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

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

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

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 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!

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