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Tuesday, June 30, 2020

Nonsense and sensibility: hybrid is not the answer

Since back in April, social media is filled with my warnings and exhortations, along with many other voices, about law schools pushing ahead to re-open in some hybrid form in the fall.  This parallels decisionmaking at the university writ large level, and the gauntlet was thrown down in this bigger space by notable announcements from opposite ends -- the presidents of Purdue and Notre Dame on the one hand, each insisting that this relative return to normalcy was somehow morally compelled, and the leaders of the California state university system (a giant system) and Cambridge University in the UK noting that there would be 100% online.  So far as law schools are concerned, the info continues to trickle out.  Harvard Law and Berkeley Law announced 100% online.  A few others in the so-called "T14" are proceeding either with a quiet hybrid scheme (my own law school, for example) or else are quiet, either because they are undecided or because they just don't want to say.

So, as I write this at the very end of June, there is a lot we still don't know about law school educational planning for the fall.  And, to say what is painfully obvious, there is a lot we do not know about the trajectory of the virus and therefore about what is realistic for schools to do any multiple scenarios.  As I have said elsewhere, I am dubious that even the most strategically savvy and well-informed law schools cannot know whether they will be able to follow through on their best laid plans to reopen in some form or fashion.

In all this discussion, I was struck by some observations by Prof. Deborah Merritt of Ohio State.  Readers of this blog, and other venues in which perspectives on legal education are shared, know that Debbie Merritt is one of our most thoughtful, rigorous legal educators, and someone who always puts students first in her thinking about legal education and its (dis)contents.  Here is what she had to say on Facebook about this predicament from the vantage point of her own law school:

"I listened today to a presentation on how our university will hold on-campus classes this fall. The on-campus venture is beginning to sound like the Ptolemaic model of the universe, with eccentricities and epicycles continuously added to address all the problems. First we decide to hold classes in super-sized rooms so that students can sit 6 feet apart. Then we require everyone to wear masks. Then we reduce the number of people in the building each day by having some classes alternate between in-person and online. Then we tell everyone to leave the building asap after class--no socializing in the hallways or other public spaces. I think it's time to realize that on-campus classes will not be the center of our universe this fall. We need to embrace a model in which online classes are at the center, with careful prep by professors over the next two months. Let students use their in-person time to be with friends and family, meet in study groups (1Ls), hold part-time jobs or externships (UL), and carry on their lives. What do they really gain from sitting masked in a classroom, separated from other students, and listening to a professor whose voice is muffled by a mask?"

And also this in a follow-up comment:

"Students, of course, are asking for tuition discounts given the compromised nature of this on-campus education. Universities, naturally, are rejecting that. Ironically, I think we would be in a better position tuition-wise if we said, "We are moving most of our fall classes online and the dean has directed faculty to spend the rest of the summer preparing first-rate online classes rather than conducting research. You can be confident that all of your tuition money is going towards maintaining a first-class legal education. We are also adding additional resources to externships and career services because we know those experiences and prospects are vital to students."

This is an honest reflection on a difficult issue, and I endorse it entirely. Prof. Merritt speaks simultaneously to the dilemma (and, potentially, the disaster) of reopening live and also the understandable angst of students who wonder "why exactly are we expected to pay 100% tuition for this experience?

What Prof. Merritt captures well, and what I and others have tried hard to capture as we have discussed this issue privately and publicly is this:  We can and should put on a full-court-press to develop and refine our remote/online teaching abilities so as to commit to giving our students an excellent educational experience -- excellent in curricular content, excellent in experiential/skill-building opportunities, and excellent in the community-building that technology can assist us with, if we are diligent and strategic, energetic and empathetic.  Quite frankly, this doesn't answer completely the students' question about tuition.  That is a tough one for sure.  But, at the very least, the "best-foot-forward" online approach sends the sincere message that we are committed to excellent instruction and to the well-being of our students and their families and also our faculty and staff.  

Moreover, this commitment is even more urgent if, as I sadly predict, the hybrid/in-person plans will end up being scuttled in any event (maybe as early as July; maybe at the beginning of the term; maybe just as soon as there is an outbreak in a particular law school).  A message in, say, September that says:  "Well, this sucks, but we are going to have to reconcile ourselves to sub-standard online instruction for the balance of the semester, if not the year" is a sorry message.  Nor is it much better for law schools to tell their students that they are going to plan on this scheme for now, but might adjust quickly.  Students are making travel plans, signing leases, arranging for family circumstances, and assessing what their late summers and falls will look like.  Contingency planning is ill-suited to a situation in which the health circumstances are truly unknown, but the rather universal health protocols ensure that student and faculty day-to-day life will be really difficult in even the most modern facilities (to say nothing of those that are less well-suited and in law schools which face more serious financial constraints).  One quick word on this latter:  It has been said that law schools like Harvard and Berkeley are not good gauges, insofar as they are much wealthier than other law schools and so can more easily made these adaptations. But this strikes me as at least a red herring -- the expenses of online technology are coming down, and surely these jury-rigged adaptations (plexiglass protections, hotel rooms for quarantines, even porta-potties) come with comparatively greater expense (not even to mention the costs of hiring new part-time faculty if, as we can expect, full-time faculty become unavailable). What seems to motivating this response is something different, and that is the interesting and I think credible claim that the more prestigious law schools can afford to make adaptations without risk of student flight. Perhaps so. Yet this only reinforces Merritt's point, and also mine, and that is that even the less prestigious (however measured) law schools can speak in an unequivocally pro-student and imaginative way by championing their efforts to create a high-level, creative, and, yes, compassionate educational experience for the coming academic year.  This is what so many law schools outside of the so-called elite do regularly, by noting their differences from the T14, and their capacity and commitment to students first and students always.  Here too that imperative should rise to the surface, as online education is undertaken.

So, I think that, with the utmost respect for law school leaders who are working hard and a fully well-intentioned way to create schemes and structures to ensure that their students -- and especially their first-year students -- are going to get a good in-person experience in the new academic year, this is a fool's errand, one that does not truly account for the dismal experience that students will have in a setting that would give even the great MacGyver pause.  And it sells short our students' ability to comprehend and to adapt to a semester in which their faculty can develop through online methods a rigorous and creative educational and community-building experience.

Again, my prediction is that the hybrid approaches are going to be a bust in any event, given circumstances beyond our control. So why not use July to create valuable templates and strategies for a great, if highly imperfect, educational scheme?  So many of us have ideas about how best to do that, as clearly one size doesn't fit all.  But we need know from our law schools is a commitment to try.

UPDATE: Just saw this valuable post by Prof. Josh Blackman at S. Texas. He has posted on this topic a few times. 


Posted by Dan Rodriguez on June 30, 2020 at 12:34 PM in Daniel Rodriguez, Life of Law Schools | Permalink


Thank you for these comments. The multiple-monitor solution is an excellent suggestion -- given my class size, I would need three. If it is technologically possible (I have sent an email asking our IT department) and if the law school is willing to provide the necessary equipment, I may well be persuaded to go all Zoom (at 66, I have a virtually automatic exemption from in-person teaching if I request it). I already do most of the things that others (here and elsewhere) have suggested as an adaptation, including regular on-line quizzes throughout the semester; so the real stumbling block for me was the inability to see the students' faces. If that can be fixed, I can basically teach on Zoom the way I always have, although it's still inferior to non-pandemic in-person classes.

Posted by: Suzanna Sherry | Jul 2, 2020 10:15:24 AM

Some of the issues discussed can easily be dealt with by technology. If the complaint is only 30 faces can fit on a screen, use a second monitor or even a third one. One could even use a large TV set for example as a second monitor if one wanted to see faces. In a normal in person class students zone off; no one stops the class and addresses that student zoning off. if you make assignments that force them to pay attention I don't see how it would vary much from an in person class. It just requires more work on the part of the instructor and a new way of doing things. in person could also be complicated by fact that normal attendance policies can't be enforced; you will always have some students who end up having to quarantine for 2 weeks.

This also does not get into the actual logistics which I think administrators don't understand. It sounds fine to have hybrid, but since you know some students will be online even if class is in person due to being immunocomprised or in quarantine, how would you actually have the setup of the class? most law school classrooms aren't set up for that. Where do you look- anyway you look you would be abandoning someone and unless you have a hanging webcam it would look weird to the online students. So there is no way to effectively judge how the class is going in an in in person class the way it would have to be this fall.

Complete online is simpler in that regard because few if any classes this fall will ever have all in person students. It is easier to deal with one audience rather than two. And splitting the class in two would be confusing and you would still have the same issue with the online only students.

The fall semester won't be normal, so if the choice is between a suboptimal in person versus versus a suboptimal online where a mistake in having in person could mean one or more of the students or faculty or staff could die, have serious complications, remain in the hospital for a month or spread it to more than one person in the community who will have those happen to them, the answer is clear. Those under 35 are driving outbreaks and schools isn't even back in session yet.

Posted by: anon | Jul 1, 2020 8:35:09 PM

Suzanna, the problem for this fall is that in-person classrooms are unlikely to support pedagogies other than lecturing once you account for masks and distancing. Small group work won't be possible. Class discussion will be very difficult: Even if the professor is miked, students are unlikely to have mikes and so will struggle to hear one another. Students will be spread throughout very large rooms, all the way to both sides and to the back. If you're sitting in the back half of the room (or on one of the sides), you are very unlikely to hear anything said by a masked classmate facing toward the professor.

Because of the need for distancing, many first-year classes will have to be taught in rooms outside of the law school. A good rule of thumb is that the classroom needs to be four times as large as the number of students. I.e., you need to skip seats in each row and skip rows. In some rooms, even that is not enough. So first-year classes (and large upper-level ones) will be taught in huge lecture halls spread around the university. This significantly reduces the social bonding nature of the first year. And then add to that: students will be urged to leave buildings as soon as classes end, and there will be very few common spaces (other than outside) to congregate between classes. Again, a very different experience.

The points you make about the first-year experience are why I have no concern that students will demand a permanent shift to online teaching. They will value learning with professors and classmates in person. But for this fall, it is hard to believe that the in-person experience will be anywhere as good as it could be online. That is why I have urged professors to start learning and prepping for that experience now. I have taken workshops with 50-100 others and have seen presenters who were very adept at scanning the audience to gauge understanding, putting attendees into breakout rooms, and using other techniques to accomplish much of what we see as good teaching in the first year. Not as good as pre-pandemic classroom teaching but almost certainly better than what we can accomplish through in-person classrooms this fall.

Posted by: Deborah Merritt | Jul 1, 2020 7:35:49 PM

Online teaching - especially to those new to it - simply requires more work to do it well. We all have to learn new skills and new ways of learning technology to make it a near equivalent experience. There are lots of things one can do to change how one can master those same skills but applied in an online environment. One needs to be on top of the students' more and have more assessments. Use of TAs if available could help facilitate that. But ultimately law can be taught the same way other areas in the academy are taught.

For many profs, especially those who have taught the same class for many years in the traditional way, it is a big investment of time for which many of us will not be rewarded. It will impinge on research time this summer and fall. But students of today were born practically looking at computer screens - they do everything online and they have for their entire life. They don't know a life without a computer or shortly even a cell phone. Adapting to this new environment - and spending the time now to learn some of the methods that have long been perfected by online educators - would do much to changing the way law is taught for years to come.

The practice of law itself will change after the pandemic and some of this will require new skills that can't be taught well in an in person environment. Lawyers will work at home more, which can maybe have a positive effect at reducing gender inequities in senior positions in the profession as people can better balance family life. Regardless, the law profession is changing and law professors need to adapt to this changing reality of both the profession and the students themselves. The pandemic just made the need for change more apparent.

Posted by: anon | Jul 1, 2020 2:38:02 PM

Prof. Sherry is a seasoned, renowned law teacher and I cannot and will not say she is wrong in her analysis. But I am bewildered by her dogmatic insistence that online is inferior, an analysis bolstered by a caricature of what online teaching is and is capable of and some erroneous depictions of Zoom. Even the beginning of the post "[t]he problem with . . ." suggests what to me is part of the problem, that is, the rigidity of faculty members' views, underinformed about online/remote technology and teaching and eliding the core point of our post, which is that we must adapt to this unfortunate reality and look at ways of accomplishing our educational aims while caretending for student, faculty, and staff help. And, in general, more listening and collaboration, than proclaiming about what we believe we know for sure. That's my respectful suggestion.

Posted by: dan rodriguez | Jul 1, 2020 1:26:06 PM

The problem with Dan & Debbie's approach is that what we are trying to teach in law school, especially in the 1L year (primarily reading, analysis, and critical thinking skills), cannot be taught well on line. In other words, *all* on-line instruction is sub-standard when it comes to law schools, no matter how much time and effort the professor puts into it. On-line is fine for lecturing, filling their heads full of information. But when you have to gauge whether they're getting it, adjust on the fly if some or all are not, require them to think on their feet, think on *your* feet to push them or lead them, make them focus on particular words or phrases, etc. etc., it can't be done on-line in classes of more than 30 (because that's how many faces one zoom screenful holds) and it can't be done well in classes of more than about 15 (because that's how many reasonably sized faces a zoom screenful holds). But almost no law school has first-year classes that size.

Posted by: Suzanna Sherry | Jul 1, 2020 11:24:20 AM

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