The Great Change: Turning Cathy into a Lawyer

Doping. It's not just for athletes anymore...

Apparently there are stories of law students (and other students) who are taking drugs like Ritalin and Adderall to help them concentrate. For people with attention disorders these may be necessary medications. For people without these disorders the effect is to give them several consecutive hours of incredible focus. Imagine what you could do academically if you could study for hours and hours straight, absorbing everything without being distracted.

However, these are prescription medications. Taking them without a prescription is illegal. They also give an unfair advantage over students who, like them, also don't have attention disorders, yet don't themselves take them. Academic performance, particularly in law school, is often judged relative to one's peers. On a final exam, my grade will not reflect how much of the material I learned; it will reflect how much I learned relative to the other people in the class. So even if I do astoundingly well, if enough people in the class did even slightly more astoundingly, they will get better grades and I will be dropped down on the curve.

That there are grading curves at all is an issue warranting serious debate. But for purposes here, if it's just a crapshoot about how people end up spread on the curve, then the system is irritating but not rigged. Also, if some people are really able to perform better, however subtly, on an exam then perhaps the curve is even somewhat valid. The problem with the concentration drugs, however, is that equally talented people will not turn in equal performances because some will have acquired an extra advantage. Any value in using grades to measure legal acuity will be compromised since they will not be measuring equivalent things.

Now, maybe there are lots of things people can do to artificially improve their academic performance. Maybe exercise helps one's concentration. So might diet or even the timely consumption of caffeine. In theory these and other similar factors may skew the validity of the grades. But their effect is likely fairly minor. And their usage does not create an unfairness since anyone could choose to use them without facing any significant consequence. On the contrary, Adderall and its ilk are illegal to take without a prescription, potentially even dangerous as well, and so can't be construed to be as innocuous a variable. People who take these drugs without the medical need gain a serious advantage over those who choose not to, while putting an unfortunate pressure on other students to do something illegal and dangerous just to keep up with their peers. Given that grades can affect the kinds of jobs and opportunities students are afforded, the stakes can be extremely high. So for students who take an unfair advantage through the use of these drugs, their behavior is hardly victimless.

The question is what to do about it. Yesterday Andrew Perlman, my legal ethics professor last semester, posted on Legal Ethics Forum some musings on how law schools could and should deal with it. He contemplated whether there should be random drug testing, and, though noting the downsides to such a plan, decided that there was enough at stake to justify it.

I respectfully have to disagree. For one, I rarely think random drug testing is advisable. Even among professions where I think it might be warranted due to physical safety concerns (like bus drivers, etc.) I still think there should be some sort of probable cause to justify the privacy violation. The risk to me if my classmates are doping is not in the least bit comparable with that kind of situation.

True, cheating is a serious matter and I don't mean to excuse bad behavior. But even as cheating goes in law school the consequences of drug-taking are more limited than other forms of cheating. Stealing answers you don't have means that the school might be graduating an incompetent lawyer who doesn't know what he needs to know to do the job. Students taking Adderall, et al, on the other hand, DO know what they need to know, because they've been able to learn it so efficiently.

I also don't mean to minimize the injustice to other students by this advantage being taken by some. But mandatory drug testing by the school is no solution. First of all, I rarely see the imposition of infantilizing authority over an entire population as being a good idea. Remember, law students are adults and it's the height of paternalism for the educational institution to claim dominion over students' bodily privacy. Furthermore, such a testing scheme would be much like the injustice of kindergarten, when one brat made it so none of the kids got recess. Given that cracking down on cheating is supposed to be in the interests of the innocent students, punishing them with the privacy-violating tests hardly seems to solve the problem.

I certainly don't want to be victimized by cheating classmates, but I'd rather get nothing but C's on the curve because my classmates are all doping than be personally subject to drug testing, no question. Grades are important for a few years, but ultimately meaningless in the long run (and they may already be meaningless in the short run as well, since it's impossible to know what they really represent). Whereas a sound right to privacy is something much more worthwhile and precious to protect.