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Pepperdine University School of Law

Wednesday, September 26, 2007

More on the Gender Divide in Law School Faculty Hiring

There was a spirited follow up on the TaxProf Discussion Group today surrounding this morning's post by Ann Bartow suggesting that Erwin Chemerinsky make "at least half your founding faculty female": 

One post asked:

Wouldn't this be an illegal quota? Is the advice to Chemerinsky that he should start his deanship by illegally discriminating against men to further a political agenda?

I don't mean to demean gender equity, which is surely important. The law profession has a bad history of discrimination against women and other minority groups. Some remnants of that system remain. Law faculties don't reflect approximate gender equality because of the older ranks, which were almost all men. But does anyone think that law faculty hiring decisions today discriminate against women, or that younger faculties are not approximately gender neutral? If you continue affirmative action for women to achieve parity, men will be under-represented when the older folks retire. I understand that this is already a serious problem in college admissions. All of this continues to demonstrate how hard it is for any group to give up the benefits of favoritism. At some point, the argument is not about gender equality, but is about creating a new form of gender inequality.

Sarah Lawsky (George Washington) responded with some data:

Data are available on these questions (and many more) at the AALS website for those who are interested. 

For example, based on some quick number-crunching (corrections welcome!):

57% of entry level hires (not counting lecturers, instructors, visiting professors) in 2005-06 were men.

56% of assistant and associate professors in 2005-06 were men.


Entry Level Hires (preliminary report for 2005-06 hiring of new faculty):

Professors: 4/7 men.  57%.
Associate professors: 36/61 men.  59%.
Assistant professors: 64/113 men.  57%.
Total:  104/181 men.  57%.

Including lecturers, instructors, and visiting professors: 128/245 men.  52%.

Junior Faculty:

Percent of men in the 2005-06 faculty directory overall (not counting visitors, lecturers, etc.):  69%, or 64% (counting visitors, lecturers, emeriti, etc).

Deans: 82% men.
Associate Deans (w/prof title): 64% men.
Assistant Deans (w/prof title): 31% men.
Professors: 75% men.
Associate Professors: 57% men.
Assistant Professors: 55% men.

Another post responded:

These numbers don’t tell me anything unless I know the composition of the hiring pool.

Sarah replied:

Depends on what your question is. If the question is whether there is discrimination in hiring, then I agree. If the question is whether there are equal numbers of male and female faculty being hired at the entry level, then I don't agree. I'm not sure what the question was--just trying to add some data to the discussion.

Richard Schmalbeck (Duke) responded:

I thought that to put Sarah's data (e.g., that 104/181, or 57%, of entry-level law faculty hires last year were men) in context, it would be useful to have some better idea than I had of what we would expect that proportion to be. The best way to study this, I think, would be to look at the graduating classes these new hires came from (i.e., both the class year and the school), and take a weighted average of the proportion of male and female graduates of those classes. I don't have the data to do that, but a quick approximation can be had simply by looking at the current enrollment (published in the ABA Guide to Law Schools) of the sixteen schools that received a "peer assessment" score of 4.0 or better in the most recent US News survey of deans, etc. These schools contribute a significantly disproportionate share of the people who enter law teaching, at schools of all levels. The numbers in the current guide show that 8871 of the 16,363 JD students at these sixteen schools were men, which is 54.2% of the total. (The proportion of men at the six schools that I think have traditionally contributed the largest numbers of law teachers (Harvard, Yale, Stanford, Chicago, Michigan, and Columbia) was slightly higher, at 55.1%.) There is still a lower-than-expected proportion of women hires, but the expectation is underperformed by only 2-3% rather than the 7% that it seem to be if one's expectations were simply that a fifty-fifty split was the nondiscriminatory outcome. My instinct is that this would not rise to the level of statistical significance, but my instincts on that sort of thing are not perfectly reliable. I don't have my calculator that has statistical software built in up with me, so I'm giving myself an excused absence from the statistical analysis. But can anyone do a quick significance test with these numbers?

Neil Buchanan (George Washington):

Sarah Lawsky's data do not answer the question of whether there is discrimination against women in law school hiring. Rich Schmalbeck's data are suggestive but (as he readily admits) not dispositive. Sarah's post, however, was in response to the second part of this question: "But does anyone think that law faculty hiring decisions today discriminate against women, or that younger faculties are not approximately gender neutral?" While I guess one could say that 57% men is "approximately gender neutral," I personally think that is far enough away from 50% that I'm uncomfortable shrugging it off.

(By the way, the answer to the first part of that question is not obvious. There may be no open discrimination -- though even that is not a given -- but there are myriad ways in which women can be disadvantaged in the hiring process.)

It is especially difficult to ignore these data if one believes the premises of the following two sentences, which also came from the post to which Sarah's data were responsive: "If you continue affirmative action for women to achieve parity, men will be under-represented when the older folks retire," and "All of this continues to demonstrate how hard it is for any group to give up the benefits of favoritism." If we are to "continue affirmative action for women," which implies that we have been engaging in affirmative action for women up until now and thus bestowing the benefits of "favoritism" upon them, then we should be seeing significantly more than 50% hiring of women at the junior level -- else there is no reason to worry about men being under-represented when the old guys retire.

In fact, I am unaware of any program of affirmative action for women in law school hiring; and if any ever existed, none seem to exist now (and thus cannot be "continued"). There is therefore no reason to worry that there is some group (let's call them women) who are finding it difficult "to give up the benefits of favoritism."

Paul Caron (Cincinnati):  From Tax Myopia, Or Mamas Don't Let Your Babies Grow Up to be Tax Lawyers, 14 Va. Tax Rev. 517, 526-27 (1994):

The tax bar is commonly referred to as a "special priesthood," and it is only slightly more tolerant than the Catholic Church in ordaining women tax priests. For example, in 1991, women comprised 23% of the members of the ABA but only 15% of the members of the ABA Tax Section. Similarly, in 1992-93, women comprised 20% of law school faculty but only 16% of those who taught federal tax courses.

Marjorie Kornhauser (Arizona State):

Regarding what happens after hiring, I did a study a few years ago looking at the available AALS data on who teaches what by gender : 73 UMKC L. Rev. 293 (2004). The title "Rooms of their Own" indicates the results -- men and women separate out by what they teach. This separation actually increased by a statistically significant degree over the time period studied [academic year 1990-91 thru 2002-03] even while the percent of females in the academy almost doubled. I could not look only at tenure track faculty because the AALS did not have the data for that, but I did narrow the sample by eliminating all faculty who did not have professor in their title.

Michael Livingston (Rutgers-Camden):

  1. I am not convinced that 50 percent female faculty should be a goal in the absence of evidence that 50 percent of the best people in any field (tax, corporate, whatever) are women. It could be higher, it could be lower, but I see no particular reason to believe it's 50 percent. In the absence of such evidence, the 50 percent goal strikes me as politically attractive but otherwise devoid of content.
  2. I have difficulty understanding why so much emphasis is put on entry level hiring, since there is relatively little reason to believe in discrimination at this level. On the other hand it is surely harder for women to be taken seriously at the top level of law teaching and most other professions, and much credible evidence that neutral criteria of tenure, promotion, etc. are inconsistent with female life patterns. If there is to be a discussion here it should emphasize the retention rather than the initial hiring issue.
  3. Regarding the "market differentiation" point--I have always wondered why no law school has deliberately set out to emphasize women faculty and students on the model of the women's colleges? Wouldn't this be an obvious way of distinguishing one's self from the remainder of the market? Or is there a legal issue in doing so?

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With the caveats that not all hires are done through the AALS process, and many candidates who do go through the AALS process don't have a snowball's chance of getting hired anywhere, it seems relevant that as of today, of 803 c.v.s submitted to the AALS this year, 277 are women, 526 men, with women therefore constituting about 35% of the pool.

Posted by: David Bernstein | Sep 26, 2007 6:25:09 PM

So now the question is the relative qualifications of the men and the women. (This is consistent with your caveats and also goes back to Prof. Schmalbeck's comment.) If qualifications are not equally distributed between men and women, then we would not expect to see the hires reflect the gender distribution in the AALS pool, even absent discrimination in favor of either men or women.

So without knowing the relative qualifications of the people in the pool, we're stuck again. Or rather, if the question is "Is there discrimination either in favor of or against women in law faculty entry-level hiring?" we're stuck again. Where's a good regression analysis when you need one?

Posted by: Sarah Lawsky | Sep 27, 2007 3:35:46 AM

Correlation, meet causation. Seriously. Does the flawed reasoning underlying the race to conclude that any statistical disparity can only be explained in terms of discrimination escape that many of you?

Posted by: Chris | Sep 27, 2007 1:12:43 PM

But there seems little reason to believe that the women in the AALS pool are systematically better than the men, so if anything there would appear to be a mild, or perhaps not so mild, discrimination in favor of women in the hiring process.

Posted by: Michael Livingston | Sep 28, 2007 8:25:38 PM