Graduating Harvard University Law School students stand and wave gavels in celebration at commencement ceremonies June 5, 2008, in Cambridge, Massachusetts. (Photo by Robert Spencer/Getty Images)
Graduating Harvard University Law School students stand and wave gavels in celebration at commencement ceremonies June 5, 2008, in Cambridge, Massachusetts. (Photo by Robert Spencer/Getty Images)

If Women Dominate Men in Diplomas, Why Not JDs? (Perspective)

Editor’s Note: The author is a law professor who clerked for Justices Ruth Bader Ginsburg and Sandra Day O’Connor.

By Deborah Jones Merritt, John Deaver Drinko/Baker & Hostetler Chair in Law, Ohio State Moritz College of Law

This year women claimed just over half the seats at ABA-accredited law schools. That’s a first: women neared the 50% mark in 2015, but didn’t cross it until this year. The milestone is memorable, but why was it such a long time coming?

When Sandra Day O’Connor joined the Supreme Court in 1981, women already made up more than a third of all law students. Applications from women were climbing steadily, yet it took another thirty-five years for women to match men in law school enrollment. Justice O’Connor finished a quarter century on the High Court, as well as a decade in retirement, before the percentage of male and female law students equalized.

The delay wasn’t because women lacked the qualifications for law school. Women have outnumbered men among college graduates since at least 1990. Today they obtain a hefty 57% of all college degrees. Women also secure more master’s degrees and doctoral diplomas than men. So why weren’t women quicker to attend law school? And why don’t they make up a clear majority of our current students, paralleling their dominance in other parts of higher education?

I suspect that women, on average, find legal education and law practice less inviting than men do. Law professors still cross-examine hapless students in front of large classes. Grades in many law school courses continue to rest on a single, time-pressured exam. Strict grading curves foster competition rather than collaboration among classmates. The stakes of that competition are high: a recent paper by two Stanford professors found that small GPA differences significantly affected law students’ likelihood of receiving employer callbacks.

After graduation, the stresses continue. New lawyers struggle to find jobs and hold onto them. Employers demand long work hours with little flexibility. Heavy workloads leave little time to forge bonds with colleagues, feel compassion for clients, or reflect on ethical dilemmas.

These conditions harm both men and women, but they may disproportionately alienate female lawyers. We know that women are more likely than men to leave law practice, often because of the challenges listed above. Perhaps female college students choose paths other than law because they anticipate our profession’s stresses.

And yet, I know happy women lawyers. They and their employers have created lifestyles that allow time for family, personal growth, and excellent lawyering. These lawyers have time to listen to both their children and their clients. Their workplaces are flexible, capitalizing on technology and collegiality to promote healthy workstyles.

If we want to nurture women lawyers, we need to make changes like these. We can start in law school. The Stanford study found that men outperformed women in large classes, but that the gap disappeared in smaller sections of the same subjects. Easing the competitiveness of the grading system by reducing the number of gradations also improved women’s performance. Assessing students through simulations rather than time-pressured exams had an even larger gender effect.

The Stanford results focus on women’s success in law school, rather than their willingness to enroll. It’s a fair guess, however, that women succeed in smaller classes, a less competitive grading environment, and multi-dimensional simulations because they prefer those experiences. If implemented more widely, these changes might attract more women to law school.

Note that Stanford did not change its curriculum because the school wanted to improve the status of women. Instead, the school adopted new approaches to enhance the performance of all graduates. Smaller classes, reduced stress, and experiential learning pay off in professional education. Only in retrospect did the Stanford researchers discover the favorable effects for women.

Observing these effects suggests how law schools could maintain their flow of female applicants — and even grow that number. Given the dramatic decline in law school applications, we should pay close attention to the 57% of college graduates who are female.

At the same time, legal employers must rethink rigid attitudes about hours, the workplace, and workload. Very few workers in any field are so essential that they must be on call twenty-four hours a day. Even doctors take vacations; my obstetrician was out of town when I went into labor. Technology and team work can improve workplace flexibility if we give them a chance.

Sixty-four years have passed since Sandra Day O’Connor graduated from law school. Women law students were a rarity in her day, while they constitute a slight majority today. It’s our job to maintain that progress by cultivating educational and professional cultures that help women lawyers succeed.

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