Why Take Attendance? Part I

I have recently been struck by some views expressed on Twitter on the subject of law professors who take attendance in class.  These views are passionate, which, given that it is Twitter, may go without saying, but I was nonetheless surprised that people, both law faculty members and law students, are passionately opposed to a practice that I consider a rather ordinary and humdrum part of my job.  Let me just say this up front.  I take attendance because I care about my students and I want them — every one of them — to succeed.  

Some of them could succeed without attending regularly.  Most could not, or at least, for most of my students, it would be a big problem if they skipped two weeks of class.  They would be behind, and law school posing the challenges that it does, they would have a hard time catching up.  I can’t have one attendance policy for top students and another for the rest.  Moreover, if I didn’t take attendance and reach out to student who miss a week of class, students might mistake solicitude for their autonomy for indifference.  I would rather that they resent my meddling than that they grow discouraged and think that their professors and the law school don’t care about their well-being.

The objections seem to come from two sources, one libertarian, and the other anti-authoritarian or perhaps Foucaultian.  The libertarian perspective is that law students are adults with agency  who are paying for their education and should be permitted to make their own decisions about their lives.  It is not for us, as law professors to make judgments about the quality of those decisions.  The anti-authoritarian perspective is that we, as faculty members, should not “police” our students.  The Foucaultian perspective, I surmise, links taking attendance with Foucault’s critique the modern panopticon state that conducts various forms of surveillance as a means of social control.

I have a caveat here and three responses (in tomorrow’s post).   First, the caveat.  I write as someone who teaches (and, other than some brief visiting positions, has always taught) at an unranked law school.  I might develop a different practice if I taught at a more highly-ranked law school.  The student who sat next to me in Civ. Pro. disappeared during our second week discussing the Erie doctrine.  I thought he had dropped out, but I ran into him at a year-end event.  He told me he had just had enough, and more sympathetic I could not be.  He shrugged, “She gave me a B-, and I guess that’s fair enough.”  I do not doubt for a moment that the gifted person in question is off somewhere living his best life.  In short, I would feel differently about taking attendance if I were confident that my students could miss class and still reach the professional goals that they enrolled in law school to achieve.  

But the bar passage rate in my state on the February bar was 47%.  In Kentucky it was 45%, and in Illinois, it was 43%.  In Tennessee and Wisconsin, it was 41%.   My students need to focus on their studies in order to pass the bar.  My having an attendance policy is not the key to them passing the bar, but if neither I nor any of my colleagues had attendance policies, a lot more of our students would prioritize other things in their lives over coming to class.  And more of them would fail the bar.  They might at that point, regret some of their choices, but by then it would be too late to do anything about it.  Given their investments, both in terms of time and money, I will do everything in my power, even if doing so is a bit paternalistic, to nudge them in directions that the evidence suggests will be in their long-term self interest.

In almost all cases, students who miss a lot of classes will do poorly in my class, and since I teach mostly bar cases, that also means they will be in danger of failing the bar.  At a certain point, I will impose penalties on them for missing classes.  If they are strong students, those penalties are light enough so that I inflict no real harm.  No employer will fail to hire them solely because they got a B+ instead of an A- in Contracts.  But I can’t think of an instance in which one of my students has missed enough classes to be penalized and still earned a high grade.  If they are not strong students, the fact that they got a D instead of a C- in Contracts sends an unmistakable message.  Something has to change or they are wasting their time and money undertaking a challenging degree to which they are not devoting adequate time.

The Tweeter who started it all said that they understand that students have more important things going on in their lives that prevents them from coming to class.  I agree.  Sometimes they have work for other classes that is more important, or at least more in need of urgent attention, than attendance in my class.  That’s why I allow a certain number of absences and why I never require that students explain their absences.  They are welcome to share with me their reasons for their absences if they wish, but that’s just because I care about what is going on in their lives, not because it affects how I treat their absences. 

Law school is professional training.  One aspect of that training is learning how to juggle all of the different things going on in your life, allocating appropriate attention to each.  By providing a clear attendance policy, I enable students to make decisions about how to use their time, knowing all of the consequences.  For almost all of my students, it is never an issue.  They know they need to be in class.  I hope that they enjoy time spent in class or at least know that they are getting something out of time spent in class.  Another aspect of professional training is that the world of work may not embrace the notion of excused absences.  If you miss a filing deadline, the court, agency, potential contracting partner etc. may not extend it.  It really doesn’t matter how good your reason was.  My daughter was recently shocked to learn that she would not be considered for a position that she likely would have gotten had she managed to get her application in on time instead of one day late.  I am not shocked, and I wish I had done more to prepare my daughter for that foreseeable consequence of delay.

In tomorrow’s post, I take on the libertarian and anti-authoritarian/Foucaultian perspectives.