what role the running back plays on the football field, making it tough to analyze how out-of-the-ordinary W's conduct would have been. 

I could sympathize with my fellow student's comment even though I had taken the same Torts exam and not realized the difficulties it could create at the time. I once had a Sri Lankan friend attempt to explain cricket to me (I remember this involving both explanations and diagrams), and I had about as much success in figuring out what she said as the XFL had as a sports league. I imagine that I would have struck out if given the wicked googly of an exam with a cricket fact pattern if I decided to get an LLM in England (except, wait, there is no strike out in cricket). I therefore could easily imagine a football-averse J.D. student, whether male or female, going three-and-out on an exam with a football fact pattern, and I could see the same thing happening to an LLM student from a country not as American football crazy as us Yanks (i.e., every other country in the world). 

 

Another student could sympathize as well. He mentioned that after his Contracts exam, several students had complained. You see, the fact pattern on the exam involved a vendor breaching a contract by supplying the buyer with off-brand clothes instead of designer duds. These students didn't understand the concept of off-brand clothes and thus the nature of the breach by the vendor. 

The discussion of the topic in class taught me an important lesson that I otherwise wouldn't have learned: Professors should always expect students to know the law on an exam, but they should never expect them to know the facts. In other words, don't throw students the curveball of a baseball fact pattern (unless you teach Sports Law) unless you expect some to fall below the Mendoza Line. Don't give students a fact pattern where you tell them that a movie finished "in the black" unless you want some exams to end up "in the red." And don't give students a fact pattern where they have to understand the difference between Berdorf Goodman and TJ Maxx and expect the Maxx for the Minimum. 

Of course, any of these fact patterns would be problematic, but they wouldn't be offensive. In doing research for this post, however, I came across the following passage from Angela I. Onwuachi-Willig, Note, Moving Ground, Breaking Traditions: Tasha's Chronicle, 3 Mich. J. Race & L. 255, 274 n.33 (1977):

See generally Patricia J. Williams, The Alchemy of Race and Rights (1991). In her book, Williams describes a number of race- and gender-biased exams created by White male professors. Some included:

--a tax exam that asks students to calculate the tax implications for Kunta Kinte's master when the slavecatchers cut off his foot.

--a securities-regulation exam in which the professor muses about whether white-collar defendants should go to jail, since “unlike ghetto kids” they are not equipped to fare in that environment.

--a constitutional-law exam in which students are given the lengthy text of a hate-filled polemic entitled “How To Be a Jew-N*****” and then told to use the first amendment to defend it.

--a description of the “typical criminal” as a "a young Black male with an I.Q. of 87 who is one of eight children and has always lived on welfare and who spends his time hanging out in pool halls with his best friend Slick."

--numerous criminal-law exams whose questions feature exclusively Black or Hispanic or Asian criminals and exclusively white victims.

--many questions depicting gay men as the exclusive spreaders of AIDS, asking students to find the elements of murder.

--many, many questions in which women are beaten, raped, and killed in descriptions pornographically detailed (in contrast to streamlined questions, by the same professors, that do not involve female victims) ***

The problem with such questions, as Williams argues, is that they: require Blacks, women who have been raped, gays and lesbians, to not just re-experience their oppression, but to write against their personal knowledge. They actually require the assumption of an "impersonal" (but racist/sexist/homophobic) mentality in order to do well in the grading process....[I]t requires students to suppress any sense of social conscience. It requires them to devalue their own and others' humanity for the sake of a grade....In essence, such questions disproportionately require that women and minorities move outside of their experience to perform well on exams. 

This is pretty disturbing and part of the reason I chose not to test Federal Rules of Evidence 412-415 on my Evidence exams. But these are the obvious examples. Have you come across an exam as a professor or a student with facts that seemed innocuous but which ended up being unfair to a number of students?