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Legal Commentary

: Prawfs

A Modest Proposal Regarding Blind Grading

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

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Why does blind grading rule the roost in law school? (Even Justice Stevens noted, in McIntyre v Ohio Elections Com'n, 514 U.S. 334, 342 n.5 (1995), that the practice of grading law school examinations "blindly" is "now-pervasive."). The most common rationale that I have heard is that "blind grading is meant to ensure, at least in part, that a student's actual performance on the exam, and not any improper influence, is the exclusive factor in determining her final score." Meredith Hattendorf, Comment, Theoretical Splits and Consistent Results on Anonymous Political Speech: Majors v. Abell and ACLU of Nevada v. Heller, 50 St. Louis U. L.J. 925, 927 n.13 (2006).

Fair enough, but why is blind grading not nearly so prevalent at colleges and most other graduate schools? Is the implication that blind grading was introduced based upon the proposition that law professors were less able to remain unbiased during the grading process than other teachers? Well, historically, the answer is apparently, "yes," but not in the way that I expected. In One Law: The Role of Legal Education in the Opening of the Legal Profession Since 1776, 44 Fla. L. Rev. 501 (1992), Paul Carrington tracks the creation of special admissions programs for minority students in the mid-1960s. He then notes that "[t]o protect against concerns of favoritism for students specially admitted, most schools adopted some form of blind grading."

So, it seems as if the main reason cited in support of blind grading is not (really) the same reason that it was created. And it seems to me that there are many possible problems with blind grading, with the foremost being (my belief) that it reinforces the one final exam to rule them all mentality. Of course, there are also many benefits to blind grading, not the least of which is the assurance it gives to students that they are being treated fairly (although it seems as if many students believe that blind grading is a myth). Moreover, regardless of the pros and cons of blind grading, it seems that blind grading has become embedded in routine law school practice to the point where it has become part of our law school culture. Well, 1L culture, anyway.

But, what about upper level classes, and especially electives and/or classes taught by more than one professor? Shouldn't professors teaching these classes have the option to chose blind or non-blind grading in the same way that they can decide issues such as whether to give an in-class or take-home-exam or an open book or closed book exam? Sure, many students would not want to take a non-blind graded class, but they could simply decide not to take the class just as students averse to closed book exams can now choose not to take classes with professors who give such exams. Conversely, I imagine that there are many students who would prefer classes where they could be evaluated based upon their performance over the entire semester and not simply their performance on one exam at the end of the semester. Indeed, many of these students already do so by chosing to take many seminars or other "paper" classes where grading is not "blind."

So, what do readers think? Should professors teaching upper level classes have the option of making their classes non-blind graded, or is blind grading different and thus something that should be required in every (non seminar/paper) class? If given the option, would you engage in non-blind grading, or do you prefer the blind grading approach?

Full post as published by Prawfs on April 20, 2009 (boomark / email).