By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel
In most classes in law school, professors (must) engage in what is often referred to as "blind grading," i.e., "we intentionally deprive ourselves of information that would match exams with names." Christian Turner, The Burden of Knowledge, 43 Ga. L. Rev. 297, 347 (2009). But if you actually think about it for a second, law school grading isn't truly "blind." Most law schools allow professors in so-called blind graded classes to boost or dock a student's grade by 1/3 of a letter grade (e.g., from a B to a B+ or a B+ to a B-). In this sense, law school grading isn't actually blind but what I refer to as "legally blind grading." In several guest posts over the course of this month, I will raise a number of questions related to legally blind grading.
My first question is whether readers dock students' grades based upon insufficient class participation. You can answer this question by responding to the following poll:
My main goal in this first post, though, is to ask why professors dock students' grades based upon insufficient class participation by considering theories of punishment. According to some, there are four general theories of punishment: retribution, deterrence, rehabilitation, and incapacitation. See, e.g., Leigh Goodmark, The Punishment of Dixie Shanahan: Is There Justice for Battered Women Who Kill?, 55 U. Kan. L. Rev. 269, 287 (2007).
Retributive theories of punishment "'rest essentially on the inherent propriety of punishment as a consequence of wrongdoing...." Id. at 288 There are two strains of deterrence theory. "Special deterrence theory argues that punishment is intended to prevent a person who has been punished from committing similar offenses in the future....General deterrence...'concentrates instead upon the efficacy of the threat of punishment upon those who are disposed to or tempted by crime.'" Id. at 292. Under incapacitation theory, "punishment is justified because the incarceration of the offender prevents that person from committing further acts of harm, thus increasing the good to society." Id. at 293. Under rehabilitation theory, punishment is used "'to prevent crime by so changing the personality of the offender that he will conform to the dictates of law.'" Id. at 294.
Any of these theories of punishment could (crudely) explain why law professors dock student grades based upon insufficient class participation. Such docking could be retributive, a moral requirement based upon student unpreparedness. It could be based upon special deterrence in the sense that the professor wants to deter students in his class from being unprepared. It could be based upon general deterrence in the sense that the professor wants to deter a certain type of student from taking his class(es). It could be based upon incapacitation in the sense that the grade docking might exclude the student from activities such as law review or even potentially lead to the student being expelled based upon a low GPA. And it could be based upon rehabilitation in the sense that the professor wants to impress upon unprepared students that they had better be prepared in the future (in future classes, when they take the bar, and when they practice law).
Personally, I don't dock grades on retributive grounds. On reason is that, as grade docking currently exists at my school, it is one size fits all; if one student falls slightly below my class participation expectations and another falls significantly below them, I must give them the same 1/3 grade reduction (more on this in a later post). Retributive justice is supposed to be individualized, so my grade docking wouldn't fit under this theory. Also, I see class participation as more of a means to the ends of learning the material and performing well on the exam, meaning that I have no moral requirement to punish insufficient class participation.
I suppose the incapacitation theory of docking student grades based upon insufficient class participation would be that students unprepared for class will be unprepared for activities such as law review and the practice of law. I have no idea whether the latter point is true, but I actually find that many of the students very active in student organizations are very unprepared in class.
I actually think that a rehabilitation theory of docking student grades based upon insufficient class participation is a good one (in theory), but here's the problem: At least at my school, students don't know whether their grades were docked. I know this because I have had students who set up exam conferences asking whether they got docked. In the absence of this knowledge, it is hard to see how students can take the docking as a learning experience.
Therefore, I dock grades under deterrence theory. I want to deter unprepared students from taking my classes because they won't add much to class discussion and could detract from it. With regard to students who take my classes, I want to deter them from being unprepared in class both for the effect unpreparedness has on class and other students as well as for the likely effect it has on their learning of the material.
But that's just me. If you dock students' grades based upon insufficient class participation, why do you do so? Answers to the following poll and comments would both be appreciated.
-Colin Miller
