11/20/2012 02:52 pm ET Updated Jan 20, 2013

What I Learned About Law School Grading From Danny DeVito, John Rawls and Ryan Lochte

We have come around to that time of the year when law students start panicking about final exams. Their anxiety will not be relieved by any reassurances, but worrying about grades is not likely to improve them.

When I was a kid, my earliest lesson about the arbitrary nature of evaluation came courtesy of Danny DeVito. After John Travolta became a polyester-clad superstar in the 1977 movie Saturday Night Fever, his choreographer, Deney Terio, went on to host a television dance competition reality show (before everything on television was a reality show). Even after disco died, during a riot that interrupted a Detroit Tigers baseball game, Dance Fever remained popular in syndication.

Celebrity judges watched four couples compete for a $1,000 prize. They each assigned a score on a hundred point scale and offered their comments.

DeVito, who was appearing at that time as the irascible dispatcher in the television comedy Taxi, was a one of the guest judges on an episode of Dance Fever. His very sincere but less sophisticated colleagues awarded scores that were only a few points apart, a 91, an 89, and so on. If I recall correctly, DeVito was willing to hand out everything from a 90 to a 50.

Regardless of whether it comported with social norms, he exaggerated fine distinctions. As was apparent to anyone with rudimentary math skills, he essentially made himself the only one whose attitude counted.

Decades later, whenever I have graded students in law school, I've thought about Danny DeVito as a disco expert. Numerical systems trick us into believing they are objective. A single person manipulating such a system reveals the problem.

As a teacher, I've followed a model other than DeVito. At the start of the semester, I've explained to students that I would adopt the late philosopher John Rawl's "maximin" principle. Under his progressive Theory of Justice, the idea is to maximize the minimum benefit to the least well off.

Here's how it worked in practical terms. Most of my academic career, I taught at Howard University Law School. The historically-black school had a tough grading curve (incidentally, that shouldn't surprise anyone -- it is the Ivies that have the worst grade inflation). The scale was one hundred points just as on Dance Fever. Ninety and above meant an "A" and so on. Both the mean (the average) and the distribution (among the letter grades) were strictly controlled.

Following Rawls, I sought to give the least number of As and the least number of Ds and Fs. A true maximin approach would have resulted in the best student receiving a 90, meaning an A at the bottom of the range for an A. I thought that outcome would be contrary to reasonable expectations. I was not as gutsy as DeVito.

Thankfully the philosophy did not in practice really disadvantage the top of the class. There was enough leeway for me to end up at the highest number of As, even with the lowest number of Ds and Fs. In fact, I gave no Fs. With the mean set precisely and a certain number of students enrolled in the course, that meant that there was a certain total number of grade points to be divvied up among them. I didn't waste any of them. What would have been leftover points went to the top of the class.

Thus I was able to achieve the greatest social welfare, because I would allocate every grade point available to me. Even students who did not care about the philosophy and who didn't understand the mathematics, appreciated the consequences. They were pro-student.

After this explication, I would ask students if they wanted an encouraging or a discouraging point of view on grades. Regardless of their preference (most wanted the negative version, which they took to be more honest), I offered both perspectives. Law professors, after all, are expected to articulate contradictory opinions simultaneously.

On the one hand, grades are fallible. They are only predictors. They are not measures of moral worth.

On the other hand, grades are not random. They serve a social function. First year grade averages in law school are used by observers such as prospective employers to perform a rough sort of the student body if only for administrative efficiency.

For me personally, I could not engage in grading without skepticism in opposite directions. It seems to me delusional on all our parts to suppose I am capable of predicting with any precision how skillfully a student would apply the rules of civil procedure upon graduation. It also seems to me unbearable cynicism to make an approximate attempt at doing just that without confidence that it had a basis in logic and virtue.

Of course, there is almost certainly difference between the highest grades and the lowest grades. However, the margins between an A, A-, and B+ may only be indigestion, either for the student writing the essay at the time or the teacher reading it subsequently.

These opinions should be unremarkable. The experts who design standardized tests try to tell us that any score really represents a range. We willfully ignore the truth.

In my classes, we'd have some discussion, the students and me, about this enterprise that bound us together. Someone invariably would raise their hand to ask why they couldn't all receive the best grade.

I'd reply that while I would do everything I could to give them the highest possible grades in the aggregate, if everyone ended up with the same grade then grades would not serve their social purpose. That seemed reasonable to me, but the view is better from my side of the podium.

For we have created a culture that attempts to sort out people. There are those who argue we are hard-wired to differentiate among individuals in a group. So if we did not rely on grades, we likely would substitute a worse measure. We certainly did in the past, when a handsome pedigree was expected to correlate to the "gentleman's C" and the former mattered more than the latter.

When students ask me about grades, I direct their attention to athlete Ryan Lochte. He has achieved some more fame of late. But after the 2008 Beijing Olympics, it was easy to feel bad for the then-obscure Lochte.

In any other era or any other country, Lochte would be the single best swimmer alive or ever. Against his friend Michael Phelps, who is milliseconds faster, he is the consistent runner-up. We recognize that Lochte has no legitimate grievance against Phelps. He is reward is calculated as precisely as his finishing time.

Lochte is still winning medals on teams, sometimes with Phelps, and he is still in the pool competing with intensity. He should be celebrated for that reason.

Contrary to what abstract models of human behavior might predict, I never found grades to work all that well as an incentive to intellectual engagement. People ought to be motivated by other factors. And they are in fact. An acute awareness of grades produces the desire for high grades beforehand and disappointment about low grades afterward; it does not appear to lead to other salutary effects.

Law school grading practices could be reformed. Most lawyers practice with others. Even solo practitioners solve problems in a cooperative manner; there is no need for hermit lawyers. Evaluating students at least in part based on group projects would offer better information about their abilities. It would alter their behavior instantly.

As a friend of mine says, quoting the young, "Whatever." Life is not a disco dance competition. The real lesson of Danny DeVito on Dance Fever is not how a single person can control a grading system. It is that if we are to rely on grades at all we should rely on more than a single signal about performance. Even if we adopt John Rawls's worldview, we will send up with Ryan Lochtes who are great but not superlative. How we set up grades reflects much more -- how we have chosen to structure society.