Elena Kagan, the nominee proposed to fill an expected US Supreme Court vacancy, delivered the Leslie H. Arps Memorial Lecture at the Association of the Bar of the City of New York on Nov. 17, 2005. What follows is a section from that talk, given when Ms. Kagan was Dean of the Harvard Law School:
Let's start with the good news: by the turn of the twenty-first century, women accounted for almost one-third of the nation's lawyers and a majority of the nation's law students. In just over a decade, the number of women law partners, general counsels, and federal judges doubled. At Harvard, women now make up almost half of the JD student body - quite a contrast to the first class of thirteen women that graduated in 1953. Two years ago, we celebrated fifty years of women at Harvard Law School. That event drew close to 1,300 people, making it the largest alumni gathering in the Law School's history.
Such a celebration has special meaning in light of the huge obstacles faced by past generations of women — obstacles that now might seem laughable if they hadn't been so destructive. In a recent address, Justice Ruth Bader Ginsburg recalled several inglorious cases from the world of law schools. There was Columbia's denial of admission to several women in 1890, when one board member reportedly said: "No woman shall degrade herself by practicing law in New York especially if I can save her. . . . " Or consider a 1911 student resolution, widely supported — though ultimately defeated — at the University of Pennsylvania Law School: a resolution that would have introduced a twenty-five cents per week penalty on students without mustaches. Or the words of Harvard University's president, when asked how the Law School was faring during World War II. His reported response: That it wasn't as bad as he'd expected — "We have 75 students, and we haven't had to admit any women."
Thankfully such attitudes have pretty much vanished from our legal landscape; they are to be heard from only the most lunatic fringe. But despite the enormous progress made - and we don't want to lose sight of the advances — it's also true that women lawyers still lag far behind men on most measures of success. Now, as I said before, this is an issue for all of us. And since I'm the dean of a law school, that's where I'll start.
Last year, a working group of Harvard Law students issued a study on women's experiences. What they discovered closely tracked findings from other top schools that have studied these questions: While women and men arrive at law school with basically the same credentials, there's a real difference in how they experience their three years of legal study.
Most troubling are disparities in the academic arena in major law schools. Women law students are less likely to speak up in class. They graduate with fewer honors. And when asked to assess their own abilities, they give themselves far lower marks than men do on a range of legal skills. Here's an interesting statistic: according to the Harvard student survey, 33% of men considered themselves in the top 20% of their class in legal reasoning while only 15% of women did. Women also gave themselves lower marks in their ability to "think quickly on their feet, argue orally, write briefs, and persuade others." Reading this list, I had to shake my head: What exactly is left? Studies at other schools have found very similar trends. In the disturbing words of one female law student from the University of Pennsylvania: "Guys think law school is hard, and we just think we're stupid."
Now I'm not entirely sure what to make of such studies. Do women arrive at law school predisposed to self-doubt? Or does something happen in law school that contributes to these perceptions? In any case, we know one thing: There's a problem here, and we need to figure out why it exists.
And as most of you know, law school is just the beginning. Recent decades have spawned something of a cottage industry in reports exposing stark differences in the career paths of men and women. These reports are rife with metaphor — we've read about glass ceilings and sticky floors, about clogged or leaking pipelines, about scenic highways and feeder roads, and off-ramps and on-ramps. Regardless of the image, the bottom line stays the same: Women lawyers are not assuming leadership roles in proportion to their numbers. And that is troubling not only for the women whose aspirations are being frustrated, but also for the society that is losing their talents. What we have here is a kind of brain drain, and we are all the poorer for it.
This Association recently released a study of eighty-two New York law firms confirming this pattern of disparity. Some of the study's findings come as no surprise. It's pretty clear to anyone who's walked the halls of major firms that the ranks of associates tend to be more diverse than the partnerships. For years, the assumption has been that this is a pipeline issue — that over time partnerships would come to mirror the associate pool. But this isn't happening.
Rather than seeing the predicted gradual shift, law firms are seeing the continuation of the status quo, with women and minorities promoted at rates only slightly higher than before. In other words, partnerships are basically replicating themselves. And this isn't just because women are voluntarily leaving law firms in greater numbers in the early years. In 2004, women made up one-third of associates in their eighth year at a law firm, but only one-fifth of that year's new partners.
Read the rest of Dean Kagan's Arps lecture.
