Various Articles Lead to the Same Conclusion: Women’s Experiences in Law School are Unique

by Angela N. Johnson

Taken together, the articles reflected upon in “Hey There’s Ladies Here!” persuade the authors “that a substantial proportion of law students – many, but by no means all of them, women students – experience frustration, or alienation, or both, because of law schools’ failure to engage and develop the full range of intellectual capacities necessary for successful and responsible practice . . . legal education must be broadened and deepened to encompass neglected but important aspects of the intellectual work that legal professionals do” (Berger, et al. 1998, 1025).

“Hey There’s Ladies Here!” reflects on Becoming Gentlemen: Women, Law School, and Institutional Change by Lani Guinier, Michelle Fine, and Jane Balin, Women in Legal Education: A Comparison of the Law School Performance and Law School Experiences of Women and Men by Linda F. Wightman, Law School Admissions Council, What Difference Does Difference Make?: The Challenge for Legal Education by Elizabeth Mertz with Wamucci Njogu and Susan Gooding, and Cultivating Intelligence: Power, Law, and the Politics of Teaching by Louise Harmon and Deborah W. Post.

In explaining gender exclusion and disparity generally, the authors first explain the sociological phenomena surrounding exclusion and incorporation more broadly.  According to the authors, when subordinate groups seek inclusion they are first directly or subtly told to conform to the dominant group within which they are seeking inclusion (“retooling”).  Then, the coalition of old and new group members comes to view difference less aversively and works to understand prior exclusion and present tensions by critically analyzing the roles and practices of each group and the relationship between the groups (“taking perspective on exclusion”).  Having gained some insight into exclusionary practices, people often are able to revisit the subject of difference, bringing to it a new ability to distinguish differences that are healthy from those are malignant (“taking perspectives on difference”).  Analysis of women as a subordinated group is followed, for example, by analysis of women on their own terms.  In professional and corporate sectors, analytic aspects of perspective shift to consideration of the possibility that formerly excluded people can bring value to their enterprises.  When newcomers are given authority and use it successfully, managers are led, by experience rather than study, to rethink the implications of difference (Berger, et al. 1998, 1029-1031). This explanation is adopted by the authors as a template against which to consider recent studies of gender disparity in law schools.  Moreover, the authors state that it is their hope that a similar process will be afforded to women in law school.  However, I would argue that in many ways elements of this process have already begun.  Take for example, the appreciation of women lawyers’ efforts in the 50’s and 60’s for providing legal representation to the poor and disadvantaged (including legal aid clinics and the use of public defenders) or the newly emerging belief that women as empathetic and caring beings by nature, make particularly effective advocates. Nevertheless, the authors report the following findings from Becoming Gentlemen (Berger, et al. 1998, 1033-1040) to backup their claim that women resist retooling:

  • Research is based on quantitative analysis of extensive questionnaire and interview data of both male and female students.
  • Despite entering the University of Pennsylvania Law School with equivalent academic credentials, women perform less well than their male peers through law school.
  • 1L GPAs of women law students was 0.77 compared to a 0.93 mean GPA for males.
  • Male students graduating with a mean GPA of 1.05 and women students graduating with a mean GPA of 0.92.
  • 1L men 3x more likely than women to reach the top 10% of their class.
  • 3L men 2x as likely to graduate in the top 10% of their class.
  • 1L classroom interactions were a primary source of alienation.
  • 67% of the women surveyed reported that they never asked questions in class in their first year. (So did 44% of men).
  • 55% of women and 35% of men (1L students) reported that they never volunteered in class.
  • Self reported rates of classroom participation decreased over time – by their third year, 72% of women and 68% of men reported they never volunteered in class. Yet, by the 3L year, women were far more comfortable with their level of class participation than they were in their first year (only 28% of women said they were comfortable with their rate of participation in 1L compared to 65% of women in their 3L year).
  • 35% of women 1L’s believed that men received more class time than women when called upon; 40% believed that men received more follow-up questions.  Male responses were at rates of 1.4% and 5% respectively. 
  • 26% of 3L women as compared to 5% of 3L men believed that male faculty favored male students.
  • Women favor collaborative, rather than combative working styles.  

Women in Legal Education (Berger, et al. 1998, 1041-1047) tests Becoming Gentlemen’s premises.  According to the authors, Linda Wightman, sponsored by the Law School Admissions Council, set out to address limitations of the Becoming Gentlemen study including small sample sizes, sample bias, and over reliance on anecdotal evidence.  To do this, Wightman assembled a massive data set drawn from a national sample of students entering 152 different law schools in 1991.  Over 28,000 students completed an initial questionnaire as they entered their first year and over 6,000 students completed a second questionnaire a year later.  Due to her sponsorship by the Law School Admissions Council, she also had LSAT scores, undergraduate GPAs, and 1L law school GPAs available to her. (This study is an earlier version of Clydesdale’s 2004 study utilizing many of the same methodologies and data).  “Still, the data that Wightman has assembled tend to support Becoming Gentlemen’s central critique.  Wightman establishes, happily, that male-female performance discrepancies are not as great nationwide as they were among the students studied by Guinier, Fine, and Balin, but she confirms that the law school performance of women lags behind that f men.  Indeed, she argues that women do significantly less well than one would predict on the basis of a proper interpretation of their qualifications (Berger, et al. 1998, 1041).  Moreover, Wigthman’s data support Becoming Gentlemen’s findings that women are less comfortable in the law school environment.  However, Becoming Gentlemen takes perspective on exclusion and difference; the Wightman study maintains a quantitative approach to diversity.  Key findings of Women in Legal Education:

  • Women earned slightly lower grades than men; however less than 1 percent of the variance in first-year grades can be explained by gender.
  • 53.9% of men and 50.6% of women earned GPAs at or above the mean.
  • 1L and 2L men were 1.6x more likely to be in the top 50% of the class. 
  • Finds that the national pattern of male and female law school performance lends credibility to the findings of other research but the differences are not as dramatic as those reported in smaller studies.
  • Women consistently score lower than men on standardized tests like the SAT, GRE, or the GMAT, but consistently earn higher grades than men in every academic setting; secondary, undergraduate, or graduate.  Wightman argues, one should look to undergraduate GPA, rather than to standardized test scores or to composites of GPA and standardized test scores, as the benchmark from which to predict women’s academic performance. This is appropriate, she argues, because standardized tests consistently under predict women’s performance (Berger, et al. 1998, 1043).
  • Except at the very highest level of the grade distribution, men do better than women in law school. These data establish law school as the exceptional case: whereas in every other graduate field, women do better than men – despite scoring lower on standardized admissions tests.  In law school, women do less well on the LSAT and less well in their courses (Berger, et al. 1998, 1044).
  • After the 1L year, men rated themselves significantly higher than women in academic ability, competitiveness, public speaking, and self-confidence in academic situations. 
  • When men earned higher 1L GPAs than what their undergraduate GPAs would have predicted, they rated themselves higher on self-confidence in academic situations, but this was not true for women.
  • Women struggle with legal writing; Wightman suggests “that legal writing, as it is reflected in final exams, may account for the entire differential in grades and that both legal writing and study skills should be a focus of more research” (Berger, et al. 1998, 1046).

What Difference Does Difference Make?: New Methodologies for Taking Perspective is written by Elizabeth Mertz, utilizing sociolinguistics to take perspective on women’s exclusion from law school classroom discourse (Berger, et al. 1998, 1047). Unlike many other self-reported survey-based research, Mertz observed, videotaped, and transcribed every class in eight contracts courses in eight different law schools throughout the country.  The authors of this review do not state why a contracts course was chosen (beyond the fact contracts is a 1L ABA-required standardized course, like many other 1L courses).  Linguistics are used to test Mertz’s hypothesis: that rather than overt discrimination, women are discouraged from classroom participation from subtle interactions (assuming language often serves to exclude in invisible ways – through miscommunication, misunderstanding, and indirect cues about value and privilege).  Mertz also looked at the prestige of the schools at which the classes were taught and those at which the professors had been trained.  Key findings include:

  • Male students participated disproportionately more than female students in six of the eight classes.
  • The two classes in which women participated disproportionately more than men were those taught by white women in local schools and that the class with the ratio of participation most favorable to men was the class taught by a female professor of color in an elite institution (these findings suggest a possible effect of school prestige). 
  • In classrooms in which women speak disproportionately more than the men, the discrepancies were small – often smaller than those of the most inclusive male-dominated classes (discrepancies favoring men were much greater than the discrepancies favoring women).
  • Three classes taught by white men who had been trained in elite schools and were teaching in non-elite schools were the most Socratic; the two classes taught by professors of color who had been trained in elite institutions and were teaching in elite schools were somewhat Socratic; and the two classes taught by white female professors trained in regional or local schools and teaching in local schools were the least Socratic. (Socratic was defined as all exchanges of four or more turns).
  • The two least Socratic classrooms had the ratios of participation most favorable to women; however, the classroom with the ration of participation most favorable to men was only somewhat Socratic.

Cultivating Intelligence, by Deborah Post and Louise Harmon (both professors of law at Touro College), hypothesized, based on their own experiences in the classroom, that law school teaching was poorly attuned to the concerns and learning practices of many of their students, regardless of gender, and that it did not adequately prepare students to meet the professional and ethical demands of practice (Berger, et al. 1998, 1055). This study is unlike many others in that rather than focusing on gender, the authors looked to a broad range of working and learning styles represented in their study body.  Post and Harmon argue that law schools disservice all students by emphasizing one kind of intelligence or one cognitive style to the exclusion of all others, when the practice of law allows, and in fact probably requires competency in a much wider variety of both (Berger, et al. 1998, 1056). Harmon realized that after teaching property law for over ten years, there seemed to be no set goals of what the students must learn.  Moreover, her students were ill-prepared for the exams, largely because no stated goals or “take away” points were clarified.  Harmon remedied this by providing a guide much like the commercial law exam preparation materials that summarized everything they must know by the end of the course, including definitions of some of the legal terms.  Next, she added a midterm exam which she graded as 25% of the entire course grade and returned with thorough feedback.  Lastly, Harmon allowed students who succeed better when they are given more time and a relaxed environment to reflect on what they have learned thus far, which was achieved by a paper worth another 25% of the course grade.  The remaining 50% of the course grade was hinged on the traditional final exam.  From a teaching perspective, this course was a resounding success.  Harmon had provided students with multiple opportunities for feedback and evaluation, and students had the chance to demonstrate a broad range of knowledge and skills.  However, the additional work spent on grading exams and papers left her with little work for her scholarly demands. Post on the other hand, focused on the goal of producing legal problem solvers and students need to understand that as problem solvers, lawyers necessarily make political choices and moral choices.  Therefore, students should think about the relevance of their own values and beliefs to practice and consider what justice means and to understand the imperatives of justice.  With this in mind, Post decided to implement a modified Socratic pedagogy by providing “innumerable occasions to point out the connections between ideas and have the connections that others see revealed  . . . intellectual and moral development are valued, and students and teachers are partners in a collaborative learning process.  Teachers learn, and learners teach.  Personal experience is relevant, valued, and incorporated into the classroom dialogue as a basis for understanding that “practice necessarily includes political and moral choices” (Berger, et al. 1998, 1060).

In sum, the authors of this article reflect on previous research to argue that the gender disparity is real and conclude the article by suggesting implementing the modern teaching methods of two professors which are aimed toward improving learning for all students, regardless of gender.

Source Citation: Berger, Sarah, Angela Olivia Burton, Peggy Cooper Davis, Elizabeth Ehrenfest Steinglass, and Robert Levy. “Hey! There’s Ladies Here!!” New York University Law Review, June 1998: 1022-1063.

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