Ponderings of a Law Professor: Where Are Women’s Voices?

Posted on Categories Legal Education, Legal Practice

I hated the silence.  In law school classes where the professor relied solely on volunteers, I hated the silence and ended up raising my hand more often than not.  I found I was most interested and engaged in class not when there was lecture but when there was some sort of dialogue, and there needs to be more than one voice to dialogue.  I didn’t really want to hear my own voice all the time (and I’m certain my classmates didn’t want to hear it all the time, either), but I would offer it if no one else spoke up.

Maybe I’m remembering myself speaking more than I actually did.  Or maybe I was an anomaly.  A female law student quoted in a recent National Jurist postsaid that “it feels like men do most of the talking during class discussions.” And indeed they might.  Data from the 2010 Law School Survey of Student Engagement (LSSSE) suggest that women do not speak up as much as men in law school classes.  The National Jurist reports that according to the LSSSE, which for 2010 surveyed 25,000 law students at 77 law schools, 47% of women students frequently ask questions in class, while 56% of male students do.  This, LSSSE notes, is an area “that needs attention.”

What isn’t clear from the LSSSE results (at least not the overview of the results to which I link above) is whether “class” means large classes, small classes and seminars, or both.  It also isn’t clear how “frequently” would be defined:  Would it mean every class?  Several times per week?  It may be that the law students who completed the survey supplied their own definitions, which makes the results a bit harder to interpret.  Even so, the results are not surprising.  Many studies over the past two decades have documented similar findings.  What’s surprising, and bothersome, is that despite women’s increasing presence in law schools to the point of being roughly half of all law students, we are still documenting their relative silence.

Nearly every study I’ve read on women and law school – from Taunya Lovell Banks’ 1988 article Gender Bias in the Classroom (38 J. Legal Educ. 137) to Lani Guinier, Michelle Fine, and Jane Balin’s 1994 classic Becoming Gentlemen:  Women’s Experiences at One Ivy League Law School (143 U. Pa. L. Rev. 1) to Sari Bashi and Maryana Iskander’s more recent Why Legal Education is Failing Women (18 Yale L.J. & Feminism 389 (2006)) – has uniformly concluded that there is lower class participation for women.  Whether the evidence is statistical or anecdotal, men participate more and speak for longer periods of time in class.  For example, Bashi and Iskander found at Yale Law School men were 40% more likely than women to volunteer in class.  Guinier, Fine, and Balin found that at Penn women were “significantly” more likely not to ask questions or volunteer in class.  Joan Krauskopf found in her study of nine Ohio law schools that men reported volunteering or asking questions twice as often as women.  (Joan M. Krauskopf,Touching the Elephant:  Perceptions of Gender Issues in Nine Law Schools, 44 J. Legal Educ. 311, 325 (1994)).

Law school’s signature pedagogy – the Socratic method – is particularly silencing for women.  In Professor Elizabeth Mertz’s comprehensive study of law school classrooms where the Socratic method was used, she found a gender imbalance in favor of men.  Mertz’s study is based on in-class observations of first-year contracts classes at eight different law schools.  Classes were tape recorded and coded by coders with graduate degrees in anthropology, linguistics, or sociology.  Some data suggest that women will speak more frequently in smaller, less Socratic-type classes, like seminars.  Professor Cheryl Hanna, from Vermont Law School, is quoted in the National Jurist offering a similar view:  “[A]s the curriculum evolves from the hypercompetitive individualistic Socratic method to more collaborative projects, skill-based work, the gender difference are [sic] less of an issue.”  As well, Professor Mertz found a gender imbalance in favor of women when the class was structured around shorter, more informal conversations.  Mertz, The Language of Law School: Learning to “Think Like a Lawyer,” 193-94.

Many reasons have emerged for the reasons behind women’s silence in the classroom.  Women may participate less in class because they are called on less.  Bashi and Iskander note that at Yale men were cold-called in class 17% more than women.  18 Yale L.J. & Feminism at 407.  I think most professors employ a variety of techniques to make sure they call on each student in the class and many are mindful of the need to balance the discussion between men and women, a point presented in the National Jurist post.  However, where a professor relies on volunteers or where the professor answers in-class student questions, those volunteers and those students who ask the questions may well be predominantly male, something that professors may not consciously notice.

Women may participate less because the Socratic method and the style of dialogue is often confrontational, a style that many women (indeed, perhaps many men) do not prefer.  But, notes Lindsay Watkins, LSSSE’s project manager, in the National Jurist post, “Female students are less likely to place themselves in situations they perceive to be risky.”  Finally, women may also be choosing silence over participation in what they deem to be an oppressive learning environment; that is, silence may be a form of resistance.

The most recent LSSSE results provide some new information on the reasons for women’s silence.  This year’s LSSSE collected data from 4,626 students at 22 law schools on student motivation:  what brought students to law school and what keeps them working hard after they are there.  The results indicate that motivation for working hard in law school varies along gender lines.  Women are more likely than men to be motivated by fear of failure and avoiding embarrassment in front of peers, two kinds of motivation that may drive women to silence in the classroom.  On the other hand, LSSSE results show that women are also more likely than men to be motivated to perform to the best of their abilities and to have an inherent interest in the material.  These intrinsic motivators bode well for women’s performance and, in my view, suggest that women want to engage with the material; however, perhaps those powerful extrinsic motivators – fear of failure and embarrassment – prevent them from doing so.

While some might think that not speaking in class is a plus, when the class grade depends in part on participation, women are at a disadvantage.  Also, lack of class participation means it’s easier to become less engaged in learning.  Nonparticipation in class means women’s voices are not heard, which affects women’s self-esteem, but also sends a message about the legal profession in general.  As Professor Mertz says, “[L]aw school classrooms in which discourse is largely dominated by white men teach a subtle lesson about the social dimensions of discourse norms in this new arena [the legal profession], about entitlement and whose views matter.” Mertz, supra, at 175.

Women, we need to be hearing from you more in class!

(Cross-posted from Ms. JD.)

4 thoughts on “Ponderings of a Law Professor: Where Are Women’s Voices?”

  1. But what if some women don’t want to talk in class? Or maybe they don’t ask questions because they already know the answers. And is a woman’s self-esteem really tied up in how many times her female classmates raise their hands? I think law students are made of sterner stuff. Finally, what “subtle lesson about the social dimensions of discourse” is sent by the fact that 56% of men frequently ask questions while 47% of women frequently ask questions? Call me a troglodyte, but I think the lesson is that male law students are 9% more likely to raise their hands.

  2. A truly wonderful article from former Marquette Law School Professor (and now President of Saint Xavier University in Chicago) Christine Wiseman on Marquette legal education for women can be very helpful on this topic: http://epublications.marquette.edu/cgi/viewcontent.cgi?article=1713&context=mulr

    How far women have gone, and how much work there is still to do (even more now than just a few years ago it seems) is a much longer topic than a brief blog comment . . . .

    I call on my students, all of them, men and women, and they all do a great job. And I should say that they all participate very well. But I make a point in balance among my students (and btw call on everyone just to make sure everyone pays attention!). Now, in my classes, I really never found a difference and I would say that participation is truly equal, but maybe it is the subject matter, or the fact that I am a (still young, I hope!) female teacher, or that I am Italian, and so I am (maybe) less intimidating . . . who knows??? But as Christine Wiseman rightly points out, it is really thanks to the hard work of women like her and many before that we (the junior and very fortunate generation) take for granted a lot of things that were absolutely not granted not long ago. I couldn’t agree more with my friend and colleague Lisa Mazzie.

    Women, speak up in class. Your classmates and we professors have a lot to learn from each and everyone of you! And men speak up too, a truly great learning environment is made by everybody’s participation!

  3. Last night, Dahlia Lithwick, senior editor at Slate and legal columnist, was the speaker at the Association for Women Lawyers’ 31st Annual Women Judges’ Night in Milwaukee. Ms. Lithwick spoke about the women justices on the United States Supreme Court.

    Ms. Lithwick referred to a study conducted by the Wellesley Centers for Women, Critical Mass on Corporate Boards: Why Three or More Women Enhance Governance. Here is an excerpt from page 3 of the Executive Summary:

    The magic seems to occur when three or more women serve on a board together. Suddenly having women in the room becomes a normal state of affairs. No longer does any one woman represent the “woman’s point of view,” because the women express different views and often disagree with each other. Women start being treated as individuals with different personalities, styles, and interests. Women’s tendencies to be more collaborative but also to be more active in asking questions and raising different issues start to become the boardroom norm. We find that having three or more women on a board can create a critical mass where women are no longer seen as outsiders and are able to influence the content and process of board discussions more substantially.

    Critical Mass Executive Summary, http://www.wcwonline.org/pdf/CriticalMassExecSummary.pdf.

    Sumru Erkut from the Wellesley Centers for Women wrote this commentary about how these findings may translate for the Supreme Court: http://www.wcwonline.org/2010/would-elena-kagans-confirmation-change-the-way-the-high-court-deliberates.

    I think this study is really interesting, and I appreciate how Ms. Lithwick incorporated the study into her own writing and her speech last night. This study may also shed some light on the feelings of women law students in class. Even though women are increasingly found in law school classes and in the profession generally, we may still need to reach a critical mass of women lawyers, judges, law students, and professors for women to feel like they are “lawyers” and not “women lawyers.”

  4. The scenario has changed; many women are highly active in their academic programs and in social activities in their surrounding. They are much concerned about gender inequality and proving their importance, the value in society.

Join the Conversation

We reserve the right not to publish comments based on such concerns as redundancy, incivility, untimeliness, poor writing, etc. All comments must include the first and last name of the author in the NAME field and a valid e-mail address.