Gender disparities in law school performance remain pervasive at even the most elite schools. Studies evaluating grades from the past two decades at both Stanford (2001-2012) and Yale (1995-96, 1997) Law Schools found that women receive lower grades and, at Yale, a lower percentage of clerkships. [1] Research suggests that grades and participation may be correlated. Yale law students in 2011 collected classroom data from 21 classes of different sizes, which included how often men and women answered cold-calls, volunteered comments, and interrupted other students. [2] When adjusted for attendance, only 42.8% of “participation events” came from women. [3]
Harvard is no better. HLS alum Adam Neufeld evaluated student performance from 1997-2003. [4] He found that men received higher grades in 1L classes and were more likely to graduate with latin honors. [5] Moreover, in a study monitoring 32 1L courses for 190 total class meetings in Spring 2003, [6] Neufeld found that men were 50% more likely to volunteer at least once during class and 142% more likely to volunteer three or more times. [7] Although women comprised 45% of students, they only made 39% of all comments. [8]
Has the gender gap narrowed over the past decade? To investigate this question, the WLA monitored the number of comments made by men and women throughout 1L sections.
Over a random 1 week period, a student volunteer in each 1L section (excluding section 2) collected data for their two spring semester doctrinal classes. While this data set is narrow, it produced interesting initial findings, especially considering that some initiatives to balance gender participation already exist. Averaged across the 6 sections, the findings are less stark than previous studies. Women and men each accounted for 50% of cold-calls. Men volunteered 53% of volunteered comments while women volunteered 47%. However, the data for individual sections provides a more nuanced look.
| Population | Subset | Total Cold Calls (CC) | Total Volunteers (V) | %Men (CC) | % Women (CC) | % Men (V) | % Women (V) |
| 2017 Class | Total | 306 | 565 | 50% | 50% | 53% | 47% |
| Section 1 | Total | 31 | 81 | 57% | 43% | 62% | 38% |
| Torts (Sargentich) | 11 | 31 | 62% | 38% | 54% | 46% | |
| Crim (Starr) | 20 | 35 | 55% | 45% | 56% | 44% | |
| Section 3 | Total | 69 | 110 | 45% | 55% | 50% | 50% |
| Contracts (Lessig) | 31 | 80 | 35% | 65% | 51% | 49% | |
| Leg Reg (Gersen) | 38 | 30 | 53% | 47% | 47% | 53% | |
| Section 4 | Total | 45 | 60 | 53% | 47% | 48% | 52% |
| Crim (Suk) | 40 | 12 | 50% | 50% | 42% | 58% | |
| Leg Reg (Tushnet) | 5 | 48 | 80% | 20% | 50% | 50% | |
| Section 5 | Total | 20 | 128 | 65% | 35% | 62% | 38% |
| Property (Glendon) | 8 | 73 | 50% | 50% | 64% | 36% | |
| Leg Reg (Vermeule) | 12 | 55 | 75% | 25% | 62% | 38% | |
| Section 6 | Total | 40 | 139 | 47% | 53% | 44% | 56% |
| Contracts (Emens) | 40 | 56 | 47% | 53% | 48% | 52% | |
| Crim (Whiting) | 0 | 83 | NA | NA | 41% | 59% | |
| Section 7 | Total | 101 | 47 | 47% | 53% | 60% | 40% |
| Property (Mack) | 57 | 30 | 47% | 53% | 63% | 37% | |
| Crim (Suk) | 44 | 17 | 45% | 55% | 53% | 47% |
As shown in the table above, women in Sections 1, 5 and 7 volunteered less than 50% of comments in both doctrinal classes; the total percentage of comments volunteered by women in those sections was between 38-40%. In sections 1 and 5, professors cold called women less than 50% of the time. Professor Suk employs specific strategies to facilitate a gender-balanced classroom, which accounts for the Section 7 cold-call data. [9] Her teaching assistants record how often students answer a cold-call or volunteer each class and then communicate with Prof. Suk to ensure that men and women participate equally. Though Professors Suk and Mack both cold called women more than 50% of the time, Professor Suk’s focus on ensuring balanced participation suggests a possible explanation for the higher percentage of women-volunteered comments in Section 7’s Criminal Law class.
In Section 4, Professor Suk cold called more men for the first recorded class and more women for the second, resulting in an equal number of men and women being called on over the week. Because there are more women than men in Section 4, and Professor Suk cold calls each student an equal number of times, she balances cold calling more men overall with taking more volunteer comments from women, which accounts for women volunteering 58% of the time. Professor Tushnet cold calls more women than men. [10] His cold calls during this week do not reflect this, but he only called on 1-2 students per class, which is typical, perhaps artificially lowering the overall cold-call percentage for Section 4 women. The overall volunteer percentage for women in Section 4 is above 50%, along with Sections 3 and 6. In both Sections 3 and 6 respectively, Professors Lessig and Emens cold called women more than 50% of the time. Professor Gersen cold called men 53% of the time, but women volunteered 53% of volunteered comments. Professor Whiting does not cold call, but his large discussion format produced the highest percentage of women participation.
Law students are not interchangeable, and section dynamics and other idiosyncrasies likely contribute to gender imbalances in the classroom. However, like Professors Suk and Tushnet, professors can take a more active role in managing classroom dynamics. The 2011 YLS study found that the cold-calling system produced the most equal gender distribution results; only 54.8% of “participation events” came from men in classes implementing a cold-calling or panel system. [11] When asked in surveys for recommendations to “encourage broad-based participation,” both men and women suggested cold-calling. [12] Professor Whiting’s classroom structure diverts from this model but appears very successful according to this survey.
Professor Suk’s cold calling method, along with programs at other schools show that gender disparities in participation and performance are not intractable problems. Both Stanford and Yale Law Schools found that relatively simple changes, such as smaller class sizes, increased participation and improved performance among women. In 2011, Harvard Business School began a comprehensive program targeting gender disparities, particularly in classroom participation. [13] Prior to 2011, women participated much less frequently than men, and, because participation comprises 50% of business school grades, performed significantly worse. The program used a variety of tactics, including training students to raise their hands affirmatively, incorporating tools that allowed professors to analyze their calling and grading patterns by gender, and changing the first-year curriculum. [14] Just two years after the program was implemented, the grade gap between men and women had vanished. [15]
The data collected suggests that women may still be less likely to volunteer in classes without a gender-balancing classroom method. However, we feel confident that if the law school chooses to make promoting equal participation a priority, both the participation and performance gap will close.
[1] Yale Law Women, Yale Law School & Faculty Speak Up About Gender: Ten Years Later, YALE LAW WOMEN at 13-14 (2012) (citing to Paula Gaber, “Just Trying to be Human in This Place”: The Legal Education of Twenty Women, 10 YALE J.L. & FEMINISM 15 (1998)); Daniel Ho and Mark G. Kelman, Does Class Size Affect the Gender Gap? A Natural Experiment in Law, 43 J. LEGAL STUD. 291, 299 (2014).
[2] Id. at 18, 19-22.
[3] Id. at 22.
[4] Adam Neufeld, Costs of an Outdated Pedagogy? Study on Gender at Harvard Law School, 13 AM. U. J. GENDER SOC. POL’Y & L. 511, 540 (2005).
[5] Id.
[6] Id. at 522.
[7] Id. at 531.
[8] Id.
[9] Dev A. Patel, In HLS Classes, Women Fall Behind, THE HARVARD CRIMSON, 3 (May 8, 2013), http://www.thecrimson.com/article/2013/5/8/law-school-gender-classroom/?page=3.
[10] Id.
[11] Yale Law Women, supra note 1, at 29.
[12] Id.
[13] Jodi Kantor, Harvard Business School Case Study: Gender Equity, THE NEW YORK TIMES, 3 (Sept. 7, 2013), http://www.nytimes.com/2013/09/08/education/harvard-case-study-gender-equity.html?_r=0.
[14] Id.
[15] Id.