Wednesday, February 27, 2008

Critique of the Day: Beyond Gentlemen by Lani Guinier, Ann Bartow, et al.


Guinier, Lani et al., Becoming Gentlemen: Women’s Experiences at One Ivy League Law School, 143 U. Pa. L. Rev. 1, (1995).


This is an interesting article that began as an independent study by Ann Bartow (Law, South Carolina, now running Feminist Law Profs blog) when she was a law student at U Penn. (Bartow wrote a follow-up article called Still Not Gentlemen, available at SSRN). Methodologically, it is an interesting, decent-scale study that draws on academic performance data from 981 students, self-reported survey data (surveys were distributed in student mailboxes) from 366 students (out of 712, response rate 51.4%), written narratives from 104 students, and group level interview data from 80 students at U Penn Law School. This is a case study.

The survey design is itself interesting: multiple choice questionnaire with one open-ended question designed to elicit narrative responses. The research design is multi-tiered, allowing a complex assortment of responses and forms: an empirical analysis of the academic performance data; a survey designed to assess law student attitudes toward career goals and law school experiences, and a combination of narrative and interview to elicit richer responses. However, the authors admit that the study is cross-sectional, as longitudinal data was not available given the nature of the survey/interview method, and so there is a selection bias problem regarding those who chose to respond to the narrative question and those who chose to participate in interviews. . However, this does not detract from the very rich picture painted of the attitudes and experiences of the U Penn law students in the early to mid 1990s. The mixed-methods approach, while limiting the study to cross-sectional data, gave a fuller picture of this.

The findings are that male and female students perform differently in terms of grades, post-graduation employment, and in the classroom. The Socratic Method is especially alienating to female law students, who characteristically favor consideration before making a remark in class, if at all. And such a method favors quicker responses and competition, which male students engage in with greater ease and alacrity. According to the study, “many” women enter law school committed to social justice and public interest law, but by their third year they change to corporate law ambitions and seem to struggle with that cognitive dissonance.

Men and women enter with the same impressive educational credentials, yet graduate with different performances, the women performing less well than the men and being less likely to be candidates for order of the coif. Indeed, the performance difference is not merely confined to how the female and male students perform in classrooms and at the school, but extends to post-graduation: the women graduate with less competitive academic credentials, are not represented at the top of the law school’s academic and social hierarchies (e.g., order of the coif), and are less competitive for prestigious/desirable jobs upon graduation.

Hypotheses proposed to explain the finding of dramatic difference in performance in and beyond law school are: 1) the exclusion women feel from the formal educational structure of the law school; 2) many women are excluded from the informal educational environment of the law school, and 3) some women are individually affected psychologically and professionally by the gendered stratification within the law school (5-6).

The study draws upon, at least in motivation and inspiration, the “phenomenon of silence” in the classroom: why don’t female students speak up? The empirical results of this study, thanks to the rich qualitative data, provide complex answers to this question, which prior to this was theorized in feminist legal jurisprudence and critical race theory as being due to women’s “different voices” (MacKinnon) and “multiple consciousness as outsiders” (Matsuda) (15-16). Previous studies were complicated by issues of bias in primary assumptions; the Bartow survey was more open-ended and informal in nature to allow respondents to direct their own reactions.
One interesting aspect of the study is the quantitative analysis of participation in the classrooms, with female law students being “significantly” more likely than male law students to report that they “never” or “only occasionally” ask questions or volunteer answers in class. This is an empirical finding that corroborates the theory of the phenomenon of silence, but it is in the narrative responses (albeit limited by selection bias and response rate) that this phenomenon is fleshed out: the narratives by female respondents report the first-year law school experience as “radical, painful, or repressive” (42), “alienating”, and a psychological trauma that many wanted to suppress. Women felt as though they were silenced effectively in the classroom and beyond by being harassed for speaking in class (called lesbian, man-hater, not feeling safe to speak), as they were punished for performing against gender stereotype and at the same time demanded to because of the Socratic Method.

Perhaps this is the slightly dated nature of the study, but at the time of the study, the Socratic Method was almost universally in use at U Penn, and this method of interrogation-like questioning (in which the professor asks the student a series of question until the student him/herself arrives at the answer the professor expects) was considered intimidating and competitive by the female students. Ultimately, the women are expected to “become gentlemen”—assimilate themselves into this previously male-dominated legal education model and profession by becoming “social males” in and out of the classrooms in order to achieve the male-centric standards of success (vociferous commenting, hierarchy, competitive, high paying jobs), but when they do become gentlemen, they are punished for not acting like women, and when they are unable to, they are punished in their performance reviews and decreased career opportunities.

The analysis and recommendations portion of the article comes with many interesting and valuable theories, some that draw on then-existing and anticipate future studies on cognitive psychology (the idea of the impostor syndrome) , resource dependence theory (the idea of social closure, that women are denied access to informal networks that would help advance them), and implicit bias theory, that white men are encouraged more than students of color and women to participate in the classroom.

It is the view of the authors that the psychosocial needs of female law students should convince law schools to “reexamine traditional assumptions about lawyering” and legal education—should legal education model itself upon and encourage the adversarial system and way of thinking? Is the Socratic Method sound pedagogy? Can merit be tested by testing analytical thinking exclusively in the abstract, when that may not be how all people think? Law schools cannot ignore the gender academic performance differential, and they have a professional and educational obligation to minimize the gendered differences in performance and psychosocial health. Smaller classes and more cooperative learning environments based on less hierarchical pedagogical models (I am slightly disappointed that the authors did not cite Vygotsky, Freire, and hooks and their work on critical pedagogy) would do much to reform the entrenched, structural inequality and gender bias in law schools.


This is one of my favorite articles in the history of law reviews, and is recommended for all students of critical pedagogy, and who want to study and mitigate gender, race, and class performance differences in the classroom. This is a compelling empirical study of the problem that is theory-generating rather than theory-testing, and I think it’s a more honest study for that reason (see, e.g., Sander, 2005).