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Opinion: Law schools should switch to pass/fail during COVID-19 shift

Pass Fail

At this point, educators can no longer subject students to the traditional norms of grading. COVID-19 is chaos incarnate, and the last thing on anyone’s mind is school. But the conversation cannot end there. Indeed, the switch from traditional grading to a pass/no pass (P/NP) or credit/no credit (C/NC) system is not trivial. At my law school, a week-long heated debate erupted between students. The topic: mandatory versus optional P/NP grading.

A mandatory P/NP scheme unifies transcripts, forcing every course to be evaluated the same way. The optional scheme abates curve-induced anxiety but keeps intact the students’ ability to control their own academic futures. I don’t envy the position of any faculty member currently forced to make this choice. Neither option is stellar and the right decision isn’t so clear-cut. 

For example, I’m currently stuck on the east coast, roughly 3,000 miles away from my husband and colleagues. My night-classes are now even later thanks to the time difference. But I’m also living with my parents in a house stocked with plenty of food (and toilet paper) to last through next winter. Though I have underlying health conditions, I’m currently healthy; so is everyone else around me. I don’t have kids to worry about. My job—already remote in the first place—is secure. And I have the sufficient means to continue slugging through 2L from the comfort of my childhood bedroom.

I am the example of why anything but a mandatory Pass/No Pass grading system is unfair. 

My role on the Student Affairs Committee has been eye-opening during this challenging time. Before the pandemic, I would field complaints about course offerings, the unforgiving curve, and the occasional supplement hoarding from the dedicated resource room. Now, what keeps me up at night are the students facing homelessness, depression, illness, instability, lack of basic needs, dwindling financial resources, hopelessness, and panic. 

My inbox, once a growing heap of unread student organization spam, is now a safe space for the distressed. The stories are heartbreaking. Some have lost their jobs; others have had summer offers rescinded. Some have lost their housing and must seek shelter with friends or distant family; others don’t have the luxury of traveling out-of-state. Some must become full time educators, picking up where their childrens’ schools have left off. Some are quarantined with sick relatives; others have fallen ill themselves. Some are unsure about where their next meal will come from.

And in a world shifted suddenly and completely online, access to the Internet is not a utility enjoyed by all. For many students, the law school and its multitude of resources was a fundamental bridge across the acute privilege gap. 

Now that the gap is exposed, traditional grading is nothing more than a litmus test for disparate treatment. A mandatory P/NP system levels the academic playing field at a time where the disadvantaged will suffer the most. As I wrote in a letter signed by 200+ students to our Santa Clara Law faculty, the mandatory scheme not only places each student on equal academic footing, it shifts the decision making entirely to the university when students might be currently overwhelmed with other stressors.

But you don’t necessarily have to be at your lowest point to feel COVID-19’s crippling effects. For some students, finding the motivation and will to carry on normally is a struggle. Faced with so many other priorities and concerns about the future, concentration and morale is wavering at best. 

Additionally, the shift to Zoom online courses creates new disadvantages. Some students are already familiar with online learning. But for others, it’s another one of many adjustments that will have to be made. 

Considering these circumstances, the mandatory system seems obvious—that is until you realize the problems such a system creates. For many students a mandatory P/NP system sabotages any of the efforts put forth thus far into this semester.

Throughout this debate, I’ve seen students chastise each other for putting their academic needs above the survival needs of their colleagues. That’s unwarranted. All needs are different. And all needs are valid. Hence, the challenge before our institutions.

For starters, we must not forget that the decision to go to law school is one made with great financial consideration. Grades are consequential. When it comes to scholarships contingent on GPA requirements, grades can foreclose legal careers. Some students literally cannot afford a mandatory pass/no pass system. Importantly, as almost any law student is painfully aware, grades also play a significant role when it comes to on-campus interviews and securing competitive opportunities beyond graduation. 

But grades also define other key aspects of the typical law school journey. Some students look forward to earning various honors that help to set them apart from their more networking-adept colleagues. Some students are faced with maintaining program or journal based GPA requirements; others might be just on the cusp of meeting them. Not to mention, for some students, the grades they receive this semester determine their end-game. For those students, the current semester might just be their most critical. 

Arguably, grades might also help to recall feelings of motivation and purpose at a time these are desperately needed the most. 

All of these concerns are mitigated by an optional P/NP system that permits students to continue with the traditional grading scheme for courses chosen at their discretion.

Students who prefer the optional system are students thinking about a world after COVID-19. Understandably, those students are worried about what that world might look like. The optional system helps to restore a comforting sense of predictability, normalcy, and control over their current situations. 

Still, I challenge those students, and faculty faced with the ultimate decision, to consider whether the concerns extinguished by the optional system outweigh the disparate impact the system inevitably creates. Again, my situation is illustrative. Under an optional system I get the best of both worlds. I’m already afforded all of the privileges that come with having a stable environment amidst the chaos, and now I can exploit it to control my place on the curve and in the job market. Because, at the end of the day, for a severely disadvantaged student, the option to drop down to P/NP is not really optional in the same way that it is optional for me. And when we’re both competing for the same job, there will always exist unconscious bias for an employer choosing between an “A” and a “P.” 

Regardless of the grading system chosen, there will be winners and losers. A good solution might maximize the number of winners. But the adversity endured by the “losers” might also make a good solution the most inequitable. I implore educators to be thoughtful about this decision and to survey their students (especially those faced with hardship). Find out what your students need and resist the temptation to imitate other institutions. This solution is not one-size-fits-all. 

Personally, when it comes to mandatory or optional P/NP,  I have no preference. But I also have a great deal of privilege that affords me that lack of preference, and I remind students and faculty to be cognizant of their own blind spots as well.

Editor’s Update: On Friday, March 27, Santa Clara University moved to a mandatory pass/no pass system.

Note: The opinions shared by our writers do not reflect the official position of the American Bar Association. A list of law schools’ decisions on moving to a pass/no pass system is available on Reddit.

Jess Miers Jess Miers is a recent “Tech Edge J.D.” graduate from Santa Clara University School of Law where she studied Internet law and tech policy. Her scholarship primarily covers Section 230 and content moderation. Jess is presently employed at Google as a Government Affairs & Public Policy analyst. All opinions shared are her own and do not represent her previous or current employers.