How Has the Practice of Law Changed for Women?
Introduction
In the nineteenth century, women were generally denied admission to law schools and state bars. Belle Babb Mansfield was the first woman admitted to a state bar (Iowa) in 1869 after the Iowa courts ruled in her favor. Charlotte E. Ray was the first African-American woman admitted to the D.C. Bar in 1872. She did not encounter opposition because she applied for admission as C. E. Ray so the admissions committee thought she was a man.
On the other hand, Myra Bradwell filed an appeal in the U.S. Supreme Court challenging the denial of her admission to the Illinois state bar in 1872 even though she had passed the bar exam. She argued that the denial violated the Privileges and Immunities Clause of the Fourteenth Amendment: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. . . .” The U.S. Supreme Court rejected this argument based on its conclusion that the federal government should not interfere with state employment standards. Although the Court agreed that Mrs. Bradwell was a “citizen” under the Constitution, the Court was influenced by her status as a married woman. Justice Bradley concurred in the Court's opinion:
It certainly cannot be affirmed, as an historical fact, that this has ever been established as one of the fundamental privileges and immunities of the sex. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman . . . The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.
Bradwell v. Illinois, 84 U.S. (16 Wall.) 130, 141 (1873).
Mary Florence Lathrop
Notwithstanding Bradwell, women continued to seek admission to state bars in the years that followed.Lawyers in Colorado should be proud that one of the first two women members of the ABA was Mary Lathrop of Denver who joined in 1918. She graduated from D.U. Law School in 1896, was the first woman lawyer to establish an office in Denver and the first woman to practice before the Colorado Supreme Court.
Law School
According to an ABA Report entitled “Women in the Law in the Year 2000,” law school enrollment has steadily increased from about 5% in 1951 to 10% in 1971 to almost 50% in 1999. Now, it is not uncommon for women to comprise more than half the student body at some law schools. Based on these statistics, one would think that women have achieved total equality in the legal profession. While it is undeniable that there has been significant improvement, it is fair to say that women in the profession in 2014 are not yet where they should be.
It is interesting to look at how has the law school experience has changed for women. I interviewed a number of women for this piece including two successful women attorneys who attended elite Ivy League law schools in the late 1960’s. Jane Bergner is a tax lawyer in Washington, D.C. She went to Columbia where, in a class of 300 students, only 9 or 10 were women. Jane said that the men studied together and the few women in the class were largely excluded even though they were generally better students. In fact, two of the top five students in her class were women. She said law school was very lonely and isolating for women.
Jean Dubofsky, the first woman to serve on the Colorado Supreme Court, graduated from Harvard Law School in 1967. She told me that her class of roughly 500 included only 2% women. She took a property law class from the professor who was the model for Professor Kingsfield in the 1973 movie, “The Paper Chase.” He would only call on women in the class on certain days each semester which he called “Ladies Day.” Jean said that the experience was demeaning to women so she sometimes decided to skip the class altogether. She also said that women who volunteered to speak in class would be “hissed” by male students if they were perceived as abrasive in any way. Many of the women law students picketed the Lincoln’s Inn Society, a social club that excluded women at that time.
By contrast, I did not encounter overt discrimination in law school in the late 1970’s. I attended the University of Wisconsin and graduated from the University of Colorado in 1979. At both law schools, my class was about 33% women so there was a strong network of women students. Study groups included both men and women and I am not aware of any professors who treated women differently than men. I am told by recent graduates of D.U. and C.U. that this was also true for them. The one exception is that some of these women students continue to be “hit on” by a small number of professors. That topic should probably be further explored in a separate article, however.
Employment of Women Lawyers
Although the number of women law students has steadily increased to about one-half, the percentage of women who are actively engaged in the legal profession is only about one-third of the total number of attorneys, according to a July, 2014 ABA report, “A Current Glance at Women in the Law.” (2014 Report). Although discriminatory hiring practices are not as prevalent as they once were, there remains a glass ceiling for women as reflected by the lower number of partnerships, judgeships and general corporate counsel positions filled by women lawyers. Also, women make an average of about 20% less money than their male counterparts. 2014 Report, p. 6. “The facts suggest that while they are growing in number world-wide, women lawyers continue to face occupational barriers and gender segregation.” Patton, Women Lawyers, Their Status, and Retention in the Legal Profession, 11 Wm. & Mary J. Women& L. 173 (2005).
Almost every woman lawyer I know has experienced some degree of gender discrimination. Jane Bergner told me that a prominent Rochester, N.Y. firm declined to hire her because she was single and the interviewer claimed she would not be able to have a very active social life in Rochester. But she was hired at the Justice Department and her boss later accommodated her part-time schedule when her children were young. She later went to work at Arnold and Porter where her most important mentor was Caroline Agger, the widow of Justice Abe Fortas, who began practicing law in the 1940’s. Jane, like many women I interviewed, mentioned being ignored in meetings with men. She said that often when she provided a comment, none of the men would acknowledge it. But if a man later made the same comment, everyone would say that it was a great idea. All in all, Jane believes that she has had a very successful career even though she began practicing at a time when the deck was stacked against women lawyers.
Jean Dubofsky worked for Senator Walter Mondale after law school where she helped draft the 1968 Fair Housing Law. After that she went to Florida Rural Legal Services. When there was a funding cut at FRLS, it was suggested that the women lawyers not take a salary. Jean later went on to become the first woman and the youngest person to serve on the Colorado Supreme Court. Although her nomination by Governor Lamm was investigated by a group who suspected the nomination was “rigged,” Jean said that the other members of the Court were very supportive. Those who wish to know more about Jean and her remarkable career will be pleased to know that Susan Casey, a Denver politician and author, is writing a book about women lawyers which will feature Jean and others who paved the way for the rest of us.
I worked for a large 17th Street law firm after passing the bar in 1979. Like many women, I was often assumed to be staff rather than a lawyer. The first trial I had was in Grand County. On the first day of trial, the judge held a settlement meeting in chambers and my male colleague asked if I could join the meeting. The judge replied that I could attend if I wasn’t “a dog.” I was allowed to participate and I was appalled when I later learned about this “test.” My firm had only had two women associates out of 70 lawyers. Both of us were excluded from the firm golf tournament because the partners told us that their wives would be jealous. Although neither of us played golf, we seriously considered taking lessons and forcing our way into the tournament. Another example of questionable treatment of women occurred at a firm retreat in California where a senior partner had one of the young female associates dress up as an Indian maiden and deliver T-shirts to everyone with a slogan that reflected the firm’s opposition to one of the tribes in a major case. Notwithstanding these incidents, I believe I was quite fortunate in having opportunities to work at good firms on many interesting, high-profile issues and having great mentors, most of whom were men who treated me with the utmost respect.
Conclusion
What keeps women from achieving total equality as lawyers? One of the major factors is that women are still more likely than men to deal with issues involving the balance of work and parenthood. A few of the women I interviewed were able to work reduced hours or have flexible schedules, including the ability to work from home while raising their children. I was able to work about 2/3 time after my children were born, an arrangement that continued for many years. I think this allowed me to be a more efficient and effective lawyer than I would have been as a full time attorney with young children. Also, in the 1980’s, I belonged to a subcommittee of the Denver Bar Association that was devoted to part-time practice and it was a very helpful to brainstorm with other women who managed to have successful part-time careers. The key to a successful part-time or flexible practice is to find a firm that is supportive of the concept of part-time work and willing to allow their employees (men and women) to focus on parenthood as well as their careers. I believe that only when we achieve more uniform success on that front will women lawyers achieve true equality in our profession.
One of my goals as president of the Boulder County Bar Association this year is to have BCBA focus on issues faced by local women lawyers. In connection with that mission, BCBA has scheduled a networking event for women lawyers at the Bitter Bar in Boulder on Wednesday, November 12. Watch the BCBA Newsletter for more details. I look forward to seeing a large group there, hopefully including all ages, to enjoy interesting cocktails and talk about the continuing challenges faced by women in the profession as well as the many benefits of practicing law.