The Language of Law School This page intentionally left blank

participation than are classes taught by men, because women students report par-
ticipating a great deal more in classes taught by women as well. In the present study,
the classes with the smallest gender disparities (which in these classes favor women,
but only slightly)—and therefore the most egalitarian overall distributions by
gender—are found in two of the three classes taught by women professors. One
survey of 1,059 students in 51 classes in a small midwestern college stressed the
effects of peer interaction on gender dynamics, noting that “student gender is a
significant component in class participation. Male students are more likely to offer
comments or raise questions in their classes. Females respond to the emotional
climate of a class more than do males, and most importantly, females’ participa-
tion is related to their confidence.”
53
 This is important to keep in mind in assess-
ing the meaning of silence, because it is against the backdrop of existing research
on girls’ and women’s differential silence in educational settings, across many lev-
els, that we must understand the gender patterns found in law school classrooms.
In general, studies of gender dynamics in college and graduate-level classrooms have
tended not to look systematically at such aspects of context as status and kind of
school.
54
 But a more general study of graduate and professional training in the
United States found that there were higher numbers of women at lower-status
schools; it also found that where women were a minority, there were more reports
of biased treatment.
55
There have been far more studies of gender than of race in law school class-
rooms. The rich literature in this area has focused in part on the distinctive char-
acteristics of law teaching; perhaps the most prominent debate focuses on the use
of the Socratic method. With very few exceptions, empirical studies of gender in
law teaching have relied either on self-report or on observation by students who
were themselves participants in the classes being studied. These studies have

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Student Participation and Social Difference
187
generally found differential responses to law teaching by gender. In 1986, Taunya
Lovell Banks studied five schools across the country and found a significant differ-
ence between men’s and women’s self-reports regarding voluntary participation
in class. Older women students reported more active participation in class than
younger women.
56
 More women than men reported that their lack of participa-
tion was due to feeling insecure or uncertain, although fewer women than men
reported that being unprepared was a reason for their failure to participate. Women
were more likely to report that the professor’s gender affected student participa-
tion, and to indicate that women professors encouraged students more than men.
Banks followed this initial study with further research in fourteen private and public
law schools across the United States from 1987 to 1989, research whose findings
largely repeated those of the first with regard to gender.
57
Subsequent surveys at individual law schools yielded similar results regard-
ing participation in class, with some interesting differences on other issues. A
study conducted in 1986 at Stanford Law School found that male students and
graduates reported asking questions and volunteering answers in class to a sig-
nificantly greater degree than did female students and graduates, despite a lack
of reported difference between men and women in actual law school perfor-
mance.
58
 A similar study was administered to students at the law school at the
University of California–Berkeley (Boalt Hall), examining both gender and race;
it also found marked differences between men and women, with white men uni-
formly more active and positive about their experiences.
59
 The Berkeley study
also documented a general slide in women’s grades relative to men’s between 1984
and 1988, based on objective grade data provided by the school. Research con-
ducted by Lani Guinier and her colleagues at the University of Pennsylvania Law
School found a similar disproportion in grades; they linked this with a “system-
atically alienating, three-year educational experience” for women, one key com-
ponent of which they described as “women’s silence in the classroom.”
60
 More
recently, a student group at Harvard Law School collected multiple kinds of data
on gender, including information on course grades in required first-year courses
between 1996 and 2000.
61
 Their results indicated that men were more likely than
women to graduate with honors or to earn high first-year grades, and that this
trend seems to have increased over the past two years. An accompanying survey
of students conducted in 2002–2003 revealed lower levels of confidence and self-
assessment for female students at Harvard.
62
 A recent survey of Yale law students
and accompanying interviews of selected faculty members similarly pointed to
perceived differential hesitance among female students regarding class partici-
pation, approaching professors after class with questions, and asking for recom-
mendations.
63
 On the other hand, faculty members report that in general, the
gender balance in classroom discussions at Yale seems to be improving over time.
A study headed by Joan Krauskopf, which examined nine law schools in Ohio,
also found gendered differences in classroom experience and in overall responses
to law school.
64
 In this study, men once again reported asking more questions and
volunteering in class more often than did women. Women overall were less likely
to respond positively to the Socratic method and were more likely to report a loss
of confidence in class, as well as a drop in self-esteem generally. A number of the

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Difference
earlier studies, such as those conducted by Guinier and by Krauskopf, contained
accounts of direct harassment based on gender.
65
In addition, there have been a number of survey studies that did not focus on
classroom participation per se, but that tracked attitudes and responses to law schools.
Many of these studies found no reported difference in performance (grades, etc.)
between men and women; indeed, some found that women and men were equally
content. However, other studies found higher rates of distress among women than
men even when their actual performance was comparable to the men’s.
66
 One over-
all conclusion to be drawn from these studies is that the particular climate and fea-
tures of a specific law school (and at a specific point in time) may have a strong
influence on the degree to which gendered differences in experience emerge. Another
lesson is that there are significant aspects of student experience not well mapped by
tracking performance alone. Finally, the persistent evidence of women’s diminished
confidence in law school—and of their lower class participation—seems to indicate
problems that continue into postgraduate education.
67
 It is against this backdrop that
we look to patterns of silence and speech for clues about gender as well as racial in-
tegration in law schools.
In addition to survey research, there has been some observational work in law
school classrooms. In an early study in 1972, which relied on participant observa-
tion as well as interview and survey methods, Alice Jacobs reported, “Although
women perform very well academically, it was observed that they consistently in-
teract less frequently than men in the classroom. They volunteer or are chosen to
answer questions much less frequently than the men.”
68
 Similar disparities were
found in moot court trials, and Jacobs recounts her impression that women used
supplicatory and questioning intonation for oral argument, whereas men used more
assertive verbal styles. Despite their generally high level of actual performance,
women in this study gave indications of lower self-esteem and career aspirations
(although there were obviously multiple factors affecting this pattern at the time).
If differential experiences in law school do contribute to lower self-esteem, how-
ever, then here is another way these experiences could affect students even if ac-
tual law school performance remains unaffected: they could conceivably affect
women’s sense of their abilities and therefore their career goals and trajectories.
There have been five more recent observational studies of law school class-
rooms at Yale (2), Harvard (1), and the University of Chicago (2). Four of the five
studies were conducted by students who were also taking the classes they were
observing. There have been two such efforts at Yale. In the earlier research during
the 1980s, students in 19 different classes coded each time a male or female stu-
dent had a turn.
69
 In 15 of the 19 classes, male students spoke more than would be
predicted by their proportions in the classes, with ratios ranging up to three times
more than the women in the class. Averaging all of the classes, men spoke 63%
more frequently than women, proportionate to their numbers in the classes. In the
one course in the study that was taught by a woman in this elite law school, men
spoke almost twice as much as did women. This is of interest because of questions
about the impact of female teachers on women students. One hypothesis is that
the presence of female teachers should have an encouraging effect on women stu-
dents’ class participation, and that this effect should be especially strong among

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Student Participation and Social Difference
189
the most elite (and presumably empowered) women. On the other hand, some have
suggested that working-class women are in fact more likely to buck the system,
whereas elite women have gotten where they are in part because they did not chal-
lenge the elite men around them.
70
 Another hypothesis is that the pressure for
conformity to gendered norms around assertive speech becomes greater in elite
institutions, affecting both women professors and students.
71
 In any case, these
findings point us to relatively unexplored questions about the interaction of stu-
dent and professor gender with institutional status.
A second, more recent student effort during 2001 at the Yale Law School in-
volved classroom monitoring in 23 classrooms, conducted in combination with a
survey of law students and interviews with professors.
72
 As noted, the survey and
interviews revealed that both students and faculty had the impression that female
students were more hesitant than male students about speaking in class. These
perceptions were given support by the observational findings from classroom
monitoring, which showed that in terms of total participation, “men still appear
to dominate classroom discussions more than women.”
73
 This effect was exacer-
bated when only volunteered turns were examined.
74
 On an encouraging note,
women’s participation did reach equal or greater proportional levels in compari-
son to men’s in a number of larger courses, including first-year courses.
75
 Interest-
ingly, women dominated more in courses taught by male professors than they did
in those taught by female professors, although we would want to be cautious about
drawing too broad a conclusion from this.
76
 The Yale report did not find any “dis-
tinctive male or female mode of participation.”
77
A student group at Harvard Law School recently undertook a similar investi-
gation, monitoring each of 32 courses for four to seven of the class meetings dur-
ing the spring semester of 2003 (for a total 190 class meetings monitored, averaging
around six class meetings per course).
78
 The students adopted a method whereby
one male and one female student enrolled in each course both simultaneously coded
the same class meetings.
79
They found a significant difference between women and
men in participation rates, a difference that they report was largely due to differ-
ence in voluntary participation.
80
 The “top talkers”—the small group of students
who accounted for a high proportion of student turns—were “overwhelmingly
male,” and this was despite even-handed treatment of speakers by professors. As
in the Yale study, crude distinctions in pedagogical style (e.g., between Socratic
and non-Socratic teaching) did not seem to generate any clear gender difference
in participation.
81
 In this study, there was an even more marked pattern of dispro-
portionate male participation in classes taught by female professors: “A male stu-
dent was 40% more likely than a female to volunteer during a class meeting with a
male professor, compared with 106% more likely in courses taught by women.”
82
On the other hand, there was variation in women’s participation rates among the
different classes monitored, with women more likely than men to speak in some
of the classes (particularly in response to being called on).
83
The remaining two observational studies were conducted at the University of
Chicago Law School. One, conducted by students, tracked participation for two
weeks in nine different courses and included consideration of volunteered versus
called-on turns.
84
 In 1994–1995, following this initial student effort, Chicago hired

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Difference
outside observers to study classroom interactions. The results of this more disin-
terested research confirmed the student-run study’s finding that male students