Vol. 42 No. 8
By G.M. Filisko
G.M. Filisko is a lawyer and freelance writer in Chicago.
You know the feeling. You take an exam and walk away feeling fairly confident. Then when you get your grade, your first thought is confusion, perhaps even denial: “This can’t be right!”
That series of events likely happens hundreds of times each year at law schools across the country. With the following considerations, you can assess your grade and options best. You should understand how to explore a grade’s accuracy, the process for questioning a grade, the pros and cons of making your case, and tactics for achieving a positive outcome, even if your grade never budges.
They fought the law…
Marcia Perez and Elizabeth Garner both challenged a grade in law school. Perez’s quest was a success. Garner didn’t hear back after her complaint.
In Perez’s case, a legal writing instructor at University of California Hastings College of the Law in San Francisco, whom she’d butted heads with in class, gave her a D on an assignment. Perez says she’s left-leaning politically, and the instructor’s comments leaned right. “He’d make statements in class I felt weren’t true, and I’d say that,” said Perez, who operates an immigration practice in San Francisco. She believed that the professor developed a disliking for her and it impacted her grade. “Writing had always been my strong point, and when I got the grade, I thought, ‘No, this can’t be!’”
Perez was convinced the grade was not a fair assessment of her writing. So she took a bold step. She went to the head of the writing program and said, “Here’s what’s going on in class, and I don’t trust the instructor’s judgment. You don’t know me, and I don’t know you. But I want you to make an exception for me. I want you to regrade this assignment.”
The program head agreed to read Perez’s assignment—and agreed the grade wasn’t fair. “She gave me a B,” recalled Perez. “I actually walked away from that class with an A.”
Garner was also confident in her knowledge of the course material, in her case, the Uniform Commercial Code. “I had a tremendous amount of knowledge of that from previous work experiences,” she said.
But Garner and her professor at Quinnipiac University School of Law in Hamden, Connecticut, clashed from day one. “I was an older student, and my husband had just had a heart attack,” she explained. “At the first class, I asked the professor if he could give me the liberty of two weeks to get things under control. I said if I got a tad behind, I’d make it up. The professor told me to drop the class and take it the next year, which wasn’t an option.”
When Garner got a D on the midterm, she feared her dean’s scholarship was at risk. She headed to the dean of students and explained the situation. “He actually thanked me for coming to him and making him aware of the situation and said he’d handle it,” she said. She didn’t hear how and if it was resolved, but ended up with a C in the class.
Know the rules
Both Perez and Garner took grade concerns into their own hands. But that’s unlikely to be your best tactic for resolving them. It’s wisest to first determine if your school has a process for challenging grades and, if so, follow it.
However, not all schools allow students to contest grades. Of those that do, each school’s grade challenge process is different. For example, grade challenges are generally discouraged at the University of Michigan Law School in Ann Arbor. Students should focus on what they can learn from the professor about why they received a bad grade, said David Baum, assistant dean for student affairs. In the absence of some obvious error in transcribing the grade or adding points incorrectly—which only very rarely happens—a challenge is extremely unlikely to go anywhere.
That’s also generally the case at Touro Law Center in Central Islip, New York. “All our grades are final,” reported Charlotte Taylor, assistant dean for student services and co-author of Bridging the Gap Between College and Law School. “However, if there’s a calculation or recording error, a professor can request the grade be changed. Maybe it’s a multiple-choice exam and the professor or the Scantron didn’t add up the points accurately.”
The University of Idaho College of Law in Moscow implemented a grade-challenge process in 2013. “Before it was informal, and the student would talk to the professor, then the associate dean for faculty, maybe the dean, and even the provost,” explained Michael Satz, interim dean. “But nobody ever did that because we never had a process in place. We decided that if we say there’s going to be a process, there should be one. We also instituted it because we’re the place that teaches justice. How can you say you believe in justice and not have a mechanism for a student who thinks something very unjust happened?”
Idaho’s process begins with students speaking to their professor, then taking their case to the associate dean for faculty if they’re not satisfied. “If you don’t get the result you want from the associate dean, you can file a formal appeal,” said Satz. “It’s presumed your grade is accurate, and you have to rebut that presumption. Professors have a lot of academic freedom, and it’s very difficult to tell a professor, ‘You’ve got it wrong.’ We try to respect that.”
A still-dissatisfied student can then take the challenge to the school’s academic hearing board, made up of three faculty members. “The appeal is formally presented by the associate dean for faculty,” said Satz. “The student has the opportunity to speak to the board, as does the faculty member. The board can’t change the grade. We’re a state school, and the teacher has certain academic freedoms guaranteed by the US Constitution. But we can recommend the registrar notate the grade the board has given. So you could have both grades reflected on your transcript. The student can also continue the appeal in front of the entire faculty and finally go up to the provost’s office.”
At Thomas M. Cooley Law School in Lansing, Michigan, students must draft an appellate brief just as a lawyer would to challenge an errant trial court opinion. The school processes about 80 appeals each term, of which about 10 percent are successful, reported Charles Cercone, associate dean of faculty who oversees the grade-challenge process.
“The process requires students to fashion an appellate brief in accordance with our policy manual, making an argument for why this grade isn’t accurate,” said Cercone. “They’re free to consult any secondary course they choose and consult with any other professor than the grading professor.”
Briefs are submitted to one of the school’s student magistrates. “They’re the first layer of review for an appeal, and magistrates are chosen on the basis of their GPA and performance in the subject matter—and they’re paid for their work,” said Cercone. “The presumption is the professor is correct. There has to be clear and convincing evidence the professor didn’t award enough points. The magistrate consults with the professor to generally discuss what the professor was looking for and to generally describe the student’s arguments, but not with enough specificity to disclose which student is appealing. We have an anonymous grading system and appeal system, and if students approach the professor before they file an appeal, they waive their right to appeal completely.”
The magistrate writes a recommendation either denying or granting the appeal. That’s sent to the professor, who can agree or disagree with the recommendation. “If the professor disagrees with a magistrate’s recommendation of a grade change, the student can file an abuse of discretion petition with me,” said Cercone. “That petition is more truncated; it’s why the professor abused his or her discretion in not following the magistrate’s recommendation. I’m the final say in those cases. If the magistrate recommends no change to the grade but the professor believes it should be changed, the professor can do that, too.”
The grade challenge process varies largely from one school to another. Before embarking on a challenge, investigate your school’s policies and procedures. Just like a legal challenge, there are likely going to be rules to follow. Be savvy in finding—and following—your school’s rules.
Evaluate your grade, chances, and risks
How should you proceed if you do a double-take at a grade? Follow these steps:
Look for common signs the grade may be off, and review your exam prep. “Generally, if a student has consistent grades and one is inconsistent, that should raise concerns,” said Taylor. “That’s the student with all As or Bs who then gets a D or an F, particularly if there was nothing extraordinary going on that day, like the student was sick or showed up late for the exam. If students felt good, were on time, and there’s inconsistency with the grades, that should raise concerns. That’s typically the biggest reason.” Other reasons: You did well on the midterm yet bombed on the final or you studied with a group, all of whom did well but you.
“Also do your own assessment in terms of: ‘Are there other factors that contributed to me not getting a higher grade? Did I not study for this exam like I did for others? Did I not do practice exams or other exam prep?’” said Taylor. “Assess whether the grade is correct and actually the one you earned.”
Weigh the importance of the grade. “Consider how the grade will affect you,” suggested Perez. “At Hastings at the time, a D put you on academic probation. Then you got one chance—if you didn’t bring up your grades the next semester, you’d be gone. Also, what about scholarships? Do they require you to maintain a certain GPA? On the other hand, if you got a B and felt it was an A, you’re still going to pass the class, and there’s no scholarship at risk, it may not be worth challenging the grade.”
Review your exam before proceeding. “One of the worst things you can do is to not read your exam or to talk only to your peers,” contended Satz. “A lot of times, you forget what was in the exam, and questions can be very nuanced, so one minor error can send you completely down the wrong path. Also, your peers might not have gotten the answers right, either. It’s much better to go right to the professor.”
Taylor agrees. “Students have a right to review an exam individually with the professor, and that should be encouraged,” she contended. “They should know where they earned points and where the professor was looking for more information. They’ll gain information going forward, which is particularly helpful if it’s a two-part class, like Contracts 1 and 2.”
Some schools, like Cooley, require that grade appeals are done anonymously. Before speaking to your professor, make sure it won’t impede your ability to challenge the grade.
If your school has an appeals process, consider its educational value. “At Cooley, there are really no drawbacks to a grade challenge other than the time it requires,” said Cercone. “It’s a learning experience because it forces students to think more deeply about the subject matter than they probably have, and it’s an opportunity for self-assessment. Another benefit is that the brief guidelines are very similar to our appellate court guidelines. So students get yet another opportunity to practice writing an appellate brief.”
Assess the risks. Is there any risk to making a grade challenge? Some schools may allow it as a matter of course and the only risk is the time spent working on the challenge. However, there is still the risk that you are spending valuable study time fighting last semester’s battle. Will the challenge impede your current academic progress?
Is there potential to harm your reputation? Would challenging a grade make anyone view you as a sore loser? Are you going to be viewed as causing administrative problems unnecessarily? Is there value in taking the bad grade and then redoubling efforts to do better?
By assessing all the risks involved, you will make a better decision about whether to pursue a grade challenge.
Be professional and unemotional. “Approach the review kindly versus antagonistically,” said Leslie Yalof Garfield, a professor at Pace Law School in White Plains, New York. “The minute students come in antagonistically, everyone shuts down. Also, don’t let your parents call the professor. I actually get parents calling me about grades. I usually make a joke like, ‘Once kids are a certain age, you can’t find out their medical information, and grades are kind of like that.’”
Don’t choose a path that’s emotionally or career damaging. “I’ve seen students who’ve harmed themselves by approaching this in the wrong way,” said Satz. “It’s almost always students who can’t control their anger. That says a lot about them, and that’s what we tell them when it happens.
“The most important thing you can do when you get an unexpected grade is to stop, take a deep breath, and really think about what it does and why it’s important,” Satz added. “People often get wrapped in wanting to fight. But it’s important to our profession and your own emotional well being to think first. Law school is stressful enough. You shouldn’t harm yourself over something that really isn’t as big as a deal in the long run as you think it is in this small moment in time.”
Throughout this process, be open to the possibility you’ve simply not done your best work. “When I speak to students, I like to list all the things they did to prepare and challenge them with the things I know they should have done,” said Taylor. “There are students who don’t get it. But hopefully students are open to a conversation that helps them understand that 99.9 percent of the time, their grade is the grade they earned, and they just need to do something a little different in the future.”