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Wednesday, March 03, 2010

Legally Blind Grading, Take 1: Do You Dock Students' Grades For Insufficient Class Participation, And If So, Why?

In most classes in law school, professors (must) engage in what is often referred to as "blind grading," i.e., "we intentionally deprive ourselves of information that would match exams with names." Christian Turner, The Burden of Knowledge, 43 Ga. L. Rev. 297, 347 (2009). But if you actually think about it for a second, law school grading isn't truly "blind." Most law schools allow professors in so-called blind graded classes to boost or dock a student's grade by 1/3 of a letter grade (e.g., from a B to a B+ or a B+ to a B-). In this sense, law school grading isn't actually blind but what I refer to as "legally blind grading." In several guest posts over the course of this month, I will raise a number of questions related to legally blind grading.

My first question is whether readers dock students' grades based upon insufficient class participation. You can answer this question by responding to the following poll:

In non-seminar classes, do you dock student grades based upon insufficient class participation?

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Free poll from Free Web Polls

My main goal in this first post, though, is to ask why professors dock students' grades based upon insufficient class participation by considering theories of punishment. According to some, there are four general theories of punishment: retribution, deterrence, rehabilitation, and incapacitation. See, e.g., Leigh Goodmark, The Punishment of Dixie Shanahan: Is There Justice for Battered Women Who Kill?, 55 U. Kan. L. Rev. 269, 287 (2007).

Retributive theories of punishment "'rest essentially on the inherent propriety of punishment as a consequence of wrongdoing...." Id. at 288 There are two strains of deterrence theory. "Special deterrence theory argues that punishment is intended to prevent a person who has been punished from committing similar offenses in the future....General deterrence...'concentrates instead upon the efficacy of the threat of punishment upon those who are disposed to or tempted by crime.'" Id. at 292. Under incapacitation theory, "punishment is justified because the incarceration of the offender prevents that person from committing further acts of harm, thus increasing the good to society." Id. at 293. Under rehabilitation theory, punishment is used "'to prevent crime by so changing the personality of the offender that he will conform to the dictates of law.'" Id. at 294.

Any of these theories of punishment could (crudely) explain why law professors dock student grades based upon insufficient class participation. Such docking could be retributive, a moral requirement based upon student unpreparedness. It could be based upon special deterrence in the sense that the professor wants to deter students in his class from being unprepared. It could be based upon general deterrence in the sense that the professor wants to deter a certain type of student from taking his class(es). It could be based upon incapacitation in the sense that the grade docking might exclude the student from activities such as law review or even potentially lead to the student being expelled based upon a low GPA. And it could be based upon rehabilitation in the sense that the professor wants to impress upon unprepared students that they had better be prepared in the future (in future classes, when they take the bar, and when they practice law). 

Personally, I don't dock grades on retributive grounds. On reason is that, as grade docking currently exists at my school, it is one size fits all; if one student falls slightly below my class participation expectations and another falls significantly below them, I must give them the same 1/3 grade reduction (more on this in a later post). Retributive justice is supposed to be individualized, so my grade docking wouldn't fit under this theory. Also, I see class participation as more of a means to the ends of learning the material and performing well on the exam, meaning that I have no moral requirement to punish insufficient class participation.

I suppose the incapacitation theory of docking student grades based upon insufficient class participation would be that students unprepared for class will be unprepared for activities such as law review and the practice of law. I have no idea whether the latter point is true, but I actually find that many of the students very active in student organizations are very unprepared in class. 

I actually think that a rehabilitation theory of docking student grades based upon insufficient class participation is a good one (in theory), but here's the problem: At least at my school, students don't know whether their grades were docked. I know this because I have had students who set up exam conferences asking whether they got docked. In the absence of this knowledge, it is hard to see how students can take the docking as a learning experience.

Therefore, I dock grades under deterrence theory. I want to deter unprepared students from taking my classes because they won't add much to class discussion and could detract from it. With regard to students who take my classes, I want to deter them from being unprepared in class both for the effect unpreparedness has on class and other students as well as for the likely effect it has on their learning of the material.

But that's just me. If you dock students' grades based upon insufficient class participation, why do you do so? Answers to the following poll and comments would both be appreciated.

Why do you dock students' grades based upon insufficient class participation?

View Results
Free poll from Free Website Polls

-Colin Miller

Posted by Evidence ProfBlogger on March 3, 2010 at 09:08 AM in Teaching Law | Permalink


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I'm with Howard. I have 10% of my class grade based on class participation. (I also have other components, including an oral argument and written opinion, both very short.) I keep track of cold calling meticulously. I have many volunteer opportunities and have gestalt grading on that. Both the cold calling and the volunteering gets put into the 10%. And, I email the students their scores on class participation before the exam (along with already having graded them on the other components and giving them means/medians/standard deviations) so they know exactly where they stand going into the final.

I tell students that they can only contest my class participation grade for them if it's clear error. I've been doing this in big and small classes now for four years and have yet to have a student contest the class participation grade.

Posted by: David S. Cohen | Mar 4, 2010 4:12:49 PM

Howard, I would say that you are a docker and a booster based upon that description. Do you have that rule even in larger classes? If so, how do you keep track of each student's participation with enough specificity to assign each student his or her class participation grade? Part of the reason that I don't boost grades based upon class participation is that it is tougher to keep track of superior class participation than it is to keep track of inferior class participation (where a simple X suffices if the student is absent, says he hasn't read the material, or clearly hasn't read the material).

Posted by: Colin Miller | Mar 3, 2010 7:19:56 PM

I make class participation 10%-15% of the final grade (depends on the class). I also don't cold call, so students know that they control the amount of participation and thus that part of their grade. Is that "docking" for bad participation? I guess, in effect.

Posted by: Howard Wasserman | Mar 3, 2010 6:20:58 PM

I follow Suzanna's model but less formally - if someone is close to the next letter grade, and either made significant improvement over the semester, or has one abnormally low score (and I'm aware of the reason), then I'll boost them up, but I also have to boost anyone with a score higher than that person who is also below the line (i.e., if the lowest B is 80 and I boost a 78 to a B, I also boost any 79s). But I never dock anyone - they always get at least the grade indicated by their work. (Keep in mind I teach undergraduates - potential law students, many of them - not law students.)

It's ironic we're having this discussion now; just yesterday I was illustrating Dworkin's concept of weak discretion (or judgment) with the example of grading, explaining that even though I literally can give any grades I want, I don't feel like I have any choice other than to grade according to quality of work (and not personal feelings, etc.), because I regard professional standards of fairness as binding.

Posted by: Mark D. White | Mar 3, 2010 3:48:49 PM

Hadar, thanks for the post. I will be doing a follow-up post about professors who boost grades, and I hope that you will contribute to it. I'm not sure that our approaches are that different. Basically, I want all of the students who take my classes to know that they will have to be prepared and all of the students in my classes to be prepared. I think that this leads to the best class and the best class discussions, with a variety of voices being heard. I have said in my post that my grade docking is meant as a deterrent, but really it is an encouragement for students to be prepared.

The reason I have chosen to engage in (rare) grade docking and not grade boosting is that I think that the latter encourages a certain type of student to (try to) dominate the class discussion. I thus think that it leads to the possibility that fewer voices may be heard. Of course, my fears could be completely unfounded, but so far, using grade docking and no grade boosting has worked the way that I wanted it to work in my classes. I am sure that many other professors find that grade boosting (or grade boosting and grade docking) leads to the best classes, and if it works for them, that is great.

Posted by: Colin Miller | Mar 3, 2010 3:40:41 PM

Suzanna, thanks for the comment. I don't think that I can be that nuanced at my school, but I am not sure. But your comment gets at exactly the point that I was making if you can't be more nuanced. My B range might be a 60-80 out of 100 on the exam, but if my school's grading system only allows for docking by 1/3 of a grade, that would mean that a student who gets an 80 and just barely qualifies for a grade docking would get a B-. I like the more moderate approach that you use and would encourage schools that do not now allow it to allow it.

Posted by: Colin Miller | Mar 3, 2010 3:28:18 PM

Yeah John, that is why I had the poll cover non-seminar classes. I think that it makes perfect sense to have class participation play a large part of the role in the grading of such classes (which also are usually not graded blindly).

Posted by: Colin Miller | Mar 3, 2010 3:23:16 PM

That's a bit of a punitive spin to put on it, Colin. Rather than penalizing, I reward people for intelligent and knowledgeable participation. The outcome, in a grade curve system, might be similar, but the ideology is different. Might have something to do with the fact that I run my class on an all-volunteer participation basis (never call on people).

Posted by: Hadar Aviram | Mar 3, 2010 12:31:03 PM

You can add nuance if you grade exams by a point system rather than by intuition ("this is an A exam, this is a B+ exam"). I only dock for truly abysmal performance -- consistent non-attendance or non-preparation, and I've only done it a handful of times and never in 1L courses -- although I use the threat of doing so as a deterrent.
But for boosting, I divide the potentially boosted students into categories that reflect class performance, in order of decreasingly good performance: those who will receive a 1/3 grade boost regardless of where their total points fall, those who will receive a 1/3 boost if their total points put them within [x] points of the next (1/3 up) grade, and those who will receive a 1/3 boost if their total points put them within [x-y] points of the next grade. The best students get a boost regardless, the second-best get a boost only if they were close to earning it on the exam, and the third-best get a boost only if they were very close to earning it on the exam. (The numbers for x & y depend on how the actual points and grade divisions work out.)

Posted by: Suzanna Sherry | Mar 3, 2010 11:56:49 AM

I agree with you, Colin, and now I see your point: it's precisely because attendance is not evaluative that it takes on a punitive element. I'm completely on board with that, as well as the further implication that if a professor doesn't endorse this punitive aspect (for any reason), then he or she should not boost or dock. (I don't do either, but I never thought about it that way before.)

Posted by: Mark D. White | Mar 3, 2010 11:51:51 AM

this si a special case, but I notify students on the syllabus that class participation counts for 35% of their final grade. I teach a seminar which requires a paper rather than an exam. The heavy class participation requirement encourages the students to read the materials (which they might not do in the absence of an exam) and to think about the materials deeply enough to engage in actice discussion. It works, especially after the first couple of classes.

Posted by: John Tanner | Mar 3, 2010 11:40:32 AM

Mark, I think that gets back to the point I made about the current system for grade docking/boosting. At my school and at many other schools, professors can dock or boost a student's grade based upon class participation. There is not a lot of nuance to such a system. If I have a student who is the best class participant ever and I boost grades, he gets a 1/3 grade boost as does the student who just barely passes the bar for the boost. If I have a student who is the worst class participant ever, he gets the same 1/3 grade dock as the student who is just barely under the bar for the dock. And personally, I don't boost grades and end up docking very few grades, leaving most students with their exam grade despite varying levels of class participation.

I thus have a hard time viewing grade boosting/docking as it currently exists as evaluative in any meaningful sense. If I am to justify my grade docking, then, it must be based upon wanting the docking to have some effect on the class and the student, which is why I couched this post in terms of theories of punishment, and specifically, deterrence.

Posted by: Colin Miller | Mar 3, 2010 10:52:33 AM

Rick, that's a good point. I always include the ABA rule on my syllabi and inform students that they will not be able to take the exam if they miss too many class sessions. Assuming, though, that there are 28 class sessions and student A misses 5 classes while student B misses 2 classes (both fine under the ABA rule), I'm not sure that I should treat the 2 differently assuming that they are unprepared an equal number of times (with student A's unpreparedness mostly consisting of absences when called upon and student B's unpreparedness mostly consisting of not having read the required material). Do you think that the two should be treated differently?

Posted by: Colin Miller | Mar 3, 2010 10:46:02 AM

Why are you considering this as an instance of punishment? If grades are meant to evaluate performance, or learning, or even attendance, why would a failure along any of those lines merit "punishment"? Knock down their grades if you want, but I think that should be considered an aspect of your evaluation of the student - not punishment, with all that term connotes.

Posted by: Mark D. White | Mar 3, 2010 10:06:00 AM

Unfortunately, the poll does not differentiate between docking grades for nonparticipation in classes the student has attended versus docking grades for nonparticipation because the student did not show up for class. The ABA, by requiring schools (through the accreditation process) to certify that students have received x minutes of instruction, arguably requires docking for the latter but not the former.

Posted by: Rick Bales | Mar 3, 2010 9:56:14 AM

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