How Can We Achieve Gender Equity if Males Run to Extremes?

© James F. Guyot, June 1, 2002

Aunt Adriana was a true pioneer. Valedictorian of her Oshkosh, Wisconsin high school class at sixteen. The first woman to edit the student newspaper at the University of Wisconsin, Madison. At age 22 the 85th woman to be admitted to the Wisconsin bar. That was back in 1932, when women in law schools were still down in the small single digits, and they remained at less than ten percent of the graduates through the 1960s. Those pioneers on the frontier of women's advancement were truly exceptional individuals. They were smarter than their male classmates and they graduated in greater proportions with such honors as the Order of the Coif.

Today, women have reached gender equity in law school enrollments. This means that the frontier has closed. Now that a more representative slice of the female segment of the talent stream has moved into the law schools, exceptionalism has evaporated. Although the end of exceptionalism diluted the quality of the female segment, its demographic surge should, one might reasonably expect, provide a sufficient supply of trained talent to populate in equal gender proportions the elite positions in elective politics, the judiciary, and major law firms. Unfortunately, any such broad shift in gender proportions among elites must confront a challenge from evolutionary psychology: the general proposition that males run to extremes, or -- in other words -- that males are disproportionately represented in the top and bottom of many relevant measurements.

Why do males run to extremes? Some evolutionary psychologists point to natural selection during prehistory. For generations, males could specialize in one strategy or another to increase their chances of mating. Some males won the competition for females by brute force; others successfully attracted mates by their wits. Males running to the upper extreme in the talents required for one strategy would not need to possess more than mediocre talents for the other strategy.

Hence, the male progeny of successful males inherited greater variation along each dimension than their did female progeny. Meanwhile, females, whose reproductive success is thought to have depended less on high-risk strategies for catching mates than on nurturing the results of that catch, followed the less risky strategy of hugging the mean on relevant dimensions of fitness, one of which may be cognitive abilities.

Whatever the cause, the differences between the sexes are visible today. For instance, the Educational Testing Service reported in 1997 that in tests of 12th graders' cognitive abilities, boys outnumbered girls by five to four among both the top 10 percent of performers and the bottom 10 percent while the girls were bunched in the middle. The same ratio applies to the top tenth of those college graduates who take the Law School Admission Test, which is now taken by equal numbers of men and women. Similar results occur with other examinations that act as gatekeepers, like the Graduate Record Examination, the Graduate Management Admission Test, and the Medical College Admission Test.

The LSAT merits particular attention in our assessment of women's opportunities because it controls the gate to a narrowly defined professional field. In addition, the test predicts equally well the performance of men and the performance of women in law school.

If we examine the profession of law alone, we lose some ability to generalize our findings, but we gain in precision of focus: it is relatively easy to measure a lawyer's success by seeing if he or she has become a federal judge. Not all law graduates aspire to be federal judges, of course; some are devoted to public service, while others prefer to work for private firms, and many pursue both goals at different stages of their careers. A federal judgeship, however, is a generally recognized badge of success, one that women in particular appear to value, as they have historically preferred, or at least found more accessible, occupations in the public sector.

The average LSAT scores of students that law schools admit predict quite well how successful the schools' graduates are in becoming federal judges -- especially for the top schools. Yale, whose students traditionally have the highest average LSAT score, produces half again as many federal judges per graduate as does Harvard, which is second in the percentage who became judges. Harvard, in turn, produces one and a half times as many judges as the next ranking producer, Stanford, a school located farther down the LSAT ladder. And Stanford's rate is one and a half times that of the next, the University of Virginia, whose average LSAT score is even lower.

Until the mid-1980's, any talent imbalance between males and females at large was masked by the exceptional abilities of the small number of women who were admitted to law school. But when the floodgates opened, the rising tide of women that swept into the legal profession in the 1980's swamped exceptionalism. Not only did women enter law school with lower LSAT scores than men, they also got lower grades as law students. In those top law schools that award membership in the Order of the Coif to the top tenth of their graduates, women's share of that membership reached one-third and then stopped climbing -- even as their representation among law-school graduates neared the 50-percent mark.

The proportion of women appointed federal judges may have reached a similar plateau. Jimmy Carter was the first president to appoint more than two or three women to the federal bench: He appointed 40 women, 15 percent of the judges appointed in his term of office. Women made up 8 percent of Ronald Reagan's appointed judges, 20 percent of George Bush's, and 30 percent of Bill Clinton's.

Candidates for federal judgeships generally are 20 years out of law school. That means that Carter appointed women to the federal bench at three to four times their ratio among appropriately seasoned law graduates. Reagan and Bush were also overachievers, while Clinton had a larger supply of women to draw on. At 30 percent, Clinton's appointments were running even with the proportion of female law graduates 20 years earlier.

So far, female judges have met the same academic standards as their male peers. All four presidents appointed men and women in equal proportions from nationally selective law schools and from the top tenth of those schools' graduates. (An apparent gender gap in qualifications in the American Bar Association's ratings for nominees from Carter through Bush was created largely because the early women had not accumulated the traditional experience that the ratings emphasized; the A.B.A. has dropped that criterion from its ratings.) That happy equivalence is likely to change, however.

The early female judges came from the ranks of those extremely qualified women first admitted to law schools; later classes of female law students, as we have seen, were not equally exceptional. In addition, when Carter began appointing women to judgeships, he could draw on an almost untapped supply of women who had graduated from law school up to 40 years earlier. Clinton faced an inventory containing proportionately fewer extremely talented women, as will his successors.

Furthermore, as the demand for gender equity spreads throughout the private sector, fueled by heightened public expectation and fear of lawsuits or action by the Equal Employment Opportunity Commission, fewer women may have to hope for judgeships. The top 40 law firms in New York and Washington have been accumulating thousands of women in their associate ranks in recent years. Women's share of the annual intake for associates, now over 40 percent, comes close to their proportion in the stream of graduates coming out of the top law schools. If the leading law firms maintain that percentage when they promote some of their associates to partner, this attractive alternative to judgeships will be available to far more women than in the past. Heightened private sector demand may crowd out the public sector.

Where does that leave the pursuit of gender equity? If by equity we mean some rough but substantial equality of opportunity for similarly qualified individuals, we may be there already. If instead we seek the more results-oriented goal of population parity across all the elite sectors of society, we may have to make a tradeoff in the quality of women holding the top positions. The alternative to such a tradeoff is to be satisfied with islands of gender equity (as with judgeships) in a sea of sex differences.

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