- The Washington Times - Thursday, May 2, 2002

This week marks the 45th annual Law Week celebration sponsored by the American Bar Association (ABA). In 2002, women in the legal profession have much to celebrate. Women now make up approximately 30 percent of the profession. Since 1987, the number of female federal judges, large firm partners and general counsels has more than doubled and the numbers continue to rise. And since the beginning of this century, women have begun to comprise half of all students entering American law schools.

According to the ABA's Commission on Women, however, the picture is much more bleak. In its 2001 report, "The Unfinished Agenda: Women and the Legal Profession," the commission concludes that gender discrimination in the legal profession is ubiquitous and that equality remains elusive for most female lawyers. The report is replete with the usual gender feminist rhetoric and weak on evidence. Yet its findings are worth reviewing, if only as a reminder of how radical feminists long ago abandoned the praiseworthy goal of equal opportunity in favor of socially engineered equal outcomes.

The ABA report claims that women are subjected to gender bias from the very beginning of their legal careers by a law school culture that "devalues" the female experience and "silences" women in the classroom. To remedy these injustices, the commission recommends maintaining affirmative action programs and developing more "inclusive admissions standards." Why these measures are necessary when women already constitute approximately half of each entering law school class is never explained.

The authors of the ABA report admit that systemic intentional discrimination against female attorneys is, for the most part, a thing of the past. They nevertheless suggest that the legal profession remains a hostile environment for women. Thus, the report alleges that, once out of law school, female attorneys face numerous roadblocks to advancement, including "unconscious stereotypes," "sexual harassment" and "bias" in the American court system. Suffice it to say that the evidence to support such conclusions is underwhelming.

The report focuses much of its attention on the so-called "under-representation" of women at the top of the profession. Women currently comprise 20 percent of federal judges and 15 percent of law firm partners. These numbers represent impressive strides since the 1980s when the numbers were half of what they are today. Rather than view the glass as half full, the commission views these numbers as proof positive of a discriminatory "glass ceiling." A careful look at the data, however, reveals that gender disparities in the legal profession are not as stark as the ABA contends. Although women currently comprise 30 percent of the profession overall, this figure includes the large number of recent law school graduates who are women. When one looks only at the number of female attorneys who have been out of law school long enough to be considered for law firm partnership or a federal judgeship, the percentage of women in these jobs more closely reflects the pool of available female candidates.

Not only does the data marshaled by the commission to prove discrimination in the legal profession fail to account for this "pipeline" problem, it fails to account for freedom of choice. Today, the entering classes of first- year lawyers at many major law firms are approximately 50 percent female. By the time the class of 2002 is considered for partnership, however, many (if not most) of these women will have left their firms to pursue more flexible legal careers (for example, in the government or academia) or to stay home and raise children. The commission acknowledges this, but blames the large-scale defection of female associates from big law firms not on choice but on firm culture, particularly unfair review processes, lack of pro bono opportunities and "perceptions about the different opportunities for women and men in these practice settings." According to this view, gender bias, not free will, is driving women out of law firms.

According to the commission, gender bias is the reason that women are less likely than men to work in law firms and more likely to work in public interest and public sector offices. This conclusion is based on the faulty premise that law firm jobs are more desirable and prestigious than other forms of legal practice. It also wrongly assumes that all women view money and status as more valuable commodities than personal fulfillment and time.

Significantly, however, claims of sex discrimination in the legal profession ring hollow to most female attorneys. Indeed, in the ABA's own poll, the vast majority of female lawyers disagreed with the notion that prospects for career advancement are greater for male attorneys than for female attorneys. No doubt disappointed by these results, the commission turns the evidence on its head, describing the prevailing view that men and women are in fact treated equally in the legal profession as itself an obstacle to progress. "This 'no problem' problem," the report claims, "is of central concern both for the profession and for the public." The solution? Bring in the diversity consultants to re-educate all those who suffer from false consciousness. Once the non-believers have been made to see the light, they should encourage their firms to let outside consultants monitor attorney evaluations for so-called "stereotypical assumptions" and demand that management set clear "diversity-related commitments" (read: quotas).

The leaky pipeline in large metropolitan law firms does create some unfairness in the partnership selection process. But, contrary to the assertions of the ABA commission, the bias at work often favors women, not men. Because so few women decide to make a run for partner, the pool of women up for consideration in any given year is ordinarily small. In our diversity-obsessed culture, where having female partners is an important recruiting tool and business generator, the one or two women who choose to stick it out with their firms have a far better chance of obtaining the brass ring than any one equally qualified man.

Overall, there is much to cheer about the progress of women in the law. This is not the time to be concocting Orwellian schemes for proportional gender balance across all sectors of the legal profession.

Jennifer C. Braceras is a commissioner at the U.S. Civil Rights Commission and the John M. Olin Fellow in Law at Harvard Law School.

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