A barrier to developing, improving, or sharing our assessment practices is the confusion surrounding the vocabulary of assessment. Whenever it occurs or by whatever method, assessment is simply the process of discovering what and how well students have learned and then using that information to improve. One can quickly become mired in a sea of words that feel like jargon, with assumptions that confuse and distort the real meaning of this otherwise familiar practice of all good instructors. Part of the problem is that the language is not our own and so, by its very adoption, reinforces the impression that assessment is an intrusion into our classrooms. Because these confusions are so destructive to the ability of an institution to move forward with assessment, we must either work to make this vocabulary our own or develop a different vocabulary for the same ideas.
Even though discovering what students have learned in order to improve teaching is a natural part of a good teacher’s practice, law schools are having difficulty in knowing exactly what this talk of assessment means. Faculty frequently mistake outcomes assessment for something more complex, unusual, or even sinister. “Assessment” becomes confused with “evaluation” (as in program or teacher evaluation) or “standardized testing,” and, before long, we are thinking of K-12 school district funding decisions based a “No Child Left Behind” external control of education.
There is a fundamental difference between assessing student learning for the purposes of program or teacher evaluation and assessing student learning for the purposes of improving that learning. If we are assessing for accountability, we collect data (e.g., pass rates) about students learning outcomes that we do not necessarily control (e.g. bar exams) so that we can report that data to external constituencies (e.g. accreditors). In contrast, if we are assessing for student learning, we observe evidence (e.g., essays, performances) of student learning outcomes that we have designed ourselves so that we can interpret and use that evidence to improve the learning of our students. When accountability to those outside the learning process is the driving force behind assessment, the temptation may be to assess only those learning outcomes that we know students have mastered and avoid looking for places where learning could be significantly improved. We might skew our teaching and curricula away from learning outcomes we truly care about to more closely match the learning outcomes we believe outsiders consider important. Of course that already does happen to some degree. The influence of ABA standards of accreditation and bar examinations on curricula is so obvious we may not even recognize the degree to which our faculty control of the program of legal education is directed by these learning outcomes and assessment methods.
It is against this backdrop of fear that some law teachers approach the topic of outcomes assessment. However, resisting assessment out of a concern that others will rob law faculty of their freedom means giving up one of the most powerful tools to protect that freedom. If a faculty can clearly communicate the learning goals they have for their students, and can demonstrate how their program of legal education leads to more students accomplishing those learning goals at higher levels of mastery, that proof of learning can become powerful tool for demonstrating accountability: to the students, the academy, the bar, and the public. That is not to say that assessment for accountability will not be required or should not be undertaken with seriousness of purpose and honesty in method. Assessment for improving student learning, however, should be just as important, if not more so, so that we can be accountable to ourselves and our students.