Women Law Students Equal in Number, Not in Experience

by Angela N. Johnson

Sari Bashi and Maryana Iskander say that legal education is failing women (according to their 2006 study).  This, by far, is the best work I’ve read to date. 

“Law school professors treat women differently from men, and as institutions, law schools cultivate and reward patterns of behavior that are more likely to be found among men than among women, even though these behaviors do not necessarily reflect the skills students need to be good lawyers, judges, and legal academics” (Bashi and Iskander 389). More specifically, the study revealed that male faculty members are less likely to push or challenge women’s ideas and integrate female students into class discussions.  This disengagement creates a disparate learning environment for women.  Not only does this translate to a disadvantage for women in the law school setting but this can hinder women’s success in the legal profession beyond graduation because “relationships with law school faculty members provide students with information, guidance, encouragement, mentoring, and professional credentials and contacts” (Bashi and Iskander 389). According to Bashi and Iskander, the inadvertent prejudiced against women can be lessened if “law schools reconsider what values they cultivate and reward” which will “provide a better education for women and men alike” (Bashi and Iskander 389). While it is true that women comprise close to half of incoming law school classes (and have since 2001), the authors argue that if women are to truly realize equality in the legal profession, they must become fully integrated into the law school experience.  At no point in their article do the authors make any accusation of intentional discrimination. Rather, there is an inherent occurrence of discrimination based on the way female students are treated (women are challenged less frequently in classroom settings). Further, the authors acknowledge that making changes to the law school experience is not the only barrier keeping women from fully integrating into the legal profession.  Rather, absent such transformation, full integration is unlikely to take place.

Key Findings:

        I.            Women participate in class in disproportionately low numbers and experience stronger feelings of alienation from class and classroom discussions than do men.

  1. Yet, men and women enter law school on equal footing with relatively identical undergraduate GPA and LSAT scores (if using Yale Law School as a representative example).  Even undergraduate major and the time between undergraduate study and law school are essentially the same among male and female admitted students (Bashi and Iskander 397). 
  2. The law school classroom make-up is increasing with a greater pool of female law students; yet men continue to dominate class discussions. This leads to a greater and more rewarding academic and professional relationship with their faculty members (Bashi and Iskander 403).
  3. In the authors’ study, results reflected that “fewer overall classroom comments, questions, and responses come from women, and fewer individual women participate in each class” (Bashi and Iskander 405).  Less frequent participation can lead to alienation and less relationship-building with faculty members. However, female participation increases in classes taught by female professors (Bashi and Iskander 405).
  4. During the study, the student body makeup was 46% female and 54% male; yet “the average number of times that a male student spoke in class was 38% higher than the average number of times that a female student spoke in class” (Bashi and Iskander 405). In classes with greater overall class participation, the gender disparity was even greater; men were 52% more likely than women to speak in class. Among student volunteers to participate in classroom discussion, male students volunteered to speak 40% more than female students (Bashi and Iskander 406).
  5. Female students tend to cluster in classes taught by women and more women chose courses addressing discrimination or gender; whereas men tended to choose business law courses (Bashi and Iskander 404). 

                            i.      While there may not immediately appear to be a problem with this, Women comprise just one-third of law school faculty members, where they are concentrated in non-tenured positions.  Further, just one-third of candidates for law teaching jobs are women (Bashi and Iskander 394).  So if the reason why female students are preferring courses taught by female professors, they are limited in the scope and number of courses offered. On the other hand, it could be that female students are naturally interested in the same subjects taught by female professors, without consideration to classroom experience or comfort being sought when choosing courses taught by a female professor.

  1. Professors report that male students tend to speak more aggressively, more often, more quickly, and for a longer period of time.  Women, on the other hand, tend to use an apologetic, polite, self-effacing tone and are non-assertive and non-argumentative.  A female professor observed that while male students tend to jump to interrupt lectures, female students tend to preface their questions with self-depreciating caveats such as, “I’m sorry, I didn’t get this …” The professor even recalls one student who consistently stated, “I’m really stupid, but . . .” prior to her questions yet she wrote an outstanding exam in the class (Bashi and Iskander 407-408). 

                              i.      “Faculty members did not report that women students are less prepared for class; one female professor noted that while volunteers in her class are disproportionately men, male and female students demonstrate the same level of preparation, confidence, and intelligence when she calls on them without warning” (Bashi and Iskander 408).

     II.            Professors treat female students different from male students in ways that impair women’s engagement in classroom learning.

  1. The average number of times that a male student is asked to speak without volunteering is 17% higher than the average number of times that a female student is asked to speak without volunteering (Bashi and Iskander 407).

                              i.      One possible explanation is that professors have a tendency to cold-call on students who have already volunteered to speak in class and have proven to be comfortable in such situations.  Other observations within this study show that men volunteer more frequently than women – therefore men would make-up a higher percentage of the “pool” of students who previously volunteered to speak.

  1. “Male faculty members are less likely to push or challenge women’s ideas, to joke with them, or otherwise to integrate them into class discussions” (Bashi and Iskander 409).  In fact, the study revealed that sixty-eight percent of male students and seventy-six of female students observed a difference in the way professors address men’s versus women’s comments or questions.

                             i.      Several students characterized faculty members’ treatment of women as gentler or more patronizing; often challenging the responses of male students and treat men “tougher” than women. Women on the other hand are handled “delicately.”

                            ii.      In the faculty survey portion of the study, faculty acknowledged that male students tend to be more to-the-point in their responses to professor questions whereas women tend to preface their questions and offer additional reasoning in support of their response – a difference which could lead professors to subconsciously prefer to call on male students. By preferring responses typically offered by male students (regardless of gender, and only focusing on the behavior), professors are rewarding behavior naturally found in males.

                              iii.      Several faculty responses included that male faculty take care not to offend or “tease” female students by treating them the way they treat male students (Bashi and Iskander 411).  The actions of the professors are out of concern for female student’s comfort in the classroom, not to offend them (Bashi and Iskander 412).  However, this friendly relationship furthers the cycle of male faculty (which comprises 2/3 of law school faculty) and male-students camaraderie; making male students more likely to receive additional out-of-class help from professors.  Further, it under-engaged women and makes them less prominent in the class. Moreover, I deprives the class (male and female) of contributions to the discussion from a different perspective.  

   III.            Professors are responsive to certain kinds of student behavior that are more likely to be displayed by men than women but that do not necessarily enhance learning or adequately reflect the skills that students need to become good lawyers.

  1. Male students tend to be “space grabbers” and less mindful of other students’ feelings of how class time is spent or opportunities for others to speak. Whereas female students tend to be over-polite and careful to steal valuable class time (Bashi and Iskander 413-414).  However, when men speak more frequently, thereby demonstrating their obvious comfort for speaking in class, professors are more likely to cold-call those same speakers when wanting to engage in classroom discussion.
  2. “Some scholars argue that women are raised with a sense of self more oriented to relation and affiliation and thus temper their individualism with regard for others” (Bashi and Iskander 414).
  3. While willingness to provide quick, vigorous responses and engage in argumentation is important for court appearances, “lawyers spend far more time negotiating, mediating, and working collaboratively – practices that require listening, attention to nuance, and considered responses” (Bashi and Iskander 415).

  IV.            Male students experience greater ease and success in developing professionally beneficial relationships with faculty members. 

  1. At least some male faculty members, because of discomfort, inadequate mentoring models, and/or fear of impropriety, create distance from female students in ways that inhibit the transmission of professionally useful information and guidance.
  2. “Diminished participation in the classroom impairs the ability of female students to build valuable relationships with faculty members; and diminished participation in the classroom deprives women of opportunities to engage and debate ideas, to practice legal arguments, and to develop confidence in their abilities” (Bashi and Iskander 415).
  3. Classroom participation is the foundation for relationships with members of faculty and male students are more likely than female students to speak to professors after class.  Further, “a consequence of women’s diminished classroom participation is the effect it has on women’s attitudes toward law school, the law, and their abilities to succeed professionally” (Bashi and Iskander 417).  Classroom participation is an excellent way to not only engage in the subject matter and remain attentive to the material but also to build confidence and improve verbal skills. Refraining from participation is a lost opportunity to develop professionally.

     V.            Women are less likely to form meaningful relationships with a faculty mentor and are underrepresented in areas where faculty advocacy, mentoring, and guidance are particularly important: legal publications and academia.

  1. “A student’s educational experience and sense of herself as a lawyer is enhanced by the encouragement and affirmation of a faculty mentor or advocate  . . . Developing relationships with law professors is part of a student’s socialization into the legal profession” (Bashi and Iskander 418).
  2. When students were asked to gauge their discomfort level in approaching faculty members men were “much more likely than women to feel “very comfortable” approaching faculty members, while women are more likely to feel “very uncomfortable” in doing so” (Bashi and Iskander 420-421).
  3. “A male student commented that ‘during designated class or office hour times, I feel as though the professor is essentially on my time.’  Female students, however, rarely expressed a preference for face-to-face contact during office hours and found it more challenging to maintain an easy flow of conversation with visiting with a professor in person” (Bashi and Iskander 420).
  4. Not surprisingly, more women report having a female faculty mentor, however if just 1/3 of faculty are women, women faculty are taking-on a disproportionate share of law students (Bashi and Iskander 423). Further, women tend to regard a member of the faculty as a “mentor” only after serving as a research or teaching assistant, writing a paper with the faculty member, or participating in a small seminar course with the faculty member. Men, on the other hand, are twice as likely to list class participation as the basis on which they found a faculty mentor (Bashi and Iskander 423-424).
  5. When examining participation in the Yale Law Journal, women were involved much less than men.  This stems not only from the fact women are applying for Journal and Board membership in lower numbers, but also the acceptance rate for women was just 8% (compared with 35% for men) (Bashi and Iskander 425).  “The low acceptance rate appears to be in large part due to the fact that women did not re-submit after experiencing initial rejection.  Sixty-three percent of the notes eventually published were rejected the first time and accepted only after resubmission.  Thirty-seven percent of initially-rejected male-authored notes were re-submitted, in contrast to 12% of initially-rejected female-authored notes” (Bashi and Iskander 426).
  6. Only in 1995, when the Yale Law Journal specifically sought recruitment of women and students of color did the participation of minorities increase, however women’s proportional participation declined in subsequent years (Bashi and Iskander 425). 
  7. Because note publication is seen as a prerequisite for a later career in academia, women’s disproportionately low student note publication rate predicts their underrepresentation as legal academics (Bashi and Iskander 426).
  8. Students interested in academic jobs, which are highly competitive, can find a greater chance of success through the mentoring of faculty members who serve as role models, recommenders, and writing coaches. As discussed previously, women are less likely to seek-out such mentorships, and thus are hindered in their pursuit of academic employment (Bashi and Iskander 426).
  9. Male faculty concerns over the appearance of sexual impropriety translate to a tendency for male faculty members to interact less often and less closely with female students – thereby disadvantaging women students.  One professor reported that he feels very comfortable joking with a male research assistant and even speaking with the student on a personal-level but describes his relationship with his female research assistant as being at “arms length;” careful to not joke or ask personal questions (Bashi and Iskander 429). Another professor offered there is “fear on both sides,” harassment on the part of the student, and of an accusation of harassment on the part of the professor (Bashi and Iskander 430).
  10. Self-replication may be partly to blame; male students may see themselves within the professor just as male professors may see an opportunity to mentor a student that reminds the faculty member of himself. Of course the trouble is that with 2/3 of the faculty being male, more male students are benefitting by “self replication.” This highlights the need or a diverse faculty. However, the authors note that falling back into comfortable paradigms of familiarity may not be the best approach; rather, students would benefit more greatly from focusing on interests within the law as opposed to gender or ethnicity.

  VI.            Women are equally capable for the study of law, yet do not succeed academically as well as men.

  1. Despite women typically entering law school with higher undergraduate GPA’s than men, women receive lower grades in law school than their male counterparts, at least at “elite” law schools (Bashi and Iskander 401).
  2. “Women are more likely to exhibit certain characteristics that are undervalued in law school.  Law schools reward behaviors more commonly displayed by men and do not reward other behaviors more commonly displayed by women” (Bashi and Iskander 432). Male law students tend to “rush to the podium” after class or visit professors during office hours but do little to prepare in advance, whereas several female students in the study felt a need to prepare and gather their thoughts prior to taking professor time.  The latter behavior is a valuable characteristic for any lawyer, but tends to discourage students from seeking the assistance of the professor or taking advantage of office hours which could yield valuable insight on exam preparation. 
  3. “Unsurprisingly, given the genesis and history of the legal profession, law schools neglect cognitive skills traditionally associated with women, including contextual reasoning, relational skills, and narrative intelligence.  I failing to value or teach so many of the skills that lawyers actually need, law schools do a disservice to all students, but particularly to female students, whose strengths are more likely to be overlooked” (Bashi and Iskander 435-436).
  4. Solutions
    1. “Professors should ensure that active learning occurs, whether they do so through non-coercive cold calling, panel discussions, “on-call” systems, response papers, chat rooms, or other creative means.  We do not suggest blithely instituting Socratic questioning in which professors play a game of “hide the ball,” sometimes by humiliating students” (Bashi and Iskander 437).
    2. “Hiring a more diverse faculty would create a wider variety of classroom environments and, as a result, foster a rich array of voices in discussions” (Bashi and Iskander 441). Further, if it is true that faculty and students of the same gender feel more comfortable entering into a mentoring relationship, having a greater number of female professors will lead to greater opportunities for female students.

In sum, this article brought a breadth of knowledge on women’s acceptance in the legal profession.  If women’s equality is not institutionalized at the entering stages of all legal professionals’ careers (law school) then it doesn’t seem possible for women to achieve equality entering the legal profession.

Source Citation: Bashi, Sari and Maryana Iskander. “Why Legal Education is Failing Women.” Yale Journal of Law and Feminism (2006): 389-449.

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