Philadelphia -- As students wait for Lani Guinier to arrive in the classroom, there’s none of the frantic, last-minute cramming that goes on before other classes at the University of Pennsylvania’s law school.
No one flinches when Professor Guinier breezes in, plunks down a stack of books, and dives right into her upper-level course on"Law and the Political Process.” This may be because students whose stomachs knot up at the thought of a rapid-fire interrogation by certain professors have little to fear in her class.
Although the Socratic method continues to be widely used in law schools -- particularly in large, first-year law courses -- Ms. Guinier believes it is unfair to women and reinforces an overly combative approach to the law.
Her view -- which has attracted both praise and protest from her colleagues here -- is receiving a national airing this month with the release of her new book, Becoming Gentlemen: Women, Law School and Institutional Change (Beacon Press).
Ms. Guinier is best known for the controversy surrounding her 1993 nomination as U.S. Assistant Attorney General for civil rights. President Clinton withdrew her name after critics attacked her views on minority voting rights. Today she is on a different mission: to make both law school and the legal profession more welcoming to women. As a black woman in a male-dominated field, she says, she, too, feels alienated from the"one-size-fits-all” model of legal education.
“In a traditional law-school classroom, you feel like you’re engaged in a performance and not taking part in a conversation,” she says."That is intimidating to a lot of women.” She expects students to be prepared for her classes and to take part in discussions. She does not, however, badger students who take too long to answer a question, and she does not expect them to take part in a verbal sparring match with her.
“I call on students and push them. It’s not like we’re having a dinner conversation,” says Ms. Guinier."But I believe students perform better in an atmosphere of respect.”
While some men, too, are intimidated by the harsh questioning that can occur in law classes, Ms. Guinier insists that a disproportionate number of women are. In Becoming Gentlemen, she argues that women generally learn better through cooperative approaches than through adversarial ones. Many women, she writes,"participate only after listening to what others are saying. They see conversation as a way of collaborating to synthesize information, rather than competing to perform or win.” Aggressive teaching styles, she says, force them to become more like men, damaging their self-esteem.
Some of her female colleagues find such ideas hard to take. The implication, they say, is that women need gentler treatment than their male classmates.
“The conclusion that women are somehow less able to withstand Socratic questioning is fundamentally insulting to women,” says Elizabeth Warren, a former colleague of Ms. Guinier’s at Penn who is now a professor at Harvard Law School."Women in my classroom flourish because they are extraordinarily competent and believe they can flourish. I think women are just as quick on their feet as men, and I’m insulted to think that someone would purport otherwise.”
Not all women do flourish in law school, according to a study of 981 male and female law students from Penn’s classes of 1990 through 1993. The study, conducted by Ms. Guinier and two other female law professors, found that women underwent more stress, received lower grades, and earned fewer honors than their male classmates, despite entering with virtually identical credentials. Much of Ms. Guinier’s book is devoted to analyzing the survey results and their implications for law-school teaching.
Women’s difficulties in law school, she argues, are caused partly by the widespread use of the traditional Socratic method, in which a professor calls on students and asks them a series of questions about a court decision in order to extrapolate the underlying legal principles. Hard-line Socratic teachers are known to belittle students who answer incorrectly. Most advocates of the Socratic method have abandoned such tactics, although they readily concede that the experience is intended to be stressful.
Advocates say it teaches students to articulate their arguments quickly and clearly. Ms. Guinier believes it encourages students to be combative rather than reflective. It also assumes that all students go on to become litigators, she says, when, in fact, fewer than half do. For those whose jobs will involve negotiating solutions and trying to settle problems out of court, cooperative teaching styles -- in which students are encouraged to listen and to learn from each other -- would be more effective, she argues.
She is not the only legal scholar questioning traditional assumptions about the best way to teach law. Tough Socratic questioning is giving way to a less combative form of instruction at many law schools, says Carl Monk, executive director of the Association of American Law Schools. He says an increasing number of faculty members are experimenting with small-group learning and other collaborative approaches.
“The trial lawyer as gladiator represents the model for legal education but not necessarily for lawyering,” Ms. Guinier says."Students who are not aggressive and quick-thinking still have a lot to offer. The challenge is to accommodate those who don’t thrive in the most adversarial and intimidating environment.”
In her class on"Law and the Political Process,” which has 40 students, Ms. Guinier seeks to offer a strikingly different environment. In a typical session, she focuses on voting systems and how they can be altered to give members of minority groups a better shot at being elected. It is a subject that she feels passionately about, and her controversial views cost her the Justice Department post. Here, as she paces around the classroom, she finds a more receptive audience.
Ms. Guinier encourages students to build on one another’s comments with prompts such as,"Let’s play out what Melissa is saying” or"This is sort of an extension of Jason’s argument.” At times, the students, whose desks are arranged in a semicircle, challenge each other -- without waiting for their professor to step in. She is in constant motion as she explains a legal point, stabbing at the air with her finger or waving her arms to add emphasis. When a student talks, she stops and listens intently.
“She encourages students to express their opinions,” says Allie Milkovich, a student in Ms. Guinier’s course."Even if she doesn’t agree with what you’re saying, she’ll listen to you and ask more questions. She won’t come right out and say you’re wrong or make you feel like you’re wasting time, like other professors do.”
Rather than dominate the discussion herself, Ms. Guinier encourages her students to take over, calling on small groups she has assigned to study a particular issue. Instead of challenging a student’s comment directly, she often calls on another student to give his or her view.
“When students feel they’re being challenged by another student rather than by the professor, they feel empowered to respond,” she explains."If the professor challenges them, they often feel they’re just wrong.”
Ms. Milkovich says she has not seen women having a tougher time than men with the Socratic method."But in large, first-year classes,” she observes,"the men tend to volunteer more and speak for longer times when they’re called on.”
That is one reason other professors favor the Socratic method, especially in large classes."Some women are reluctant to volunteer. When you use the Socratic method, you can get students to speak in equal amounts,” says Eric A. Posner, an assistant professor of law at Penn.
The 93 students in Mr. Posner’s first-year course on legal contracts sit in an auditorium-style classroom. He singles them out to answer a series of questions about cases they have studied. He asks for the facts of the case, what they thought of the court’s decision, and how it compares with similar cases. He paces, hands in his pockets, nodding in agreement or interjecting to ask for clarification. There are none of the insults or badgering that characterized the hard-line tactics made famous in the 1973 movie The Paper Chase. Here, questions and answers bounce between professor and student, with little interaction among the students themselves, except for nervous laughter when one is told he is going to be picked on twice in one week."Today’s your lucky day,” Mr. Posner tells the student, who squirms in his seat.
Men in the class generally volunteer to answer questions more often than women do, although Mr. Posner calls on several women during a session. Students can seem to be cornered by an escalating series of detailed questions, but the professor usually lets them off the hook if the situation becomes too uncomfortable. Some describe his teaching style as a"kinder, gentler” Socratic method. It still puts students on the spot to test their knowledge, but under less stressful conditions.
Stephen B. Burbank, a professor of law at Penn, makes no apologies for his more aggressive Socratic approach."I continue to believe it is a useful method for developing certain skills and qualities most lawyers still require, skills like the ability to respond quickly to a challenging question when it is asked by a partner or by a judge. You can’t pass when you’re asked a tough question -- you can, but you can start looking for another job.”
Colin S. Diver, dean of the Penn law school, says the debate over how men and women learn has prompted some professors here to re-examine how they teach. He says it is unclear whether the troubles many women have had here are the result of different learning styles or because more women find their career aspirations thwarted early. More women enter law school intending to pursue public-interest careers, he says, but end up abandoning such plans, partly because of low salaries and prestige."Are they performing less well because they’re unhappy, or are they unhappy because they’re performing less well? It’s hard to sort out the cause and effect.”
Mr. Diver agrees that law schools should offer different teaching styles to meet the needs of all students. However, he adds,"There’s a part of me, and part of a lot of women, that wants to rebel against what she’s saying. My mother graduated from law school in 1930 with the attitude that if everyone got out of their way, women could do just as well as men. It’s very difficult to accept this proposition that women as a gender are still disadvantaged in the absence of any overt discrimination.”
Ms. Guinier says she has no doubt that women are, in fact, disadvantaged by what she considers the male orientation of law schools. She says she was reminded of her own law-school experience when White House officials told her to remain silent before the hearings on her nomination to the Justice Department post. Ms. Guinier didn’t have an opportunity to address what she considered unfair attacks on her record, since her nomination was withdrawn before the hearings could be held. The experience strengthened her resolve to help women “find their voices” in the classroom.
“Having had people ridicule and silence my views, I’m all the more committed to making sure that doesn’t happen to other people,” she says."I want to encourage them to fight back, as I have.”
