More on Grade and Scholarship Quotas

May 5th, 2015 / By

In a response to this post, Michael Simkovic wonders if I believe “it is inherently immoral to limit ‘A’ grades to students whose academic performance is superior to most of their peers, since an ‘A’ is simply a data point and can be replicated and distributed to everyone at zero marginal cost.”

Not at all. I believe in matching grades to performance, and I don’t hesitate to do that–even when the performance is a failing one. Ironically, however, the mandatory grading curve produces results that are quite troubling for those of us who want grades to reflect performance. Constrained by that type of grading system, I have given A’s to students who performed worse than their peers. Let’s consider that problem and then return to the subject of conditional scholarships.

A Tale of Two Tort Classes

To accommodate institutional needs, I once taught two sections of the first-year Torts class. I used the same book and same lecture notes in both classes. We covered the same material in each class, and I drafted a single exam for the group. Following my practice at that time, it was a 4-hour essay exam with several questions.

I graded the exams as a single batch, without separating them into the two sections. Again following my usual practice, I used grading rubrics for each essay. I also rotated batches of essays so that no exam would always suffer (or benefit) from being in the first or last group graded. After I was done, I plotted all of the scores.

I discovered that, if I applied a single curve to both sections, all of the A grades would fall in one section. Our grading rules, however, required me to apply separate curves to each section. So some students in the “smart” section got B’s instead of the A’s they deserved. Some students in the other section got A’s instead of the B’s they deserved. When I discussed my problem with the Associate Dean, he did allow me to use the highest possible curve for the first section, and the lowest possible one for the other section; that ameliorated the problem to some extent. In the end, however, the letter grades did not match performance.

Several other professors have recounted similar experiences to me. It doesn’t happen often, because it is uncommon for a professor to teach two sections of a first-year class. But it does happen. In fact, when professors teach multiple sections of the same course, section differences seem common. If these differences occur when we can readily detect them (by teaching two sections), they probably occur under other circumstances as well.

I don’t think this drawback to mandatory curves rises to the level of immorality. Students understand the system and benefit from some of its facets. The curve forces professors to award similar grades across courses and sections, moderating both curmudgeons and sycophants. As Professor Simkovic notes, the system also restrains creeping grade inflation. A mandatory curve, finally, offers guidance to professors who lack an independent sense of what an A, B, or C exam looks like in their subject.

I tell this story to make clear that a mandatory curve does not necessarily reward achievement. On the contrary, a mandatory curve can give B’s to students “whose academic performance is superior to most of their peers” as measured through blind grading. I know it can happen–I’ve done it.


It feels silly to say this, given my position on deregulating the legal profession, but I do not believe (as Professor Simkovic suggests) that “competition for scarce and valuable resources is inherently immoral.” Competition within an open market usually leads to beneficial results. Competition within a tournament guild, on the other hand, leads to inefficiencies and other harms.

Back to Conditional Scholarships

Returning to our original point of disagreement, I think Professor Simkovic misconstrues college grading patterns–especially in STEM courses. Those courses are not, to my knowledge, graded on a mandatory curve. Instead, the grades correspond to the students’ demonstrated knowledge. The college woman I mention in the primary post was a STEM major; she was no stranger to tough grading. She, however, was accustomed to a field in which her efforts would be rewarded when measured against a rigorous external standard–not one in which only seven students would get an A even if eight performed at that level.

Once again, law school mandatory curves are not “inherently immoral.” They do, however, differ from those that are “routinely used by other educational institutions and state government programs.” Our particular grading practices change the operation of conditional scholarships in law school. At college, a student with a conditional scholarship competes against an external standard. If she reaches that goal, it doesn’t matter how many other students succeed along with her.

In law school, a student’s success depends as much on the efforts of other students as on her own work. If conditional scholarships were in effect when I taught those two sections of Torts, it is quite possible that a student from the “smart section,” who objectively outperformed a student from the “other section,” would have lost her scholarship–while the less able student from the “other section” would have kept her award. I do not think college students understand that perverse relationship between our grading system and conditional scholarships–and neither Professor Simkovic nor Professor Telman has cited any evidence that they do.

Let the Market Rule

As I stated in my previous post, the ABA’s rule has cured two of the ills previously associated with high-forfeiture conditional scholarships. Schools may continue to offer them, subject to that rule. It appears that schools differ widely in the operation of these programs. Some offer only a few conditional scholarships, with rare forfeitures. Others offer a large number, with many forfeitures. Still others lie in between.

The market will soon tell us which of these paths enhance student enrollment. Now that prospective students know more about how conditional scholarships work at law schools, will they continue to enroll at schools with high forfeiture rates? Time will tell.

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