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CHAPTER ONE

Why Isn't She President?

LANI GUINIER

In the fall of 1995, President Bill Clinton explained his veto of a congressional bill containing stopgap spending measures. He had to act as he did, he told us, because this bill raised fundamental issues about the role of government. Government, he announced, is not "a one-size-fits-all bureaucracy," but a way to organize society to help everyone realize his or her full potential. "We don't want a winner-take-all society," he declared. "We want a society in which everyone has a chance to win together." That goal--a chance to win together--and that critique--the answer is not one-size-fits-all--are foundational to the arguments in this book.

The essays in this volume tell the story of women's experience with legal education as a way to begin a wider conversation in which we rethink conventional norms. Based on our research and on the personal accounts of women participants, my coauthors and I argue that formerly all-male institutions cannot incorporate and take advantage of difference without changing from within. We argue that by reconsidering the fairness and functionality of an educational culture that trains, teaches, or evaluates everyone using a one-size-fits-all approach, these institutions can transform themselves to benefit women, others who have historically been outsiders, and, most importantly, all consumers of their services.

At the center of this volume is a study analyzing women's experience at the University of Pennsylvania Law School, conducted by Professor Michelle Fine, Professor Jane Balin, and myself with the able assistance of Ann Bartow, class of 1990, and Deborah Stachel, class of 1993. We found that women come to the school with credentials virtually identical to those of their male counterparts, but that many women do not perform as well academically, do not participate as much in class, and do not graduate with comparable honors and awards. Using written first-person narratives, interviews, questionnaires, and quantitative research data, our study tells a poignant story about the insidious effects of gendered stratification.

Because law school's educational mission is so intertwined with the goal of selecting students for entry into a competitive profession, much of its pedagogy, including examination formats, is designed to rank students. The idea is that those who succeed in this highly competitive and individualistic culture will do well as lawyers. As a result, the law school valorizes sorting, rewards people who think fast but not always those who think deeply, and relies upon uniform rules and standards that may appear to treat all students the same but do not necessarily develop each student's true potential. We conclude that law schools such as the one we studied not only reflect or reproduce larger sets of social stratifications, they create and legitimize them.

This book focuses on the experience of a law professor who is a woman of color and on women law students of all colors. It chronicles the disappointments of women as they enter previously male-dominated institutions and, to a surprising extent, remain isolated, marginalized, and dissatisfied. In a crucial sense, however, this account is a critique, not a complaint. It is narrated by women, yes, but it contains lessons for all of us.

We learned, for example, that a standardized, hierarchical, competitive approach to training lawyers inhibits many women and some men. Such an approach sets in motion a peer culture that also intimidates and silences many women, in a process with which faculty interfere too rarely. We learned that too many women internalize their failure and begin to question their own abilities. At the same time, conventional approaches to legal education do not necessarily educate or evaluate everyone based on their capacity either to learn or to do the job of a lawyer well. Indeed, the very women who resist "playing the game" in law school do graduate. Most go on to become important, often distinguished, members of their profession.

We also learned about new ways of teaching from studying the way women, as "outsiders," perform in law school--many, for example, prefer group-based learning teams and participatory, student-initiated learning projects. Like certain of the most dazzling Olympic gymnasts, some women "can always do it when it's for the team" but struggle when it's for themselves.

Interestingly, the preference of some women students for cooperative styles of learning parallels findings about members of other underrepresented or marginalized groups. For example, Professor Uri Treisman studied African-American undergraduates who were having difficulty in learning calculus. His faculty colleagues assumed that these difficulties stemmed from "underprivileged" backgrounds, low motivation, weak academic records, and lack of family support, but Treisman found that all four of these assumptions were incorrect. The black students were actually studying as much as the Asian-American students who were excelling. What the black students were not doing, however, was studying in groups, whereas the Asian-American students were reinforcing what each learned individually by constantly talking about math in social settings--as they studied, over lunch, even as they walked to class.

Treisman did observe friendly competition among the Asian-American students--individuals would strive to come up with the best solution to a problem or to come up with a solution first--but in the end they shared what information they had so they all could excel. By contrast, few of the black students, many of whom were academic loners in high school, came to the university adept at learning mathematics or science from their peers. Especially for those black students whose self-reliance had been a resource in the past, social isolation from peers and the institutional culture of the university was now an important deficit to be overcome, as was their self-consciousness in asking for help even when they most needed it.

Treisman discovered that learning math was often best accomplished as an interactive, cooperative venture and went on to design a successful program using peer study group sessions. Through these faculty-sponsored workshops, the black students' academic needs were addressed in an informal setting, which helped remove social barriers as well. The basic premise was that through the regular practice of testing their ideas on others, students can develop the skills of self-criticism that are essential not only for the development of mathematical sophistication, but for all intellectual growth. Because he found that the best students were independent but not isolated learners, Treisman also encouraged workshop participants to assume leadership roles in other campus activities.

The issue, then, is not individual capacity to learn but that all individuals learn differently and some learn even better when their peers are their teachers. In the course of our study, we discovered that we cannot use a single set of criteria or a single pedagogical style to measure or teach a complex set of skills. We learned, in other words, the limitations of one-size-fits-all thinking.

We also discovered that an educational approach that emphasizes ranking rather than learning limits the range of skills that students are encouraged to bring to the profession. Not only does such an approach denigrate certain insights and perspectives, all too often it undermines the wonderfully complex and kaleidoscopic understanding that comes from integrating mainstream and marginal viewpoints. Problem solving, especially the solving of complex problems, may require individuals who not only value but need the input of diverse perspectives and skills, including the ability to listen not just speak, the ability to synthesize not just categorize, and a willingness to think hard about nuance and context even when that slows down the process of decision making. Indeed, among highly competent lawyers, successful performance often depends on a team of individuals, no single one of whom possesses all of the necessary expertise but all of whom, working together, are able to accomplish their task in a reliable way.

The most important lesson we learned, therefore, is that we must listen to the voices of those whose experience is both marginal and central to our understanding. The experience of many women is marginal in that women have traditionally been outsiders in the field of law, but the experience of these same women is also central because they offer us an opportunity to rethink the nature of the job we all want done. If we are committed to becoming a society that values inclusive decision making and genuine opportunity, the kind of we-all-can-win-something-together society to which President Clinton referred, we must learn that bringing in new perspectives, especially from those who have been underrepresented, is not only fair, it is functional.

In listening to women's voices, we tried to follow the admonition of Harvard scholar Ronald Heifitz, who writes about leadership without easy answers, as the process of "adaptive work"--of getting people to tackle tough problems, of getting people to take the risk of challenging conventional assumptions. We asked, for example, what does the present approach to legal education accomplish? Are conventional teaching methods and assessment techniques predictive of the kinds of work, the kinds of relationships, the kinds of collaborative approaches to solving private and public problems that lawyers will need in the future? The twenty-first century may require fewer litigators and more negotiators, fewer solo practitioners and more in-house counsel, fewer brilliant advocates and more brilliant collaborators. If that is the case, we can learn how best to meet the challenge of the future if we heed the words of social critic bell hooks: "With creativity and an open mind, we can use information from the margin to transform the way we think about the whole."

In using our research into the experience of women law students as the foundation for adaptive work, Michelle Fine, Jane Balin, and I considered three sets of questions. The first centers on what it means to be qualified as a law student or a legal practitioner in the first place: Are we using measures of qualifications that are functional, not just efficient or purportedly objective? Can we assess qualifications in advance and can we accurately predict the performance of lawyers using a single standard or a one-size-fits-all approach to assess performance of law students?

The second set of questions concerns fairness. Many are committed to an equality which they interpret as formally uniform treatment. Is that our goal--to treat everyone exactly the same? Or do we want to treat everyone fairly and productively? Are we confident that when we treat everyone the same we are treating everyone in a way that nurtures each one's potential?

The third line of inquiry begins with the question of what we can learn from diversity. Can diverse approaches to legal education help us adapt to the changing demands of legal work as well as our changing demographics? Can we begin a new conversation about the needs of twenty-first-century America for-lawyers who cooperate and collaborate in ways that draw from a diverse set of experiences and perspectives? Can our diversity help us find "adaptive" or creative or innovative approaches to training legal problem solvers? What can we learn from those who have been left out?

Our study suggests three related answers to these questions. First, we conclude that functional merit, meaning the ability to do a job, cannot always be measured by paper-and-pencil tests, whether they are nationally standardized ones like the LSAT (the standard admissions test for law school) or timed, in-class examinations administered at the end of a law school semester. The LSAT in particular may appear to be an efficient predictor of first-year law school grades, but it is not necessarily useful in identifying those who can actually do the job of lawyer, and, more importantly, do it well.

Second, we conclude that sameness is not necessarily fairness. Often the same treatment is not just or fair treatment. In particular, promoting real learning may require treating people differently, using different techniques depending on the topic, the motivation and experience of students, or the dynamic of the classroom.

Third, and perhaps most important, our study suggests the need to reconsider the nature of the job and the nature of the learning environment, not just to be more inclusive, but to do the adaptive work that we will need to do in the next century. Those women who are less competitive in the aggregate than men may fail in a competitive, highly stratified and individualistic law school culture, yet succeed in a cooperative, team-oriented environment. Their participatory, interactive style prepares them to be effective negotiators, corporation counsel, and transactional lawyers. And evidence suggests that lawyers who collaborate will often be those who are most valued in the twenty-first century. Teamwork, listening skills, and creativity in problem solving may be equally important, and sometimes even more important than argumentativeness, aggressiveness, or individualism as we prepare to enter a new era. As John P. Fernandez writes in The Diversity Advantage: How American Business Can Out-Perform Japanese and European Companies in the Global Marketplace, "[I]t is increasingly clear that a key to [corporate] success will be [the] ability to develop diverse, well-trained work forces that can function effectively as high-performance teams and produce quality products and services at a competitive price."

* * *

Our research began when Ann Bartow, then a third-year student at the University of Pennsylvania Law School, approached me to supervise an independent study. She wanted to shoot a videotape in which she reversed by gender all of the roles of professors and students. Ann had seen a video treatment parodying the experience of medical students, one in which all the professors were women and all the more vocal students were female. The medical school videotape, entitled Turning Around, contained several pointed role reversal vignettes. For example, "a female doctor leers at a male nurse, admires the fit of his uniform, pats him on the rear and calls him 'a good boy.'" The video parody presents the female body as typical; the professors draw from it all their examples about the effects of a disease. In one scene, a male medical student raises his hand tentatively to ask, "What happens when a male develops this disease?" The female professor wheels around and says dismissively, "You're smart. Extrapolate. Figure it out."

Knowing nothing about video at the time, I was nevertheless intrigued by Ann's project and agreed to supervise her independent study. I suggested that she first draft a script, which she did. The scenes were poignant depictions of subtle as well as blatant sexual harassment, but they all revolved around Ann herself. "I don't doubt your stories, but are they representative?" I asked. " Is it possible you have been a lightning rod for negative comments?" We agreed that before she invested any more energy into producing a video we should identify the extent to which Ann's experiences were typical. To that end, she drafted a seventy-question survey which she placed in the mail folders of all law students then enrolled at the school.

We were both pleased and troubled by the response--delighted that over half the student body responded but dismayed that the survey answers showed an institution deeply divided by gender. Many of the women respondents had entered law school full of self-confidence, one-third of them eager to practice public interest law when they graduated; by contrast, only 10% of their first-year male counterparts intended to practice in public interest.

But what was most surprising was the difference--an apparent change over time--between the responses of the first-year women students and the responses of third-year women. Only 8% of the third-year women who responded to the survey intended to practice public interest law. Furthermore, these third-year women, just like their first-year counterparts, did not participate much in class, but unlike their first-year classmates, they were not bothered by their lack of participation. The third-year men, like the first-year men, voiced some concerns and expressed criticisms of the way some professors intimidated them into learning, but they tended to see law school as a game or contest in which they simply had to fight back. One female student reported, "Guys think law school is hard, and we just think we're stupid"; some women, another said, sink "deeper and deeper in a mire, and just keep sinking lower and lower."

Ann suggested that we look at the academic performance of these women to see what, if any, impact the gendered dynamic had on women's grades as well as their attitudes. Ann, who graduated with honors, raised this possibility after looking at her own graduation program and discovering that few women in her class were also graduating with honors or had received the prestigious awards distributed by the predominantly male faculty. With the cooperation of Dean Colin Diver, professors Michelle Fine, Jane Balin, and I examined the academic performance of 981 law students at the University of Pennsylvania Law School over a period of three years.

We found that many women who come to law school with virtually identical entry-level test scores as men nevertheless do not perform as well in law school. These "neutral" entry-level credentials are not very predictive of actual law student performance. Our findings reinforce Supreme Court Justice William Douglas's earlier observation in a case involving university admissions. "Certainly the tests do seem to do better than chance," Justice Douglas wrote. "But," he added, "they do not have the value that their deceptively precise scoring system suggests.... [F]or example, most of those scoring in the bottom 20% on the test do better than that in law school--indeed, six of every 100 of them will be in the top 20% of their class."

Our study confirms the findings of others that the LSAT alone is not a very good predictor of performance for all students, not just women or minorities. Some women underperform compared to their scores on the LSAT. Many males overperform compared to their LSAT scores. But very few students actually performed in ways predicted by the LSAT. LSAT "explains" at most 21% of performance at Penn Law School in the third year. For students in their first and second years, the LSAT explains even less: 14% and 15% respectively. Moreover, above an LSAT threshold score of 34 or 35 on a scale that goes to 48, LSATs just don't matter as a predictor of performance in this law school. In other words, the LSAT test does not in fact predict performance for most law students regardless of race or gender.

Entry-level criteria of this kind also fail to take into account variables that predate taking the test, such as how often you were exposed to the test before you took it, and variables that postdate the test, such as study habits, interest in the subject matter, or the "culture" of the school--which turn out to be more important in determining law school performance than either test-taking skills or women's stronger undergraduate academic performance. The law school culture--meaning what gets measured, how people are rewarded, and what kinds of mistakes are not forgiven--represents a set of beliefs and values that emphasizes aggressiveness, legitimizes emotional detachment, and demands speed. The LSAT provides only limited predictive information regarding an applicant's potential to do well in this kind of environment; LSAT scores do, however, correlate with an applicant's family income, status, and gender.

Our data reflect the reality that many women are able to excel academically in law school. But our data also suggest, as recently confirmed by a 1996 report analyzing quantitative data from a national sample of 29,000 law students, that "law school is not an environment that nurtures the academic development of women." There is something about the law school environment that has a negative academic impact on female law students.

What would happen, we asked, if we used the experience of women as a point of critique and data for institutional change? Would we need, for example, to rethink the use of the LSAT as either a standard for admission or a predictor of success as a lawyer? Should we begin to examine critically both the pedagogy and the evaluative techniques that law schools use to rank students? Indeed, those admitted to Penn Law School graduate and become excellent lawyers without regard to their entry-level credentials. And--although those of us invested in teaching law may hate to admit this--many who graduate also become accomplished professionals without regard to their law school grades.

The managing partner at a large New York law firm confirmed this to me when he described a study his firm conducted of all the lawyers they hired over a thirty-year period. They found that those who were superstars in law school were also likely to be outstanding lawyers and to become partners in the firm. There was a relationship between the very top students in law school and the top 1% of their lawyers, but below the top 1 or 2% of law school performers the results were random. There was little or no correlation between law school grades and actual performance in the profession for most of the lawyers this firm had hired. In other words, he confirmed that what we in legal education often tout as "merit" is a baseline or minimum set of requirements upon which one builds the capacity to do the job. These requirements may be linked to certain skills, but they do not predict the ways in which these skills manifest themselves and especially do not permit us to make fine distinctions between people with essentially comparable credentials.

Efforts to predict in advance who will be successful often fail because they do not simulate well enough all of the conditions involved in the actual job. Moreover, success often reflects qualities of persistence, zeal, and initiative that are not measured by any paper-and-pencil test at any stage in one's career. A study of three classes at Harvard College reinforces both these intuitions. The study, which looked at three classes of alumni over three decades, found a high correlation between "success"--defined by income, community involvement, and professional satisfaction--and two criteria that might not ordinarily be associated with Harvard freshmen: low SAT scores and a blue-collar background. Marilyn McGrath Lewis, director of admissions for Harvard and Radcliffe, said, "We have particular interest in students from a modest background. Coupled with high achievement and a high ambition level and energy, a background that's modest can really be a help. We know that's the best investment we can make: a kid who's hungry." In fact, those with the lowest SAT scores and the poorest parents, who nevertheless convinced Harvard that they should be given a chance to succeed, did just that. In fact they succeeded not only beyond their parents' status but beyond what was achieved in the real world by their "more qualified" peers. It is not surprising, therefore, that college admissions officers at elite universities report that intense involvement in extracurricular activities, in part because it correlates with "initiative," is one of the best predictors of achievement."

Performance on a single test is not what correlates with success in life, as measured by financial rewards, professional satisfaction, and contribution to the community. Attempting to predict achievement using a one-size-fits-all standard fails to account for the multiple kinds of intelligence, motivation, self-confidence, and relationship to law school culture that likely affect performance. It is not simply a problem of predicting performance of law students, not simply a problem of identifying the right test in advance; it is also a problem that reveals the limitations of uniform tools of prediction. We often can't know in advance how a person will perform in a new setting, or what it will take to do well in a job whose functions are in flux.

It is the opportunity to learn--a job, a craft, a skill--and the motivation or drive to take advantage of that opportunity that often correlate with successful on-the-job performance. A former labor lawyer helped me understand this phenomenon based on his experience defending employment discrimination lawsuits. As he put it, those given the chance to succeed are in fact most likely to succeed. What we often mean by merit, he said, is the same thing as opportunity: those who are given the opportunity to go to Harvard do better in life than those who are denied that opportunity, and those who are hungry for that opportunity succeed more often than those for whom the opportunity was taken for granted. Incremental differences on one-size-fits-all paper-and-pencil tests may not be adequate to tell us to whom we should give that opportunity.

Our first conclusion, therefore, is that merit, meaning the capacity to do the job of lawyer, is not predicted or determined by conventional standardized tests. Like the Harvard study of three classes of alumni, our study of women law students reveals the limitations of seeking to predict performance based on a single instrument or a one-size-fits-all approach to ranking.

Second, our study reveals that sameness is not necessarily fairness. Even when we think we are treating people as equals, we may in fact be treating some differently. What looks the same if you are generalizing from your own experience may be construed differently by others: sameness as a uniform standard assumes that one can generalize from the perspective or intent of the person setting that standard.

Our data on women at Penn Law School suggest that while the school may be treating all students the same, it may not be treating all students equitably. Some students may not be participating as much, learning as much, or feeling as competent when we insist on teaching them all by the same methods and all in a hierarchical, adversarial, formalistic way. Sameness may not be fairness in this context.

For example, when we asked students in a 1991 seminar and then again in a 1992 seminar why men and women responding to Ann's survey chose different qualities as being important in a professor--with the men in the aggregate valuing "expresses ideas clearly" and the women choosing instead "treats students with respect"--they responded that men are already treated with respect and therefore do not value that quality as much. But an alternative explanation, offered by a female colleague, is that many women need friendliness cues more than men--that men, either because of the culture of law school or because of the culture of American society, feel entitled to ask questions and approach faculty, whereas women and many people of color wait for a signal first that it is "safe" to approach. Thus the professors may be treating both men and women, whites and people of color, "the same," but the effect of that treatment is very different depending on how it is perceived and received.

Our study shows that certain students--including many but not all women and probably some men--bring a different perspective to the role of lawyering. As mentioned above, for example, many more women than men came to law school to do public interest or public service work. This difference paralleled the difference we found in class participation.

Female law students were significantly more likely than male law students to report that they "never" or "only occasionally" asked questions or volunteered answers in class. The women students who responded to our survey reported that men ask more questions, volunteer more often, enjoy greater peer tolerance of their remarks, receive more attention from faculty during classes, get called on more frequently, and receive more post-class "follow-up" than women. Similarly, a recent study of law school teaching at eight different law schools across the country found that male students speak disproportionately more in all classes taught by men, and that gender disparities are more apparent in the elite schools regardless of the gender of the professor. As Catherine Krupnick found in her study of twenty-four Harvard classrooms, professors allowed those with the quickest response time to dominate classroom discussion.

One of the reasons for this differential level of participation may be that the very large, traditional law school classroom does not create a learning space for those students--many of them women--who learn better through collaborative and nonadversarial methods. The requirement to perform in a particular way in law school establishes the harshest and most adversarial version of the Socratic method as the benchmark for success. One commentator has described the stereotypical Socratic approach at its worst as learning how to ask rude questions. Most people ask questions because they want to know the answer; lawyers are trained never to ask questions unless they already know the answer.

In training students to think of the process of asking and answering questions as an opportunity to put someone on the spot, to demonstrate how little that person knows, or to identify important hidden assumptions, conversation is valued for its adversarial style. It is perceived as a fight to prevail, not a method of inquiry. To the extent this occurs, the technique of Socratic teaching--in which law professors train students to "think like lawyers" by asking individual students to answer a stream of questions in front of their peers, often "cold calling" on students who are not identified in advance--looks to many women like ritualized combat. Students who do well often do so because they see this version of the Socratic method as a game, and as in all games, they play to win.