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Women, representation and the legal academy

Published online by Cambridge University Press:  02 January 2018

Clare McGlynn
Clare McGlynn*
Affiliation:
University of Newcastle upon Tyne
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Abstract

Successive studies have documented the institutionally marginalised status of many women academics. What remains unclear is whether such findings apply equally to women legal academics. This article begins the process of investigating the role, status and experiences of women legal academics, reporting the findings of the first survey into the representation of academic women in UK university law schools. The study presents a snapshot of the gender composition of law schools in October 1997, at all levels of seniority, together with data on the representation of women in each responding law school. It finds considerable differences between law schools, as well as an under-representation of women compared with men at senior levels. It is suggested that these patterns of the representation of women legal academics have important ramifications for legal education, the legal profession and the discipline of law itself.

Type
Research Article
Information
Legal Studies , Volume 19 , Issue 1 , March 1999 , pp. 68 - 92
Copyright
Copyright © Society of Legal Scholars 1999

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References

1. The focus of this article is on representation, but this is not to suggest that numbers alone are sufficient to change attitudes. Numbers are only a start; they are necessary to begin to affect attitudes, but they alone are adequate. On this point, see further E Schneider ‘Task Force Reports on Women in the Courts: The Challenge for Legal Education’ (1988) 38 JLE 87, 89.

2. Statistics provided by the Higher Education Statistics Agency (HESA) and quoted in THES 3 July 1998.

3. HESA statistics quoted in THES 5 June 1998.

4. AUT Press Release ‘Unfairness at work in academe: women coming off worse’ 15 May 1998.

5. HESA statistics for 1995-96 discussed in (1998) 45 AUT Woman.

6. See above n 5.

7. See above n 5.

8. See above n 3.

9. Independent, 25 June 1998.

10. AUT Sex Discrimination in Universities (London: AUT, 1992) p 2.

11. At least this compares favourably with the ‘headline’ figure for the difference between women and men's pay of 79.9%. For a detailed examination of the levels of women's pay, and the differences between groups of women, see A McColgan Just Wages for Women (Oxford: Clarendon Press, 1997) pp 17–82.

12. See above n 10, p 8. The ‘lower status’ of women within academia is discussed below.

13. R McNabb and V Wass ‘Male-female Salary Differentials in British Universities’ (1997) 49 Oxford Economic Papers 328.

14. See above n 13, p 334.

15. And goes against the general trend towards a reduction of the gap between the pay of women and men: see above n 11.

16. See above n 13 p 340. This was confirmed by an analysis of starting salaries, with women being paid on average 6% less than men.

17. See above n 13 p 338.

18. See F Cownie ‘Women Legal Academics: A New Research Agenda?’ (1998) 25 J Law & Soc 102, 107, for the suggestion that Bordieu's concept of cultural capital should inform any analysis of women legal academics.

19. CVCP Promoting People: a strategic framework for the management and development of staff in UK universities (London: CVCP, 1993).

20. See eg L Morley ‘Glass Ceiling or Iron Cage: Women in UK Academia’ (1994) 1 Gender, Work and Organization 194; L Morley and V Walsh (eds) Feminist Academics: Creative Agents for Change (London: Taylor & Francis, 1995); A Brooks Academic Women (Buckingham: Open University Press, 1997); S Davies et al (eds) Changing the Subject - Women in Higher Education (London: Taylor & Francis, 1994).

21. See in particular B Bagilhole ‘How to keep a good woman down: an investigation of the role of institutional factors in the process of discrimination against women academics’ (1993) 14 BJ Sociology of Education 261, 270.

22. Eg Sheila McIntyre has noted how, when she first compiled a record of all the adverse comments and experiences which were gender related and which took place within her first year of teaching, she was surprised at how many incidents there were. It is only when the totality of experience is noted that the real impact can be realised. See S McIntyre ‘Gender Bias Within the Law School: the Memo and its Impact’ (1987-88) Can J Women and the Law 362, 367.

23. J Wilson ‘A Survey of Legal Education in the UK’ (1966-7) 9 JSPTL 1, 5.

24. See J Wilson A third survey of university legal education in the UK (1993) 13 LS 143; P Harris and S Bellerby A Survey of Law Teaching (1993) (London: Sweet & Maxwell and the ALT, 1993); and P Harris and M Jones ‘A Survey of Law Schools in the UK 1996’ (1997) 31 Law Teacher 38.

25. The only figures disaggregated according to sex in the updating surveys are those relating to students.

26. HESA keeps records relating to ‘cost centres’, which are not equivalent to law schools.

27. P Leighton, T Mortimer and N Whatley Today's Law Teachers: Lawyers or Academics? (London: Cavendish, 1995). This research was based on just over 1,000 completed questionnaires from legal academics in all sectors of higher education, 42% of whom were women.

28. Ibid, p x.

29. Ibid, p 71.

30. An article by one woman legal academic seems to suggest that this may be the case: A Montgomery ‘In Law and Outlaw? The Tale of a Journey’ in L Stanley (ed) Knowing Feminisms - on academic borders, territories and tribes (London: Sage, 1997) pp 58–71.

31. Australian Law Reform Commission Equality before the Law: Women's Equality Report No 69 (1994) ch 8, para 8.7.

32. M Thornton ‘Discord in the Legal Academy: the case of the feminist scholar’ (1994) 3 Australian Feminist LJ 53 and Dissonance and Distrust: Women in the Legal Profession (Oxford: Oxford University Press, 1996) pp 106–129.

33. See above n 32 ‘Discord…’ p 57. This is not to deny that some men are outsiders in the academy. However, as has been argued in articulating a male typology, the subject positions open to men are generally empowering. See R Collier “Nutty Professors”, “Men in Suits” and “New Entrepreneurs”: Corporeality, Subjectivity and Change in the Law School and Legal Practice (1998) 7 Social and Legal Studies 27.

34. See above n 32 ‘Discord…’ p 53.

35. Canadian Bar Association Touchstones for Chance: Equality, Diversity and Change (1993) ch 8, p 155.

36. Ibid, pp 159-160.

37. Ibid, p 160.

38. Ibid, p 155 and n 22.

39. Quoted in L Dusky Still Unequal - the Shameful Truth about Women and Justice in America (New York: Crown Publishers, 1996) pp 85–86.

40. R Chused ‘The Hiring and Retention of Minorities and Women on American Law School Faculties’ (1988) 137 Univ Pennsylvania LR 537,548. Legal writing is a skills- based course for first year students which generally does not have the same status as a substantive law course.

41. R Seibel ‘Do Deans Discriminate? An Examination of Lower Salaries Paid to Women Clinical Teachers’ (1996) 6 UCLA Women's W 541.

42. See Dusky above n 39, pp 84–116; M Harrington Women Lawyers - Rewriting the Rules (London: Plume-Penguin, 1993) pp 41–68; Chused above n 40; C Tobias ‘Engendering Law Faculties’ (1990) Univ Miami LR 1143; Symposium ‘Black Women Law Professors: Building a Community at the Intersection of Race and Gender’ (1990-91) 6 Berkeley Women's LJ 1.

43. On suggestions for a further research agenda on women legal academics, see above n 18.

44. The questionnaire also sought information on the extent to which gender/feminist perspectives are included in the law school curriculum, the results of which are discussed in C McGlynn The Woman Lawyer - making the difference (London: Butterworths, 1998) pp 12–16.

45. The questionnaire requested returns as soon as possible; the covering letter specified by 30 September 1997.

46. This response rate compares favourably with that of 88.4% for the study by Harris and Jones, which had a slightly larger survey population and more extensive questionnaire: see above n 24 p 45.

47. With two exceptions, where factual errors were reported by the law schools concerned after the first submission of the completed questionnaire. In these two cases, the relevant changes are included in the data.

48. For ease of reference, the appendix breaks down the statistics in terms of professors, senior (non-professorial) staff, lecturers and total staff.

49. Excludes figures for dean/sheads of department (the individuals occupying such positions are included in the relevant category of staff) and honorary/visiting professors.

50. New universities corresponds to those institutions which acquired university status in 1992.

51. See above n 49.

52. F Cownie and A Bradney English Legal System in Context (London: Butterworths, 1996) p 131 note that of the 48 law schools listed in the Directory for the Society of Public Teachers of Law in 1995, only five listed a woman as Dean, Head of Department or Chair of School, equivalent to 11%, although nine schools made no response.

53. Note that in some law schools the position of head of department/school and dean is held by the same person. Where this is the case, it is reflected in both statistics.

54. Although not all heads of department/school or deans are professors.

55. See above n 2.

56. These figures are for 1994: see above n 31, para 8.10.

57. See above n 39 p 84. These figures are for 1996.

58. The universities of Glasgow and Liverpool.

59. See above n 40 p 550.

60. See above n 40 p 552.

61. See above n 13 p 340.

62. See above n 44 p 95.

63. B Cole Trends in the Solicitors ‘Profession - Annual Statistical Report 1997 (London: Law Society, 1997) p 17 and Law Society Trends in the Solicitors’ Profession - Annual Statistical Report 1994 (London: Law Society, 1995) p 13.

64. C McGlynn and C Graham Soliciting Equality - Equality and Opportunity in the Solicitors’ Profession (London: Young Women Lawyers, 1995) p 8. See also C McGlynn ‘Soliciting Equality -the way forward’ (1995) 145 NLJ 1065–1066, 1070.

65. C McGlynn ‘Where men still rule’ The Times, 22 April 1997.

66. H Sommerlad ‘The myth of feminisation: women and cultural change in the legal profession’ (1994) 1 Int J of the Legal Profession 31, 34.

67. See Cole, above n 63 p 2.

68. See above n 44 p 146.

69. B Hewson ‘You've a long way to go, baby’ (1996) 146 NLJ 565.

70. Ibid.

71. See S McRae Women at the Top - Progress after Five Years (London: Hansard Society, 1996), which details a similar lack of senior women in many other areas of public life.

72. All of which, with one exception, are new universities.

73. See also Harris and Jones above n 24 p 82 who note that in the old universities the majority of staff are recruited and remain for a considerable time at lecturer level, compared with the new universities, where there is now almost an automatic progression from lecturer to senior lecturer.

74. For a similar analysis in respect of lecturers in all disciplines, see Association of Commonwealth Universities ‘Single Sex Education? Representation by Gender Amongst Staff at Commonwealth Universities’http://www.ACU.ac.uk/chems/surveys/women1.html.

75. See above n 13.

76. See Cole above n 63 p 71.

77. HESA Data Report July 1995.

78. See Dissonance and Distrust above n 32 p 104.

79. Ibid.

80. In 1996 women were awarded 47% of all firsts, representing a drop from 51% in 1995. See Cole above n 63 p 64 and V Lewis Trends in the Solicitors’ Profession - Annual Statistical Report 1996 (London: Law Society, 1996) p 69. For a discussion of these statistics and the possible reasons for them, see McGlynn above n 44 pp 18–20.

81. See above n 44 p 20-21 and n 74.

82. ‘Campaign against casualisation’ (1997) 44 AUT Update 1.

83. Quoted in L Hodges ‘The casual approach to teaching in our universities’ Independent, 22 January 1998.

84. This compares favourably with the figure of 35% in Australian law schools established in one study in 1994: see above n 31 para 8.7.

85. Similar findings are evident in the US, where high prestige law schools are the laggards when it comes to the representation of women: see above n 40 pp 549-550 and throughout the university sector in the UK, see above n 74.

86. Where law schools have the same percentage representation of women, they are listed alphabetically.

87. However, the fact that one or two appointments, or departures, can make a significant difference to the law school's representation of women simply serves to underline the point that there are few women in many law schools, especially at senior levels.

88. See Table 1 and n 2.

89. Excluding honorary/visiting professors.

90. See above n 44, esp chs 4 and 6.

91. For suggestions for such a programme of action in the US context, see Tobias above n 42.

92. Manifested in the Bar's Equality Code and the Law Society's Anti-Discrimination Practice Rule.

93. Quoted in Tobias above n 42 p 1143.

94. See above n 52 pp 123–134.

95. See above n 1 pp 88–93.

96. See above n 1 p 95.

97. ACLEC First Report on Legal Education and Conduct (1996) pp 24–25. In addition, the report suggested that legal education should inculcate the ‘ethical value’ of ‘equality of opportunity’ (p 17). Questions, however, must be asked as to how this is to be achieved when there remains an absence of academic women at senior levels in law schools.

98. E Coleman Jordan has argued that the role model argument ignores the ‘dynamic, intergenerational nature of both teaching and learning’ and thus the argument ‘devalues the contribution that our students can make’ and that it is ‘mentors’, who are continuously legitimated and reinforced by an interactive, communicative process that are required: ‘Images of Black Women in the Legal Academy: An Introduction’ (1990-91) 6 Berkeley Women's LJ, 7–8. I would suggest that role models and mentors are necessary. The mentor is the academic woman with whom the student has personal contact, be they tutor, teacher or other member of the law school. In that sense, the mentor is someone engaging not just in an exercise of ‘look at me’, but in a positive dialogue with students. On the other hand, a role model may be someone whose writings a student comes across or to whom reference in teaching and writing is made, or someone in the law school with whom the student has no contact. In other words, someone who is not known personally to the student and who cannot therefore engage personally. Role models and mentors are important for women students.

99. On the suggestion that the ‘segregation of women and the feminine from authority is internally connected with the concept of authority itself’ see K Jones ‘On Authority: Or, Why Women Are Not Entitled to Speak’ in J Roland Pennock and J Chapman (eds) Authority Revisited (London: New York University Press, 1987) p 152.

100. See M Shiner and T Newburn Entry into the Legal Professions - The Law Student Cohort Study Year 3 (London: Law Society, 1995) and M Shiner Entry into the Legal Professions - the Law Student Cohort Study Year 4 (London: Law Society, 1997), which detail the greater difficulties which women and ethnic minority students face when seeking to enter the legal profession, compared with white men.

101. In relation to the Bar, see J Shapland and A Sorsby Starting Practice: work and training at the junior Bar (Sheffield: Institute for the Study of the Legal Profession, University of Sheffield. 1995), TMS Consultants Without Prejudice? Sex Equality at the Bar and in the Judiciary (London: Bar Council and Lord Chancellor's Department, 1992) and above n 44 chs 5 and 6; and, regarding the solicitors’ profession, see H Sommerlad and P Sanderson Gender, Choice and Commitment - women solicitors in the UK and the struggle for equal status (Aldershot: Ashgate, forthcoming) and above n 44 chs 3 and 4.

102. See above nn 63–71.

103. See Harrington above n 42 p 45.

104. R Jack and D Crowley Jack Moral Vision and Professional Decisions: The Changing Values of Women and Men Lawyers (New York: Cambridge University Press, 1989) p 166.

105. The role of law schools more broadly must also be considered, but is beyond the scope of this article. Although not all law students seek a career in legal practice or academia, this does not lessen the impact or significance of the hidden curriculum discussed above. As Martha Nussbaum has argued, higher education must contribute ‘to a general education for citizenship, not just a specialised preparation for a career’ . In particular, the aim of higher education must be to ‘cultivate humanity’ and this can only be achieved within an environment which embraces diversity: M Nussbaum Cultivating Humanity: A Classical Defense of Reform in Liberal Education (Harvard: Harvard University Press, 1997) p 294.

106. T Brecher Academic Tribes and Territories - intellectual enquiry and the cultures of disciplines (Milton Keynes: Open University Press, 1989) p 1.

107. See above n 18 p 103.

108. See H Hill Kay ‘The Future of Women Law Professors’ (1991) 77 Iowa LR 5, 16. Further, Carl Stychin has suggested that the emergence and institutionalisation of both feminist legal theory and critical race theory have in turn helped to enable the development of newer challenges to legal doctrine in the form of lesbian and gay legal studies. Stychin continues, however, that ‘we should never underestimate the extent to which the centre is resistant; and the legal centre often has a particular intransigence with respect to giving up its privileges’: Law's Desire - Sexuality and the Limits of Justice (London: Routledge, 1995) pp 1–2.

109. L Guinier ‘Of Gentlemen and Role Models’ (1990-91) 6 Berkeley Women's LJ 93, 99.

110. bell hooks quoted in H Dalton ‘The Clouded Prism’ (1987) 22 Harvard Civil-Rights Civil-Liberties LR 435 p 444.

111. For a discussion of each of these claims, see McGlynn above n 44 chs 1 and 2.

112. A H Halsey declares that higher education provides ‘one of the most attractive careers for women in paid employment in modem society’, in part because the establishment of women in teaching posts is ‘culturally assimable to the traditional “caring” role of women’: Decline of Donnish Dominion (Oxford: Oxford University Press. 1995) p 216.

113. Symptomatic of this was an editorial in the THES 5 June 1998, which suggested that ‘academics are probably less prejudiced that most professions’.

114. See further Collier above n 33 and ‘Masculinism, Law and Law Teaching’ (1989) 19 Int J Sociology of Law 427.

115. National Committee of Inquiry into Higher Education Higher Education in a Learning Society (Dearing Report) 1997.