Report of the Diversity Committee 1999-2000
| I. Minority Admissions | II. Women in Legal Education | III. Recommendations | Bibliography |
This is the fourth year that the Diversity Committee of the ABA Section on Legal Education and Admissions to the Bar has been working under the same charge and with a relatively stable core membership. In 1996, then-Chairperson Rudy Hasl gave the committee two charges, which were continued by Chairpersons Beverly Tarpley, Randy Shepard, and Bob Walsh:
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to consider law school admission policies in the wake of the Fifth Circuit decision in the Hopwood case and the UC Regents' resolution and Proposition 209 in California; and
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to examine the treatment of women students, faculty, staff and administrators in legal education, building on reports such as that of the ABA Commission on Women in the Profession, "Elusive Equality," (1996).
During the two
year period 1996-1998, we focused on the first part of our charge.
We presented our final report on minority admissions to the Council
at its meeting in Toronto in August 1998. We stressed the crucial
educational role played by a diverse student body in law schools,
and pointed out that the use of affirmative action in the admissions
process is a constitutionally permissible and effective method of
achieving diversity in all but a very few schools. For such schools,
we offered various strategies, worked out with the help of the LSAS,
to seek diversity through other means. The Council accepted our report
and the Consultant distributed it to law school deans on September
28,1998. Our report also was printed in the Fall 1998 issue of Syllabus,
and was made available on the Section's web page.
During the two years that have elapsed since our report was filed
in August 1998, the assault on affirmative action has spread beyond
California and the Fifth Circuit. Initiative 200, modeled on California's
Proposition 209, was adopted by voters in Washington State. A determined
effort is currently under way to qualify a similar measure for the
ballot in Florida in 2000 or, failing that, in 2002. Meanwhile, Governor
Jeb Bush's "One Florida" plan has abolished affirmative
action in the state education system. The University of Michigan is
defending its law school admissions program in court. The Hopwood
litigation continues, and at its conclusion in the Fifth Circuit,
the University of Texas expects to seek certiorari in the United States
Supreme Court on the constitutionality of its admissions program.
We reaffirm the conclusions and recommendations contained in our earlier
report. If anything, they are even more relevant today. We applaud
the vigorous efforts undertaken by outgoing ABA President Bill Paul
to increase the diversity in the legal profession, and we second his
call to legal education to redouble its efforts to attract and retain
minority and women students, faculty, and administrators. Where affirmative
action remains legally available-a description that encompasses virtually
all law schools-it should be utilized as the single most effective
road to diversity. In that small, but unfortunately growing, handful
of states where state law or prevailing judicial interpretation of
federal law prohibits the use of affirmative action, we urge schools
to consider some of the measures proposed in our report. To facilitate
that deliberation, we append a bibliography of recent materials on
racial and ethnic diversity.
During the two
year period 1998-2000, we turned our attention to the second part
of our charge, the situation of women in legal education. We held
open meetings with women law professors attending the AALS annual
meeting in January 1999, and met with J. Cunyon Gordon, Chair of the
Law Schools Committee of the Commission on Women in the Profession
at the ABA mid-winter meeting in February 1999.
We decided to survey law schools to determine their awareness of and
responsiveness to the publications of the ABA Commission on Women
concerning gender equity. At our request, James P. White, the Consultant
on Legal Education and Admissions to the Bar, sent a letter to the
Deans of all ABA-approved law schools which read in part as follows:
The ABA Committee on Diversity of the Section of Legal Education and Admissions to the Bar asks for your help. As you may know, the ABA Commission on Women in the Profession has published two reports on women in legal education, the first in January 1996, and the second in January 1998. The two reports are (1) "Don't Just Hear It Through the Grapevine: Studying Gender Questions at Your Law School" (January 1998) (recommends that each school perform a gender study and provides information on how to conduct such a study); and (2) "Elusive Equality: The Experiences of Women in Legal Education" (January 1996) (recommends that each school create an ad hoc or
standing committee on gender issues.)
- Are these two reports available at your law school, perhaps in the Law Library?
- Does your school have an ad hoc or standing committee on gender issues? (If your answer is "yes," please provide the name of the committee and its chair.)
- Is your school considering or conducting a gender study? (If your school is conducting a gender study, please provide the name of the chair. If your school has completed such a study, please send a copy of the report.)
The Consultant sent this letter to the Deans first on April 19,1998, and again over a year later, on June 28,1999. The response to these two mailings was good, but not complete. By December 29,1999, responses had been received from 133 out of 182 schools. The committee decided that its chair, Dean Kay, should send a "dean-to-dean" follow-up letter to non-respondents requesting the same information. Dean Kay sent two such letters, one on January 18, 2000, and another on March 7, 2000, as well as email and faxed reminders on May l0, 2000. Our final tally as of May 24, 2000, is 177 responding schools out of a possible 182.
A. Results of the Survey
Chart
I
N = 177 schools
| ABA Reports Available | Current Ad Hoc or Standing Committee on Gender | Gender Studies | |||||
| Done | In Progress | Report Produced | Report Sent to Committee | ||||
| YES | Both: 155 | One: 15 | 10 | 11 | 8 | 11 | 7 |
| NO | 6 | 167 | 158 | 4 | |||
| Under Consideration: 10 | |||||||
| Additional Information | n/a: 1 | Another Committee with Analogous Charge: 40 | |||||
Chart I indicates
that virtually all law schools have received the two ABA publications,
but very few have implemented their recommendations. Only eleven schools
report having done gender studies; the first of these, at Brooklyn
Law School, was completed and published in 1996* two years before
Grapevine was published [* Marsha Garrison, Brian Tomko, &
Ivan Yip, Succeeding in Law School: A Comparison of Women's Experiences
at Brooklyn Law School and the University of Pennsylvania, 3 MICH.
J. OF GENDER & L. 515 (1996)] Sixteen schools sent reports and
other materials to the committee, which ranged from surveys of the
relative performance of women and men students to a detailed empirical
study of the situation of women law students provided to the committee
on a confidential basis. Two schools sent published copies of reports
conducted by their state supreme courts which included a survey of
all law schools within the state (Montana, Puerto Rico), while two
others sent reports conducted by their state bar associations (Ohio,
Oregon). Eight schools report gender studies that are currently in
progress, while four others plan to include a gender survey as part
of their upcoming ABA self-study. Several other law schools have participated
in studies conducted by external agencies-their state supreme courts
(2), state bar associations (4), or the universities of which they
are a part (3). Some schools also mentioned two on-going studies that
include several schools: that of women law students being led by Professor
Richard Sander at UCLA (30 schools) and the Catalyst study of women
law graduates at five schools (Columbia, Harvard, Yale, Berkeley and
Michigan), presently scheduled for release in early 2001.
Nor have very many law schools appointed ad hoc or standing committees
on gender equity. Only ten schools report having such committees currently
functioning, while six others have had such committees in prior years.
To be sure, a larger number of schools have appointed other committees
with analogous but broader charges-for example, fifteen schools currently
have diversity committees whose purview includes gender issues, while
25 others have committees dealing with some of the same issues under
various names, such as Committees on Inclusion and Empowerment, the
Law School Community, Minority Affairs, Bias and Harassment, Student
Affairs, Student Life, and Educational Environment.
Judging from their names and descriptions, gender issues are not the
primary concern of these committees, although Deans may refer gender
issues to them from time to time. Still other schools participate
in diversity committees at the campus-wide or university level.
It seems clear, based on our survey, that conducting gender studies
as envisioned by the ABA Commission on Women is not a high priority
concern-at least at the formal level-at many law schools. In some
schools, benign neglect appears to describe the situation rather accurately.
In other schools, explanations vary. Deans at seven schools suggested
that the large numbers of women students, faculty and administrators
in their schools have made gender equity a non-issue.
B. Data From the Materials We Received
Committee members
reviewed the published literature on the effects of gender and on
the intersectional effects of gender, race, ethnicity, sexual orientation
and class in legal education, as well as the specific reports (mostly
unpublished) sent directly to the Committee by the schools we surveyed.
Six schools sent comprehensive reports. Three of these were primarily
focused on students, while three also included women faculty, staff
and administrators. A seventh school has prepared useful training
materials. None of these studies followed the format recommended in
the "Grapevine" report, but all represent serious attempts
to identify problems and propose approaches that would alleviate some
of the problems. The chair of the committee that produced one of these
reports told us that the process itself served to increase morale
within the school.
In addition to the materials we received from the schools, Professor
Sander has provided the following description of the ongoing UCLA
study:
In 1995, thirty law schools agreed to participate in a study of first-semester law students, coordinated by Rick Sander, Kris Knaplund, and Kit Winter of UCLA. The primary goal of the study was to determine whether women law students had lower academic performances than men and, if so, how this varied across different schools and environments. The thirty schools administered a survey to their first-year students near the end of the first semester; approximately 78% of all enrolled students participated. Twenty of the thirty schools later supplied complete background and grade data on the schools (all of it coded anonymously) so that we could compare individual student experiences, entering credentials, and first-semester grades. These twenty schools represent a fair cross-section of American legal education, with considerable geographic and "selectivity" diversity.
In the spring semesters of 1998 and 1999, thirteen schools (some, but not all of them in the original pool) participated in a follow-up survey of third-year students administered by Rick Sander and Mitu Gulati of UCLA. This was not a longitudinal study, in that we did not try to resurvey participants in the 1995 study, but rather an attempt to examine some related issues among third-year students. Nearly all of these schools also supplied more limited background data on their third-year students.
Sander and Knaplund issued a preliminary report on their 1995 data in the spring of 1998; this was circulated to the participating schools and to LSAC, which provided funding for follow-up analysis of the study's data. They expect to complete a full report on their gender-related findings during the summer of 2000. They have also created a CD containing the study's data and guidebook to the data (removing institutional and student identifiers). Gulati and Sander are completing an initial article on their third-year data, focusing on student satisfaction with legal education; this will also be available for circulation during the summer of 2000.
While the materials
we reviewed include many examples of greater equality, we also found
repeated examples of experiences of inequality. The increase in the
number of women students-the one area of legal education in which
parity has come close to being achieved-has not served alone to remediate
historical exclusion of women from the legal academy and from the
practice of law.
We do not here detail the findings of the many studies, some based
on quantitative surveys and others relying on individual accounts,
for the attached bibliography offers a wealth of data describing the
many ways in which women in parts of the legal academy remain less
than fully welcomed. The overall picture has prompted us to conclude
that action remains required. Hence, contrary to the suggestion of
a few of the deans who responded to our survey that issues of gender
at their schools were no longer in need of consideration, we recommend
that law schools consider the degree to which gender alters the experiences
of all participants within their institutions. Institutions of learning
need to understand what messages they convey-inadvertently as well
as deliberately-and how to foster dialogue, mutual trust, and an environment
in which all students, faculty, staff and administrators feel themselves
equally welcome and equally participatory. We detail below recommendations
for implementing this conclusion.
Our committee has several recommendations and ideas to propose for further consideration.
- We recommend
that schools create formal institutional means to examine the status
of women students, faculty, staff, and administrators at their school,
with particular attention to multicultural women. Although we think
the model provided by the ABA Commission on Women in the Profession
in its "Grapevine" report is helpful, we do not suggest
that all schools should follow that format. Rather, we think that
as a first step, schools might create an ad hoc gender committee,
or work through their established committee on diversity or a related
committee, to explore appropriate ways of undertaking a study or
other form of work on gender equity. Some schools that have long
range planning committees might prefer to build such considerations
into that process. While each school may have a distinctive emphasis
for its approach, we think there is an organizing purpose to such
inquiries, and it is to discover the degree to which women feel
comfortable working and studying in the environment provided by
the school. Naturally, legal education is experienced as stressful
by many students regardless of gender, and we do not mean to suggest
that women are entitled to greater accommodations than men. A similar
observation might be made concerning the career pressure felt by
junior faculty, as well as staff and administrators. What is critical
is that women not be differentially subjected to stress because
of their gender. The schools should be particularly sensitive to
the lingering effects of negative expectations and unwillingness
to accept fully those who were once viewed as not "real"
members of the academy.
- The Section
should consider joining with the AALS to sponsor a Working Conference
on Women in Legal Education. As the attached bibliography on Women
an Legal Education shows, a great deal of data has already been
gathered. Such a conference could focus on what we know already
about women in the academy, where we think we are going in undertaking
research on this topic, and how the issues might be reframed to
get beyond some of the current stereotypes. As we envision such
a conference, it would draw together scholars who are engaged in
relevant research, Chief Justices and court administrators who have
commissioned studies of gender bias in the court system, and bar
associations that have sponsored national, regional, state or local
studies on women in the profession. The audience-participants at
such a conference should be representatives from each law school,
as well as from the bench and bar. Of course, such a working conference
would require funding and sufficient lead time for planning, approximately
two years.
- A more immediate
step might be for the Section to join with the ABA Commission on
Women in the Profession to call attention to the continuing obstacles
that confront women of all colors in legal education and in the
profession as they strive for inclusion, acceptance, and respect.
The Commission has been holding regional meetings at law schools
to publicize its two reports, and it is available to provide assistance
to schools that want to conduct gender studies.
- The Section
should encourage schools undergoing sabbatical reinspections to
include a more qualitative assessment of the situation of women
and minorities, with particular attention to women of color, as
part of the self-study prepared for the review. Schools already
provide statistical data on women and minorities in the student
body and the faculty. What is needed in addition is to look beyond
the numbers for an analysis of whether women and minorities are
offered leadership opportunities within the school. Schools that
have already completed gender studies should use the self-study
as an opportunity for periodic review of gender equity. The Section
leadership might confer with the leadership of the AALS to explore
whether a similar inquiry should be the responsibility of the AALS
summarian who is part of the site inspection team as to membership
standards. We also recommend that the Section leadership continue
and strengthen its ongoing efforts to ensure that site evaluation
teams be as inclusive as possible of members with diverse race,
gender and ethnic characteristics. This Committee would be willing
to work with our sister organizations to compile lists of possible
evaluators to be submitted for consideration by the Section.
- The Section
might put on a program at the ABA Deans' Workshop on the situation
of women and minorities in legal education, with particular emphasis
on undertaking the deliberations suggested in our first recommendation.
Given the wealth of research listed in the attached bibliography,
many talented individuals within and without the academy may be
called on to help plan such a workshop.
- During our
work on women in legal education, we have found it difficult to
obtain accurate and uniform data on women of all colors in law teaching,
broken down by race and ethnicity, according to rank and position.
We recommend that the ABA collect, and the AALS publish in its Annual
Directory, statistical information of this kind.
- Schools might
consider creating opportunities consistent with their traditions
to celebrate their prominent women graduates, staff or faculty in
ways that allow all women who work or study there to feel that they
are validated and respected as colleagues and fellow students.
- During the
coming year, 2000-2001, both the Section and the ABA will have women
in the top leadership positions. Diane Yu, the Chairperson Elect
of the Section, is a member of our Committee. She has expressed
interest in exploring with Martha Barnett, the ABA President Elect,
ways of creating a greater awareness of the situation of multicultural
women in the academy and the profession. Martha Barnett has indicated
her intent to continue past president Bill Paul's initiatives on
diversity. We think the Section should support Diane Yu in these
initiatives. Relevant data may emerge from studies mentioned above
of women in legal education and the profession currently being carried
out by Catalyst and Professor Rick Sander of UCLA, as well as the
Carnegie Study of Legal Education under the leadership of Dean Judith
Wegner.
The National Association for Law Placement (NALP) has released an Interim Report on the NALP/ABA Judicial Clerkship Study, entitled "Judicial Clerkships: 1994-1998." The study, which is being undertaken in several phases, will seek input from law school administrators/career service professionals, third year students, and alumni law clerks. It will seek data, among other matters, on the presence of women and people of color in federal, state, and local clerkships. NALP and the ABA plan to use the results of the study to develop strategies and "best practices" information to assist law schools in improving the clerkship application process and increasing the diversity of candidates in the clerkship pool.
In addition to the Section, the Commission on Women, and the AALS, other national organizations might be interested in co-sponsoring specific aspects of such initiatives, including the Conference of Chief Justices, the National Consortium of Task Forces and Commissions on Race and Ethnicity in the Courts, the National Council of Bar Foundations, the National Association of Women Judges, the National Conference of Women's Bar Associations, and the four minority bar associations that are ABA-affiliates, namely, the National Bar Association, the Hispanic National Bar Association, the National Asian Pacific-American Bar Association, and the Native American Bar Association.
- The Standards Review Committee has not yet reported on our 1998 recommendation, accepted by the Council, that it "consider expanding Standard 211 on Equal Opportunity Effort to include women of all colors as one of the identified groups and that Interpretation 211-1(h) be expanded to include women faculty of all colors as well as minority faculty who are either male or female." We request that the Standards Review Committee give the Council a progress report on the status of this recommendation.
As noted above, we append to this report two bibliographies, prepared by Professor Kathy Vaughns and Maxine Grosshans, of the University of Maryland Thurgood Marshall Law Library research staff, of recent materials published about the two topics included within our charge.
Respectfully submitted,
Justice Joseph
F. Baca, New Mexico Supreme Court
Dean Martin Belsky, Univ. of Tulsa College of Law
Professor Michael Olivas, University of Houston Law Center
Professor Laura Marie Padilla, California Western School of Law
Dean Burnele V. Powell, University of Missouri (KC) School of Law
Professor Judith Resnik, Yale Law School
Ms. Pauline Schneider, Hunton & Williams, Washington DC
Professor Katherine L. Vaughns, University of Maryland School of Law
Ms. Diane Yu, Monsanto Company
Dean Herma Hill Kay, Chair, University of California (Berkeley) School
of Law
