Diversity’s Death by a Million Little Paper Cuts (Perspective)

Jan. 2, 2016, 6:23 PM

Editor’s Note: This column is part of a mini-series produced by Law School Transparency about women in law.

“Misunderstandings and neglect create more confusion in this world than trickery and malice”
~Goethe “The Sorrows of Young Werther”

If only “the man” existed. Many societal ills could be fixed by finding him and re-organizing his managerial structure.

The legal profession’s “leaky pipeline” likewise cannot be explained so simply. Women represent only 18 percent of equity partners and less than 25 percent of General Counsel because many tiny leaks accumulate into these startling discrepancies. These leaks are subtle, usually not intentional, and often far beyond the control of the profession.

In other words, chaotic forces stand in the way of equally ever after — beginning long before women even begin to daydream about their future careers.

The Paper Doll with Sharp Edges

Well-meaning relatives, daycare providers, media, and society at large encourage little girls to be nice, polite, and agreeable. This early conditioning may turn girls away from a profession that prizes assertiveness and the ability to be contrary. The perception that a lawyer is not a “lady” could be one reason women represent 57 percent of college graduates, but only 51 percent of law school applicants.

Women’s ranks will once again be lightly thinned with a 76 percent acceptance rate into law school versus 80 percent for men, despite stronger academic performance during college.

A worse acceptance rate may be explained by women scoring on average two points lower than men on the LSAT, and law schools’ LSAT obsession for rankings admissions purposes. While academics debate the reasons for this, it may also have roots in early conditioning.

Children show no preference for gendered toys before gender is reinforced. Girls receive toys such as dolls that promote skills like empathy. Boys receive blocks and building toys that promote spatial, logic, and problem solving skills, which are conducive to success in STEM careers and standardized tests like the LSAT.

The consequences of early conditioning may even lead to lower prices for men than women. This could in part explain why women are nowconcentrated at lesser-regarded schools and have higher to climb once they make it through law school. For law school applicants, price matters and they increasingly utilize their leverage with law schools to negotiate better scholarships packages. But women are conditioned not to negotiate. Multiple studies find that women are perceived more negatively and ultimately penalized for negotiating.

The Little Cuts Start to Add Up, But Data May Be the Remedy

Unconscious or implicit bias once women are out of law school further compounds law’s pipeline issues.

Cross-industry data show that women’s accomplishments are judged differently than men’s. Women earn 80 percent of what men do for the same job. Male entrepreneurs are 60 percent more likely to receive funding than female entrepreneurs when delivering the same pitch with matching credentials.

These discrepancies, like other problems women face in a society grappling with social change, reflect a complex history. A myriad of factors result in an uneven distribution of power, influence, money, and other resources. These problems are anything but simple to solve.

But there is hope.

In our current technological revolution, industries and pipelines are being rebuilt in a world with an enthusiasm for data. In this global, technology-based economy, traditionally gender-neutral skills such as adaptability, team work, communication, and critical thinking are prized over the stereotypically masculine traits of the industrial economy. Data shows that diversity translates to better financial performance; unconscious bias hurts the bottom line. Successful companies of all sizes are adapting data and metricbased systems to measure performance. This is an opportunity for companies to optimize their workforce retention and promotion decisions while lessening the impact of unconscious bias.

Law schools should take note of these trends — as a home for public intellectuals, law schools are in a unique position to raise awareness of unconscious bias and make a name for themselves in a competitive law school landscape. Data-focused systems that track things such as scholarship negotiation touch points and outcomes, or female applicants admission rates controlling for LSAT scores and GPA, is one way that law schools can begin fixing their small part of the pipeline. These systems can also help to establish a culture of awareness around unconscious bias within our profession.

And law schools may become an increasing industry influence as larger economic trends minimize the influence of the traditional law firm. As the financial rewards and likelihood of making it to the top of the law firm pyramid shrink, millennials of both genders are forging new career paths and redefining the legal industry’s career trajectory.

These dramatic transformational industry shifts coupled with a growing body of knowledge and data on the impact of unconscious bias create an extraordinary opportunity. If there was ever a time to rebuild a smarter pipeline, it’s now.

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