Althouse: "The professor, David Berkovitz, who teaches business law... filed a lawsuit against an unnamed group of his students... to force the website, Course Hero, to identify those who uploaded the exams...."

March 18, 2022

"The professor, David Berkovitz, who teaches business law... filed a lawsuit against an unnamed group of his students... to force the website, Course Hero, to identify those who uploaded the exams...."

"If successful, Professor Berkovitz plans to turn over the names to Chapman’s honor board.... Because Chapman’s business school requires grading on a curve, Professor Berkovitz is worried that students who cheated may have unfairly caused their classmates who played by the rules to receive grades lower down on the curve.... Course Hero, which is not named as a defendant in the suit, said it would comply with a subpoena...."

From "Hoping to Identify Cheaters, a Professor Sues His Own Students/David Berkovitz, who teaches business law at Chapman University in Orange, Calif., sued an unnamed group of his students — identified only as 'Does' — after he discovered that his midterm and final exams had been uploaded to a popular website" (NYT).

45 comments:

rehajm said...: Not to sabotage early but I’ve yet to hear a compelling reason to grade on a curve. I suppose it’s because I’m thoroughly confused about what secondary education sees as its primary reason for existence and/or why people attend college in the first place…; 3/18/22, 6:30 AM
EH said...: Seems like an abuse of the legal system - suing with the purpose of being able to subpoena the website, so you can turn the names over to the school for discipline.; 3/18/22, 6:31 AM
John henry said...: Another example if why grading on a forced curve is such a stinko idea.

I'm glad my schools (SNHU, pupr, iau) never thought that was a good idea. I probably would have had a very short teaching career otherwise

John LGBTQBNY Henry; 3/18/22, 6:37 AM
rehajm said...: Isn’t it common knowledge your fraternity/sorority maintains a file cabinet full of the old exams? What kind of bug bit Professor Spoilsport here?; 3/18/22, 6:37 AM
Critter said...: If he succeeds I can see more of this type of lawsuit, but the new ones turned against teachers on the left for discriminating on grades against students who do not regurgitate their Marxist and CRT crap. Ambulance, meet chaser.; 3/18/22, 6:42 AM
Another old lawyer said...: Can't read the article because I won't subscribe, but are the posted exams old and cold or are some students still taking those exact same exams in the current semester? My impression is the latter.

If the former, at my law school, professors made prior semester exams available in the law library, and the campus Kinko's also had copies of prior semester undergrad exams.

But it's a whole new world in testing. I spent some time with a 1L a few years ago, and was shocked at how much my law school's testing had changed. When I went, it was a "sit in room and write" exam of a duration equal to the class' credit hours. This 1L had taken home exams that lasted 24 hours, 48 hours, even a week before it was due to be turned in.

Only one professor he had was old school- my property professor, who was appalled when a student asked about bringing in an outline to the exam.; 3/18/22, 7:04 AM
Tom T. said...: What's the cause of action? If it's violation of copyright, does he own the copyright on the exams individually, as opposed to the university?; 3/18/22, 7:04 AM
Jody said...: Argument for grading on a curve - assume a) non-standard and potentially widely varying grading across classes, b) not all students take all classes, c) you want to accurately rank students.

Then you need a curve (or similar conversion from nominal grades to ranks) to achieve the goal in c.

As noted there are cons to it, but that's may are inherent to Goodhart's Law.; 3/18/22, 7:09 AM
Now is the winter of our discontent made glorious summer by this son of New York said...: I am still bitter about the time I was the only one in the class to get a certain question right on an exam, and the prof was talked into throwing it out, knocking me down from an A to a B. Not that it mattered, I learned what I needed to from that class, not so sure about the people who whined that a question was too hard.; 3/18/22, 7:15 AM
Ann Althouse said...: "Not to sabotage early but I’ve yet to hear a compelling reason to grade on a curve. I suppose it’s because I’m thoroughly confused about what secondary education sees as its primary reason for existence and/or why people attend college in the first place…"

You're probably thinking of grading on a curve as a way to give students *higher* grades than they deserve. It's what the phrase means when used metaphorically.

But in law school — and I'll guess therefore business school — it is a way to suppress grade inflation and to space the students out so that the GPAs have significance.

It would be so much easier to grade if you just gave A, A-, B+, and B and saved the Cs for truly awful things. By being required to judge the exams comparatively and put some people on the bottom, you end up with a more judgmental range and confer a benefit to some students in the job search. That creates pressure on the students to do some serious studying.

It also helped that these exams were blind graded. That is, it helped stomp out the squishy empathy that would have led to real grade inflation. And it ironed out the differences between teachers. You don't have the "easy A" teacher and the hardass. Take whichever teacher you want. Your GPA isn't threatened.; 3/18/22, 7:18 AM
Temujin said...: Never heard the explanations for a grading curve before. The 'blind grading' you mentioned seems to be a very good thing, if in fact it takes place. In these days of DEI, I doubt it does. I mean, what's the point of collectivism if you cannot separate by tribe? What's the point of their version of 'equity' if you cannot control who gets bonus points and who gets deductions?; 3/18/22, 7:25 AM
David Begley said...: Creighton Law School has blind grading. A woman in the Class of 1981 “dated” a professor who taught a first year course. She failed the Bar exam three times. Per Nebraska law, she had to go back to law school and retake the course in the area where she failed in the Bar exam. It was the same course taught by her lover and which she had aced in law school.

Two Creighton law professors banged female students when I was in school. It was a giant shock to me when I found out. I guess I was a naïf.; 3/18/22, 7:37 AM
David Begley said...: Another eye-opener for me during law school was when a Big Ten law professor propositioned TWO of my female classmates at the same time. One was married and the other was engaged. Both were Catholic. At the time, Creighton had a visiting professor suite in the law school which included a bedroom. Fr. Schlegel remodeled that space and put it to good use.; 3/18/22, 7:42 AM
Heatshield said...: The best news in this report is that there are still schools striving to identify excellence and merit and to reward it. That is the core principle of grading on a curve. I had feared that universities had given up on that in favor of equity and preserving student’s feelings. I enthusiastically applaud this professor for fighting on behalf of his honest hardworking students against the cheats and liars.; 3/18/22, 7:48 AM
Howard said...: As every STEM professor who graded on the curve explained, the test was designed to be so difficult fully testing everyone to the limit by making getting 100% impossible. Fluid Mechanics was the best example of that and the exams were takehome. It also helps weed out the ass kissers and memorizes who were good at gaming easier tests.; 3/18/22, 7:48 AM
Leland said...: By being required to judge the exams comparatively and put some people on the bottom, you end up with a more judgmental range and confer a benefit to some students in the job search. That creates pressure on the students to do some serious studying.

I'm reading this after just listening to Mike Rowe's latest podcast where he and his guest talk about not sending your kid to the best of the best school, because "somebody has to be in bottom quartile". It's not to say those who rise to the top at a very good school aren't something special (assuming they didn't cheat), but that the mediocre face crisis of confidence and may perform worse than had then been in an environment where they excelled.; 3/18/22, 7:54 AM
James K said...: But in law school — and I'll guess therefore business school — it is a way to suppress grade inflation and to space the students out so that the GPAs have significance.

It would be so much easier to grade if you just gave A, A-, B+, and B and saved the Cs for truly awful things.

Yes, when I taught at a business school there was a strict curve to suppress grade inflation. With large classes, an experienced profess knows the level of difficulty of the exam so that the required distribution of grades is accurate.

The only other legitimate reason for a curve is that some exams can unintentionally end up being a little harder or easier than normal. If you have a large class and your exams normally have an 85 average, and one semester it turns out to be 75, you might infer that the exam was harder than normal and make an adjustment. But even that is not a strict curve. And it doesn't apply to small classes where there might be more variation from year to year. It also doesn't apply to more advanced electives that attract the strongest students, where it makes no sense to give a fixed percentage of the class Bs or Cs.; 3/18/22, 8:03 AM
John henry said...: The problem with grading on a curve on an exam is that there may be actual right and wrong answers.

What do you do if everyone gets the right answer?

I had no problem giving everyone a A on an exam. Or a c. What I would have had a problem with would be being asked to make sure my grades made a pretty curve.

My default grade was a B+. Students earned their way up and down from that.

And I didn't give the "truly awful students" a C. I gave them a D or an F if they deserved it.

John LGBTQBNY Henry; 3/18/22, 8:06 AM
John henry said...: If this is too nosey, Ann, don't answer.

Have you ever given a student a F on an exam? For an entire course?

Yes to both for me. In both business and engineering classes.

Do/did UW's curve policies permit that?

John LGBTQBNY Henry; 3/18/22, 8:16 AM
John henry said...: I got my MBA from interamerican University in 79.

A requirement for graduation was passing (75% iirc) a "comprehensive exam" this was a full day exam, twice a year, 4 hours in the morning on core courses 4 hours in the pm on concentration courses.

Questions could be from any course in the catalog whether you had taken it or not. 7 questions on each part, answer 5.

Open ended questions eg" discuss quality" using as many blue books as you wished.

First time pass rate was around 60%. Some people didn't pass in 5 attempts.

I was physically sick for several days after taking it. I knew I had failed. I sweated for a month until I got the results.

I got 81/85. I did a 2nd concentration and had to take that part again. No sweat, I breezed through in 2 hours since passing made very little difference. I already had my diploma. I passed that too.

John LGBTQBNY Henry; 3/18/22, 8:31 AM
MadisonMan said...: Why would a professor be giving exams from year to year that are so similar that this uploading is a problem? I think the professor should stop coasting and make actual new exams.; 3/18/22, 8:41 AM
Paddy O said...: Seems weird to penalize students for something they're rewarded for once in the career.

I teach fully online now and while I have tests, they are a small part of the overall grading, and are open note. I am not testing integrity but the ability to find and learn the answers to questions. So it serves as a formative review. I hope for integrity but am sadly honest about not putting temptation out there.

At the same time I appreciate the lawsuit as it makes those answer sites inherently risky like cheating should be.

If students want to think cheating is okay and safe they should go into politics; 3/18/22, 8:52 AM
Ann Althouse said...: "The problem with grading on a curve on an exam is that there may be actual right and wrong answers. What do you do if everyone gets the right answer?"

On a law school exam, that would never happen. There are multiple issues and there's range in how well you can explain things. If you really had a situation where everyone was perfect, first, I would think you didn't write a good exam! But, second, there was a path for avoiding the curve and explaining why you had to do that.; 3/18/22, 9:29 AM
rehajm said...: But in law school — and I'll guess therefore business school — it is a way to suppress grade inflation and to space the students out so that the GPAs have significance.

I was thinking more along the line of- we teach a rigorous curriculum and are so fucking good at it most/all of our students are well prepared to apply the material...

So maybe in law school it works. Having attended business school the majority of the material is of the black and white/know it or you don't-s and their application.

In the extreme example, Dartmouth used to mandate a basic computer science competency class with a standardized tests. Because of scheduling all the Comp-Sci kids end up in the same class in the Fall. Now with a curve, you do what now?; 3/18/22, 9:43 AM
NorthOfTheOneOhOne said...: MadisonMan said...

Why would a professor be giving exams from year to year that are so similar that this uploading is a problem? I think the professor should stop coasting and make actual new exams.

But changing them around would mean actually having to do a little work!; 3/18/22, 9:51 AM
Bruce Hayden said...: ‘Isn’t it common knowledge your fraternity/sorority maintains a file cabinet full of the old exams? What kind of bug bit Professor Spoilsport here?’

Last year’s tests isn’t really an issue. It’s this semester’s tests. In LS, we had past years’ tests in the library. I looked at some of them, but they weren’t really that useful. As Ann said, they were just issue spotting. I didn’t have any tests where the prof just substituted different names - they always came up with new questions.

Ok, except for 1L Contracts. I would have fully appreciated that the prof in his 40 years teaching had never practiced law, when his grading involved how many cases you could somewhat peripherally cite. One point for the case name, one for the jurisdiction, and one for something else - maybe the year. The big problem was that he was rewarding bad lawyering - in practice, you don’t memorize cases, and you really don’t cite cases that aren’t directly on point. Maybe it was in my LS, but that seemed to be the class where the profs taught us to deal appropriately with arbitrary rules. On my brother’s Contracts final, at the top of the test, the prof said don’t cite the UCC (Uniform Commercial Code). He, and a number of the other students mentioned the UCC (because it was really the better answer), just to be thorough (remember - issue spotting). He threw out any answers that mentioned the UCC. That took A tests and made them C tests, for maybe 1/3 of the class. They formally protested, but he offered an alternative - he would drop that question on the test for them if they wrote a paper for him.; 3/18/22, 10:02 AM
Douglas B. Levene said...: My law school requires grading on a curve and I think that’s the only honest way to grade law school exams. If you read enough of them, you can easily see that the answers fall on a curve. Some students write brilliant answers, catching many nuanced points and making interesting arguments. Others miss everything. Most fall in the middle to varying degrees. We’re not testing for knowledge of a fixed universe of information. Knowing the cases is part of what we test for but the smaller part. The rest is the ability to see legal problems in a confusing fact pattern and to marshall arguments for resolving those issues. As prof. Althouse says, there aren’t any “right” answers to a well written law school essay question.

I would note that this is true even at the most elite law schools. Yale likes to pretend that its students are all so good that they can’t be graded, but the fact is that there’s a curve at Yale just like at Hofstra. Some Yale students are brilliant, some are dumb as rocks, and most fall in between.; 3/18/22, 10:12 AM
gahrie said...: All of my tests for my high school history class are available online before the end of the day the first time I use them.; 3/18/22, 10:14 AM
gahrie said...: It would be so much easier to grade if you just gave A, A-, B+, and B and saved the Cs for truly awful things.

"C"s are supposed to represent the average. You're supposed to give "truly awful things" an "F".; 3/18/22, 10:19 AM
Tom Grey said...: The students who violated the honor code should be expelled.

Isn't that simple?

Then, wise people can learn from those student's mistakes - and almost certainly those students will learn the good lesson: "do not cheat".

Most folks learn from their own mistakes, wise folk learn ... from the mistakes of others.

Unpunished cheating means it's not a mistake - and if "not cheating is a mistake", the students will learn that bad lesson.; 3/18/22, 10:26 AM
Ann Althouse said...: C is a bad grade. No one thinks it really means "average." You're just pointing at an old euphemism.; 3/18/22, 10:37 AM
Bruce Hayden said...: Why grade on a curve in LS? Because of grade inflation, and that employers look to class rank for hiring, and esp for the really top jobs. When I graduated >30 years ago, entry pay for a PD was maybe $30k, while the top firms in the country were paying their 1st year associates >$100k (I think >$200k now). Ann was hired by a white shoe NYC law firm right out of a pretty good LS. That meant that she was probably very near the top of her class. She could have been a little further down if she had graduated from Harvard or Yale… How do these big firms decide who to interview, given maybe 50k law school grads a year? Very simply - they essentially have a class rank cutoff based on school rank (and hence why competition for school rank is so brutal). That may result in to top 20% at Harvard and Yale, top 15% at the rest of the top 5, 10% at top 10, 5% at top 20, etc. And if a school didn’t grade on a curve (and publish their school curve) the top law firms just ignored their grads.

At least for 1L classes, the way it worked was that the profs turned in a ranked list of test results to the registrar, with each student having a number assigned them by the registrar and a rank on the test. The registrar then applied the official curve to the test ranks, assigned grades, and then, the grades are assigned to the students based on the number assigned them randomly by the registrar. And even then, it was computerized.

I actually liked the system, because it cut a lot of the subjectivity out of grading. That meant that the penalty for me being me in class (one of the students whom the rest hated because I asked the questions that they didn’t want to) was a lot less. This was the opposite of HS English, where the As seemed to all go to the girls who sucked up to the female teachers the most. Most of whom ended up as school teachers themselves.; 3/18/22, 10:39 AM
Ann Althouse said...: When I was in law school years ago (class of '81), the grades were H, VG, and G — standing for "honors," "very good," and "good," but everyone could translate that to A, B, and C. No one thought "good" meant good. It was a C, and they were just covering up the fact that it was a C. Why wasn't a C okay, because it's just "average"?

Who grades exams and give a C as a way to say this was average?; 3/18/22, 10:40 AM
Mark said...: Very confusing news story. Poorly written. You have to read half of it to clarify that the problem is students CHEATING on the test -- posting the questions DURING the test and soliciting the answers.

Meanwhile, it is a common practice for OLD tests to be published for people to get a sense of what they are like.; 3/18/22, 10:46 AM
Dave Begley said...: Ann!

How was it then determined that you were first in your class?

At Creighton, it was a 1-100 scale.; 3/18/22, 10:58 AM
gahrie said...: C is a bad grade. No one thinks it really means "average." You're just pointing at an old euphemism.

Grade inflate much?; 3/18/22, 10:59 AM
gahrie said...: Who grades exams and give a C as a way to say this was average?

Me.; 3/18/22, 11:02 AM
West TX Intermediate Crude said...: No need to change the questions.
Just change the answers.; 3/18/22, 11:28 AM
Howard said...: When did the Son of Sam become a college professor?; 3/18/22, 11:28 AM
stlcdr said...: Stop grading on a/the curve. It's a stupid idea.

Ann Althouse said...
C is a bad grade. No one thinks it really means "average." You're just pointing at an old euphemism.

3/18/22, 10:37 AM

That's a problem with the education system: giving As and Bs to students who are average, and Cs to those that should be Fs.; 3/18/22, 12:40 PM
Rabel said...: "When I was in law school years ago (class of '81), the grades were H, VG, and G..."

I have a question. With only three grade options and about, what, 30 different classes over three years, it seems like there would be a great deal of bunching in class ranking and identifying the top performer would be difficult, particularly at the top of a highly selective law school.

So did only one student have all H's during your years? Or was the grading so tough that all those high performers were drawing VG's and G's on a regular basis?

Personal note: My wife, a brilliant person and very, very hard working student missed a 4.0 in college undergrad because she was given an A minus in a one hour biology lab.

She wouldn't dissect her frog so he teacher dinged her with the minus. I think it counted as a 3.5 on the one hour course.

It almost killed her.; 3/18/22, 12:51 PM
Balfegor said...: Re: Howard:

As every STEM professor who graded on the curve explained, the test was designed to be so difficult fully testing everyone to the limit by making getting 100% impossible. Fluid Mechanics was the best example of that and the exams were takehome. It also helps weed out the ass kissers and memorizes who were good at gaming easier tests.

My alma mater used to curve the mass required courses like multivariable calculus and linear algebra so the average was something like a B or a B- (I think in the past, before my time, it may even have been a C). One of my professors joked that he knew he had a good test when he could see a nice normal distribution in scores. Grading on small seminars was a little more idiosyncratic, I think. Some of our exams were take home open book, perhaps on the theory that the subject material isn't something where memorisation is enough. It doesn't matter how many books you have; if you don't actually understand the material, it's not going to help you (also, there was an honour code).

Alas, I hear the school has relaxed its standards considerably these days.

Regarding this case, I think the issue is more direct than last year's exams vs. this year's exams:

With courses being remote last spring because of the pandemic, Berkovitz included strict instructions with his April 2021 midterm exam and May 2021 final exam, Hankin said. In addition to forbidding students from using any class materials, notes or online resources while taking the tests, the professor instructed students that they were "prohibited from copying any part of the exam." Nevertheless, as students were taking those exams, questions from both tests were posted on Course Hero with requests for help answering them, Hankin said.

If that's true, the issue isn't so much sharing the exams (although that may be the hook for the copyright lawsuit.) It's that the students were posting the questions so they could cheat on the exam while they were taking it.; 3/18/22, 1:52 PM
Douglas B. Levene said...: @Dave Begley: Yale LS supposedly gave up grades a long time ago. Instead, it uses a Honors/Pass/Low Pass/Fail system. Yet somehow, every year, someone is the top student at Yale, and everyone knows who that is, and they get a Supreme Court clerkship and other honors. It's such a mystery.; 3/18/22, 3:12 PM
Josephbleau said...: "Who grades exams and give a C as a way to say this was average?"

In STEM grad school a B is a way of telling you that you had best go home and feed the chickens, and save some tuition money. You can get one and survive, perhaps. Most of my classes were not curved, but had a >90% = A standard. I suspect that there was some minor creative grading done when the whole class busted a final.; 3/18/22, 5:34 PM
Josephbleau said...: I am surprised that Course Hero is so willing to comply with the subpoena. It seems that their business model is enabling cheating, and giving out names will kill that.; 3/18/22, 5:37 PM