Rhode, D L --- "Midcourse Corrections: Women in Legal Education" [2004] LegEdDig 38; (2004) 13(1) Legal Education Digest 8

Midcourse Corrections: Women in Legal Education

D L Rhode

[2004] LegEdDig 38; (2004) 13(1) Legal Education Digest 8

53 J Legal Educ 4, 2003, pp 475–488

On the sunny side of the story, the numbers speak for themselves. Until the 1970s, women accounted for no more than three percent of law students, and women faculty were noticeable for their absence. Yet in law, as in life, we are not all living happily ever after. Women, particularly women of colour, remain under-represented in positions of greatest status, reward, and influence.

Affirmative action, which has played an essential role in promoting racial and ethnic diversity, is under siege, and its future is by no means secure. There is, in short, progress yet to be made. This is not, however, the story emerging in most mainstream portrayals of contemporary legal education. Rather, the conventional view is that ‘the woman problem’ has been solved and equal opportunity is an accomplished fact.

The story starts, of course, with exclusion. For most of this nation’s history, both formal policies and informal norms assumed that law was unfit for women and women unfit for law. A related concern was that women’s exposure to professional pursuits would result in infertility, frigidity, and ‘race suicide’.

Other rationales for women’s exclusion from law school were more pragmatic. Some faculty and administrators worried about distractions for male students in the classroom and opportunities for unchaperoned interchanges in the library. Women of colour faced additional obstacles. De jure and de facto discrimination left most racial and ethnic minorities without the educational background that would equip them for application to law school.

Both the formal policies and the informal practices excluding women applicants began to change during the mid-twentieth century, although not until 1972 did all ABA-accredited schools remove bans on women students. Opportunities for students of colour also dramatically improved during the 1960s and 1970s. The civil rights movement and urban unrest created new concerns about racial equality.

Yet during this second phase of women’s experience in legal education, equality in formal policies did not make for equality in daily practices. Demeaning and discriminatory treatment were common occurrences. In many law school classrooms the not so subtle subtext was that women should be seen but not heard. At many institutions the ‘potty problem’ was a serious inconvenience. Female students and staff had to make do with an inadequate number of inaccessible facilities.

Other inequities had more enduring consequences. Discrimination in the placement process was less the exception than the rule. Other legal employers were simply apologetic. It apparently did not occur to law school administrators that they might actually do something to discourage such discrimination by denying interview facilities to employers who engaged in it.

Women have now reached a third phase in legal education that is marked by several distinctive features: a dramatic increase in numbers, a pronounced decline in overt discrimination, and a greater understanding of the more subtle dynamics that institutionalise inequality.

Despite substantial progress, equal opportunity in legal education remains an aspiration, not an achievement. Female students and faculty are often subject to the same double standards and double binds that women encounter in other professional settings. Women also assume a disproportionate share of academic ‘housekeeping’ work that interferes with the time available for scholarly research.

Women’s disproportionate family responsibilities also carry a cost when pitted against substantial research, teaching and committee obligations. Women’s unequal domestic and academic service burdens also reduce the time available for the informal networking and mentoring that are often critical for career advancement. Considerable evidence also suggests that women of colour are under-represented in student bodies relative to their undergraduate performance and academic potential. Without adequate racial and ethnic diversity among faculty and students, prospective lawyers lack the informed classroom interchanges and understanding of multiple perspectives that are critical to practice within an increasingly multicultural world.

At this historical moment, adequate diversity is impossible without some racial consciousness in admissions and hiring decisions. Ironically enough, formulas based on grades and standardised tests that were once introduced to limit such preferences and equalise opportunities are now having the opposite effect.

Addressing the under-representation of women and minorities is only part of the challenge facing legal education. The marginalisation of women’s classroom participation is compounded by the marginalisation of issues concerning race, gender, and sexual orientation in core curricula, as well as the disparaging treatment of students and faculty who introduce such concerns.

Equalising opportunities for women in legal education will require reforms on several levels. An important first step is for legal educators to evaluate the performance of their own institutions. To that end, law schools need formal structures with explicit responsibility for addressing diversity issues. That responsibility should include gathering information about the experience of women and the adequacy of policies and practices that affect them. Among the policies that need careful consideration are those governing affirmative action.

Similar considerations argue for closer scrutiny of senior faculty and administrative appointments. Law schools need to identify and address factors that disadvantage women, such as: unconscious bias in faculty and student evaluations; disproportionate counselling and administrative burdens; insufficient mentoring; inadequate work/family policies; and devaluation of scholarship related to race, gender, sexual orientation and related topics.

This is not a modest agenda. But neither does it exceed our grasp. In just a few decades, the experience of women in legal education has been transformed. The challenge now is to build on that legacy and to make equal opportunity an educational priority.