Separate But Equal (Law Schools) Is Unequal – Examining All-Women Law Schools in the 21st Century

by Angela N. Johnson

Shannan Ball’s “Separate But Equal is Unequal: The Argument Against An All-Women’s Law School” is in response to recent discussion on creating all-women law schools.  Aside from the content, I found this Note especially interesting because it was published in Notre Dame’s Journal of Law, Ethics & Public Policy.  Why is that interesting? Well for one, I have been admitted and am considering attending in August.  Further, Notre Dame was the second to the last ABA-approved law school to admit women (their first woman law student was admitted in 1969).  Why so late in the 20th Century? It isn’t that the school was especially discriminatory against women students.  Rather, Notre Dame was an all-men’s school until roughly around that same time.  So in light of the school’s history of being a gender-segregated school until just a few decades ago, I found Ms. Ball’s note especially interesting – her argument is that gendered-segregated law schools would disadvantage both male and female law students.  While not entirely relevant, Notre Dame’s gender demographics reflect a slightly lesser percentage of female students. However, due to the low-class size of 172 students (a benefit in attending NDLS which affords students a greater student-to-faculty ratio and more individualized attention), even at a 42/58% split, the difference is just 24 more males than female students (the 2010 entering class  size of 172 students had a gender make-up of 98 males, 74 females).  But this post isn’t only a plug for NDLS, so allow me to summarize Ball’s research, which I found extremely compelling and well-written:

Ball’s note first examines past failed attempts at all-women law schools to reflect the unlikely success of implementing similar institutions today.  Ball raises several substantial concerns that would be detrimental to all law schools and the legal profession generally.  “Assuming that current female professors would comprise the pool of possible professors at the all-women’s school, the already disappointing numbers of women faculty at existing law schools would drop even lower” (Ball). Ball argues that the emergence of all women law schools would actually be a step-back for gender equality in the profession.  Further, to believe that an all-women law school is necessary would require a premise that women law students are in need of remedial assistance; Ball rejects the idea that this is the case.  In light of well-known studies of women’s behavior and treatment in law school, though it is true that women participate less and seek out-of-class time from faculty less frequently, Ball provides substantial evidence that despite women comprising less than half of most law school classes, they make-up an equal number of top performers and are equally in the top-50% of their overall class.  Ball states that in some cases, women outperform their male classmates.

As a professional school, a large role in legal education is to properly prepare its students for the challenges they will face as a post-graduate professional.  Women in the profession work alongside men colleagues, opposing counsels, work with male clients, and will argue cases in front of male judges.  A same-sex legal education would “fail to prepare women for working alongside men in the future.  Women are not in need of a remedial alternative, but instead may need remedial help in the workplace if they attend an all-women’s professional school that failed to prepare them for their place and obligations in the legal profession” (Ball 203). Further, Ball argues that withdrawing women faculty and women students from law schools would adversely impact the profession as a whole because male students miss the opportunity to learn from their female classmates’ perspectives.  Not to mention the fact men will ultimately be working alongside women in the profession and should in a sense “get used to it” as law students so they may respect and cooperate with their female colleagues as opposed to discriminating against them. It is likely that male students become more aware of issues plaguing women (equal rights, parental rights, child care issues, child custody, domestic violence, etc.) and to limit that learning experience would be a mistake.

According to Ball, two legal hurdles would have to first be overcome in order to allow for single-sex legal education.  The first is that the Supreme Court would have to overturn Mississippi University for Women v. Hogan, which held that an all-women’s nursing school could not have an admission policy that excluded all males because “archaic and stereotypic notions” cannot justify discrimination (Ball 199).  The second major hurdle is Title IX; a public all-women’s law school institution would be unlikely – but Title IX of the Education Amendments of 1972 (Title IX) would still apply to private schools.  Title IX, which states “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . .for purpose of this title an educational institution means any public or private preschool, elementary, or secondary school, or any institution of vocational, professional, or higher education . . .” (Ball 200).  In other words, no federal financial aid will be given to a professional school (such as a law school) that discriminates on the basis of sex/gender.  In order for an exception under Title IX to be made either an amendment which goes against the original purpose of the law would have to be enacted or the “courts would have to condone reverse discrimination; finding that it is acceptable for women to discriminate against men.  Title IX, as an anti-discrimination legislation, oldest not support this reasoning” (Ball 201).  Rather than creating all-women law schools, Ball suggests that current law schools seek to hire more female faculty members (professors, deans, and administrators).  This gives future attorneys a female prospective and fostering respect for women, not to mention giving women students female role models (Ball 204). Additionally, more attention should be brought to fostering a comfortable classroom and learning environment; including re-examining the use of the strict Socratic Method.

In sum, Ball argues that “‘Separate but Equal’” is not equal, and women should assert their position as equals, in the law school classroom and in the profession as a whole.  Therefore, to achieve these ends, law schools should remain co-educational” (Ball 205).

Source Citation: Ball, Shannan N. “Separate But Equal Is Unequal: The Argument Against An All-Women’s Law School.” Notre Dame Journal of Law, Ethics & Public Policy (2001): 171-206.

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One Comment to “Separate But Equal (Law Schools) Is Unequal – Examining All-Women Law Schools in the 21st Century”

  1. Its really interesting to think of inequality in terms of the impact on both female AND male students (not being socialized during law school). I agree that exclusive women-only law schools would really take a step-backward in achieving equality. Great research and I really enjoy your blog. Very informative!

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