At Osgoode, as at so many law schools, it is exam season. It is a time of logistical upheaval, stress, anxiety, sweatpants, unbrushed hair and worry about future career and academic prospects, which seem at this time to hinge entirely on how a person of many talents happens to perform over a given two or three hours in December. To what end? At least in law, it is not clear what goal of value to legal education a two or three hour exams serves (one could, of course, raise the same concern about the LSATs but that issue is probably worth a separate discussion).
While there may be differing accounts, it seems to me that the reason we sit in a room and answer exam questions is three-fold – first, it is convenient for the University. Having all students in one place at one time writing one exam for one course reduces the moving parts of which University administrators must keep track; second, it is a relatively easy way to ensure the integrity of student assessment – with proper invigilation (a term which speaks for itself) it is a difficult process to cheat, game or exploit; and third, we have done it this way for as long as anyone can remember and many might think if it was good enough for us, it surely must be good enough for the next generation too.
The problem, in my view, is that this model of assessment tends to work against thoughtful engagement with the issues raised in the courses. Two or three hours for an exam covering vast stretches of principle, doctrine, argument and ideas is not conducive to digesting problems, considering issues, reflecting on analytic options and articulating sound conclusions. Compounding this problem is the stress that is caused by an entire term or year’s evaluation turning on a student’s performance over three hours. To the student who failed to get a good night’s sleep, or is getting over an illness, or having a bad day, the pressure may be overwhelming.
A separate and more specific barrier is presented to those with disabilities, illnesses or conditions which preclude them from completing in person exams of two or three hours. A significant amount of University and student resources are then invested into applying for, and deciding on accommodations, which can range from extra time to write an exam, writing an exam in a different space, or writing an exam with special supports.
A take home examination/assignment overcomes most of these dilemmas, and the number of courses adopting this model has for some time been on the rise. Take-home examination/assignment assessment will be generally (although not in every case) more convenient for students. While take home examinations may be as little as 24 hours in length, most provide for two or three days to complete, and some even longer periods. Those students who are having a bad day can take a break and come back to the issues with fresh eyes a few hours or a day later. This model enhances opportunities for reflection, and provides the student with the opportunity to complete the examination/assignment in whichever surrounding they feel most comfortable. While take home examinations usually are given on a particular day and due on a particular day, one could design a system where students could simply check out a three day take-home exam/assignment at any point during the exam period when it suited them, and submit it within the deadline. With on-line distribution and submission of exams, this system becomes even easier to verify and administer, and misadventures while journeying to campus to submit an exam with only minutes to spare before the deadline would become a thing of the past.
So, why haven’t take home examinations/assignments rendered the three hour exam a relic of the past? One reason is that take-home examinations raise challenges of the fairness, equity and integrity of the process. If students are working on their exams at home, how can the law school be sure that it is their work and not the work of others, or that students do not collaborate or seek assistance in ways that defeat the goal of individual evaluation?
One answer is the honour system, under which students commit to abide by the integrity of the examination rules (e.g. that the work is their own, etc). Such a system is not new, and has been in operation, for example, at the University of Virginia since 1956. Importantly, it has not been without its scandals and continues to generate spirited debate in the blogosphere. Washington and Lee Law School advertises the benefits of its version of an Honour System in the following way:
“One truly unique feature of Washington and Lee is its Honor System. According to this system, students are entrusted with a greater than usual amount of responsibility, as they are allowed to sit for unproctered exams, sometimes receive take-home exams, and are offered some flexibility in their exam schedules. The system has also created a comfortable and safe environment throughout the law school, demonstrated by the fact that students regularly leave laptops and possessions unguarded in the library without any worries. Undoubtedly, the Honor System affects the school in many ways and helps students enjoy their three years in Lexington.”
As someone who teaches legal ethics, I believe an Honour System should be a no-brainer to adopt/adapt at a law school. Not only is legal ethics and professionalism a foundation of the curriculum at law schools such as Osgoode (and will shortly become a mandatory element in every Canadian common law program as part of the Law Society’s accreditation framework), but the principles underlying the Honour System lay at the heart both of the legal profession and the mission of the University. Lawyers are expected to act honourably in the face of temptations to cheat in a host of settings in practice. Integrity is as important a value in legal education, it seems to me, as it will become for those graduates who pursue legal practice.
Of course, it is also not necessary to move to this system all at once, in every course and overnight. A pilot of Honour System courses can be identified in a handful of courses, where the students and faculty involved opt-in, and then the results assessed both in terms of the student experience, and whether any anomalies turn up in student performance in the Honour System courses versus other courses. At the end of the day, if one were designing a system from scratch, a framework of evaluation premised on trust and confidence in the integrity of students strikes me as preferable to one based on an assumption that those who can cheat will.
The broader issue to which this discussion gives rise, however, is not simply how we assess the performance of our students but also why we do so. Yale Law School has for some time embraced an Honours/Pass/Low Pass/Fail approach to grading. Harvard Law School’s version of this approach, just adopted in 2009, was justified according to then Dean and now US Supreme Court Justice Elena Kagan in order to “promote pedagogical excellence and innovation and further strengthen the intellectual community.” So, rethinking how we assign grades to students should, hopefully, lead to rethinking why we assign those grades in the first place, and to a focus on the impact that the answer to each question has on the values to which we as a law school community aspire.