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Law360 (June 2, 2021, 5:04 PM EDT )
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| Leonard Baynes |
The COVID-19 pandemic has caused us to embrace and rely on videoconferencing technology in ways that we could not have imagined before the pandemic. One might say that the pace of technological change has accelerated by 40 years.
Before the pandemic, few law faculty members taught classes that were totally offered through videoconferencing technology. Now almost all law faculties in the U.S. have learned to teach and have taught either hybrid or fully online virtual classes. The adaptation and embrace of this technology in legal education is likely to continue to accelerate.
Law School Courses
The American Bar Association is the accreditor for law schools, and it showed great flexibility during the pandemic by issuing a guidance memo permitting law schools to offer emergency online courses exceeding the limits of the ABA standards.
The ABA currently restricts law students from taking more than 30 credits of online courses over the course of their law school career and from taking more than 10 credits in their first year of legal study.
The ABA expansively interprets this standard by defining an online course as any course in which there is even one online student. That means in an in-person course where there is just one LL.M. student taking it online, the ABA treats the whole course as online for all the in-person students.
Given how ably law schools and their faculty have adapted to videoconferencing technology during the pandemic, I predict that the ABA will have more tolerance for distance and online classes and hopefully will change this very expansive interpretation of what constitutes an online course.
Moreover, now that law school faculty members have gotten adjusted to videoconferencing technology, I predict that they will use it more often in their classes. From a pedagogical standpoint, some aspects of online learning have proven to be beneficial for students.
For example, students appreciate recorded lectures of legal doctrine that they can review multiple times so they more fully understand it. For faculty members, it means they can focus their classroom teaching on working through problems or hypotheticals with students, instead of laying out the doctrine. Some faculty members have remarked that videoconferencing creates a level playing field in the class in that students cannot hide in the back row and must raise their hand to speak.
In addition, online technology brings convenience for faculty and students. Some students have remarked to me that they have saved considerable time and money by not having to travel to and from school every day. Faculty members in commuter relationships or who live in the far exterior boundaries of metropolitan areas also benefit from the convenience of not coming to school each day to teach.
Whatever the ABA does with its standards for online courses, I predict that faculty and students will gravitate to more remote videoconferencing classes. In fact, a student who chooses classes based on their schedule is now also likely to consider whether a class is offered online or in-person.
Students will want to have a day of either all online or all in-person classes so that they can spend each day either learning from home or at the law school taking in-person classes. The student wouldn't want to have a day of mixed classes — partially online and partially in class — necessitating having to be at the law school for the whole day and during that day trying to find a quiet place to take online courses.
Law School Grading
Many law schools adjusted their spring and summer 2020 grading policies to pass/fail grading because of the challenges that faculty and students had adjusting quickly to online learning. It reduced the stress of grading for faculty members as well as the stress of exam-taking for law students who had to compete amid the pandemic.
It was quite a sea change in many legal academics' thinking around performance, even during a pandemic. And it is not something that had been done during other recent natural disasters like hurricanes or national emergencies like 9/11.
This adaptation to the pandemic is unlikely to last. The polling of recent graduates shows that they are not in favor of it.
A Kaplan survey found that 48% of recent graduates support the change to pass/fail grading, 41% oppose it, and the rest unsure of what to make of it. Polling shows that student support for pass/fail grading plummets once the pandemic is over: Only 25% want pass/fail grading at law schools to remain, while 63% oppose it. The remaining 12% aren't sure.[2]
Even though during the pandemic, this change to pass/fail grading was widely adopted, several legal employers still require a letter from the dean's office explaining why the students have pass/fail grades for fall and summer 2020. Moreover, some employers delayed participating in fall 2020 on-campus interviewing until January 2021 to see and review an additional semester of students' grades that were not pass or fail. So, this revolutionary change is likely to revert to the past.
One positive consequence of the adoption of pass/fail grading is that, as of December 2020, academic dismissals among first-year law students were down over 50% from the prior year. It is speculated that some law schools may have postponed their academic dismissals to the second-year fall semester when they had regular grading. There is also speculation that grading was more lenient because of the pandemic.[3]
But some will say that this change in dismissals will let unqualified students graduate. Again, I believe that this grading flexibility is just not something that law schools will continue because it is contrary to our very competitive and merit-based culture.
Faculty Workshops, Conferences and Symposiums
Nothing beats the opportunity of networking in person at academic conferences, but I know that I have participated in several speaking engagements during the pandemic that I probably would have declined otherwise because of the travel involved.
Videoconferencing technology makes it much easier to participate without the wear, tear and time that it takes to travel. A virtual speaking commitment can be limited only to the actual length of the presentation, which makes it convenient to participate.
Virtual conferences are also more affordable for the organizers since they do not have to reimburse for travel and hotel accommodations. Plus, through videoconferencing technologies, a law school conference can extend its reach and brand beyond the boundaries of its physical building.
For these reasons, I predict that videoconferencing technology will be increasingly used for faculty workshops, conferences and symposiums.
Admissions
The Law School Admission Council quickly adapted and adjusted to the pandemic by deploying an online law school aptitude test called LSAT-Flex. The council recently announced that it plans to offer the LSAT in an online, remote-proctored format through June 2022.[4]
The remote format gives the test-taker a lot more flexibility on where and when to take the exam and removes the anxiety in getting to a testing location on time.
The Law School Admission Council has been very accommodating to test-takers who do not have access to private, quiet spaces or good internet access. The council has also offered their admissions fairs though online formats, which has drawn a much more expansive number of participating students.
These testing accommodations have been helpful to law school applicants in terms of affordability and time management, and I predict that these innovations will continue after our independence from the pandemic.
Meanwhile, law school admissions offices have ramped up their online presence and services offered to law school applicants. They have created online tours of their facilities, they have posted online videos of law school classes, and they have had online information sessions and workshops with applicants.
Law school admission personnel have not had to travel to admissions fairs, saving these offices time and money. I expect that many of these innovations will continue post-pandemic. But there will likely be a return of some in-person admissions events that allow faculty, staff and admissions personnel to meet admitted students and promote the advantages of attending a particular law school.
Career Development
Many career development offices struggled in terms of what to do about August 2020 on-campus interviewing. Given that many law schools adopted pass/fail grading polices for the spring 2020 semester as a result of the abrupt transition to online courses, some law schools decided to delay on-campus interviewing until January this year so students would have two full semesters of grades.
Moreover, career development offices had to prepare to conduct videoconference interviews, including coaching students on how to make the best impression in an online interview setting.
Several law firms have announced that they prefer virtual on-campus interviews at least for the screening interviews because of convenience. So, some aspects of online interviewing are likely to remain.
The Bar Exam
Over the past year, the bar exam authorities have adjusted to the pandemic by offering licensure through online administrations as well as through supervised practice and diploma privilege.
Except for three states, there has been little difference in test-takers' performance on in-person bar exams as compared to virtual bar exams.[5] Some states had technical problems, especially with remote proctoring. Some test-takers were disadvantaged because of faulty internet service at home or lack of privacy.
The National Conference of Bar Examiners announced that it would "offer jurisdictions the option to administer the bar exam remotely in July 2021 to help address health concerns associated with the COVID-19 pandemic and provide support for future legal professionals."[6] Thirty jurisdictions currently plan to administer the exam remotely.[7]
As for the February 2022 bar exam, the NCBE recently announced that it is not planning to make remote bar exam materials available, barring adverse public health considerations. Instead, for next February, the NCBE will offer jurisdictions materials only for in-person exams.[8]
While some say that decision might mean the end of the online bar exam, I would not be so hasty to make that prediction.[9]
What we learned over the past year of the pandemic is that we have adjusted to new ways of doing things. The NCBE and state jurisdictions have worked to make the administration of the online bar exam fairer and more equitable. Like the LSAT-Flex, the online bar exam provides the test-taker with greater flexibility without the stress of traveling to a busy test site location or even out of town for another state's bar exam. An online exam also affords jurisdictions certain efficiencies and economies that an in-person exam does not. Online remote bar exams will not disappear without much discussion and reflection.
Racial Inequity
Our recent graduates and students of color have been through a lot this past year, with the spotlight on racial injustice and the deaths of George Floyd, Breonna Taylor and Ahmaud Arbery, as well as the shooting of six Asian American women in Atlanta.
In addition, they have confronted the disproportionate impact of COVID-19 on communities of color. According to a report by the American Public Media Group's Research Lab, "Pacific Islander, Latino, Indigenous and Black Americans all have a COVID-19 death rate of double or more that of White and Asian Americans, who experience the lowest age-adjusted rates."[10]
Because of the pandemic, in 2020, U.S. life expectancy declined by one year,[11] with African Americans and Latino Americans experiencing the most decline of 2.7 years and 1.9 years, respectively. There has also been a stark disparity in vaccination rates for people of color as compared to others.[12]
Witnessing these deaths and disparities exacerbates collective racial trauma that reverberates to members of these communities; our graduates and students of color may still be going through this trauma when everyone reaches Biden's Independence Day nirvana. They may not be vaccinated, and they may have lost loved ones to COVID-19.
Law school administrators and other personnel will need to be on a high alert to ensure that these students are able to live their lives to the fullest and overcome the continuing legacy of racism and the pandemic.
Conclusion
In sum, since the start of the pandemic, we have seen many changes in legal education. Some changes, like virtual classes with the expanded use of video technology, have likely reached a tipping point and will continue to be adopted by faculty and students. Several aspects of law school operations, such as admissions and career services, will also continue to benefit from an expanded online presence.
We have seen fewer law school dismissals as we have turned to pass/fail grading models but have learned that law students prefer to actually earn a letter grade. The bar exams and LSAT are likely to continue to provide remote, online administrations. We also know that we have more work to do to serve our diverse students.
Finally, and most importantly, law school educators will need to remain flexible and resilient to adapt and face the challenges as we reach Independence Day.
Correction: An earlier version of this article incorrectly stated the status of remote bar exams. The error has been corrected.
Leonard M. Baynes is dean and professor at the University of Houston Law Center.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.bbc.com/news/world-us-canada-56368328.
[2] https://www.kaptest.com/blog/press/2020/06/17/kaplan-survey-law-school-graduates-divided-on-passfail-grading-amid-covid-19-but-majority-oppose-it-becoming-the-new-normal/.
[3] https://excessofdemocracy.com/blog/2020/12/law-school-first-year-academic-dismissals-drop-more-than-50-after-spring-semester-without-grades.
[4] https://www.lsac.org/update-coronavirus-and-lsat/lsat-flex.
[5] https://www.abajournal.com/topic/barexam.
[6] https://www.ncbex.org/ncbe-covid-19-updates/#:~:text=NCBE%20Announces%20Remote%20Option%20for%20July%202021%20Bar%20Exam&text=As%20it%20did%20for%20the,27%E2%80%9328%2C%202021).
[7] https://www.ncbex.org/ncbe-covid-19-updates/july-2021-bar-exam-jurisdiction-information/status-table/.
[8] https://www.ncbex.org/news/ncbe-anticipates-return-to-in-person-testing-for-february-2022-bar-exam/.
[9] https://www.law.com/nationallawjournal/2021/06/01/remote-bar-exams-are-out-in-person-testing-to-return-in-february/.
[10] https://www.apmresearchlab.org/covid/deaths-by-race.
[11] https://apnews.com/article/us-life-expectancy-huge-decline-f4caaf4555563d09e927f1798136a869.
[12] https://www.statesman.com/story/opinion/columns/your-voice/2021/05/13/why-racial-disparities-threaten-bidens-coronavirus-goal/5046316001/.
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