I heard something surprising from the daughter of a close friend last week. An extremely intelligent and confident 30-year-old and a first year law student on the east coast, she said that in most of her classes, the men tend to “take up the most time and space when volunteering to speak.” Despite the fact that women make up the majority of her classes, she found that the same “three guys” are usually the only ones speaking up.

I was perplexed by her sentiments for two reasons. First, this is a woman who not only graduated from college with honors, but prior to entering law school had several years under her belt with a well-known NGO, where she undoubtedly was required to verbally communicate with peers and superiors in a variety of situations. Secondly, I would have expected that, by now, most law professors would be aware of and sensitive to gender gaps - and the need for gender balanced participation in their classrooms - and would be more conscientious about ensuring balanced opportunities to speak in class.

Class participation matters for a number of reasons. The most obvious is when class participation is a component of the student’s grade, but it’s also important for developing the student’s critical legal skills. As one former professor and law school tutor wrote, “Being called on makes you think on your feet. It forces you to express your ideas and hones your public speaking…valuable skills you’ll rely on throughout your career,” whether you’re a trial lawyer, transactional counsel, or a judge. As Molly Bishop Shadel, a professor at UVA law school and one of the authors of the white paper mentioned below has stated, “We care about all of this because speaking is power.”

History of Gender Imbalance in Law School Participation

Gender imbalances in law school class participation isn’t a new issue. In a 2004 study on gender issues at Harvard Law School (HLS), then-third-year law student Adam M. C. Neufeld found that men were 50 percent more likely than women to volunteer at least one comment during class, and 144 percent more likely to speak voluntarily at least three times. The study also showed that 10 percent of students accounted for nearly half of all volunteered comments in first-year law classrooms. Neufeld’s study was the first of several “Speak Up” studies that analyzed whether women students’ participation in class would continue to lag behind their male colleagues. They did, and the studies did posit some possible solutions, which are briefly described below. Unfortunately, some of these solutions are only implementable by law school administrators and instructors, leading to the conclusion that advocacy for instructional reform may be the best, or even the only, direct action law students can take to even the gender participation playing field.

A more encouraging white paper published in the University of Virginia (UVA) Law Review in 2021 indicates that the gender gap in participation does continue to exist, but tends to close after first year when class sizes are generally smaller. The UVA paper noted, “gender gaps in speaking are not fixed, but dynamic…They are a function of context, such as social concerns and dislike of particular pedagogies.”

It also seems that this gender participation gap extends beyond the U.S. According to a Journal of Empirical Legal Studies article published in 2023, women students at the National University of Singapore law school were found to similarly speak less frequently and with shorter duration than their male cohort.

Despite these acknowledgements of gender disparity in law school participation, the discrepancy between men and women students continues to exist. Why, when gender equity has been such a prominent topic in the law for decades, is there still a gender imbalance in classroom participation? Can this discrepancy be eliminated, and if so, how?

Possible Causes of Gender Disparity in Law School Classroom Participation

Following the Rules?

As mentioned above, differences in social context and cultural indoctrination may result in more compliance by women law students with classroom rules of behavior, which inherently results in less participation. Researchers have noted that women generally appear to be better rule followers than men. This more compliant behavior is noted even where following the rules does not result in a greater reward. Perhaps more relevantly, men are less able to understand and more likely to break the rules where it benefits them. Henning Piezunka, a Wharton business school professor and researcher, noted “the widespread phenomenon of men interrupting women [that] can be seen in the classroom”. Another manifestation of this principle is the scenario in which multiple students raise their hand to speak, but as the instructor hesitates for a moment (perhaps looking for a student to call on), a male student simply starts to talk. Even though this breaches the social contract or “rule” of raising one’s hand for permission to speak, male students are more likely to simply blurt out a response regardless of whether this violates the rules of the classroom.

Social Costs of Speaking Up

In addition to cultural paradigms, there may be a social cost to women for speaking up in class. The authors of the UVA article note that “women pay a heavy price for speaking up.” While women who speak more readily and assertively may be characterized as “socially unskilled or unlikeable,” men face no such negative consequences. Women law students have reported they are accused of being teacher’s pet or a “gunner” when they speak up in class.

Complementing this idea, Neufeld noted that “Volunteering is a fairly socially aggressive act. You are making all the other students listen to your comment, you think it is unbelievably important and something that no one else has thought of.” For many women, their cultural upbringing can make this a very uncomfortable step, whereas responding to a question opens up the opportunity to express an opinion as a response or reaction, rather than an “aggressive act”.

Teaching Methodologies

The studies mentioned above agree that in classes where the instructor relies strictly on voluntary comments, male students participated significantly more often and for a greater length of time. Some of this, as discussed above, may be due to cultural upbringing or the behavior of the males in class. But ultimately, the instructor is in control of who speaks, when, and for how long. Particularly in volunteer-only classes, instructor bias can certainly result in differences between men and women as to speaking opportunities. Coupled with the willingness of the male students to speak out of turn, women can feel locked out of the conversation in the classroom.

According to the UVA article, “the gender gap was driven largely by volunteered answers;” when answering cold calls, “women spoke just as much as men, and they also spoke just as well and their answers were equally on point.” Utilization of the Socratic or “cold call” method of teaching has also been the subject of controversy, however. In the HLS study mentioned above, some women students reported that use of this teaching method made them feel “like an idiot” and “forced [them to] talk like a man.” But others felt that the Socratic method, so long as practiced with an eye toward mitigating gender disparity, actually guaranteed a more equitable sharing of opinions between men and women.

Creating Space to Speak

Adaptation of Teaching Methodologies

While Commenting on the HLS study, then Dean of HLS Martha Minow recommended the Socratic method as a teaching technique to encourage greater participation by women students. “It turns out that many…[students] who would think they would not have something to contribute find out that they do very well,” she said.

But cold-calling only works to eliminate gender participation disparity when wielded with an eye toward balance and seeking gender equity. In addition to utilizing an inclusive class roster to ensure all students have an opportunity to speak, instructors must ensure that they treat responses equally. According to Henning Piezunka, a professor at the Wharton School, “An instructor shouldn’t ‘go easy’ on women students when they would normally press the male students for more detail on their responses” (a typical style of Socratic teaching). “This is not helping them.” Of course, instructors also should avoid being more critical of women students’ responses than they are of the men students’ answers. More generally, and axiomatically, instructors should preserve the rules of the classroom for ALL genders.

Notwithstanding the foregoing, the fact remains that in most of the studies mentioned above, women law students expressed a strong distaste for the Socratic method, regardless of its efficacy in balancing participation throughout the classroom. (I don’t think it’s a stretch to say the sweaty-palm inducing technique is not a favorite of any law student!)

Luckily, there are other gender-balancing interventions that can help reduce gender gaps. The use of more structured forms of class participation such as the assignment of students to lead class discussion, the making of prepared presentations, and/or the provision of peer review for students according to a preassigned schedule are further pedagogical changes that have been suggested to ensure a more inclusive classroom context that could narrow the gender gap, as discussed in the UVA article and other studies and reports. “Such reforms could largely preserve the benefits underlying pedagogical methods that disadvantage women while substantially ameliorating gender gaps in legal education—ultimately promoting more egalitarian outcomes for all”.

Class size reduction is another method for bringing more balanced participation to the classroom, as recommended by many of those who have studied the gender gap. Although possibly infeasible on a continuous basis for many 1L classes, educators could incorporate certain small group projects and class reports into the larger lecture class. This could serve a dual benefit of providing more individualized assessment of students, while allowing students a more intimate grouping in which to express themselves.

Leaning Into Speaking Up

At the end of the day, neither the volunteer-only nor the Socratic teaching techniques are likely to go away soon. Aside from advocating for the evolution of teaching methods as set forth above, there are some strategies women law students can use to better their opportunities for speaking in class.

• Be prepared. This one probably goes without saying. You’re law students. You’ve been prepared. Just keep doing that.

• Attend your professors’ office hours. Make up a question if you have to. The point is to get in front of them and have a conversation. It will make the cold call from your instructor much less intimidating because now you’ve actually already met one another.

• Practice! There is absolutely no shame in practicing what you’ll say if you get asked about a case. Trial lawyers do it constantly. This is why briefing cases is still always a good idea.

• If you’re in a volunteer-only class, volunteer for a few easy questions at first, so you’ll get accustomed to it. Speaking begets more speech. You’ll grow more comfortable the more you do it.

• Don’t be afraid to bend the rules occasionally. There was a saying at my former law firm, “It’s better to ask forgiveness than permission.” Assess the situation, of course, but if your male classmates are repeatedly stepping on classroom decorum without consequence, you should be able to as well.

• Choose your classes (when you can) to accommodate your most comfortable style of interaction. Perhaps smaller classes appeal to you, or seminars. Some of my classes were strictly graded on the final exam. These eliminated the stress and extra burden of having to talk in class.

• If you believe there is outright discrimination against women students, take it to the administration. There’s likely an anonymous reporting method if you are concerned about repercussions. And remember there’s strength in numbers, so enlisting your classmates in this effort might bring quicker results.

Other ideas for battling the participation gap? Please let me know in the comments!

As a veteran of thirty years of legal practice, Melanie Houk welcomes the opportunity to look back on a career nearer to completion than commencement. A graduate of Loyola Law School, Melanie initially took a nontraditional direction, leaving a first-year position at Whitman Breed Abbott & Morgan to take a job as a consultant. Eventually returning to private practice, Melanie spent nearly a decade developing further public law expertise with redevelopment agencies and municipalities before gravitating to an in-house position at Lennar Corporation, where a markedly convoluted path led her to a promotion to Deputy General Counsel, a position she has held for close to fifteen years.

<