An Invisible Gender Divide on Law School Faculties

by Angela N. Johnson

According to McGinley, author of “Reproducing Gender on Law School Faculties, ” an invisible gender divide exists on law school faculties; not only are women in the minority of law school faculties, they also teach a disproportionate number of female-identified courses. Moreover, “Choice” is not the cause of the disparity between men and women law professors. McGinley argues that women will attain equal status on law school faculties only after hidden gendered practices are made visible. 

“From academic year 1998-99 to academic year 2007-08, the percentage of women law school deans rose from 10.4% to 19.8%.  Their proportion of full professors grew from 20% to 29.3% of the population.  Unfortunately, however, women represent 61.3% of lecturers and 65.4% of instructors.  In contrast, men represent the vast majority of high-paying and high-prestige positions, 80.2% of deans, 70.7% of full professors, but a minority of low-paying and low-prestige positions, 38.7% of lecturers and 34.6% of instructors” (McGinley 2009, 102-103).  Though women law graduates are continuing to increase in proportion to male graduates, McGinley points to Vicki Schultz’s study indicating that “choice” of employment is shaped by the work environment and that women react to opportunities and conditions at work to determine what type of work they desire in the first place.  In other words, women may be more interested in traditionally male-dominated jobs if they conditions were made attractive to do so (McGinley 2009, 103).  Statistics show that women have a disincentive in choosing legal academia as a career choice because they are more likely to earn lower-pay and teach less prestigious courses. This disparity in legal academia mirrors higher education disciplines as well.  For example, “women predominate in institutions with less status and pay like community colleges and in jobs that are either part-time or not on the tenure track” (McGinley 2009, 104, citing Judith Glazer-Raymo, The Feminist Agenda: A Work in Progress, in Unfinished Agendas: New and Continuing Gender Challenges in Higher Education 1, 5-9 (Judith Glazer-Raymo ed., 2008)).

McGinley explains that she does not believe law schools purposefully discriminate against women faculty either in hiring practices or otherwise but argues (supported by social science research) that structures and practices unintentionally create barriers to the careers of women faculty members.  These gendered practices must first be revealed so that schools may self-examine and eliminate gender segregation on faculties. One cause of the unintentional and unconscious disparity can be found when examining masculinities studies which claim traditional family structures transfer into the workplace and that both men and women unintentionally apply different standards to women and men who work in “male” jobs (McGinley 2009, 109). Such studies which test the reactions of participants examining resumes of men and women for jobs identified as requiring “male” characteristics exemplify the unconscious disparity humans (both men and women) place on men and women applicants. Moreover, society continues to place stereotypical ideas about women’s personalities and roles in society (as being delicate, sensitive, sharing, and communal) and the men’s personalities and roles (assertive, controlling, confident, aggressive, independent).  Society further categorizes professions into gendered roles – such as leadership roles requiring assertiveness, confidence, aggression – characteristics society associates with men.  What is worse is that when women exhibit “masculine” traits such as assertiveness, they are viewed negatively; this is in conflict with the social norm. This conflict can exist “in the law school environment, this dynamic sometimes plays out when competent women assert themselves and make their voices heard on appointments and promotion and tenure committees” (McGinley 2009, 116).  Additionally, women and men may expect different behaviors of themselves depending on their gender.

The disparity of women on law school faculties begins in the application process but once hired, disparity exists during the appointment process – women hires consistently began at tenure-track teaching as assistant professors – yet men with comparable ages, credentials, and work experiences began their tenure-track careers as associate or even full professors.  Interestingly, having a non-employed domestic partner separately increased the chance of men and women attaining appointment at a higher rank (McGinley 2009, 117).  Women were less likely than the male hires to have a non-employed spouse; meaning women are especially disadvantaged.

Once hired, all faculty members must comply with conditions of employment.  McGinley argues these conditions are harsher on women faculty than men.  For example, the period of tenure-track typically occurs between the ages of twenty-seven and thirty-seven – a time when the typical male is socially constructed to be the breadwinner while his wife works extremely hard to care for the family.  For a woman, these years are prime “childbearing” years and due to the extreme physical, emotional, and time demands this schedule harms tenure-track success of women who have children (McGinley 2009, 120).  Moreover, while society rewards a man who devotes his time to his career, society views a woman who spends the same amount of time working as harmful to her family.  In additional to traditional societal roles, women may choose to put career goals on pause to raise a family in part because men have internalized the societal message of their role of “breadwinner” and men who stay home with children pay an even higher career price than women who do so, and men seem to take more time returning to their careers (McGinley 2009, 122, citing Sue Shellenbarger, Men on the Daddy Track Find a Place of Their Own at Home, Wall St. J., Nov. 8, 2007).

To further demonstrate the impact holding gendered jobs has on the job holder, McGinley cites Jennifer Pierce’s Gender Trials: Emotional Lives in Contemporary Law Firms comparing the job roles of both male and female paralegals.  For example, female paralegals’ job evaluations depended in large part on their demeanor and ability to treat others pleasantly in very stressful positions.  They were also expected to provide emotional support and to reenforce their male supervisor’s masculinity.  Male paralegals evaluations were focused on the ability to provide gossip or political information and they were not expected to shoulder their supervisor’s emotions.  The female and male paralegals also had very different responsibilities and the male paralegal was often mistaken by outsiders and clients for attorneys.  Male paralegals also had greater access to power and authority than thefemale paralegals and were presumed to be on their way to law school.  Female paralegals in contract were mistaken for secretaries and in some instances were asked to type documents for other attorneys (McGinley 2009, 126-127). The reason for McGinley providing this example is to reflect the gendered roles within the same position – which can be applied to law faculty. For example, female faculty members reported meeting with students to discuss assignments but concluded by discussing student’s non-scholwork problems.  Further, the McGinley argues that the majority of the mentoring of students falls on womenfaculty members, leaving them less work to devote to completing conditions of their employment.  Additionally, legal writing faculty are typically required to maintain an “open door” policy so as to serve as a writing clinic rather than a professional faculty member with office hours and who during non-office hours deotes their time oclass preparation or scholarly pursuits.  The fact that women comprise an overwhelming majority of legal writing faculty further demonstrates the unequal burden on women. Legal writing is not the only gendered course in legal academia; courses that have traditionally female traits such as trust and estates, advocacy, family law, and clinical experiences are held by a majority of women faculty – sometimes as high as 80% (McGinley 2009, 138).

Students also have different expectations of their faculty based on gender; for example females are stereotyped as more communal and thus students expect female professors to be more caring and communal than their male counterparts and more helpful to students.  Moreover, when considering expectations as injunctive norms, students judge women harshly whose teaching and student contact do not meet their gender roles (McGinley 2009, 139). Similar to studies of college level student evaluations of faculty members; women faculty receive harsher evaluations that are more tied to appearance. Identical behaviors of faculty members are received differently. “Men who engage in eye contact are considered to be credible whereas women who use eye contact are considered coercive.  A man who acts in a relaxed fashion will have credibility and be judges to have legiimate power.  A woman who acts reaxed will reduce the viewer’s estimate of her power” (McGinley 2009, 140).

In Sum, McGinley argues that by reproducing gender through structures and practices of the law school, certain groups of persons are elevated over others, creating opportunities for some and barriers for others.  This structuring is invisible because society, in general, accepts the stereotypical workplace structure as the definition of “work” and does not realize that there are plausible alternative structures that may have less of a gender effect. To mitigate the invisible problem, law schools should be conscious of hiring patterns and the ranks of the faculty hired as well as whether disproportionate pay and/or prestige are being assigned to women hires.  Law schools should also consider establishing flex-time toward the tenure track that would permit a parent (father or mother) to stop the clock for a few years while he or she is caring for a child.  Additionally, faculty members who serve on committees and serve as chairs should receive liberal release time and lower course assignments that allow them to do their scholarly work.

Source Citation: McGinley, Ann C. “Reproducing Gender on Law School Faculties.” Brigham Young University Law Review, 2009: 99-155.

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