Gender Discrimination at Harvard Law School

For my next post, I thought I would discuss a recent video by the Harvard Women’s Law Association. The video alleges systemic gender disparities at Harvard Law School. As a current student of Professor Lani Guinier, who features in the video, I found the topic especially interesting.

The video points out that a lower percentage of women graduate with all levels of Latin honors, and that only 20% of the law review class of 2012 is female. This, according to disparate impact theory, is evidence of discrimination and a potentially toxic environment at HLS.

One of the main recipients of the vitriol of the Women’s Law Association is the Socratic method. The video especially singled out this teaching style as something that is “keeping women down” because it is “competition-based and individualistic.” Moreover, they claim it contributes to “a learning style and a teaching style that is male-centric.”

While I agree that the Socratic method is nearly useless as a learning tool, I think it’s important to point out that it has nothing to do with grades. You see, law school exams at Harvard are blind-graded. This means that when the professor grades an exam, he or she has no idea which student’s exam they are grading. Consequently, your responses to in-class Socratic questioning have nothing to do with your grade. So, for those classes with blind-graded exams (that is, the majority of law school classes), I have difficulty seeing any merit to the argument here.

In other classes, students write papers, and participation counts. In these instances, the professor knows who the writer is. However, in these classes, professors do not utilize the Socratic method. While there are exceptions to every rule, neither I nor any of my colleagues at HLS were able to come up with any counterexamples from our own experiences here.

Despite the fact that there is no demonstrated correlation between grades, Latin honors, and the Socratic method, the notion that the Socratic method is “keeping women down” is becoming accepted dogma even at the highest levels. When Justice Ruth Bader Ginsburg came to speak to our class this February, she and Professor Guinier discussed the need to “never call on the first person who raises their hand” because, they said, women are less likely to speak up in class than men. Justice Ginsburg, in explaining why she thought the policy was necessary, said, “Women think before they speak.” The implication, of course, was that men do not.

I believe that Justice Ginsburg meant the remark as a joke. However, I was still floored by her incredibly sexist response. I imagined Justice Scalia coming to Harvard and saying the inverse (“Men think before they speak.”) and the hell that would have broken loose. Instead, there was polite laughter.

Just like I don’t think it’s productive to blame the Socratic method without a clear link between the Socratic method and academic performance, I also don’t think it’s productive to stereotype men and women into gender roles in this way.  As a man, I feel like I don’t have a place in the discussion, even though I too find that the Socratic method leaves a lot to be desired.

What We Need

I think the Women’s Law Association is right to want to look into the issue. They’re on the right track: something about law school isn’t working. And there may well be discrimination against women at HLS.  But I think any progress on the issue is hindered by pointing to factors like the Socratic method without first establishing a clear causal link.

One potential causal factor that should be explored: even with blind grading, a professor could still potentially guess the gender of his or her students by reading their exam. Using relatively simple algorithms, it is possible for a website to guess your gender with decent accuracy based only on a writing sample. The algorithms ignore what some would typically consider “male” and “female” subject matter, and instead focus almost exclusively on differences in pronoun usage. Similarly, it seems plausible that a law professor could intuit a student’s gender by reading their exam, opening up the door for discrimination.

What would be interesting is some data. First, how do female professors grade female students? If women consistently do better in courses taught by women, then this strengthens the case for the alleged discriminatory grading. Similarly, how do women on Law Review grade female law review applicants? How many women applied to be on Law Review? (The video claimed that women were less likely to “throw their hats into the rink as often.”) Consistent with that theory, a 1997 survey by the Harvard Law Review found that fewer women than men applied to the organization, and that  “women and men who actually applied to be on Law Review were admitted at equal rates.”

An alternative question: Should we be upset about the opposite scenario? That is, if women were getting more honors than men, would this be evidence of discrimination against males? Well, that is the situation at Harvard College, UCLA and Washington University Law School, just to name a few. But I haven’t seen any videos about it.

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One thought on “Gender Discrimination at Harvard Law School

  1. While I can’t speak for what the 1997 Law Review study found, I can tell you that in recent years the slight difference in the number of women participating in (and turning in) the competition has not even remotely accounted for the disparity in who has admitted.

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