Law school assessment: regulating the exception in a time of pandemic

Universities so far have struggled with the difficult and rapidly changing risk environment since the emergence of Covid-19. Responses have been variable in speed and intensity across institutions and jurisdictions, often reflecting the uncertainties fed down from government policy (or lack thereof). Information is patchy, but my sense is that teaching now in virtually all UK, US and Australian universities has moved, or is in the process of moving wholly or substantially online. This in itself is a major undertaking, as many law teachers and law schools as institutions have little or no experience of teaching online at scale, or even at all. This, unfortunately, is just the start.

A big issue, about which there has been relatively little public discussion so far, is the question of assessment. Law schools operate in a highly competitive culture where grades matter far more than they should. Covid-19 clearly has significant implications for grading. Conventional large group examinations clearly cannot safely be held under pandemic conditions. There are also really significant wellbeing issues. Aside from the underlying generalised anxiety currently pervading the social environment, there will be students under increased economic stress as part-time work dries up; others dealing with heightened levels of familial stress and in some instances family violence; students trying to study in living environments that are otherwise far from ideal, and those that are sick. How significant that latter number will be of course depends on how well containment strategies operate, both in the early (exponential growth) phase of infection and ongoingly. We need to be clear that this is likely to be a long haul, not a quick fix. As the influential Imperial College analysis makes clear the risks of 'rebound' infection once initial constraints are relaxed is significant and

[an] intensive intervention package – or something equivalently effective at reducing transmission – will need to be maintained until a vaccine becomes available (potentially 18 months or more)

See Ferguson et al, 'Impact of non-pharmaceutical interventions (NPIs) to reduce COVID19 mortality and healthcare demand' https://www.imperial.ac.uk/media/imperial-college/medicine/sph/ide/gida-fellowships/Imperial-College-COVID19-NPI-modelling-16-03-2020.pdf, p.2

Changes to assessment processes should (in some respects) be less difficult to implement than the wholescale move to online, but they do risk bringing the law schools into conflict with systems of professional regulation that were clearly not designed with pandemic conditions in contemplation. They also highlight the extent to which there is a striking silence around assessment issues in many of our regulatory systems.

Both the American Bar Association (ABA) and the English Solicitors Regulation Authority (SRA) have issued guidance to deal with the current situation. The ABA guidance was published on 20 February, and with hindsight appears to have signally failed to read the seriousness of the situation. The overarching message is one of business as usual unless and until "extraordinary action" becomes necessary. Even then the expectation is expressed that the "accommodation should be minimal and taken after other options have been considered". Fortunately, perhaps, in this context Standard 314 of the ABA Standards (on assessment) is minimalistic and requires only that there be formative and summative assessment. Strikingly the Standards and the recent guidance are both silent on grading. Consequently there has been nothing to prevent a growing number of US law schools, including the 'elite' schools at Harvard, Stanford, UC Berkeley, Michigan and Cornell, moving to pass/fail assessments in this semester.

The SRA, by contrast, issued its guidance to law schools by email on 19 March (quoted here). This emphasised the regulator's view that law schools have considerable flexibility over the time and form of assessment, but took a relatively strong line on the need for assessment

While the Academic Stage Handbook does not specify the form that assessments should take, or require them to be taken under supervised conditions, we do require some form of assessment for Foundation of Legal Knowledge (FLK) subjects and providers should not cancel assessments altogether. An assessment is vital to helping us ensure the integrity of professional qualifications and through this, appropriate consumer protection.

In an interesting and lengthy response to the SRA, which I recommend, Professor Steven Vaughan has taken issue with the guidance, arguing (to adopt here his own summary of his post)

On my reading of the relevant rules, I am not convinced that assessments in Foundations of Legal Knowledge subjects are required on the QLD. I think an argument can be made that all that’s needed are the credits (and if internal university rules allow – or are changed to allow – the giving of credits without assessment then that’s fine)

In the alternative (as I accept my argument is just that)… if the current rules do require assessment, where is the risk (in SRA terms) of university law schools (for example) cancelling assessments and pass/progressing students to the next year of study? Isn’t this the time for some regulatory flexibility, and for the SRA to reassure law students and law schools by taking a decision on that flexibility?

See Vaughan, 'The SRA, The Qualifying Law Degree, and COVID-19: Thoughts on Law Schools and Assessment in a Time of Crisis', Lawyer Watch, 20 March 2020, https://lawyerwatch.blog/2020/03/20/the-sra-the-qualifying-law-degree-and-covid-19-thoughts-on-law-schools-and-assessment-in-a-time-of-crisis/

There have been no equivalent announcements that I am aware of in Australia as yet, either from the Admitting Authorities that are the state-level regulators, or from the Council of Australian Law Deans, who have in the past taken responsibility for promulgating 'soft law' standards for the law school sector. Conventionally, the admitting bodies have been pretty relaxed about assessment, treating it as an area that is essentially within the competence of the law schools. Regulations, moreover (see eg the Uniform Admission Rules 2015 governing admissions into New South Wales and Victoria) make no direct reference to assessment, requiring only that certain prescribed matters are "taught" and that applicants have "successfully completed" an accredited academic program.

This general fog of uncertainty is not helpful to academics or students at the present time, not least, to return to my earlier point, because grades are important to students, and that not least because prospective employers (over-?) utilise them when making career-defining decisions around clerkships, internships and training positions. If. as seems likely, this is the start of a process that will impact assessment over two, perhaps even three semesters, we are in unknown territory.

There are multiple law school responses available in this crisis, and there is no guarantee that law schools (system-wide) will adopt a common approach, creating real risks of building-in selective disadvantage. Some such variation may, moreover, be inevitable if, as in the wake of the 1918 flu pandemic, we see ongoing local clusters emerging six to 12 months after the main threat has passed, requiring further, localised, heightened intervention. Consequently we might anticipate any of the following variations across the sector during this continuing time of exception:

• Limited change to assessment practices (though I suspect this is increasingly unlikely)
• Major changes to assessment modes, but with continued grading
• Major changes to assessment modes, with a move to pass-fail grading
• Passporting of student cohorts to the next semester/year without assessment (this is already being considered by some UK universities as their end of academic year approaches)
• Increased use of exceptional powers under university regulations to deem individual students to have passed assessments
• Deferring assessment to a later semester/year

In this context, careful and useful guidance from regulators could help send out appropriate signals to students, law schools and employers. I echo Steven Vaughan's view that what is needed is recognition that the situation will demand flexibility, and that the kind of - at best - mixed, at worst 'hold the line' messaging sent by the ABA and SRA are not re-assuring to anyone. Silence too does not reassure.

Now too is the time for some realism. Academic assessments, in terms of assuring professional competence, are perhaps not as significant as we like to think, not least in those systems like the US, UK and Australia where there is (generally) a subsequent vocational stage assessment before entry into the profession. Perhaps one good thing that can come out of the corona virus crisis is some new realism about academic assessment and its regulatory costs/benefits. It follows, of course, that what happens (or ought to happen) with those other vocational stage assessments is a separate and perhaps more difficult and equally pressing problem (and this post is already long enough).

Whilst regulators tend to distance themselves from recruitment issues there is at least an argument too that regulatory and professional bodies need to engage with employers and develop guidance on appropriate recruitment strategies that do not, so far as possible, amplify effects of prior disadvantage, or create new forms of discrimination against students who are genuinely struggling in these most unusual of times.

The original of this article appears on my blog at https://legaleducation.wordpress.com/2020/03/22/law-school-assessment-regulating-the-exception-in-a-time-of-pandemic/