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CHAPTER ONE
Why Isn't She President?
LANI GUINIER
In the fall of 1995, President Bill Clinton explained his veto of
a congressional bill containing stopgap spending measures. He had to
act as he did, he told us, because this bill raised fundamental issues
about the role of government. Government, he announced, is not "a
one-size-fits-all bureaucracy," but a way to organize society to help
everyone realize his or her full potential. "We don't want a winner-take-all
society," he declared. "We want a society in which everyone has a
chance to win together." That goal--a chance to win together--and
that critique--the answer is not one-size-fits-all--are foundational to
the arguments in this book.
The essays in this volume tell the story of women's experience with
legal education as a way to begin a wider conversation in which we
rethink conventional norms. Based on our research and on the personal
accounts of women participants, my coauthors and I argue that formerly
all-male institutions cannot incorporate and take advantage of difference
without changing from within. We argue that by reconsidering the
fairness and functionality of an educational culture that trains, teaches,
or evaluates everyone using a one-size-fits-all approach, these
institutions can transform themselves to benefit women, others who have
historically been outsiders, and, most importantly, all consumers of their
services.
At the center of this volume is a study analyzing women's experience
at the University of Pennsylvania Law School, conducted by Professor
Michelle Fine, Professor Jane Balin, and myself with the able assistance
of Ann Bartow, class of 1990, and Deborah Stachel, class of 1993. We
found that women come to the school with credentials virtually identical
to those of their male counterparts, but
that many women do not perform as well academically, do not participate
as much in class, and do not graduate with comparable honors and
awards. Using written first-person narratives, interviews, questionnaires,
and quantitative research data, our study tells a poignant story about the
insidious effects of gendered stratification.
Because law school's educational mission is so intertwined with the
goal of selecting students for entry into a competitive profession, much
of its pedagogy, including examination formats, is designed to rank
students. The idea is that those who succeed in this highly competitive
and individualistic culture will do well as lawyers. As a result, the law
school valorizes sorting, rewards people who think fast but not always
those who think deeply, and relies upon uniform rules and standards that
may appear to treat all students the same but do not necessarily develop
each student's true potential. We conclude that law schools such as the
one we studied not only reflect or reproduce larger sets of social
stratifications, they create and legitimize them.
This book focuses on the experience of a law professor who is a
woman of color and on women law students of all colors. It chronicles
the disappointments of women as they enter previously male-dominated
institutions and, to a surprising extent, remain isolated, marginalized, and
dissatisfied. In a crucial sense, however, this account is a critique, not a
complaint. It is narrated by women, yes, but it contains lessons for all of
us.
We learned, for example, that a standardized, hierarchical, competitive
approach to training lawyers inhibits many women and some men. Such
an approach sets in motion a peer culture that also intimidates and
silences many women, in a process with which faculty interfere too rarely.
We learned that too many women internalize their failure and begin to
question their own abilities. At the same time, conventional approaches
to legal education do not necessarily educate or evaluate everyone based
on their capacity either to learn or to do the job of a lawyer well. Indeed,
the very women who resist "playing the game" in law school do
graduate. Most go on to become important, often distinguished, members
of their profession.
We also learned about new ways of teaching from studying the way
women, as "outsiders," perform in law school--many, for example,
prefer group-based learning teams and participatory,
student-initiated learning projects. Like certain of the most dazzling
Olympic gymnasts, some women "can always do it when it's for the
team" but struggle when it's for themselves.
Interestingly, the preference of some women students for cooperative
styles of learning parallels findings about members of other
underrepresented or marginalized groups. For example, Professor Uri
Treisman studied African-American undergraduates who were having
difficulty in learning calculus. His faculty colleagues assumed that these
difficulties stemmed from "underprivileged" backgrounds, low
motivation, weak academic records, and lack of family support, but
Treisman found that all four of these assumptions were incorrect. The
black students were actually studying as much as the Asian-American
students who were excelling. What the black students were not doing,
however, was studying in groups, whereas the Asian-American students
were reinforcing what each learned individually by constantly talking
about math in social settings--as they studied, over lunch, even as they
walked to class.
Treisman did observe friendly competition among the Asian-American
students--individuals would strive to come up with the best solution to
a problem or to come up with a solution first--but in the end they
shared what information they had so they all could excel. By contrast,
few of the black students, many of whom were academic loners in high
school, came to the university adept at learning mathematics or science
from their peers. Especially for those black students whose self-reliance
had been a resource in the past, social isolation from peers and the
institutional culture of the university was now an important deficit to be
overcome, as was their self-consciousness in asking for help even when
they most needed it.
Treisman discovered that learning math was often best accomplished
as an interactive, cooperative venture and went on to design a
successful program using peer study group sessions. Through these
faculty-sponsored workshops, the black students' academic needs were
addressed in an informal setting, which helped remove social barriers as
well. The basic premise was that through the regular practice of testing
their ideas on others, students can develop the skills of self-criticism that
are essential not only for the development of mathematical
sophistication, but for all intellectual growth.
Because he found that the best students were independent but not
isolated learners, Treisman also encouraged workshop participants to
assume leadership roles in other campus activities.
The issue, then, is not individual capacity to learn but that all
individuals learn differently and some learn even better when their peers
are their teachers. In the course of our study, we discovered that we
cannot use a single set of criteria or a single pedagogical style to
measure or teach a complex set of skills. We learned, in other words, the
limitations of one-size-fits-all thinking.
We also discovered that an educational approach that emphasizes
ranking rather than learning limits the range of skills that students are
encouraged to bring to the profession. Not only does such an approach
denigrate certain insights and perspectives, all too often it undermines
the wonderfully complex and kaleidoscopic understanding that comes
from integrating mainstream and marginal viewpoints. Problem solving,
especially the solving of complex problems, may require individuals who
not only value but need the input of diverse perspectives and skills,
including the ability to listen not just speak, the ability to synthesize not
just categorize, and a willingness to think hard about nuance and context
even when that slows down the process of decision making. Indeed,
among highly competent lawyers, successful performance often depends
on a team of individuals, no single one of whom possesses all of the
necessary expertise but all of whom, working together, are able to
accomplish their task in a reliable way.
The most important lesson we learned, therefore, is that we must
listen to the voices of those whose experience is both marginal and
central to our understanding. The experience of many women is marginal
in that women have traditionally been outsiders in the field of law, but
the experience of these same women is also central because they offer us
an opportunity to rethink the nature of the job we all want done. If we are
committed to becoming a society that values inclusive decision making
and genuine opportunity, the kind of we-all-can-win-something-together
society to which President Clinton referred, we must learn that bringing
in new perspectives, especially from those who have been
underrepresented, is not only fair, it is functional.
In listening to women's voices, we tried to follow the admonition of
Harvard scholar Ronald Heifitz, who writes about leadership
without easy answers, as the process of "adaptive work"--of getting
people to tackle tough problems, of getting people to take the risk of
challenging conventional assumptions. We asked, for example, what
does the present approach to legal education accomplish? Are
conventional teaching methods and assessment techniques predictive of
the kinds of work, the kinds of relationships, the kinds of collaborative
approaches to solving private and public problems that lawyers will need
in the future? The twenty-first century may require fewer litigators and
more negotiators, fewer solo practitioners and more in-house counsel,
fewer brilliant advocates and more brilliant collaborators. If that is the
case, we can learn how best to meet the challenge of the future if we heed
the words of social critic bell hooks: "With creativity and an open mind,
we can use information from the margin to transform the way we think
about the whole."
In using our research into the experience of women law students as
the foundation for adaptive work, Michelle Fine, Jane Balin, and I
considered three sets of questions. The first centers on what it means to
be qualified as a law student or a legal practitioner in the first place: Are
we using measures of qualifications that are functional, not just efficient
or purportedly objective? Can we assess qualifications in advance and
can we accurately predict the performance of lawyers using a single
standard or a one-size-fits-all approach to assess performance of law
students?
The second set of questions concerns fairness. Many are committed
to an equality which they interpret as formally uniform treatment. Is that
our goal--to treat everyone exactly the same? Or do we want to treat
everyone fairly and productively? Are we confident that when we treat
everyone the same we are treating everyone in a way that nurtures each
one's potential?
The third line of inquiry begins with the question of what we can learn
from diversity. Can diverse approaches to legal education help us adapt
to the changing demands of legal work as well as our changing
demographics? Can we begin a new conversation about the needs of
twenty-first-century America for-lawyers who cooperate and collaborate
in ways that draw from a diverse set of experiences and perspectives?
Can our diversity help us find "adaptive" or creative or innovative
approaches to training legal problem solvers? What can we learn from
those who have been left out?
Our study suggests three related answers to these questions. First,
we conclude that functional merit, meaning the ability to do a job, cannot
always be measured by paper-and-pencil tests, whether they are
nationally standardized ones like the LSAT (the standard admissions test
for law school) or timed, in-class examinations administered at the end of
a law school semester. The LSAT in particular may appear to be an
efficient predictor of first-year law school grades, but it is not necessarily
useful in identifying those who can actually do the job of lawyer, and,
more importantly, do it well.
Second, we conclude that sameness is not necessarily fairness. Often
the same treatment is not just or fair treatment. In particular, promoting
real learning may require treating people differently, using different
techniques depending on the topic, the motivation and experience of
students, or the dynamic of the classroom.
Third, and perhaps most important, our study suggests the need to
reconsider the nature of the job and the nature of the learning
environment, not just to be more inclusive, but to do the adaptive work
that we will need to do in the next century. Those women who are less
competitive in the aggregate than men may fail in a competitive, highly
stratified and individualistic law school culture, yet succeed in a
cooperative, team-oriented environment. Their participatory, interactive
style prepares them to be effective negotiators, corporation counsel, and
transactional lawyers. And evidence suggests that lawyers who
collaborate will often be those who are most valued in the twenty-first
century. Teamwork, listening skills, and creativity in problem solving
may be equally important, and sometimes even more important than
argumentativeness, aggressiveness, or individualism as we prepare to
enter a new era. As John P. Fernandez writes in The Diversity Advantage:
How American Business Can Out-Perform Japanese and European
Companies in the Global Marketplace, "[I]t is increasingly clear that a
key to [corporate] success will be [the] ability to develop diverse,
well-trained work forces that can function effectively as
high-performance teams and produce quality products and services at a
competitive price."
* * *
Our research began when Ann Bartow, then a third-year student at the
University of Pennsylvania Law School, approached me to supervise
an independent study. She wanted to shoot a videotape in which
she reversed by gender all of the roles of professors and students. Ann
had seen a video treatment parodying the experience of medical students,
one in which all the professors were women and all the more vocal
students were female. The medical school videotape, entitled Turning
Around, contained several pointed role reversal vignettes. For example,
"a female doctor leers at a male nurse, admires the fit of his uniform, pats
him on the rear and calls him 'a good boy.'" The video parody presents
the female body as typical; the professors draw from it all their examples
about the effects of a disease. In one scene, a male medical student raises
his hand tentatively to ask, "What happens when a male develops this
disease?" The female professor wheels around and says dismissively,
"You're smart. Extrapolate. Figure it out."
Knowing nothing about video at the time, I was nevertheless
intrigued by Ann's project and agreed to supervise her independent
study. I suggested that she first draft a script, which she did. The scenes
were poignant depictions of subtle as well as blatant sexual harassment,
but they all revolved around Ann herself. "I don't doubt your stories, but
are they representative?" I asked. " Is it possible you have been a
lightning rod for negative comments?" We agreed that before she
invested any more energy into producing a video we should identify the
extent to which Ann's experiences were typical. To that end, she drafted
a seventy-question survey which she placed in the mail folders of all law
students then enrolled at the school.
We were both pleased and troubled by the response--delighted that
over half the student body responded but dismayed that the survey
answers showed an institution deeply divided by gender. Many of the
women respondents had entered law school full of self-confidence,
one-third of them eager to practice public interest law when they
graduated; by contrast, only 10% of their first-year male counterparts
intended to practice in public interest.
But what was most surprising was the difference--an apparent
change over time--between the responses of the first-year women
students and the responses of third-year women. Only 8% of the
third-year women who responded to the survey intended to practice
public interest law. Furthermore, these third-year women, just like their
first-year counterparts, did not participate much in class, but unlike their
first-year classmates, they were not bothered by
their lack of participation. The third-year men, like the first-year men,
voiced some concerns and expressed criticisms of the way some
professors intimidated them into learning, but they tended to see law
school as a game or contest in which they simply had to fight back. One
female student reported, "Guys think law school is hard, and we just
think we're stupid"; some women, another said, sink "deeper and deeper
in a mire, and just keep sinking lower and lower."
Ann suggested that we look at the academic performance of these
women to see what, if any, impact the gendered dynamic had on women's
grades as well as their attitudes. Ann, who graduated with honors, raised
this possibility after looking at her own graduation program and
discovering that few women in her class were also graduating with
honors or had received the prestigious awards distributed by the
predominantly male faculty. With the cooperation of Dean Colin Diver,
professors Michelle Fine, Jane Balin, and I examined the academic
performance of 981 law students at the University of Pennsylvania Law
School over a period of three years.
We found that many women who come to law school with virtually
identical entry-level test scores as men nevertheless do not perform as
well in law school. These "neutral" entry-level credentials are not very
predictive of actual law student performance. Our findings reinforce
Supreme Court Justice William Douglas's earlier observation in a case
involving university admissions. "Certainly the tests do seem to do better
than chance," Justice Douglas wrote. "But," he added, "they do not have
the value that their deceptively precise scoring system suggests.... [F]or
example, most of those scoring in the bottom 20% on the test do better
than that in law school--indeed, six of every 100 of them will be in the
top 20% of their class."
Our study confirms the findings of others that the LSAT alone is not a
very good predictor of performance for all students, not just women or
minorities. Some women underperform compared to their scores on the
LSAT. Many males overperform compared to their LSAT scores. But very
few students actually performed in ways predicted by the LSAT. LSAT
"explains" at most 21% of performance at Penn Law School in the third
year. For students in their first and second years, the LSAT explains
even less: 14% and 15% respectively. Moreover, above an LSAT
threshold score of 34 or 35 on a scale that goes to 48, LSATs
just don't matter as a predictor of performance in this law
school. In other words, the LSAT test does not in fact predict
performance for most law students regardless of race or gender.
Entry-level criteria of this kind also fail to take into account variables
that predate taking the test, such as how often you were exposed to the
test before you took it, and variables that postdate the test, such as
study habits, interest in the subject matter, or the "culture" of the
school--which turn out to be more important in determining law school
performance than either test-taking skills or women's stronger
undergraduate academic performance. The law school culture--meaning
what gets measured, how people are rewarded, and what kinds of
mistakes are not forgiven--represents a set of beliefs and values that
emphasizes aggressiveness, legitimizes emotional detachment, and
demands speed. The LSAT provides only limited predictive information
regarding an applicant's potential to do well in this kind of environment;
LSAT scores do, however, correlate with an applicant's family income,
status, and gender.
Our data reflect the reality that many women are able to excel
academically in law school. But our data also suggest, as recently
confirmed by a 1996 report analyzing quantitative data from a national
sample of 29,000 law students, that "law school is not an environment
that nurtures the academic development of women." There is
something about the law school environment that has a negative academic
impact on female law students.
What would happen, we asked, if we used the experience of women as
a point of critique and data for institutional change? Would we need, for
example, to rethink the use of the LSAT as either a standard for
admission or a predictor of success as a lawyer? Should we begin to
examine critically both the pedagogy and the evaluative techniques that
law schools use to rank students? Indeed, those admitted to Penn Law
School graduate and become excellent lawyers without regard to their
entry-level credentials. And--although those of us invested in teaching
law may hate to admit this--many who graduate also become
accomplished professionals without regard to their law school grades.
The managing partner at a large New York law firm confirmed this to
me when he described a study his firm conducted of all the
lawyers they hired over a thirty-year period. They found that those who
were superstars in law school were also likely to be outstanding lawyers
and to become partners in the firm. There was a relationship between the
very top students in law school and the top 1% of their lawyers, but
below the top 1 or 2% of law school performers the results were random.
There was little or no correlation between law school grades and actual
performance in the profession for most of the lawyers this firm had
hired. In other words, he confirmed that what we in legal education
often tout as "merit" is a baseline or minimum set of requirements upon
which one builds the capacity to do the job. These requirements may be
linked to certain skills, but they do not predict the ways in which these
skills manifest themselves and especially do not permit us to make fine
distinctions between people with essentially comparable credentials.
Efforts to predict in advance who will be successful often fail because
they do not simulate well enough all of the conditions involved in the
actual job. Moreover, success often reflects qualities of persistence, zeal,
and initiative that are not measured by any paper-and-pencil test at any
stage in one's career. A study of three classes at Harvard College
reinforces both these intuitions. The study, which looked at three classes
of alumni over three decades, found a high correlation between
"success"--defined by income, community involvement, and
professional satisfaction--and two criteria that might not ordinarily be
associated with Harvard freshmen: low SAT scores and a blue-collar
background. Marilyn McGrath Lewis, director of admissions for Harvard
and Radcliffe, said, "We have particular interest in students from a
modest background. Coupled with high achievement and a high ambition
level and energy, a background that's modest can really be a help. We
know that's the best investment we can make: a kid who's hungry."
In fact, those with the lowest SAT scores and the poorest parents, who
nevertheless convinced Harvard that they should be given a chance to
succeed, did just that. In fact they succeeded not only beyond their
parents' status but beyond what was achieved in the real world by their
"more qualified" peers. It is not surprising, therefore, that college
admissions officers at elite universities report that intense involvement in
extracurricular activities, in part because it correlates with "initiative," is
one of the best predictors of achievement."
Performance on a single test is not what correlates with success in
life, as measured by financial rewards, professional satisfaction, and
contribution to the community. Attempting to predict achievement using
a one-size-fits-all standard fails to account for the multiple kinds of
intelligence, motivation, self-confidence, and relationship to law school
culture that likely affect performance. It is not simply a problem of
predicting performance of law students, not simply a problem of
identifying the right test in advance; it is also a problem that reveals the
limitations of uniform tools of prediction. We often can't know in
advance how a person will perform in a new setting, or what it will take to
do well in a job whose functions are in flux.
It is the opportunity to learn--a job, a craft, a skill--and the
motivation or drive to take advantage of that opportunity that often
correlate with successful on-the-job performance. A former labor lawyer
helped me understand this phenomenon based on his experience
defending employment discrimination lawsuits. As he put it, those given
the chance to succeed are in fact most likely to succeed. What we often
mean by merit, he said, is the same thing as opportunity: those who are
given the opportunity to go to Harvard do better in life than those who
are denied that opportunity, and those who are hungry for that
opportunity succeed more often than those for whom the opportunity
was taken for granted. Incremental differences on one-size-fits-all
paper-and-pencil tests may not be adequate to tell us to whom we should
give that opportunity.
Our first conclusion, therefore, is that merit, meaning the capacity to
do the job of lawyer, is not predicted or determined by conventional
standardized tests. Like the Harvard study of three classes of alumni, our
study of women law students reveals the limitations of seeking to predict
performance based on a single instrument or a one-size-fits-all approach
to ranking.
Second, our study reveals that sameness is not necessarily fairness.
Even when we think we are treating people as equals, we may in fact be
treating some differently. What looks the same if you are generalizing
from your own experience may be construed differently by others:
sameness as a uniform standard assumes that one can generalize from
the perspective or intent of the person setting that standard.
Our data on women at Penn Law School suggest that while the
school may be treating all students the same, it may not be treating all
students equitably. Some students may not be participating as much,
learning as much, or feeling as competent when we insist on teaching
them all by the same methods and all in a hierarchical, adversarial,
formalistic way. Sameness may not be fairness in this context.
For example, when we asked students in a 1991 seminar and then again
in a 1992 seminar why men and women responding to Ann's survey
chose different qualities as being important in a professor--with the men
in the aggregate valuing "expresses ideas clearly" and the women
choosing instead "treats students with respect"--they responded that
men are already treated with respect and therefore do not value that
quality as much. But an alternative explanation, offered by a female
colleague, is that many women need friendliness cues more than
men--that men, either because of the culture of law school or because of
the culture of American society, feel entitled to ask questions and
approach faculty, whereas women and many people of color wait for a
signal first that it is "safe" to approach. Thus the professors may be
treating both men and women, whites and people of color, "the same,"
but the effect of that treatment is very different depending on how it is
perceived and received.
Our study shows that certain students--including many but not all
women and probably some men--bring a different perspective to the
role of lawyering. As mentioned above, for example, many more women
than men came to law school to do public interest or public service work.
This difference paralleled the difference we found in class participation.
Female law students were significantly more likely than male law
students to report that they "never" or "only occasionally" asked
questions or volunteered answers in class. The women students who
responded to our survey reported that men ask more questions, volunteer
more often, enjoy greater peer tolerance of their remarks, receive more
attention from faculty during classes, get called on more frequently, and
receive more post-class "follow-up" than women. Similarly, a recent study
of law school teaching at eight different law schools across the country
found that male students speak disproportionately more in all classes
taught by men, and that gender disparities are more apparent in the elite
schools regardless of the gender of the professor. As Catherine Krupnick found
in her study of twenty-four Harvard classrooms, professors allowed
those with the quickest response time to dominate classroom
discussion.
One of the reasons for this differential level of participation may be
that the very large, traditional law school classroom does not create a
learning space for those students--many of them women--who learn
better through collaborative and nonadversarial methods. The
requirement to perform in a particular way in law school establishes the
harshest and most adversarial version of the Socratic method as the
benchmark for success. One commentator has described the
stereotypical Socratic approach at its worst as learning how to ask rude
questions. Most people ask questions because they want to know the
answer; lawyers are trained never to ask questions unless they already
know the answer.
In training students to think of the process of asking and answering
questions as an opportunity to put someone on the spot, to demonstrate
how little that person knows, or to identify important hidden
assumptions, conversation is valued for its adversarial style. It is
perceived as a fight to prevail, not a method of inquiry. To the extent this
occurs, the technique of Socratic teaching--in which law professors
train students to "think like lawyers" by asking individual students to
answer a stream of questions in front of their peers, often "cold calling"
on students who are not identified in advance--looks to many women
like ritualized combat. Students who do well often do so because they
see this version of the Socratic method as a game, and as in all games,
they play to win.