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Going Back to the Basics, Low-Tech Assessment Methods in Large Doctrinal Classes

Going Back to the Basics, Low-Tech Assessment Methods in Large Doctrinal Classes

By Vicky Daniels

Teaching Idea for February.

By Sandra Simpson, Professor, Gonzaga University School of Law.

While teaching large, doctrinal courses, it is possible to engage and assess the entire class with low-tech methods.  I teach a Real Estate Transactions course to 60 plus students every spring.  One effective method is using 3M posterboards for groups to “publish” their work.  I used this method this week when we were reviewing contract concepts.  In reviewing covenants versus conditions, I needed to know where my students were in terms of understanding these basic contract terms.  To accomplish this, I returned to a basic, low-tech method of large 3M posterboards (poster-sized sticky notes) for this assessment.

Once I found the 3M posterboard pad (in a lonely, dusty corner closet), I posted 23 pieces of paper around the room before the students arrived.  Once the students arrived[1], I had them form groups of three.[2]  I asked the groups to read the following clause: “Seller to provide the buyer with a certificate of occupancy prior to closing.”  The students were then asked to determine whether this clause creates a promise or a contingency.  After five minutes of group discussion, I asked random groups to support whether it is a promise or a contingency.  We discuss why the distinction matters.  Students soon realize the clause can be argued either way, which is not ideal for a real estate contract; it can lead to litigation, affecting the parties’ contract rights.

For the next step, I asked the students to redraft the clause creating a promise, and then redraft the clause creating a contingency.  The students wrote the two clauses on their 3M poster paper.  After every group was done with the drafting and had posted their paper on the wall, I asked them to walk around reading the other groups’ drafted clauses.  Each group marked the one they liked best (they could not vote for their own).

After all the students sat down, we looked at the votes to ascertain the best clauses and debrief the exercise.  The voting showed two very different drafting techniques tied for the best clauses.  This highlighted some drafting issues and created a discussion of different methods to create a promise or a contingency.  The entire exercise took 30 minutes, but it engaged the entire class.  An additional bonus was that the posterboards remained on the walls for the entire class, allowing me to walk around (while students were working on another problem) and read all the students’ work, which created another opportunity to talk to the groups about their work and answer lingering questions.

[1] It was really fun to listen to their reactions to the paper being posted around the room.  They were very curious and excited.

[2] You can form the groups yourself, particularly if you want to pair strong and weak students.

Using the Local News as the Basis for an In-class Exercise

Using the Local News as the Basis for an In-class Exercise

By ILTL

By: Andrea Need, Indiana University O’Neill School of Public and Environmental Affairs

This semester I interrupted my planned class (lecture, case discussion, and hypotheticals) with a simple mini case study exercise “ripped from the headlines” in our midwestern town.

Background:  By class time, most students had heard the news that the City of Bloomington, IN had conducted a controlled live burn of a two-story house in a neighborhood not far from campus.[1]  Such fire training burns are allowed, subject to conditions, as exceptions to state open burning prohibitions. Local news reported that immediately after the burn, neighbors complained of debris, including paint chips, on their houses and cars and in their yards and gardens.  A resident’s test showed lead in the debris, which was later confirmed by the city.[2]

Exercise:  Do we need to change the law after the controlled burn event? (25-30 minutes)

  1. (10 minutes) First, I asked the students to read a news report and a city press release, which I linked on our course page for easy access.[3] I picked these two documents because they covered the background, discussed relevant laws, and could be read quickly.
  • I told the students to assume whatever these documents stated was true. For example, the press release stated that the city sought proper approval and complied with the state open burning law, which does not require lead testing.[4]
  1. (5 minutes) I instructed students that once they were done reading, they were to break into small groups of three to five students each and discuss and write down any problems resulting from this event.
  2. (5 minutes) We discussed the problems as a class and I wrote them on the board. Some problems were as follows:
    • Is there lead contamination—particularly in gardens and where children play?
    • Should lead testing be required prior to burning? Is accurate lead testing possible? Should we assume all buildings older than a certain year have lead paint?
    • Even if no lead was present, the city caused ash to fall on people’s property.
    • Is the required notice adequate or equitable (i.e., accessible)? What could a person do if they got notice and were concerned?
    • Will the debris be removed and by whom? If so, how much will removing the debris cost?
    • Should these burns occur farther from homes?
    • Do firefighters need these opportunities to practice? Would too many testing or other requirements eliminate the training opportunities?
  3. (5 minutes) Next, I asked if, based on what we know, the law needs to be changed and if so, how? At what level of government should the law be changed (state vs. local)?  Or, I asked, was the law sufficient as-is, and was this an instance of a decision-making error? The class agreed the law needed to be amended because the burn was lawful but still problematic.  Students shared ideas on changes to the law, which I wrote on the board.  Some ideas were to:
    • require lead testing prior to burning;
    • prohibit burning structures built before lead paint was banned;
    • require individual notice to all property owners within [xx distance determined by data collected on the impacted zone;
    • prohibit burning within a certain distance of residences; and
    • require a study on, and publication of, the costs of potential remediation.
  4. (5 minutes) Finally, looking at the ideas on the board, I asked students to pick which one or two were the most important changes to the law and to explain why. Also, we discussed which problems that the students originally identified (in step 3) were addressed by the changes, and which remained.
  • As a result of our discussion, the students chose to require lead testing (if the building was built before a certain year, to be established based on the lead paint ban) and to require additional individual notice. The students rejected banning training burns altogether, or in certain areas because they did not know how important the training is for firefighters.
  • We acknowledged that actual legislative proposals would require research and much more detail.

Future Semesters:  I plan to use this sort of mini case study again because: 1) adding something new to my usual in-class exercises livened up class, particularly later in the semester when enthusiasm was waning; 2) using a local legal issue meant the situation was easily understood and relatable for students; and 3) students were encouraged to think about tradeoffs in policy-making through the law.  Several students approached me after class to tell me how much they enjoyed the exercise.

The next time I do this exercise, I will consider providing the open burning regulation and asking the students to markup amendments to the regulation.[5]  At the end of future exercises, I will share the city’s ultimate conclusion that “no similar live-fire training should be conducted in the future.”[6]  I will ask if this outcome satisfies the students.

You could expand this exercise by requiring research on other states’ open burning laws, the effectiveness of lead paint testing, firefighting training needs, etc., and then having groups of students present their proposals.

Applicability to Other Courses:  I used this exercise in a public law course for graduate students pursuing their Master of Public Affairs.  You could use this mini case study in a class on legislative drafting, environmental law or policy, or state and local government law.  You could also modify the idea by keeping an eye out for a local news story covering the subject matter of your course, providing a bit more reading material on the topic or the relevant law, and asking the students the same sorts of questions.

[1] The burn and its aftermath are described in a series of press releases issued in November and December 2021, which can be found at https://bloomington.in.gov/news/2021.  Only the first few press releases were available on class day.

[2] The contractor hired by the city determined that visible paint chips deposited were lead-based paint, but air samples exhibited no detection of lead, surface dust readings showed “non-excessive levels of lead dust contamination,” surface soil samples were below the lead action level, and leaf litter exhibited no lead detection. https://bloomington.in.gov/news/2021/12/13/5049.

[3] Press release: https://bloomington.in.gov/news/2021/11/10/5016; news story: https://fox59.com/news/residents-concerned-after-controlled-burn-exercise-in-bloomington-may-have-resulted-in-contaminated-ash-debris/.

[4] Here is the state approval: https://bloomington.in.gov/sites/default/files/2021-11/83218318.pdf.

[5] The regulations implementing the open burning exemptions are found at 326 IAC 4-1-3.  Live fire training is addressed at 326 IAC 4-1-3(c)(9). Note that the press release cited in endnote 3 includes a map of affected properties.  The affected properties’ distance from the burn site is particularly interesting in light of the notice requirements in 326 IAC 4-1-3(c)(9)(B).

[6] https://bloomington.in.gov/news/2021/12/13/5049.

Using Silent Signals to Assess and Engage the Students

Using Silent Signals to Assess and Engage the Students

By Vicky Daniels

By Emily Grant, Washburn University School of Law and Sandra Simpson, Gonzaga University School of Law

In a large classroom or in a zoom setting, sometimes it’s difficult to encourage two-way communication so that students can share thoughts with the professor.  Use of “silent signals” can facilitate real-time feedback and communication from students so that the professor can accurately assess the classroom climate.

First, what kind of silent signals?  You can ask for simple gestures like a thumbs up or thumbs down.  When I use this method, I have the students hold their signal close to their chests so I can see the signal but most of their colleagues can’t.  This may help the students feel more anonymous.   The same hand gestures work on zoom, or you can use the options under “reactions”—thumbs up, thumbs down, arrows, stop sign.

Next, signals in response to what?  Anything you might need feedback on.  Comprehension of the topic or the sample problem.  Pacing of the conversation.  Voting on how a hypothetical case will come out.  Expressing opinions on whether you agree with the dissent’s position. I use the thumbs up or thumbs down method to measure students’ comprehension of a concept we just covered.  The same method is a quick way to poll the students as well.

As with many teaching techniques, be careful not to overuse signals.  But in limited doses, they can be an effective way to take the temperature of a classroom.

Adapted from Elizabeth F. Barkley & Claire Howell Major, Interaction Lecturing: A Handbook for College Faculty 156-57 (2018).

Failure, Fun and Formative Assessment: Lessons from Click & Learn: Civil Procedure

Failure, Fun and Formative Assessment: Lessons from Click & Learn: Civil Procedure

By Sandra Simpson

By Cynthia Ho, Loyola University Law School, Chicago

Failure, Fun and Formative Assessment: Lessons from Click & Learn: Civil Procedure

The title is not a typo.  Rather, it describes what can happen when you blend the best of learning theory, legal education goals and technology.  Intrigued?  Keep reading!

Formative Assessment is now widely acknowledged as important to legal education as reflected in ABA standards.  This makes sense based on decades of learning theory that show active learning promotes both short and long term memory.  There seems to be great interest in promoting formative assessment based on comments I’ve seen among participants in the CALI Online Teaching Mini-Course, as well as a Civil Procedure Pedagogy & Distance Learning workshop.  Many seem to recognize that  in-class polling can provide key formative assessment.  As studies have shown, such polls close a “feedback loop” by showing whether class and/or specific students understand material, such that any gap can be remedied long before the final.  But, how to incorporate more formative assessment, and especially find questions, often seems daunting.

There is actually an easy way to incorporate more formative assessment for Civil Procedure faculty –  a new online and interactive tool:  Click & Learn:  Civil Procedure, of which I’m a co-author with Angela Upchurch and Susan Gilles  that is premised upon these principles of learning theory.  This is true whether class is entirely in person, entirely online, or some combination.  In fact, we have successfully done both.

Click & Learn can provide formative assessment throughout the course.  There are over 2000 questions at all levels of difficulty across all topics, as well as sections that cover multiple topics such as SMJ, PJ and Venue simultaneously.  These questions permit repeated formative assessment, consistent with learning theory that recommends multiple opportunities for formative assessment, as well as assessment that promptly provides feedback.  Since the tool is completely online and provides explanations to questions, including wrong answer choices, students can obtain feedback immediately and on their own pace.   Students at our three different law schools, as well as students who have adopted it on their own all tell us they found this fun and effective.  Usage outside of class can constitute ABA minutes regarding class time whether the class is designated as fully online or not.  In addition, it can even satisfy ABA requirements for distance classes by including feedback and promoting monitoring of student efforts.  The questions can also be used with small groups to promote student interactions.

This tool is fundamentally built upon active learning principles, as well as studies that show the benefit of failing on student learning.  Although less well known among legal educators, formative assessment can include more than testing students after material is introduced.  Studies show that “failing” with a pre-test can actually improve learning.  There is a “generation effect,” which basically means that generating a guess on an answer promotes long term recall.  Perhaps counter-intuitively, studies find students learn better this way than being told the answer first.  Why?  Basically, generating a guess, students prime their brain to the concept such that they are more likely to remember it.  This means that formative assessment of law students can ideally begin in conjunction with learning material for the first time.

Click & Learn tool incorporates many questions that can be used as pre-tests to promote learning. In particular, each topic includes questions that can be used as a pre-test that studies show can enhance final exam performance.  So, for example, a student might be shown FRCP and asked what they think it relates to based on headers.  Or, alternatively, a student might be asked why they think a rule has a particular policy.

Click & Learn is designed to supplement any Civil Procedure casebook, regardless of the order in which topics are taught.  Each major topic is introduced without any assumption that students have covered other material.

Click & Learn can be flexibly used.  Students can do it on their own without any faculty involvement.  Or, faculty can adopt it to require the entire class benefit from formative assessment.  Faculty of course retain freedom in deciding how to use the formative assessment opportunities.  A faculty could require students to answer medium-level questions – in class or outside of class – to test student understanding after covering a topic in class.  Or, a faculty could assign, or at least recommend the most basic questions as a way to actively engage students in learning and gain the learning best from such a pre-test.  There are also more challenging questions that can be used in class, in office hours, or as supplemental review. In addition, faculty can assign questions to previously covered material to promote interleaving of concepts that studies show further promotes class learning.

Each topic is introduced through several interactive FAQ that students can easily revisit as well.   Here is how the beginning of 1332 looks like:

The icons under the “Q#/Level” indicate the number and difficult level of questions provided. Most of these are the easiest questions.  The section with the trophy icon is a review section with more challenging questions.  A student can do these sections in conjunction with class material.  In addition, students could return to past sections that they previously performed poorly on.  This would also be consistent with interleaving and lead to better learning outcomes.   Indeed, we found our students often repeated questions they initially got wrong even though we did not require them to do so.

To help make it easy to incorporate Click & Learn, there is a downloadable table of contents that shows all the topics, as well as questions, including difficulty level.   There is also a way to match it to casebooks.  Both of these are shown under the Support tab online:

“Matching to my Casebook” enables faculty to match Click & Learn with major textbooks including Freer & Perdue, Glannon and Yeazell.  Faculty adopters can easily cut and paste from these documents to create something like this:

Class 1:  Introduction to SMJ and Diversity
Read F&P  pp. 175 – 207
Class 2: Diversity
Read F&P  pp. 207 – 212
WEEK IN REVIEW  Complete by ____________2020
C&L Unit 3, Part 4: Diversity (& Alienage) SMJ
Required: Ch V. 1332 SMJ Synthesis 15 Qs Synthesis
Optional:   Ch II.  D. Review of “Citizenship” for SMJ  – 10 Qs Synthesis
AND Ch IV. F. Review of Amount in Controversy (AIC) 4 Qs PMP

Click & Learn is also designed to promote more student learning.  How?  It provides a unique faculty dashboard rich with data.  For example, the image below shows that question 2 is the one that most students had trouble with, as well as that choice “C” was the most common wrong answer.  Checking what choice C says (which is easily done with one click) can then indicate what issue should be reviewed.  A faculty member can thus use this information to close the feedback loop and address the issue(s) of confusion.

The Dashboard also provides information on individual students.  It highlights late submissions, and also provides the score of each student.  You can see this below with a fake class (to avoid FERPA issues).  Here, the fifth student was late.  In addition, this easily identifies students 1 and 4 as the lowest performing students – but, only to the individual faculty member.  Students see their own scores, but not those of other students.  This enables a faculty member to easily identify students who need more support and provide that support.

There is a lot more I could say about this, but it would probably be more engaging to try it out yourself!  Any faculty member interested in learning more can register for a free complimentary copy.  In addition, if you want more of an overview, check out this zoom session: https://www.youtube.com/watch?v=-fmugIa-oUA

Review: Office Hours Are Not Obsolete: Fostering Learning Through One-on-One Student Meetings

Review: Office Hours Are Not Obsolete: Fostering Learning Through One-on-One Student Meetings

By Sandra Simpson

By Tonya Krause-Phelan, WMU-Cooley Law School

Office Hours Are Not Obsolete: Fostering Learning Through One-on-One Student Meetings
By DeShun Harris
57 Duquesne Law Review 43 (Winter, 2019)

In her article Office Hours Are Not Obsolete: Fostering Learning Through One-on-One Student Meetings, Professor DeShun Harris encourages professors to rethink how they use office appointments to enhance student learning. Professor Harris addresses the current notion that technology has reduced, if not eliminated, the need for in-person office hours. While research shows that students tend to typically underuse, or even avoid altogether, the in-person office appointment, professors can overcome students’ perception that office meetings are not worth their time.  Because one-on-one meetings provide rich learning opportunities, improve student performance on assessments, and potentially improve grades, legal educators should use effective learning strategies, many of which are being integrated into law school classrooms, to provide students with one-on-one learning opportunities during office hours.

Using strategies to encourage office meetings, professors can overcome the underutilization of office hours. One common misperception students have is that faculty are unavailable or not interested in hosting office meetings; consequently, professors must explain why one-on-one office meetings are important to students. Professors can convey a message through an invitation to attend office hours in the course syllabus; the message can be reinforced during the first class and before and after assessments during subsequent classes.

Once students decide to attend an office meeting, professors must create a welcoming office setting. Doing so conveys a message that the professor is available and does not think the meeting is an interruption. Things to consider when creating a suitable office atmosphere are ease in scheduling the meeting, an uncluttered office, a blank computer screen, and arranging furniture in a way that does not form barriers between the student and the professor.

The student meeting itself should be structured according to the common office hour framework.  While there has been little research in the law school setting, Professor Harris points to research conducted at German universities where it was noted that most one-on-one conferences take on a five-sequenced framework. First, the prefacing sequence, involves inviting the student into the office; this can be done by general invitation or a specific request for the student to meet with the professor. The invitation must be extended in a way that is non-threatening. Second, the identification sequence is typically the beginning of the meeting, where the professor greets the student and engages in small talk.  Flowing naturally from the identification sequence, the third sequence is outlining the academic business the student wishes to discuss. This sequence should be task-oriented to address the student’s concern/goals. Once the academic business has been outlined, the professor and student can move to the fourth sequence is negotiating academic business sequence. Here, the professor guides the student to a solution. Attention should be paid to writing, thought processing, and behavior that can lead to academic and career success. In working toward a solution, the professor is encouraged to use research on learning science to foster student learning. The fifth and final sequence is the closing sequence. Here, the solution is acknowledged.

Finally, professors must use effective learning methods to create a learner-centered meeting. One method professors can use is retrieval, the act of trying to recall information once learned from memory. Retrieving information is a powerful way to retain information because it strengthens the memory and association with the material, even when students give wrong answers. Another effective learning strategy to use in the office meeting setting is problem-solving. Professors can ask students to answer something that is new to them; then the student explains their thought process in reaching the answer. This also allows professors to give constructive feedback. As a way to aid students in becoming self-regulated learners, professors can also discuss professional development concepts like training, self-study, critical reflection, and feedback.

Professor Harris concludes that office hours are not obsolete. Instead, office hours should be encouraged as they provide important learning opportunities for students. Professors can easily modify the manner in which they currently host office appointments and incorporate effective learning strategies, many of which are being integrated into law school classrooms, to provide students with one-on-one opportunities designed to enhance their knowledges, skills and education.

As easy as “1,2, buckle my shoe” 10 Steps for Addressing Race Intentionally in Doctrinal Classes

As easy as “1,2, buckle my shoe” 10 Steps for Addressing Race Intentionally in Doctrinal Classes

By Sandra Simpson

By Angela Mae Kupenda, Mississippi College School of Law

One, two, Buckle my shoe…
Three, four, Open the door…
Five, six, Pick up sticks…
Seven, eight, Lay them straight…
Nine, ten, Do it Again Do It Again & Do It Again.!!!!

https://www.youtube.com/watch?v=dsvtaLDuYvc

            The children’s game “One, two, buckle my shoe,” takes children through various steps as they learn to count, and then reminds them to repeat the steps again and again for retention.  While the original meaning of the song is unclear, the counting process reminds us of the many steps to achieving a goal and how repetition is critical for success.

Taking steps and repetition are also critical with learning to address race intentionally in our courses as law professors. We may prefer to think that race is not present in all doctrinal classes.  This assumption seemingly excuses us law professor from addressing race because there is so much other “real law” to cover. Such is simply not the case. Addressing race in our courses is critical if we expect to address real law.  In many, if not all, of our courses, racial inequalities either lurk right beneath the surface or are in plain view in the cases and topics we cover.  Failing to lead our students in these discussions on race results in our not providing them the best education possible. A racially informed legal education is needed as our students will become leaders in a quite diverse, and quite divided, America.

Hence, the purpose of this essay is to take us through the simple steps, by counting off the steps, to guide us in addressing race intentionally and facilitating unplanned racial discussions in our doctrinal classes.

One, two, Buckle my shoe

 Step 1.  Grow in awareness of oneself as a “raced” individual in America.  Often we as faculty are not automatically equipped to lead discussions on race with our students, because we do not see our own “race.”  If we see others as having a race but not ourselves, we are failing to see how America’s legal systems have raced us as individuals or as part of a group. The children’s rhyme chants, “One, two, buckle my shoe,” and suggests that we must first pay attention to ourselves and how we prosper, suffer, and generally live in America as a raced individual.

As legal academics, ask yourself questions like:   How am I personally affected by the country’s history and current events as to race and racial privilege or lack thereof?    How have the federal and state laws generally treated me and my immediate, and not so immediate, ancestors?  How is that different from the treatment of other dominant or non-dominant groups in America?  How is that different from the treatment of my diverse students and other people in this country?  Asking yourself these questions may make you feel uncomfortable, or even attacked or defensive.  But, don’t let the answers shut you down, that is if you want to address race in your courses from a position of self-awareness.  Keep in mind, our privilege (or lack thereof) and biases are not the biggest problem–rather our lack of awareness of them is the biggest problem.  The great news is that our work in legal education affords us opportunity each semester for necessary personal growth to lead our students into becoming leaders in a racially aware and more welcoming society.

Step 2.  Grow in awareness of oneself as a teacher and of one’s calling as a law professor. While inspection of oneself as an individual or as a member of a racial group is step one in buckling one’s shoe, the second step is to grow in awareness of one’s calling as a law professor. Law professors, like teachers broadly, have a special place in America to encourage the opening of minds to new ideas, other experiences, and various perspectives.  While law professors have a calling in kind with other teachers, we have a special calling given the role of the law in our democracy.  We educate future presidents, legislators, judges and advocates who will continue to shape our systems, positively we hope, even as related to race in America.

So step two entails asking yourself questions, like: What is my calling as a professor? What goals do I have in my teaching? What is my calling toward effectuating more equality in our system?  Embrace the power of your position in furthering equality.  Ask if you are something more than a video, or a case explainer or presenter. In other words, examine your calling by asking: as a professor, what do I profess? Then ask, why would you want to address race in your courses, or why do you not want to address race in your courses.

I had lunch with a Law School administrator at an Ivy League school, a lovely lunch in a very rich faculty club. He wanted to run something by me.  He explained that his school was preparing for an ABA accreditation visit and was concerned with their diversity, or the lack of it at his school if you use traditional measures.  His school’s argument was that they were diverse because his school was non-diverse.  He said it was diverse because it offered another option for people who do not want traditional diversity. He said they still provide superior education, but in a way different from other schools in that they are not diverse. He wanted to know my reaction.

I repeated his argument back to him word for word, then summarizing: your law school believes it to be offering a superior education by educating future leaders who choose your school for one reason because they want to be unexposed to and unaware of the implications in America of race, gender, class, and so on. He replied: YES, you understand. I then replied, perhaps that could be a superior education if you were working with kindergarten children, but certainly not for legal education, actually not for kindergarten either. After I elaborated on my response, he brought the lunch to an abrupt close, with no dessert.  He apparently did not like my suggestion that he and his school should engage in One, two, Buckle my shoe, by, one, examining their own awareness of race and, two, by asking what they considered as the role collectively of their school’s professorship in furthering equality and creating a better country.

Three, four, Open the door…

(note, some versions of the rhyme say “shut the door,” but here “open the door” is better)

Step 3.  Open the door of your mind to consider the presence of race in the courses you teach and to consider the consequences of your failing to address race.  As professors some of us may think that in our courses our role is to just cover the Black Letter law and not address race at all, or if to address it to cover it in the most neutral/disconnected/bland way. The dominant message in many school books, etc., is that nonwhites are appropriately invisible or inferior.  As a result, educators may unfortunately feel more at ease searching for a middle ground that does not question the present message, but also does not reject that message, either.

With this step, identify and acknowledge the many ways that “race” is already present in your courses and just needs to be addressed.  Here are just a few examples of courses and the presence of race: Contracts (status to contract, unconscionability, overlap with civil rights cases, gender/racial disparities in negotiating contracts); Civil Procedure (the Walker v. Birmingham case,  and much overlap with civil rights cases); Criminal Law and Procedure courses (cases about nonwhite defendants and some of the language in the cases, punishment disparities, the increase of nonwhites in prison post-slavery, death penalty and the Baldus Study in the case McClesky v. Kemp); Business Associations (ownership rights of shareholders who represent a minority percentage interest and the various rules and voting procedures available to protect those minority interests contrasted with protections given minority race voters in the political process, consider Lani Guinier’s book, The Tyranny of the Majority); Health Care Law (for background consider Harriet Washington’s book, Medical Apartheid); Family Law (nonconjugal adoption,  transracial adoption, adoption of white children by nonwhites, the laws related to domestic violence and the impact on people of color); Torts (ample cases addressing race are present, and consider damages, valuing of lives, overlap with Civil Rights and Constitutional Law (an interesting case is a federal case regarding the Mississippi flag as inflicting emotional distress on Blacks, Moore v. Bryant);  Evidence (eye witness testimony reliability across racial groups, who could be a witness historically versus witness credibility today); Ethics (whether those with certain racial views, affiliations, or exhibiting racist conduct out to be disciplined by the Bar, racial conflict of interest).

If you do not see your subject above, it is only because of brevity of this essay.

In discussing these ideas with the faculty at my school, one of my white colleagues shared that a white student in her Criminal Law course briefed a case in class where the black defendant was referred in the case to as an n _ _ _ _ _.  She said the white student used the word in his briefing. She wasn’t sure what to do in class, so she did nothing.  After the class a number of the minority students approached her and told her how upset they were.  She did not know what to do, so she did nothing and was quite upset with herself as she considers herself a liberal in the south.

I suggested that there were a number of possible approaches she could take depending on whether she thought the word was necessary for an understanding of the case.  Perhaps before the cases with such language are covered in class, she could engage the students in a broader discussion of race, language, and the times of the cases.  Maybe by having such a discussion, some students would be more racially aware in their briefings or other students would be more prepared with an understanding that not all people share the same disdain with the “n” word.  I thought that discussion before or even after the case could possibly enlighten students and expand racial discussions that, mind you, were already happening outside her classroom about how she did not respond in any way in the classroom.

This step is that a professor should plan to address race in class and consider the vehicles to do so.  Merely attempting to ignore a smoldering issue, as the professor above did, does not make it go away and does not prepare our students for the diverse society in which they live and will practice law and serve as community or political leaders.

Step 4.  Open the door of your mind to consider the context in which you teach. In other words, be open to the possibility that close mindedness may be prevalent at your school. Consider the institutional environment and the consequences of doing what you must do–addressing the racial issues in your courses.  First, consider the faculty composition:  How many nonwhite faculty members, how many white women, and how many white male professors teach at your school?  What about adjuncts?  What do these numbers suggest about the potential response (by faculty, administrators, and students) to your addressing the racial issues that are present in your courses? Second, do the same for the student body as a whole and for the usual enrollment in your courses.  Third, critically think about whether there is vocal diversity of viewpoint at your school.  Fourth, examine how welcoming the school is by taking a look at the curriculum that is regularly taught at your school. Are there, or have there ever been, any race classes in the curriculum?  What about other courses like Civil Rights, Women and the Law, Domestic Violence, First Amendment, Immigration Law, Class and the Law, etc? Fifth, consider recent speakers and other invited guests to the campus.  Are nonwhites included to a great extent? Are any whites included who hold viewpoints different from any mainstream thought at your school? Don’t overlook the administration’s openness, or closeness, to addressing race.  Even consider such matters as the school’s physical environment.  Is there any artwork by or featuring people of color or other historically excluded groups?  Finally, think carefully about the racial conflicts that have occurred among the students, faculty or administrators.  How were the conflicts resolved?  Did the conflicts lead to more education about race and the legal system?

An evaluation of your institutional racial environment may leave you discouraged or encouraged.  But if it leaves you discouraged, that could just mean that there is lots of opportunity at your school and a great need for someone to take the courageous step of addressing the racial dynamics in courses that many already know are there and are likely privately discussing.

Five, six,  Pick up sticks…

Step 5. Pick up your tools. Set the stage. Prepare for the impromptu. Plan for the unplanned. Rehearse for the unrehearsed.  One tool I use is introduced on the first day of class.  I set the tone with what I call my Greensheet of Professionalism (I call it the greensheet because I copy it on heavy stock green paper.  It includes class goals and professionalism expectations).  Before the first day of class, ask yourself what climate can you/your students tolerate and what climate is more conducive to addressing race in your course.

One semester, I attempted to build rapport, with my largely white class, first before addressing race.  Note: this approach did not work for me, when I did later address race in the materials many white students said they felt betrayed.  So for me, starting with day one in my Con Law courses, we discuss the individuals or groups that were left out of the promises of the original constitution.  And, I begin the course with individual rights and the Civil Rights cases (majority held congress lacked power to outlaw private racial discrimination; the first Justice Harlan was the sole dissent and he had a half-brother who was a slave).  I regularly use judges’ biographies to address race/class/gender in decision-making.

I also have a participation requirement for the course and daily use a participation roster of those who are prepared with the entire assignment.  Those students are the ones who get the floor and that I call on, this helps keep the class more focused and keeps it from going awry by students who did not prepare and give thought to the material but want to incite tension in an already tense discussion.  In my large classes, I also require students to stand (if they are able) when they orally participate. So, they must stand in and own their analysis and view as to which opinion they are more closely aligned with.

Another tool involves the use of current news and timely issues to address race in the course.  For me, an important policy I follow is I only address in the classroom race in the news where it is relevant to the course.  Some news accounts I save for later in the course when students have learned the foundational material needed to analyze the issue.

So as to have a consistent approach, consider making addressing the facts and contexts of cases a frequent norm.  Then addressing race one day will not be just the exceptional exploration of a case.

Step 6. An important tool in addressing race in your courses is to shift some of that work to the students. Figure out ways to share the responsibility in class for addressing race, in other words plan in advance for inevitable disagreement.  We are educating legal professionals after all, so one tool is to get them into the practice of exploring various perspectives different than their own.  A frequent statement I make in class is, “I understand your argument. But, a great advocate can argue both sides of a dispute.  So, now I want to hear you argue the other side.”

Group collaborative work can also be helpful in teaching students how to disagree even with their friends about issues implicating race in the course.  It is exciting to see two students who are friends analyze together how they come to different perspectives on an issue involving race.   This is a much better outcome than seeing students silence themselves so they can be liked by a majority.

Seven, eight, Lay them straight…

Now we are familiar with some of the tools to address race, so we now come to the class day where we will address race or have the rehearsed unrehearsed moment for an intense racial issue that is present in the materials.

Step 7.  Notice what is going on in the classroom AND within yourself. In step one you understood yourself and the racial issues you are still navigating in your own life. So you know that you must notice your own reaction in the classroom.  Sometimes the intensity may be about yourself and sometimes tension may unexpectedly build in the classroom.

So REMEMBER you can slow it down. Some conversations can be delayed until the next class or even taken outside the classroom first. REMEMBER that you are in charge of the class and that your ultimate goal is for students to learn. Use the “sticks” you picked up and the strategies from steps five and six.

Try to keep the conversation with some balance where there are arguable differences, even if you have to make the argument.  Always connect the discussion back to the course material. Exhibit zero tolerance for disrespect of students, other faculty etc. Sometimes I have to stop the discussion, take the class back to my greensheet of professionalism, and remind them, “We may attack arguments, but we do not attack people.”

Your lingering issues will show up when students make certain comments.  For me, I am still thinking about race and class.  I confessed my discomfort to the class when a nonblack student in my Civil Rights class said, “I didn’t know any poor mothers cared about their children.” In my Race and the First Amendment class a nonblack student said, “All blacks call each other n____ you are not a real black, prof, you don’t know about the experiences of real blacks. I know all real blacks do this because my boyfriend is black and his friends call me a n___lover and then they all laugh.” I was the only black person in the room when this statement was made. I managed to engage the class, before taking further discussion outside the classroom with this young woman.

Step 8.  If you don’t lay them straight in a given class meeting, you still get another chance and more chances to have a positive impact on the lives of your students by helping them think more deeply about the law and race.  A white female in one of my courses said, “I’m from the hills…I have not been around many black people…but what I really think about these people and how they can fix their problems is….” One of her black female classmates was greatly offended by her remarks.  Through after class conversations individually with both students and then a discussion in class, we were able to work through and disaggregate the comment and response.  Everyone learned.  The white female experience much growth through this process.  And later when she applied for a position with Legal Services and her future employers questioned me (her reference) about her ability to work with nonwhites, I was able to recount this growth. The young woman got the job and did very well.

Nine, ten, Do it Again Do It Again & Do It Again.!!!!

Step 9. Perform a critique of how you are doing in our courses with addressing race. Evaluate yourself and seek informal feedback from your teaching community, students, alums etc. Analyze and write about your experiences and present about your learning in various settings.

Step 10.  Revise and plan again for the next class meeting, next semester, or even the next academic year. Tweak your process for addressing race in your doctrinal classes, experiment with it, but never give up.  Remember, for as long as we teach, we get another chance and another!

Racial Anxiety

Racial Anxiety

By Sandra Simpson

By Anastasia M. Boles, UA Little Rock, William H. Bowen School of Law

As law professors, we care deeply about our students.  We put a tremendous amount of effort into our teaching, advising student organizations, and serving as formal and informal mentors.  Unfortunately, science has taught us that unconscious racism may be operating to degrade our student interactions. Many of us are familiar with the term “implicit bias.”  Over the last few decades, social psychologists have explored the ways implicit preferences and biases permeate society, including criminal justice, health, and education.  Thus, unconscious racism may be interfering with our student interactions.

While lesser known than implicit bias, a common consequence of unconscious racism is “racial anxiety,” which is the unconscious anxiety we may experience or exhibit when interacting with a person of a different race.  For example, racial anxiety can cause undetectable physical changes in our bodies such as nervousness, discomfort, stiffness, and decreased eye contact.  The experience of unconscious racial anxiety sets up a vicious cycle; we unconsciously minimize interactions that have made us uncomfortable in the past, even if we cannot name the source of the discomfort. Racial anxiety expresses differently depending on race – people of color may be anxious about experiencing racism; whites may fear saying the wrong thing, or being labeled a racist.  Whatever the cause, as our cognitive resources are directed to mitigating any racial anxiety we are experiencing, the quality of our personal interaction with the differently-raced person can degrade.[1]

Racial anxiety is likely present in the halls and classrooms of law schools as well.  Despite our best intentions, law professors may experience racial anxiety symptoms in cross-racial conservations and interactions with our students.  At the same time, our differently-raced students may experience racial anxiety as they interact with us.  Consider this common scenario: a white law professor and a student of color meet outside of class for the first time to review an exam, talk about an issue from class, or discuss a paper.  Racial anxiety can affect the professor’s ability to build rapport with the student, appear open and friendly, evaluate the student’s learning needs, engage the student’s questions, and build trust.  The student of color, if also affected by racial anxiety, is less able to ask questions, absorb feedback, and seek mentoring.  If either the law professor or law student experienced unconscious racial anxiety during the meeting, future interactions between the professor and student may be affected.  Now imagine the potential for racial anxiety to disrupt the law school classroom where a sensitive issue related to race comes up in class discussion.  Racial anxiety may degrade the ability or willingness of the professor to engage the issue.  The ensuring student discussion could suffer.  Our students require our full attention; if racial anxiety is depleting the attention we give, we should do something about it.

What can we do?  If racial anxiety operates in our unconscious minds, can we ever hope to banish it?  The great news is that we can.  To combat racial anxiety, psychologists recommend that we start by increasing our cross-racial interactions with our students.  Psychologists call this “intergroup contact.”  Strategies such as encouraging students to attend office hours to increase familiarity, attending and supporting student events with differently-raced students, and increasing the amount and depth of conversations with differently-raced students can help.  During cross-racial interactions, seek to understand cultural differences as well as identifying similarities; the goal is to recognize and appreciate the varying cultural backgrounds of our students – not minimize them.  The more law teachers and law students from different racial backgrounds interact with one another, the less potential for racial anxiety to disrupt those interactions.

[1] For more information about racial anxiety see here, and here.

The Compounding Effects of Assessment

The Compounding Effects of Assessment

By Sandra Simpson

By Lindsey P. Gustafson, UA Little Rock, William H. Bowen School of Law

If you’ve found your way to the Institute of Law Teaching and Learning, you are likely already a believer in formative assessment. We do have empirical evidence that formative assessment improves student learning in law: Two recent studies have shown that students who received individualized feedback during the semester outperformed students who did not on final exams, and not just in the class where they received the feedback but in every single class they were taking.  [1] One study’s authors note the “likelihood of this occurring by chance is one in 256.”[2]

But as we add formative assessments to students’ semesters, we must consider how we are altering the demands on their time. The middle of the semesters, which have traditionally been the playground for the Socratic Method and for legal writing assignments, may now be filled with a variety of assessment activities, and some of them may dominate students’ time in a way that impacts students’ learning in other classes. When our assessments interfere with students’ participation in other classes, or vice versa, the inferences that we draw from our assessments about student learning may not be valid. And an assessment that provides invalid data is worse than no assessment at all. Consequently, we must all consider our assessments as students experience them, “holistically and interactively.”[3]

How do we deeply coordinate assessments and avoid an assessment system that instead overwhelms students, clutters or fragments their learning, or discourages them early in their first semester? We must coordinate beyond shared calendars, starting in our own classrooms by ensuring that our own assessment activities, as a slice of the student-time pie, are designed with and justified by best practices that encourage an assessment’s validity. In a recent article, I’ve identified five relevant best practices:

  1. Make the assessments’ alignment with learning goals transparent to students and to other faculty members with whom we intend to coordinate: A clear alignment with learning goals helps students understand how the assessments will move them towards learning goals, and helps them make informed decisions about their allocation of time. A clear alignment also allows us to clearly communicate our assessment choices to other faculty members.
  2. Use rubrics to create a shared language of instruction: Once we identify learning goals, rubrics help us refine our communication with students. They see how they will be assessed, and we see with specificity what they have learned.
  3. Ensure the assessments encourage student autonomy: One particularly harmful potential outcome of a tightly orchestrated assessment system is that it may overly dictate student decisions, rather than facilitate student autonomy. Our assessment systems should build students’ feelings of autonomy, competence, and relatedness, which are fundamental to learning.
  4. Set high expectations and display confidence that students can meet those expectations: Students prone to maladaptive responses to feedback are likely to be overwhelmed and discouraged by frequent assessments. Explaining our high expectations and displaying confidence in students can help address these tendencies.
  5. Regularly review the entire assessment system, paying particular attention to students’ ownership of their own learning within the system.

When we ground our formative assessment decisions in best practices, we are better able to communicate our decisions to students, and better able to more deeply coordinate with other faculty members.

[1] See Daniel Schwarcz & Dion Farganis, The Impact of Individualized Feedback on Law Student Performance, 67 J. Legal Educ. 139, 142 (2017) (finding that formative assessment improved performance on final exams for students with below-median entering credientials); Ruth Colker et al., Formative Assessments: A Law School Case Study, 94 U. Det. Mercy L. Rev. 387 (2017) (finding the same); Carol Springer Sargent, Andrea A. Curcio, Empirical Evidence That Formative Assessments Improve Final Exams, 61 J. Legal Educ. 379, 383–84 (2012) (finding that formative assessment improved performance on final exams for students with above-median entering credentials); Andrea A. Curcio, Gregory Todd Jones & Tanya M. Washington, Developing an Empirical Model to Test Whether Required Writing Exercises or Other Changes in Large-Section Law Class Teaching Methodologies Result in Improved Exam Performance, 57 J. Legal Educ. 195, 197 (2007) (finding the same); Andrea A. Curcio, Gregory Todd Jones & Tanya M. Washington, Does Practice Make Perfect? An Empirical Examination of the Impact of Practice Essays on Essay Exam Performance, 35 Fla. St. U. L. Rev. 271, 280-82, 302-306 (2008)(finding the same).

[2] Schwarcz, supra note 1, at 142.

[3] See Harry Torrance, Formative Assessment at the Crossroads: Conformative, Deformative and Transformative Assessment, 38 Oxford Rev. of Educ. 323, 334 (2012) (noting that “assessment is always formative, but not necessarily in a positive way”).

Interactive Presentation Software

Interactive Presentation Software

By Sandra Simpson

By Tonya Krause-Phelan, WMU-Cooley Law School

Many professors have been looking for meaningful ways to integrate technological tools into their course design. I am one of them. But for a professor who does not allow students to use their laptops for notetaking, it was important that students be able to recognize that I was using the technology for a limited and strategic purpose, not to be hip or gimmicky. Additionally, it was particularly important that any technological tool I chose was one that could be used quickly, easily, and strategically A few years ago, while at an ILTL conference, a professor polled the audience during her presentation using Mentimeter. I was impressed and after leaving the conference, I explored ways that I could use this slick, but simple app in my classes.

So, what is Mentimeter? Simply, it is an interactive presentation software app that allows professors to interact, collaborate, and poll students. (https://www.mentimeter.com/). The concept is simple: the professor asks a question, the class votes, and the students’ responses appear as a presentation on the classroom screen showing the results.  To prepare the question that will appear on screen, the professor must sign up with Mentimeter. The website allows the professor to write their own questions from scratch or to use one of the site’s templates.  There are many different styles and formats to choose from.  When ready to poll the class, the professor simply displays the question slide prepared in Mentimeter. The students are prompted to go to the voting website, use their cell phones to enter the code that appears on the question slide, and to vote.  As the students vote, their responses appear on the classroom screen. The professor can, however, choose to hide the results until everyone has voted. So far, I’ve incorporated Mentimeter with success using three specific formats: Word Clouds, Multiple Choice, and Questions from the Audience.

 Word Clouds. With the Word Cloud format, I pose a question. The students’ answers actually create a work of art; it literally looks like a cloud made out of words. As students respond, their answers rearrange the word cloud in real-time to emphasize the most common words submitted by the class.  This format is particularly useful to gauge students’ perceptions, understanding, and reflections.  For example, I polled my Criminal Procedure students to gauge their understanding of the most important requirement of the Miranda rule before they read the case. Without fail, arrest is always the biggest word; in other words, students think arrest triggers the Miranda warnings. After students read the case and we analyzed it in class, their Word Cloud more accurately reflected the rule and as a result, custody, interrogation, silence, and lawyer became the largest words in the Word Cloud. When students compared both word clouds, they had a clear visual of the wrong interpretation of the rule versus the correct application of the rule.

Multiple Choice.  In Criminal Law, a first-term class, I have used the Multiple Choice format in its basic format: to give students a multiple choice question. With first-term students, this is a useful tool that allows me to guide them through the deductive reasoning process necessary to successfully navigate multiple choice questions.  But I have also used the Multiple Choice format in Criminal Procedure to administer a simulated photo identification procedure. After showing students the photo identification, I gave them a Mentimeter prompt with five choices (the number of people in the photo identification), A-E, and they made their identification by selecting the letter that represented the photograph of the alleged perpetrator they chose. I hid the screen from students while they voted so they would not be influenced by other students’ selections.

 Question from the Audience.  Another useful way to use Mentimeter is the Questions from the Audience format. At the end of main units, I often allow students a few minutes to pause and to reflect about what they have just learned. Using the Questions from the Audience format, students may ask any questions as they process the information without interrupting other students. This particular format allows the professor to choose when and how the questions appear on screen; the professor can hide the questions while students are in the questioning process or the professor can permit the questions to appear as bubbles, scrolling questions, or one at a time. I typically hide the questions until all students have posted their questions.  This allows me time to sort through the questions and determine how best to handle answering them. Depending on the number of questions, I typically answer the questions in class or use an exercise to help the students figure out the answer. This format and process is also useful in review sessions hosted by the professor or teaching assistants.

There are many interactive apps available for classroom use. Mentimeter is one of them. It is fun, interactive, and very user friendly.  The possibilities for which this app can be used in the law school classroom are many.  Give it a try. Neither you nor your students will be disappointed.

Review: Feedback Distortion: The Shortcomings of Model Answers as Formative Feedback

Review: Feedback Distortion: The Shortcomings of Model Answers as Formative Feedback

By Sandra Simpson

By Lindsey P. Gustafson, UA Little Rock, William H. Bowen School of Law

Elizabeth Ruiz Frost, Feedback Distortion: The Shortcomings of Model Answers as Formative Feedback, 65 J. Legal Educ. 938 (2016)

Elizabeth Ruiz Frost’s article Feedback Distortion: The Shortcomings of Model Answers as Formative Feedback was published in 2016, but it continues to affect the way I design and critique my students’ assessment activities—both in my classroom and across our curriculum—as we respond to the ABA’s mandate for more formative assessment. Professor Frost posits that, while providing a model answer (either student- or professor-authored) in place of individual feedback may allow for efficient formative feedback, in most situations it does not provide effective formative feedback. She points to evidence that weaker students tend to misinterpret model answers and are less capable of accurately assessing their own work against the model.

In her article, Professor Frost gives reasons beyond efficiency a professor may have for giving feedback through a model answer, including that learning through a model answer encourages a students to self-teach, a skill they will rely on throughout their career; model answers provide feedback quickly, while students are still primed for it; model answers will not alienate students with personalized, negative comments; and model answers are what students clamor for. Professor Frost explains why each of these reasons is inadequate to justify what she describes as a shift in the learning burden: the professor avoids learning how to provide effective feedback by forcing a student to learn how to improve from a model.

Model answers provide effective formative assessment only if students are able to compare their work with a model and see what they did wrong. Professor Frost roots the assumption students do this in the “Vicarious Learning and Self-Teaching models of education, which have pervaded legal teaching since the nineteenth century.” In fact, whether this feedback is effective depends first on the characteristics and mindset of the learners, and second on the type of knowledge the professor is assessing. As to the first variable, because weaker students are less self-aware, they face a “double curse”: “[t]he weakest students, who lack the ability to distinguish between the standard exemplified by a model answer and their own work, will learn the least from a model answer. So the students who need feedback most for continued learning will get the least.”

The second variable is relevant because model answers can provide effective feedback for questions of factual knowledge and concept identification. But any assessment that requires higher-order thinking—where students need to demonstrate analysis, for example—model answers are not as effective. Students instead need elaborative feedback.

Professor Frost ends her article with methods for using model answers to give feedback that best promote student learning: (a) providing an annotated model answer together with individualized feedback; (b) creating opportunities for remediation and reassessment for students after they have reviewed model answers; (c) using a student’s own work as a model answer; (d) requiring students to review model answers in small groups instead of individually; (e) providing multiple sample answers for review, including both strong and weak samples; and (f) focusing on metacognitive skills throughout so that students can better self-evaluate against model answers.

Several of her methods have worked for my students. Recently, I’ve noticed the first method recommended above working across the curriculum: students learn more from a model answer when the same skill (here, answering a midterm essay question) is tested in another course and personalized feedback is given there. In short, learning in one course is improved by the efforts of professors in other courses.

Institute for Law Teaching and Learning