Resnik, J --- "A Continuous Body: Ongoing Conversations about Women and Legal Education" [2004] LegEdDig 53; (2004) 13(2) Legal Education Digest 7

A Continuous Body: Ongoing Conversations about Women and Legal Education

J Resnik

[2004] LegEdDig 53; (2004) 13(2) Legal Education Digest 7

53 J Legal Educ 4, 2003, pp 564–577

How has the conversation changed? That was a central question animating a conference — Taking Stock: Women of All Colours in Legal Education — convened in 2003 by the American Association of Law Schools and by the Section on Legal Education and the Commission on Women of the American Bar Association. Indeed, the same institutions — the AALS and the ABA — had convened a similar conference, The Voices of Women, more than a decade earlier in New York City.

In the early 1970s, women constituted less than 15 percent of the law student population and less than five percent of the professoriate, and they were barely present in law firms and on the bench. Law students had no casebooks about women and law, and few classes on women in law. Women themselves lacked legal recognition of their entitlement to participate, equally, in civic life. By 2003, through the efforts of women and men of all colours, substantial and real progress had altered the fabric of law, the legal profession, and legal education.

One measure of change comes from within law school classrooms. The percentage of women students now ranges from 40 to 60 percent. Further, students on many campuses have undertaken original research about the effects of gender on law school life. These empirical studies join a rich body of work documenting problems stemming from bias in courts, in the legal profession, and in the academy.

Why should the topic of the roles of women of all colours in legal education still be an organising principle of discussion? Were gender, race, and ethnicity only questing after equality, the answer would be that equality has not yet come into being. But gender, race, and ethnicity are more than variables; they are ideas — concepts that organise societies. Therefore, they pose central questions for thinking about law. The legal academy has to address how assumptions about gender, race, and ethnicity shape the law and, in turn, about what role law plays, has played, and should play in making those concepts meaningful.

First, as many have documented, while the percentage of women as law professors has grown, that number has not kept pace with the pool, as measured by white men of comparable age and academic achievement entering jobs enjoying comparable prestige under traditional formulations. While the joys of some of these jobs are great, the benefits of such jobs — as measured by security of tenure, pay, other forms of compensation, and authority within law faculties — are not. Looking to university teaching more generally, a recent nationwide study of PhDs found that, 12 to 14 years after receiving a PhD, tenured women are less likely to have children or to be married than tenured men.

The second response to the question ‘Why, again, a women’s conference?’ is that students continue to report that gender, race, and ethnicity affect their daily experiences of law school and their career paths thereafter. In addition to case studies of a particular law school, other researchers look across different law schools in an effort to control for individual variations. Those studies looked at classrooms in which women were not yet 50 percent of the students. But more recent work suggests that the changes in the number of women students have made fewer inroads into classroom dynamics than one might assume. The data on the structure of law schools as employers and as educators demonstrate that law schools play a role in the production of gender as a category of analysis. For students and teachers, gender remains an organising principle of their experiences and sometimes of success.

A third response to the question of why to continue the discussion about gender, race, and ethnicity stems from the content of the curriculum. The intellectual integration of the concepts of gender, race and ethnicity into the legal academy remains far from complete. The relationship between gender and federalism has now become a topic of intense concern for many law professors, but it is not clear how much those ideas are being used in classroom discussions. The relatively limited impact of efforts to revamp may in part reflect the degree to which law school curricula resist change more generally. A next step in research on law teaching would be to look closely at law school offerings to learn which courses are taught by faculty of what colours and gender, to learn about what readings are assigned and to learn about the demographics of the students enrolled.

To confer about gender, race, ethnicity, and law is not to say the same thing again. Neither the law and the legal academy nor the world that surrounds them is static. Three facts distinguish contemporary conferences from their predecessors: first, the social commitment to inclusion of more persons as rights holders has broadened; second, American legal education is losing its parochialism; and third, the work of promoting equality is now widely shared among people of different ages.

The affirmative action decisions, when read against a background of ongoing conversations styled as about ‘gender, race, and ethnicity’, also reveal the complexity of the issues. First, in one decision, Justice Ginsburg addressed the concept of ‘implicit bias’: that patterns of negative stereotyping occur despite consciously expressed goals not to be biased. Second, neither gender nor the inter-sectionality of race and gender were categories of analysis in the majority’s decisions. The degree to which white women have benefited from affirmative action was not used by the Court as an example of just how valuable it can be. A third difference is the degree to which work in 2003 is intergenerational. Not only were dozens of women in attendance at Taking Stock, there were dozens of women of different ages, with no one age cohort dominating.

Thus, the 2003 meeting Taking Stock marks a moment somewhere in the middle of a saga about women and rights. Law has simultaneously enabled, responded, and failed, and we who represent its successes must devise new means to explain and respond to its failures.