Paul L. Caron

Monday, April 8, 2013

Women at Harvard Law School: Shatter the Ceiling and Canaries in the Coal Mine

Harvard Women's Law Association, Shatter the Ceiling Short Film and Solidarity Letter [video]

Harvard Law Record op-ed:  Do You Accept the Status Quo? It’s About Time to Shatter the Ceiling, by Lena Silver:

The Shatter the Ceiling coalition is an initiative calling attention to systemic gender disparities at Harvard Law School.

Shatter the Ceiling started with a rumor: “Did you hear that not one woman got Magna Cum Laude last year?” my friend asked me over winter break. With a few minutes of research, this rumor proved untrue, but its origin was easily explainable. In 2011, approximately 30 percent of magna cum laude recipients were women. In 2012, the number remained unchanged.

A little more research led me to Adam Neufeld’s 2004 Study, “Study on Women’s Experiences at Harvard Law School,” on the HLS website. Adam Neufeld had access to 1L grades, other statistics and freedom to observe classrooms. He found male students were 50 percent more likely than women to speak voluntarily at least once in class; 40 percent of men ranked themselves in the top quintile in quantitative skills versus 11 percent of women, and; from 1999-2003, 14.4 percent of men were awarded magna cum laude versus 8.4 percent of women. ...

We have uncovered more statistics that highlight the gender disparities across the board at HLS. Women comprise(d)

  • 9 out of 44 of this year’s incoming Harvard Law Review members (which has prompted a change in HLR application policies);
  • 29 percent of the Supreme Court clerkships from Harvard alum over the past six years;
  • 18 out of 60 of the magna cum laude honors recipients in 2012;
  • 7 out of 24 semi-rounds finalist in Ames 2013, and;
  • 18 women out of 92 current professors and assistant professors.

We feel these interrelated disparities in achievement reflect a patent injustice, as well as signal that the educational environment and system at HLS negatively affects the quality of life and education for all members of the law school community, especially minority groups. We cannot forget the historical dimension at issue -- HLS excluded women until 1953, and women did not attend in significant numbers until the 1990s. The doors have opened, but we still have a long way to go to achieve parity.

For an alternative perspective, see Wall Street Journal:  The Crimson Canaries: Does the Socratic Method Keep Women Down?, by James Taranto:

So I think what I would say to you is probably captured by the miners' canary metaphor--that the women in law school are the canary in the coal mines. So they're more vulnerable when the atmosphere in the coal mines gets toxic. The canary, because of its different respiratory system, is more likely to start gasping for air, and that's a sign that the atmosphere is toxic not just for the canary but for the miners as well. So it's a signal to evacuate. -- Lani Guinier

The video's subject is "systemic gender disparities," which in ordinary English means that female Harvard Law students perform poorly by comparison with their male counterparts. ... According to U.S. News & World Report, the student body at Harvard Law is 47.2% female. So there's no disputing that these numbers, possibly excepting the proportion of cum laude grads, are skewed. Why? The WLA's hypothesis is discrimination against women. Our hypothesis is discrimination in favor of women. We suspect that in an effort to maintain a near-even sex ratio, Harvard Law holds female applicants to lower standards than male ones.

That would be analogous to the experience with racial preferences. Racial and ethnic minority students who are admitted for "diversity" value despite lower scores and grades tend to struggle in school and be likelier to drop out.

There's a problem with that analogy. Racial disparities in academic performance are observed in a wide variety of educational settings. Harvard Law's sex disparity, by contrast, is unusual. Indeed, today in most educational settings it is female students who outperform male ones, as Laura Rosenbury, a Harvard grad who is now Sullivan & Cromwell Visiting Professor of Law, says in the video:

I've been teaching at Washington University in St. Louis, and we don't have this problem. In fact, women outperform their male colleagues, both in terms of grades and in terms of law-review competition. And so what makes Harvard different?

Here is a possible answer: What makes Harvard different is its status as one of the most elite of the elite institutions of legal education. Among 194 accredited law schools, U.S. News ranks it second only to Yale.

The LSAT ... is a test of abstract reasoning skills, essentially an IQ test. "Most psychometricians conclude that men and women have the same mean IQ," as Charles Murray noted in a 2005 Commentary article. But "men consistently exhibit higher variance ... meaning that there are proportionally more men than women at both ends of the bell curve."

The right end of the bell curve represents a small portion of the population, but one that is enormously important in a culture and economy that increasingly value cognitive ability. The higher male variance means that the subpopulation of extremely intelligent outliers includes substantially more men than women. If admissions were purely meritocratic, the most elite schools would be the ones with the highest sex ratios. But the law school at Washington University, which U.S. News ranks only No. 19, has a higher ratio than Harvard's: 57% male to 43% female.

Of course, we could be wrong, to paraphrase one thinker. We haven't proved our hypothesis, merely set it forth and made an argument for why it is plausible. ...

In its way, this video is an excellent advertisement for Harvard Law School. If you were on trial for your life, you'd want a lawyer who'd gone through such rigorous training. You'd want a Harvard man.

Or a Harvard woman. With the video, the WLA does a grave injustice to those female Harvard Law students who are up to the challenge, who are able to compete with the fellows, who do make law review or graduate magna cum laude on the merits.

Not all women at Harvard Law are canaries. The Socratic method doesn't seem to have kept Elena Kagan down.

Update:  Ann Althouse (Wisconsin), A Hostile Environment Toward Women at Harvard Law School?

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I'm glad to see these young women showing the courage to speak up about a serious form of discrimination. Hopefully the leadership at Harvard Law will hear these legitimate concerns and make significant changes to ensure the success of their female students.

Posted by: JM | Apr 8, 2013 6:43:00 AM

Interesting articles. What caught my eye, however was that 14.4% of all men and 8.4% of all women are awarded magna cum laude distinction. Welcome to Lake Wobegon, where all children are above average. Yes, I know this is HLS, but much of this stuff is self-fulfilling prophesy.

Posted by: Publius Novus | Apr 8, 2013 8:04:02 AM

"If you were on trial for your life, you'd want a lawyer who'd gone through such rigorous training. You'd want a Harvard man.

"Or a Harvard woman."

Thanks, but no thanks. If I were on trial for my life, I'd want a lawyer who had some practical lawyering skills. Practical lawyering skills are not exactly Harvard's strong suit.

Posted by: Harvard ? | Apr 8, 2013 8:09:53 AM

Women didn't attend HLS in "significant numbers" until the 1990s? Wasn't Obama's class of 1991 (which started in 1988) 40% female?

Posted by: Avi99 | Apr 8, 2013 9:19:02 AM

Or perhaps the best person got the job/award?

Posted by: michael mcveigh | Apr 8, 2013 11:44:32 AM

"In fact, women outperform their male colleagues, both in terms of grades and in terms of law-review competition." interesting. Does University of Washington need to do something to address this too?

Posted by: unknown student | Apr 8, 2013 9:06:45 PM

Women make different choices from men, and until the system acknowledges that, it will continue to go in circles on this issue.

Posted by: michael livingston | Apr 9, 2013 2:14:16 AM

I'm surprised that HLS faculty would encourage some of their women students to post these embarrassing statements on the Internet. Whatever stress these young women are under, they have now discussed in public their inability to cope. Will this come back to haunt them during job interviews? Should they ever want to run for public office, wouldn't the video be campaign fodder? It seems to me that the faculty should have discouraged them from going public with their complaints, or allowed them anonymity.

Posted by: Bill | Apr 10, 2013 3:34:53 PM