The Language of Law School This page intentionally left blank

Elite/Prestige
2
73
25
3
50
28
22
7
54
39
8
66
32
2
29
29
42
4
40
56
5
79
21
1
49
45
6
4
81
15
Regional
4
82
18
0
47
48
5
5
86
10
7
95
4
1
91
2
8
26
16
58
Local
1
67
31
3
17
60
24
2
74
25
6
73
25
2
33
21
46
4
34
62
3
84
15
1
63
24
13
9
60
31
* Focused dialogue is a series of three of more teacher-student exchanges (i.e., a minimum of six consecutive turns with the
same dialogue partners). Please note that, because decimals have been rounded, totals may not equal exactly 100%.

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Professorial Style in Context
173
last three categories, whereas, as we’ve seen, none of the judges in the more rule-
based categories lacked legal education. Some of the women in the mediators cat-
egory had had legal training. Although we obviously do not want to read too
essentialist a meaning into these findings, it is interesting that a confluence of gen-
der, race, and status/training appears to correspond roughly with a patterning of
discourse in the Conley and O’Barr study, and arguably in my study as well. In both
cases, white men with the most elite training are distinguished from the other sub-
jects in the study. Clearly, even if this pattern were to be substantiated in broader
studies, we would expect that there would be exceptions; in any case, we need fur-
ther research to accurately parse the combination of discursive and social/contex-
tual features at work.
43
I raise this issue simply to point to the as yet largely unstudied differences we
may find based on subtle differences among law teachers, individual classes, and
law schools. For example, as we’ve noted, in the 1970s Shaffer and Redmount pub-
lished a study finding that the discourse in three Indiana law schools was heavily
oriented toward lecture. Although again, I would not wish to draw any sweeping
conclusions from this coincidence, the class in our study with the heaviest lecture
component was a regional law school in the Midwest. I point this out not to sug-
gest any heavy-handed conclusions regarding geography and law school teaching
styles, but merely to raise the point that there are many factors to consider in at-
tempting to discern patterning. Along with status of the law school in which the
class is taught, we can ask about other aspects of the law school (school culture,
location, history, etc.) and about the gender, race, age, background, and other fea-
tures of the professor and students involved. In addition, the discursive environ-
ment in the class itself can obviously have a role to play.
Summary
In this chapter, we reviewed differences in teaching style across the classrooms in
this study, with a focus more on divergences than on similarities. Although some
aspects of dialogic structure can be found across all of the classrooms, we have seen
some dramatic differences in the degree of professorial control of class discussion.
These correspond to divergences in the degree to which professors employ lecture,
extended Socratic questioning, and shorter exchanges. We concluded the chapter
by asking whether there was any discernable social patterning that might explain
the distribution of these divergences in style. We do see some indications that any
patterning corresponds more with where professors were trained than where they
are currently teaching. Having examined possible connections between discourse
and social variation among the professors, we turn now to examine these kinds of
patterns in student’s classroom discourse.

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174
Difference
8
.
.
Student Participation and
Social Difference: Race, Gender, Status,
and Context in Law School Classes
174
H
aving examined professors’ discourse profiles, we turn now to analyze stu-
dents’ participation in the classes of this study. Over the past decade, there
has emerged a growing debate over the way students of different races, genders,
and backgrounds respond to law school pedagogy. In a study that received much
attention, Professor Lani Guinier and her coauthors at the University of Pennsyl-
vania indicted traditional law school teaching for creating a chilling climate that is
differentially discouraging to women.
1
 Other studies have found a negative response
to law schools among students with public interest ambitions, and, because more
women and students of color fit this profile, have found that this phenomenon has
a differentially negative impact on their experience of law school.
2
 In addition,
several high-profile legal challenges to affirmative action in law school admissions
have brought the question of race in law school to the forefront.
3
 In a sense, these
cases have highlighted a shocking dearth of empirical research on issues of racial
inclusion in law school, despite the arguable centrality of this issue to questions of
discrimination and representation in the legal profession. Although there has been
a growing literature on the question of gender in law school, the number of em-
pirical studies examining racial dynamics—for example, the effects of legal peda-
gogy on racial inclusion, and the importance of faculty or student cohort diversity
to successful integration—remains much smaller. Indeed, with a few notable ex-
ceptions, there has been little systematic empirical attention to the effects of race,
class, or school status on students’ experiences, although there have been numer-
ous first-person accounts documenting a sense of exclusion among many students
of color, as well as among working-class students.
4
This study tracked both race and gender in law school classrooms, and it is
the first to provide systematic observational data on race in these settings. In addi-

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Student Participation and Social Difference
175
tion, this is the first observational study of gender in law school classrooms to move
beyond counting turns to examine more subtle aspects of interaction. Finally, it is
also the first research on law school education that combines detailed observational
analysis with a comparison across a diverse range of law schools and professors.
This allows us to shed some light on the contours of inclusion and exclusion in
law school classrooms through an examination of the discursive environment cre-
ated for (and, in part, by) students in classroom talk.
5
 Although it is unusual for
observational work of this depth to include as many different classrooms and
schools as we did, it is still important to note that the research is best characterized
as a set of comparative case studies, particularly well-suited to giving in-depth pic-
tures of classroom dynamics and to generating hypotheses for further testing in
larger samples, rather than to proving statistically validated generalizations. None-
theless, comparisons among the classrooms of this study can be combined with
findings from other observational studies to generate a fuller picture, particularly
against the backdrop provided by survey and other quantitative research on law
schools. If interpreted with care and in the context of other research, results from
in-depth case studies such as those performed for this study can advance our level
of understanding and questioning regarding wider patterning, in addition to yield-
ing nuanced qualitative analysis of law school pedagogy. To generate this kind of
accumulative matrix for comparison, the following sections summarize not only
findings from the eight classrooms of this study, but also some of the results of
other relevant studies. Taken together, these combined research findings yield the
best picture we can produce at this point of law school classroom dynamics.
A threshold question is that of the effect or importance of student participa-
tion profiles in terms of students’ overall experience. In other words, what differ-
ence does student participation make? On the one hand, the typical first-year law
school class is graded almost entirely on the basis of written work; it is unusual to
find class participation playing much of a role in professors’ grading schemes.
6
 On
the other hand, researchers in other educational settings have found a link between
class participation and students’ sense of self-esteem, their overall performance,
and their sense of inclusion in the wider communities and professions into which
they are supposedly being socialized.
7
 One could certainly argue that, apart from
whether students’ grades are affected, there are potential independent offshoots of
low participation rates for certain students: that nonparticipation could nonethe-
less affect students’ morale or their image of which voices are valued in the profes-
sion to which they seek entry. As we will see, these arguments find support in
research from other educational settings. In addition, law school classrooms in
which discourse is largely dominated by white men teach a subtle lesson about the
social dimensions of discourse norms in this new arena, about entitlement and
whose views matter. At a time when an increasing number of reports are docu-
menting differential inclusion of students of color and women at higher levels of
the legal profession, findings on classroom climate may help to elucidate a process
that begins in law school but continues on to the highest levels of the profession.
8
In this chapter, we start with an examination of findings on race, then consider
gender issues, and conclude with a discussion of the complex matrix created by a
study of multiple layers of context, identity, and discourse as they play out in stu-

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176
Difference
dents’ talk. One corollary of this is that while some aspects of law school structure
may have greater impact on students with traditionally marginalized identities, they
may not be helpful for many white male students as well. In this sense, focusing on
the experiences of students of color and female students may yield results that are
useful for all students.
Race in Law School Classrooms
Research on the impact of race on school experience in other educational settings
has for some time documented the “way in which social inequalities are maintained
through the schools.”
9
 As broad-scale patterns of school failure became apparent
through the 1960s in schools serving largely working-class and minority communi-
ties (evidenced, for example, by high dropout rates and low success in supporting
academic achievement), educational researchers began to perform observational
research in classrooms that suggested ways the teaching in these schools might be
contributing to the problem.
10
 These studies revealed differential treatment ranging
from overtly discriminatory practices (e.g., differential allocation of resources, or
repeated incredulous questioning of minority children who performed well on tests)
11
to more subtle clashes of language and cultural norms. Erickson and Schultz’s and
Philips’s germinal work demonstrated how differences between mainstream and
minority identities, along with affiliated communication styles, could in quiet ways
negatively influence the availability of resources to minority students, a result sub-
stantiated in another classic study by Cazden and her colleague Michaels.
12
 Similarly,
James Gee used rhetorical analysis to demonstrate the ways a seven-year-old African
American girl’s narrative, properly understood, was a tour de force; the child’s teacher,
however, told her to stop talking and sit down (and eventually had the child sent to
the school psychologist on the basis of her “incoherent” storytelling).
13
This dramatic illustration of the silencing of alternative narrative forms in stan-
dard classrooms underscores the point made across numerous studies: that classroom
dynamics and misunderstandings can have a strong impact on students’ participa-
tion and their sense of being valued or heard. Indeed, one study that compared black
and white male elementary school students found that “among Black males class-
room interaction variables generally had a higher correlation with achievement than
was true for the sample of White males,” so that black male students’ overall success
in school seemed to depend even more on the quality of their classroom experience
than did the success of white students—a troubling result when taken in combina-
tion with findings indicating that they were less likely to have high-quality classroom
experiences.
14
Thus, we see, as Weinstein has eloquently noted, that students learn more
than academic lessons in the classroom: “It is a social context in which students
also learn social lessons—lessons about appropriate behavior . . . , about one’s
self as a learner and one’s position in a status hierarchy, about relationships with
students from other racial and ethnic groups, about the value of competition and
cooperation.”
15
 Interestingly, scholars have been able to trace very specific ef-
fects of classroom structure on racial dynamics. Qualitative analysis of classroom

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Student Participation and Social Difference
177
interactions has demonstrated the ways that teachers create “communicative
status,” conferring on favored students a sense that they are “students you can
learn from.”
16
 This status can attach to students regardless of the quality of their
answers. Use of recitation (the closest analogue to Socratic dialogue), with its
intensely public potential for evaluation of responses (both by teachers and peers),
tends to encourage the formation of entrenched, segregated groups.
17
 Conversely,
classrooms with more “status-leveling factors” and fewer competitive structures
encourage the formation of more interracial friendships; at the opposite end of
the continuum from recitation are structured programs for cooperative learn-
ing, which “were superior in producing positive race relations, pro-social devel-
opment, and classroom climate for all students.”
18
 Research results converge on
the conclusion that the “formal social interaction of the classroom can influence
students’ informal interactions” in powerful ways.
19
 Hence, even apparently
neutral structuring of classroom interaction using particular pedagogical tech-
niques (such as recitation) may contribute to hierarchies that take on a racialized
character. This is particularly the case when the indigenous discourse norms of
a minority community run counter to the norms embedded (indeed, hidden) in
those pedagogical techniques.
20
There is also a well-established literature documenting differential schooling
practices along class lines. Studies in this tradition have located a “hidden curricu-
lum” in the schooling of working-class students: teachers in these classrooms more
often train students to submit to authority, to focus on maintaining proper form
(rather than developing creative approaches to content), and to tolerate boredom.
21
The more empowered, active attitude toward learning that is encouraged in stu-
dents from middle- and upper-class backgrounds was vividly demonstrated in a
study that involved administering a questionnaire in nine high schools in the Los
Angeles area. In response to a forced-choice survey in which one set of answer
brackets had been omitted, middle-class students complained about and resisted
the forced choice but drew in their own set of answer brackets. Students from lower
socioeconomic backgrounds unquestioningly accepted the forced choice but re-
peatedly asked for permission to draw in the missing answer brackets in order to
complete their answer.
22
 This vignette demonstrates the telling differentiation that
can occur when schooling practices teach only particular students that it is their
prerogative to assert themselves, to make decisions independently in their learn-
ing process. Thus, work across various kinds of schools points to the importance
of a thorough examination of context in understanding classroom dynamics and
their impact on students from different backgrounds.
A number of studies have focused on minority students’ experiences in col-
lege. One observational study found that white students “were asked significantly
more complex questions by professors, were pushed more to better their response
to professors’ questions, and received greater amounts of time during the profes-
sors’ response to their question than did minority students.”
23
 Other studies had
previously demonstrated that teachers treat students differently depending on their
expectations; this subsequent observational study found some of the same differ-
ences in treatment between minority and nonminority students as had been found
in earlier studies between low- and high-expectation students.
24
 Studies of African

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178
Difference
American students have shown that they are more likely than their white counter-