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Excerpted From: Rory Bahadur and Liyun Zhang, Socratic Teaching and Learning Styles: Exposing the Pervasiveness of Implicit Bias and White Privilege in Legal Pedagogy, 18 Hastings Race and Poverty Law Journal 114 (Summer, 2021) (271 Footnotes) (Full Document)


BahadurandzhangIn the last few years there has been a plethora of articles and discussion posts about the science of good teaching in the legal academy. Some of these are careful to make clear that teaching scientifically is not a panacea. Others seem to make the incautious claim that scientific teaching alone is enough to bring about utopian and exponential improvements in student learning and outcomes.

A previous article hopefully dispelled the mistaken notion that simply applying the latest “in vogue” scientific method is enough to radically improve student learning and outcomes. This article addresses the fallacy of attempting to establish effective teaching absolutes and demonstrates such pronouncements are often the result of superficial research into legal pedagogy and neuroscience. One-size-fits-all teaching approaches are often manifestations of implicit bias-fueled system justification--an unconscious failure to recognize the need to encourage and increase diverse student participation in legal education. These approaches are appealing because they bolster and protect the privileges of the dominant norms. In education this phenomenon is called dysconscious racism.

In the absolute pronouncement category, perhaps the most recent, erroneous and quite frankly, harmful article to legal pedagogy in this regard is Something Borrowed. It concludes the Socratic method of teaching is a pedagogical panacea and that teaching which caters to different learning styles or preferences is “[t]he most concerning neuromyth in Higher Education.” Further it suggests that even though “[i]ndividual learners show preferences for the mode in which they receive information (e.g., visual, auditory, kinesthetic) [they] learn no better when they receive information this way.”

Something Borrowed describes learning styles as so pervasive that “[i]n the thirty years since learning styles theory was propagated, the myth has mushroomed in scholarly publications, graduate curricula, posters, conference papers and workshops.” In footnote 29 of the article, the authors even identify prominent legal educators they suggest have been duped by the learning styles neuromyth. The article also even purports to explain, using cognitive psychology, “[why] we find neuromyths compelling.”

Something Borrowed is an authoritatively written article. Yet, it also illustrates the ease with which superficial pedagogical research can translate into widely accepted and erroneous pedagogical recommendations due to entrenched implicit biases which perpetuate the exclusion of minority students from legal classrooms.

This article initially examines and refutes several flawed assumptions on which Something Borrowed relies. First, we demonstrate how the authors misidentify the Langdellian Case Study Method (LCSM) as the Socratic Method, resulting in a purported justification of the Socratic method by erroneously applying its favorable learning attributes to the LCSM.

This article also demonstrates the ease with which Something Borrowed relegates copious evidence that the LCSM disproportionately disenfranchises minority students in legal education to the realm of the trivial and inconspicuous. We further explain this ease of relegation as an example of system justification fueled by confirmation bias in a white dominated educational environment.

Next, we address Something Borrowed's contention that pedagogy research suggests recognizing adult learners have learning styles/preferences is “[t]he [m]ost [c]concerning [n]euromyth in [h]igher [e]ducation.” This mistaken notion is refuted by a careful examination of the research Something Borrowed relies on.

This careful examination yields the following conclusions:

1. The learning science research does not cut nearly as broadly as Something Borrowed suggests.

2. Educators use the word learning “style” to mean learning “preference” and no competent adult educator would suggest that their students needed to be taught exclusively in a particular learning style. As a result, Something Borrowed's concerns are essentially attacking a straw person.

3. Learning preferences matter in adult education. We demonstrate this intuitively and scientifically, and ultimately conclude that recognizing learning preferences is essential to increasing the diversity of our student body and ensuring we are culturally competent teachers. This failure to recognize learning preferences may be another example of system justification perpetuating the status quo of minority underrepresentation in legal education.

Furthermore, we explain the metacognitive significance of learning preferences, reaffirming that the core principles of good legal pedagogy should be inclusiveness and engagement which encourage and equip our multi-cultural students to develop complex cognitive schema outside of the classroom. This is impossible to achieve unless we tailor our presentations to account for the variety of learning preferences of the adult learners we teach.

Additionally, we demonstrate that neuroscience should guide educational practices as long as we carefully distinguish neuroscience from neuromyth, and that educational psychology is a valid learning science and can be a valid evidence-based resource for legal education.

In the end, the problem does not lie in whether current practices engage the Socratic Method or the LCSM. The issue is much larger than incorrect labeling or the instigation of pedagogical dueling. The prevailing methods, whatever label attached, are all teacher-based interrogation of students. The bigger problem is the mischaracterization of learning preferences and active learning methods, that ultimately support and validate using LCSM in an increasingly diverse law school population. Failing to support and encourage diverse students in law school fails to deliver fully formed diverse lawyers into the justice system, public sector, private sector, and world at large, at a time when diverse voices desperately need to be heard.

Ultimately, more than just 'borrowing’ and superficial research is needed to improve legal education. Rather we need to think about how we can actively collaborate with educational psychologists.

[. . .]

Something Borrowed implores legal educators to open their eyes to the lies neuromyths tell but misses the most harmful neuromyth there is: traditional legal education is still working. Gone are the days of the wizened sage lecturing in the town square. Gone are the days of assuming that the classroom is where the bulk of learning happens. We cannot keep pretending that our increasingly diverse student populations are not harmed by teacher-focused one-size-fits-all approaches.

This article has striven to prove that, although subjective, learning preferences matter and working in active learning techniques that engage these preferences leads to higher student engagement and better learning and retention. By recognizing the effects of various cultural experiences, we can increase the non-majoritarian population of our schools, giving students confidence in their belonging and self-efficacy. Respecting learning preferences through multi-modal teaching allows us to recognize students as adult learners and facilitate their contextual hooking while still encouraging learning through alternative methods. This article has also sounded a call for greater collaboration in the fields of education, neuroscience, and educational psychology. As humanity continues to discover new information about the brain and how it learns, it is important to develop legal pedagogy to take advantage of new empirical research.

Benjamin Franklin once said “Tell me and I forget. Teach me and I remember. Involve me and I learn.” Classroom teaching is only a springboard, from which we attempt to prepare our students to leave the classroom and dive headfirst into the deep end. This requires us to redevelop law school curricula that are experience based, incremental, and multi-sensory. Even further, it requires us as teachers to assess our own dysconscious biases and be willing to learn how to better engage our students and leverage their cultural learning experiences to properly support their active learning. It can be humbling to shift the pedagogical narrative from what we are doing to what we must do for our students, but the rewards for training exceptionally capable lawyers and advocates are felt by the entire community.

To do that effectively we need to embrace collaboration with the fields of neuroscience, especially educational psychology. We need to become culturally competent teachers and acknowledge and understand that biases are part of being human.

Law professors, especially non-minority law professors, are incapable of understanding what our minority students and faculty members experience constantly. Once we can get beyond any useless defensiveness that truth generates, we can decide, in an informed way, whether the status quo is too comfortable to put in the massive effort required to implement the research-based pedagogical changes necessary to make an increasingly diverse student pool a reality rather than a talking point.

As a minority professor and researcher, both of us as authors close by warning against adopting absolutes in legal education. Those absolutes routinely manifest in statements that learning preferences don't matter or student learning can be drastically improved by metacognition, spaced repetition, or some other technique-driven pedagogy like interleaving or whatever the cool buzz word that requires us to do very little to achieve is. These absolutes cater to our inertia and laziness and also engage powerful implicit biases that almost compel us to accept them as true.

In order to achieve the goal of increasing law student diversity, the change in legal pedagogy will be uncomfortable. It must be disruptive and must take cognizance of the reality that powerful, unconscious information processing heuristics perpetuating the status quo are at play whenever we interpret or assign value to information. These processes imbue certain statements, whether supported or not, with a presumption of validity if they perpetuate a status quo of exclusion of non-majoritarian participants in legal education. That discomfort you feel when acknowledging this is a start.

Rory Bahadur is the James R. Ahrens Professor of Tort Law at Washburn University School of Law.

Dr. Liyun Zhang is a research scientist at the University of South Carolina. Her work utilizes her knowledge and expertise in learning science and educational research to enhance training program effectiveness through curriculum development and evaluation.

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