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Legal Commentary

: Prawfs

The Professorial Second Opinion: Should Law Professors be Able to Change Student Grades After Exam Conferences?

By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel

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From the movie Clueless :

Mel: Cher, what's this all about

Cher: My report card?

Mel: The same semester?

Cher: Uh-huh.

Mel: What'd you do? Turn in some extra-credit reports?

Cher: No.

Mel: You take the mid-terms over?

Cher: Uh-uh.

Mel: You mean to tell me that you argued your way from a C+ to an A-?

Cher: Totally based on my powers of persuasion. You proud?

Mel: Honey, I couldn't be happier than if they were based on real grades.

Many law schools preclude professors from changing student grades based upon "errors" that those professors made during the grading process. At my law school, John Marshall, professors cannot change grades based upon qualitative errors, such as failing to notice that a student addressed a hearsay exception on an Evidence exam, but they can change grades based upon computational errors, such as assigning 5 points to a student's discussion of a hearsay exception but failing to add those points to the student's final score (In this way, my school is like Federal Rules of Evidence 606(b), which precludes jurors from impeaching their verdicts based upon qualitative errors, such as failing to consider the plaintiff's comparative negligence, but allows them to impeach their verdicts based upon transcription errors, such as finding the plaintiff 10% negligent, but reducing his award by 40% based upon bad handwriting).

I suspect that there are two main reasons that many law schools generally preclude professors from changing student grades. First, blind grading rules the roost in law school, and if we routinely allowed professors to change grades, it would re-introduce the possibility of biased grading that it was designed to eradicate. Second, law students like to argue. This is why many of them came to law school in the first place. If law schools readily allowed professors to change grades, the number of exam conferences would greatly increase (which wouldn't necessarily a bad thing) as would the contentiousness of those conferences (which would necessarily be a bad thing).

These are certainly strong reasons to preclude grade changes, but it is no doubt extremely difficult for the professor, and, of course, the student, when the professor has to explain that the student deserved a B but got a C because of a mistake that the professor made. Now, maybe this doesn't happen very often (I've only heard of one such case in 1.5 years of teaching), meaning that the benefits a change would accomplish would not outweigh the burden the change would impose. But if the problem is more prevalent, what might be a way to allow for the correction of obvious grading mistakes without facilitating the problems addressed above?

In The Professional Responsibility of the Law Professor: Three Neglected Questions, 39 Vand. L. Rev. 275 (1986), Monroe H. Freedman hints that there should be "due process in grading" and notes that he uses the following review procedure (which apparently his school does not preclude):

The review procedure works as follows. If the student is not persuaded that the grade I have was a fair one, he or she can elect to have the grade reviewed by a committee of three students from the same class. I pick one of the three committee members, the student picks the second, and those two pick a third. I then explain to the committee how I arrived at the grade I gave. The student then explains to the committee why the grade should be higher. The committee then chooses between my grade and the one the student considers appropriate. The committee must choose one of the two; it is not permitted, for example, to split the difference between the two grades.

The committee uses whatever standards its members consider fair. I impose no criteria. The committees, however, have tended fairly consistently to review the challenged grade in the context of other grades given in the same exam. (I make it clear to them that I cannot lose: either they affirm my grade, or they validate my review procedure.) The process has taken an average of two or three hours of my time a year.

I could see a law school that currently precludes grade changes adopting this procedure because it would (partially) preclude claims of biased grading and, if Professor Freedman's experience is representative, it seems that it wouldn't (really) increase the number or contentiousness of exam conferences. Of course, such a procedure only addresses cases where there is a genuine disagreement between professor and student over grading, not the situation where professor and student agree that there was a grading error.

Professor Freedman found that his procedure did not produce the negative result of students always affirming his grades, but I would have to imagine that students would readily agree to a grade change when both professor and student agree that there was a grading error. Thus, such a procedure in such a circumstance would in effect be the professor changing the grade, which reintroduces the possibility (or at least the perception of the possibility) of biased grading (and if the students rejected the grade change, wouldn't they, in effect, be saying that the professor was biased?).

But this seems to me to only be a problem if the student reviewers engage in non-blind grading. In other words, if professor and student agree that there was a grading error, three students could be appointed to review the exam, and they could engage in "blind grading" in that they wouldn't know the student involved, the initial grade, or the proposed new grade. Of course, one might argue that without the input from professor and student that Freedman's procedure provides, the students wouldn't know how to "grade" the exam. I imagine that the solution would be to give the students 3 exams that received scores (1) about the same as the initial score, (2) about the same as the score the exam "should have gotten" without the error(s), and (3) somewhere in between the actual and "deserved" score. Using these guideposts, the students would assign a score to the exam that would or would not change the grade. Of course, this could be done by another professor as well, under what might be called a professorial second opinion.

So, what do readers think? Should law professors be able to change student grades, and if so, under what circumstances? Or, as Richard Heny Seamon notes in Lightening and Enlightening Exam Conferences, 56 J.Legal Educ. 122 (2006), is it "arguably unfair...to change the grade of a student who requests an exam conference without re-scoring exams of students who do not request conferences but whose exams might contain clear scoring errors?" Of course, the best way to "solve" the issue is to avoid the issue to the greatest extent possible, and I'm sure that many professors follow the same technique as Seaman:

I try to mitigate this arguably unfair situation by automatically re-scoring all exams with scores that fall within two (and, for some courses, within three) points of the next higher grade cut-off. For example, if I have decided to award a grade of ?A? to all exams that have scored between 96 and 100 points (where 100 points is the highest score), I will re-score all exams with scores of 94 and 95 points; and, if the point range for ?A.? is 90-95 points, I'll re-score all exams with scores of 88 or 89 points, etc.

Full post as published by Prawfs on April 27, 2009 (boomark / email).