Guest post: “Is remote learning the future of legal education?”

 

Since the COVID-19 pandemic forced almost all law schools to suddenly switch to online classes, the question arises as to whether or not this radical revision of a traditional law school pedagogy represents something more than just a satisfactory –  but temporary – accommodation to an unprecedented situation.

We have to ask this: does the remote teaching of the past few months actually portend a permanent alteration of the way the law and, perhaps more importantly, lawyering, will be taught?

Does it matter anymore that, as the old saw sardonically puts it, “virtual presence means actual absence”?  How important is physical presence in the learning environment at the graduate school level?

In the military I experienced a lot of online instruction (which we typically considered “training” ) as well as in-residence programs (generally viewed as “education”) – and both had their virtues and vices in certain situations.  The success (or not) much depended upon the desired learning objectives.  An online computer security refresher?  It could work.  “Buddy care” and first-aid instruction?  Seldom.  A court-martial trial practice course?  Not really.

But the world has changed in the decade since I left the military, so I was interested in whether or not today’s sophisticated and much more interactive technologies could replace the human dimension of the in-person classroom.  Could they somehow serve to recreate the personal dynamics of a collegial, learning community that historically has been the hallmark of a truly great law school?  Several law professors across the nation have opined on these challenging questions, but I wanted to know what law students thought about them

Accordingly, I asked my terrific research assistant, Kristen Casey, a class of 2021 Duke Law student, whether or not she thought remote learning was the future of legal education.  You may remember her from this post where her paper “Sovereign Investment as a Tool of War: Can International Law Address Financial Aggression by State Actors?“ was introduced as part of the LENS Essay Series.

As you can see from the essay below, Kristen gave me an extraordinarily thoughtful answer in which she insightfully weighed the pros and cons of remote learning (I added the photos). 

Is remote learning the future of legal education?

by Kristen Casey

Remote teaching at Duke Law

Duke Law school suspended all on-campus classes and events March 10, a response to Covid-19 consistent with law schools across the country. Professors and students quickly adjusted to remote learning. Discussion-based courses, like my Negotiations class, continued in similar formats over Zoom. Other professors, particularly those who spend more time lecturing, opted for distributing last year’s recorded classes, or recording new lectures from home.

Faculty, for the most part, remained accessible for academic and non-academic support, whether via scheduled Zoom office hours or by personal appointments. Duke Law School’s decision to move to credit/no credit grading reduced concerns about assessments and allowed students to balance the completion of their coursework with other emerging sources of anxiety.

After an inevitable adjustment period, I felt my professors effectively taught the semester’s remaining material and did their best to provide leadership and guidance to students confronting many kinds of change. My experience is consistent with other law students, who credited faculty with doing “the best they could” under the circumstances, and were surprised at the success with which professors navigated the transition to Zoom.

Faculty responses to remote learning varied. As one student wisely pointed out, professors, like students, “respond to stress in different ways.” While some faculty members seemed most comfortable replicating their typical classroom environment and processes as closely as possible over Zoom, others threw out their playbook and dramatically re-tooled the way they had been teaching their courses in a pre Covid-19 world.  Some professors stuck tightly to their pre-Covid-19 topics, while most others allowed the pandemic to color class discussions, and even encouraged students to evaluate its impact as part of their end of semester assessments.

‘Zoom law school’ has some virtues

There are reasons to be optimistic about the effectiveness of remote legal education. Jeannie Suk Gersen, a professor at Harvard Law, suggests online learning has created a “new intimacy” in the law school class environment, softening concepts of hierarchy enforced by “spatial distance” in traditional classrooms, and enhancing communication with “facial expressions (that) are closer and more legible.”

Suk Gersen observes her students being “less self-conscious and less intimidated,” perhaps because video chat is more familiar to them than the impromptu classroom oratory often required by the Socratic method. Zoom can be an equalizing force, as the “difference in volume between those who speak loudly and those who respond quietly is minimized.” I agree somewhat with Professor Suk Gersen—I felt a level of comfort participating in classroom discussions and communicating with my peers via Zoom’s ‘Gallery View’.

Enabling professors to identify students by name is more beneficial than one might initially appreciate. During Zoom virtual office hours, I am spared the moment of self-consciousness about whether I should introduce myself to a professor with whom I have been taking large, lecture-based courses for six months. Further, zoom eliminates the always awkward moments professors spend glancing between a high-school-era headshot printed on their seating chart and a student’s face in the back row, hoping they are looking at the correct “Ms. Smith”.

One student suggested that being forced into online learning due to Covid-19 actually represents an opportunity for instructors to “investigate how people learn.” The Socratic method, the (oft-dreaded) question-based interactive teaching style typically employed in the first year, doesn’t work well for everyone. Remote learning affords professors flexibility to try out other, non-traditional methods of instruction in an already dynamic teaching environment. For example, I have heard consistently positive feedback on the increased use of Zoom breakout rooms to replicate in-class discussion among students, especially in experiential learning courses.

Some commentators believe that Covid-19 has only hastened an inevitable expansion of the role of online learning in legal education. The ABA has traditionally, with few exceptions, enforced a prohibition on “purely online legal education.” However prior to the Covid-19 crisis, the ABA had sent to law schools for comments a proposal to eliminate these prohibitions. Advocates suggest that the successes of online learning will show doubters that online education is a successful method for teaching the law, and result in faster adoption of online learning under non-pandemic conditions.

If law schools were to be remote again in the fall, I’m confidant professors, particularly of upper-level courses afforded more format flexibility, could continue to tailor the medium to fit their teaching styles and subject matter.

However online learning is just not the same

Despite having some positive features, online learning can’t replicate the in-class experience. Educators lament the “exhausting” nature of Zoom instruction, where they are unable to assess “body language and other cues” of their students in class, or “take a break, move, or change (their) surroundings.” Zoom “depletes” professors’ energy, limiting the “tools of human interaction” that teachers use to foster “interactive, active classrooms.” Other professors report increased difficulty in maintaining the thread of discussions in class.

I agree that student and teacher alike are forced to expend more effort to listen, process, and respond to things happening in class. Video conferencing requires us all to “work harder to process non-verbal cues like facial expressions, the tone and pitch of the voice, and body language” from others, and in turn creates more self-consciousness about our own communications and affect. We have fewer communication tools at our disposable, and fewer ways to connect with each other. It is also just much easier to get distracted by our surroundings when we are tuning into class.

“The meaning of classroom interaction is never just the ‘content’ or the ‘information,” Susan D. Blum, professor of anthropology at the University of Notre Dame, summarizes. “If it were that, we wouldn’t need to interact at all.” I agree there is indeed immeasurable value in moments of collective confusion, understanding, and laughter—moments that are difficult to replicate over Zoom.

I have not encountered a single student who prefers online learning, and talk about the “obsolescence” of in-person higher education seem premature. If anything the forced experiment with remote learning has proved the value of in-person instruction to students’ understanding of the material. If you don’t take my word for it, the plaintiffs in lawsuits across the country would certainly agree that the online learning experience is fundamentally inferior.

The real challenge of remote instruction lies outside of the classroom

Even with the significant drawbacks of learning online, I am very confident in my classmates’ ability to continue learning what we need to know to pass our respective state bars and to practice law effectively in the future. However, what can we do to ensure that we continue to learn from each other? How can we ensure that we come out the other side of the crisis together—that no member of our community gets left behind? This remains, in my opinion, the more pressing set of questions.

Duke Law, and schools like it, face difficulties supplementing and strengthening the usual benefits of law school community that aren’t strictly curricular. Students describe a marked decrease in the activity of their respective societies and associations, as the leaders of these organizations feel “overwhelmed” with the change in circumstance and unsure of the most effective response.

As one student said, physical distance reveals “the glue that holds us together”—the five-minute chat before class or a simple wave to a reliable “hallway friend.” The absence of even these small interactions can make the current distance between us feel that much larger. As in all educational settings, it remains vital that law students learn not just from instructors in a classroom, but from their conversations with peers outside of the classroom.

Holding the Duke Law community together remains even more essential at a time when Covid-19 has exposed and exacerbated existing inequalities, and highlighted the extent to which we have traditionally relied on Duke Law’s physical space as a source of equitable access to resources.

As Professor Suk Gersen puts it, remote learning “accentuates gaps that would ordinarily be less visible.” She continues, “students who arrived in a classroom on supposedly equal terms are now appearing to each other in the settings of relative comfort or hardship, wealth or poverty, in which they are quarantined.” Reliable wi-fi, a quiet and isolated place to work, and the presence of dependable mentors, friends, and support systems are things taken for granted by those who have always had them.

Students, faculty, and administrators have already taken some steps to overcome our new spatial obstacles. The Duke Bar Association (DBA), Duke Law’s student government, has worked to foster community, most notably with its successful and well-attended “Connect with Professors” program.

Students joined faculty members for virtual discussions of favorite topics in a “non-academic office hours” setting. While some professors opted for an informal discussion of current events and the law (General Dunlap hosted a discussion on national security issues and classes), other professors chose to spend their time discussing space travel, sailing, and art, or watching John Mulaney’s stand-up special as a group.

Duke Law’s student-lead affinity groups have also continued their virtual outreach efforts, particularly to admitted students (Admitted Students Open House was conducted virtually in March). Student leaders remain invested, ensuring future students see a place for themselves at Duke Law, even as these groups’ members face their own uncertainty in the present.

Some extracurriculars have been able to continue. Student-lead journals continue to edit and publish, as much of that work has typically been completed remotely. Further, Duke and other law schools have continued public interest and legal clinic work, even focusing on communities and businesses hit hard by the virus. This work helps law students stay connected not only to each other, but to the larger world around us.

Looking forward

If Duke Law, and other institutions like it, remain remote in the fall, what additional steps can be taken to best replicate the traditional, and preferable, on-campus experience?

Students spoke to the value of working in small discussion groups during class and outside of class. It was pleasant to be able to speak to classmates with whom you might not otherwise be in touch, and promoted a sense of collaboration many of us have been missing. Perhaps professors could plan class activities with a mind towards fostering communication and teamwork among students, knowing that this typical aspect of law school may be lacking outside of class time.

For example, one classmate I spoke with commented on the difference it made for class engagement when students had their zoom cameras on, as opposed to situations in which half the students’ screens were black, leaving it quite a mystery as to whether they were listening or napping. Compelling students to use cameras whenever possible is one way to reduce concerns voiced by some professors about the need for “nonverbal cues about how things are going” during class in order to respond to the “class’s atmosphere.”

Students also mentioned the importance of continued guidance and resources for student-lead organizations, particularly those aimed at fostering mentorship and inclusion. As student leaders adapt to the new normal, they will look to law school faculty and administrators for help with organization and inspiration.

The success of DBA’s “Connect with Professors” program seems a good model on which to build going forward. A 2L I spoke with suggested something similar that is mandatory, without the “opt-in” factor. Students who are less likely to join voluntary discussions may also be the ones most likely to need some support from their peers at this time. Whether this brand of outreach is led by student leaders or faculty members, a weekly check-in with a small group might provide the structure and connection we all crave at this time.

In her email to students about the change in grading policy, Dean Kerry Abrams thoughtfully wrote:

“The reality is that we are all being affected by the COVID-19 pandemic in different ways, some more dramatically than others. Many more will be affected in the weeks to come. A grading system that levels the playing field for all seems the most just, equitable, and compassionate.”

The call for compassion should continue to guide not only Duke Law’s grading choices, but our collective navigation of remote learning and the larger Covid-19 crisis. We are all experiencing disruptive uncertainty and stress, and many members of our community face more serious challenges related to medical emergencies, mental health, and their financial security. My hope for Duke Law students is that we not only continue to successfully learn the law, but also, with support and tools from faculty and administrators, remain caring and engaged members of our community.

About the author:  Kristen Casey (J.D. 2021) will be a third-year law student at Duke University School of Law. She grew up in San Diego, CA, and graduated cum laude from Harvard University with a B.A. in Government in 2015. Kristen was a business strategy consultant at PricewaterhouseCoopers before coming to Duke Law and interned with Warner Bros. Entertainment in Los Angeles during her 1L summer. She is Co-Director of the Veterans Assistance Project and a Staff Editor for Duke’s Law and Contemporary Problems journal.

The views expressed by guest authors do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!