By Dan Molloy
As a student now approaching the halfway mark of my time in law school, one of the most central and influential components of my experience has been the law school-mandated grading curve. A majority of American law schools impose a strict grading curve on all classes in which first-year law students are enrolled, setting defined, percentage-based limits on how many of each letter grade professors are permitted to assign to students. What this curve often translates into is very few marks of “A” and “A-,” a marginally higher quantity of “B+’s,” a vast amount of “B’s” and “B-’s,” and a small required number of “C+’s.” The curve system is inflexible to the extent that even if every student in a first-year law course of eighty students decided to write the exact same answer in the exact same words in response to an essay prompt on a final exam, defined percentages of these students would still receive “A’s,” “C+’s,” and every mark in between these two. Curve supporters argue that the curve is a necessary tool to distinguish between the performances of students during the first year of law school, affording employers with a means of selecting the highest qualified candidates for jobs.
From a practical standpoint, most students attending a particular law school have similar qualifications when entering school. The LSAT scores and GPAs of these students are similar. We are left to muse about why it is necessary to distinguish between students if little distinction exists between them in the first place. An American legal education is exorbitantly expensive, as many students accumulate over $200,000 of debt in financing a three-year legal education. With so much of one’s ability to secure a job after law school hinging on first-year grades, the unfairness of a mandated curve system, where a student can receive a certain mark not because she or he deserved it but simply as a result of needing to fit into a percentage model, is unquestionable. With students acutely aware that they are competing against each other for grades, what the curve system does is create an environment of competition where students are out for any advantage they can secure over their classmates. Materials in the library disappear and misinformation regarding course material is disseminated, as one student’s loss is another’s gain. Is this the culture law schools are attempting to promote?
In my own experience, education has been most effective when it strives to promote an atmosphere of sharing and discussion between students and teachers in which each side comes away changed by the encounter. Paolo Freire, the famed Brazilian educator, in his Pedagogy of the Oppressed, argues that an optimal educational philosophy is one where an instructor believes that her or his thinking can only be authenticated by a student’s thinking. Freire describes dialogue as the core feature of an education system in which students truly learn and he distinguishes between what he calls the banking and dialogical models of education: “For the anti-dialogical banking educator, the question of content simply concerns the program about which he will discourse to his students…For the dialogical, problem-posing teacher-student, the program content of education is neither a gift nor an imposition.” To Freire, true education grants us the freedom to liberate ourselves from constraint. When we are permitted to learn in an environment and setting in which we feel comfortable, we become human.
While Freire’s ideas are presented in the matrix of a South American society where his aim is for these ideas to inspire the poorer classes of people to rebel and liberate themselves from what he feels have been years of systematic oppression, his thoughts are compelling in the law school context as well. I am confident in saying that most American law students who have dealt with the law school grading curve system have a strong distaste for it. Those who tell you that they do not are simply the students who were fortunate enough to finish at the top of the class after law school’s first year. If the sparse benefits this system distributes had not fallen to them, their tune would be different.
I realize that not everyone’s performance in law school is of the same quality and I have no qualms with distinguishing between students who have clearly demonstrated different levels of material mastery. However, distinguishing merely for the sake of distinguishing, and doing so along such rigid and inflexible lines, seems unproductive. Shouldn’t the central objective of a law school, or any institution of higher learning, be to put its students in the best position possible to learn and to carry the knowledge gained at such an institution into the real world? With the mandated grading curve system, students are not motivated to learn, but rather, to climb over each other, pushing others down in pursuit of the few good marks the system allows. It is difficult to justify such an environment as the best possible one available to facilitate learning. Freire’s ideas are intriguing to consider in a context where a system is in place that functions to limit the opportunities of many. It seems unlikely Freire’s thinking will be incorporated into American legal education any time soon, but maybe if the legal job market worsens and less students who shoulder the massive financial undertaking of law school receive the lucrative benefits they dreamed such an education would provide, they just may say that they have had enough and start a movement with enough support to address the unfairness they continue to face.