Wednesday, December 11, 2019

Identity Politics is Failing Women in Legal Academia


Two universal truths about patriarchy: it’s global and it’s tenacious. As women in legal academia, we are not shielded from the consequences of this reality.

Starting from this premise, my contribution to this important (yet perennial) discussion on gender (in)equity in legal academia is framed around three points. First, formalistic identity politics grounded in immutable characteristics is failing our generation of women (and women of color in particular) in the legal profession, including in the academy.

Second, women who have managed to overcome the hurdles imposed by patriarchy to reach official leadership positions are as subject to institutional capture and conflicts of interest as their male counterparts. Third, the politics of civility in law schools is a patriarchal tool deployed to constrain women’s ability and willingness to radically reform existing systems of inequality.

Let’s start with the failure of formalistic identity politics. The reasoning that more women and more minorities in power will necessarily produce less sexism and less racism is flawed if the patriarchal systems are left in place. One need only look at formerly colonized countries whose social and political systems continue to perpetuate European white supremacy.

Lighter skin color is still represented in media as more beautiful than darker. Western civilizations and religions are still perceived as superior and more sophisticated.   Just as native rulers in the global south and east do not eliminate inferiority complexes deeply entrenched after centuries of white supremacy and European colonialism, increasing female (or racial minority) leaders does not eliminate patriarchy.

Absent purposeful dismantling of these oppressive systems, the change is limited to who implements patriarchy.

When women and racial minorities were either non-existent or miniscule in numbers at law schools, law firms, and law faculty, identity politics served a utilitarian purpose. In sharing the immutable characteristic of gender and race, members of categorically marginalized groups had a common interest in reforming or even destroying existing systems under-paying, demoting, or outright excluding them. Their shared adverse experiences on account of their status as women, people of color, or women of color galvanized them to unite in pursuit of change in their collective interests.  

As direct losers in the male and white dominated status quo, their tolerance for slow incremental change was low. These women’s daily lived experiences were proof that the patriarchal foundation of the system needed to be challenged head on, not merely tinkered with around the edges. Increasing the number of women (and minorities) in the legal academy was a necessary step toward those ends.

Due to concerted advocacy over decades, the number of women law students, faculty, and administrators gradually increased. In 2018, women comprised 52% of law students. On law faculties, women are estimated to be between 32% to 38% with women of color comprising less than 10%.  In 2013 when the latest data was collected, 36% of tenure-track and tenured professors were women, with the number slowly rising since then. In 2019, approximately 35% of law deans are women.

However, over 70% of legal research and writing professors are women, most of whom do not have tenure-track or tenured positions and are paid significantly less than tenure track and tenured (male and female) law professors.  Hence simply putting women in high status positions is no guarantee the gender inequity in pay, promotion, and pedagogy will disappear.

The rise of women into high status tenured and tenure track positions (albeit at a painstakingly slow rate) thus begs the questions: why are so many women still concentrated in non-tenured, lower pay legal research and writing jobs?  Why do women law professors earn less on average than male law professors? Why is legal academia experiencing the same phenomena as other industries where positions comprised disproportionately of women become low status and lower paying, including the same jobs previously occupied by men?

More to the point, has the rise in numbers and status of women within the legal academy produced the systemic changes anticipated by our predecessors whose identity politics strategy for change centered around advocating for more women on law faculty and leadership?


To read the full article forthcoming in the Journal of Legal Education (Fall 2019), click here.

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