Writing A Final Exam Question (aka On Brazilians, Abortions, And Neo-Nazis)

While I promised myself I wouldn’t do this, today I write about writing a final exam.  I was moved to do so by the notion of a professor getting disciplined for a quiz question about Brazilian waxing.   You can read the full question here.

It’s not the first time I’ve seen a test question that made me wince.  A few examples from my own experience come to mind:

1. In an Antitrust class, there was a question about two hospitals. The acquiring company was a Catholic hospital, and the acquired company was not.  The acquired company provided abortion services, which would cease after the acquisition.
2. On an Employment Discrimination exam, the harasser was named Teflon and the harassed was named Porcelain.
3. In a Con Law class, the exam prompt asked that I defend a neo-Nazi’s First Amendment rights.

This is just a list.  For reasons I’ll get to shortly, these are not all the same.

Let’s start with the purposes of writing a law school exam.  For me, the first purpose is to teach.  My exam pushes and challenges my students to go beyond what they learned in the class.  Second, my exam allows me to engage in the task of appraising what they did take away from my class.  Did I teach them well?  Did they learn?  Third, it allows me to engage in the unpleasant task of assigning a grade.

Given my self-imposed standard, which of the exams that I listed (excluding the Brazilian) are so offensive they should not have been given?  In my humble opinion, I’d be worse off if I hadn’t taken those exams.

With respect to the antitrust exam, the professor challenged me to conceptualize a highly controversial topic in a way in which it’s never been considered, as a service in a relevant antitrust market.  Being Pro-Choice or Pro-Life isn’t included in the purpose of the merger statute known as the Clayton Act.  The question is whether the purchase’s effect “may be substantially to lessen competition or to tend to create a monopoly.”  That’s it, and my job as a lawyer was to appraise the acquisition in light of the purpose of the statute, the law, the facts, and the consequences.

With respect to the employment discrimination question, the professor was being tricky.  Having already identified in class the statistics about who is most likely to face discrimination, the professor flipped that on its head to make it harder for us to identify the discrimination that violated Title VII of the Civil Rights Act of 1964.  Again, here, there was a teaching purpose to her hypothetical.

As for the most distasteful exam in which I was forced to defend neo-Nazis, the professor was challenging us to be concerned with speech from speakers with whom we vehemently disagree.   You don’t always get to pick your clients, and it is rare to have the experience that I have had in my life where I am always on the side of the angels.  There is something important about defending the Devil in court.  If we only protect speech with which we agree, then something valuable within the First Amendment is lost.

How do I know that those outcomes are what my professors intended?  I asked them afterwards.

For me, the Brazilian quiz question hinges on the intent and purpose of the professor in asking the question.   I haven’t spoken to the professor in question, so I don’t know how to come out on this.

I will say there are several things in the quiz that give me some pause:

1. If I were to give a hypothetical about a Brazilian, I might avoid having the names of the primary actors be “T” and “A.” Yes, A was meant to be agent for a principal, but given the background facts, I might have given them names.
2. I probably wouldn’t have had the victim fall asleep during a Brazilian. Yes, fact patterns are sometimes stretched, but this is beyond reasonable, absent more facts.  True, there have been instances where this has happened (at least according to that which only espouses truth — the Internet), but those instances involved someone with a high pain tolerance or drugs.  Regardless, there are plenty of cases and horror stories involving Brazilian waxes, including a recent one in which someone nearly died.
3. When I’m uncertain about whether or not my exam is trouble, confusing, impossible, or otherwise full of heartache, I run it by a colleague or two. Just to be safe.  Reactions about the Brazilian question thus far, while filled with 20/20 hindsight, have been predominantly negative.
4. Finally, I also try the lost art of empathy. Empathy means in this case thinking about how your students might feel reading the exam.  It means thinking back to when you were a student.  It means that you consider whether the value of that which is potentially offensive in your exam outweighs the pain you cause the student.  If the answer is that it doesn’t, then you should change the exam.

But I wax on.  The bottom line is that professors ought to be very careful about writing exams.  We typically are.  But we all have failed at some point.  We’ve all written exam flops.  Unless we recycle our greatest hits.  That can be trouble as well.

In case you’re wondering, I’m not sure how I come out on this.   I doubt I want to go the way of having exam questions subject to intense scrutiny all the time.  As an attorney, you do not have a right to feel comfortable all the time.  On the other hand, if the exam is prurient, sexist, or racist, that’s the time the associate dean needs to intervene.

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LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here.  He is way funnier on social media, he claims.  Please follow him on Twitter (@lawprofblawg) or Facebook. Email him at [email protected].