When I began teaching seven years ago, I was assigned three classes: Constitutional Law 1 and 2, and Women and the Law.
Women and the Law seemed to present the greatest challenge – how would I make this course relevant to young people attending college in the “aughts?” This was the “Sex and the City” era, when women seemed to be more empowered than ever and were reaching the highest echelons of business and politics.
Although I experienced some sexism, particularly while job hunting in Manhattan, I was selected as the first Executive Director of the Judicial Campaign Ethics Center for the New York State Court System. As a general matter, I did not feel constrained by my gender. Overall, I felt the system, by and large, was working.
Unless we have a personal experience with the legal system, we tend to believe that our constitutional system guarantees that we are all treated equally under the law. However, when one begins to study the law more carefully, particularly in a course like Women and the Law, we discover that in many cases, that is far from the truth. We covered topics ranging from women’s suffrage to equal employment to sexual harassment to reproductive rights.
We watched Anita Hill sweating under the glare of the public spotlight as her actions were put on trial during the Senate confirmation of Justice Clarence Thomas. And, we carefully talked through what Roe v. Wade really says and not what pundits and protestors think it says. We created a safe space to discuss very personal issues that had a very real impact on the students in the class.
After Sandra Fluke was not permitted to testify to Congress regarding the availability of birth control under the Affordable Care Act, the unfortunate optics of a table of men discussing birth control was not lost on anyone in our classroom. Everyone had the chance to air their frustrations with the lack of female representation addressing an issue that affects so many women in such a personal way.
The men in the class seemed to experience the most growth, because they had the opportunity to consider issues of fairness and justice through women’s eyes. Most semesters, men outnumbered women in the course, which proved a very interesting dynamic. They listened intently to the views of the female students; and the classroom proved a perfect place for everyone to learn from their colleagues.
One student declared, “I found my inner feminist!” Another told me he purchased the film “Iron Jawed Angels,” about the women’s suffrage movement, for his wife after we screened it in class, so she could be inspired by women’s fight for the right to vote. I received positive feedback from students about the level of dialogue that we shared in the classroom and their ability to relate to the topics we covered in class.
Although I have studied the law, written about the law, and taught law classes, until I became pregnant and utilized the Family Medical Leave Act (“FMLA”), I had not had a personal experience with the limitations of the law.
FMLA guarantees that employees who work for companies with 50 or more employees, or those who work for any state and federal government agency (including schools), cannot lose their jobs when caring for a family member, including, the most widely recognized reason, birth of a child. However, the time period is limited to 12 weeks, is entirely unpaid, and those who work in small businesses or are self-employed are not covered.
I was grateful to be able to use the time I had built up through years of work to cover the majority of my time off; however, the gap of those who are not afforded this crucial time to heal and to bond with their newborns is far too great. And, as most are now aware, the US is the only industrialized nation that does not provide paid maternity leave.
The personal experience of parenthood has deepened my understanding of the legal issues confronting women in a way that reading and discussing cases never could.
Now, the significance of relatability is borne out by research. A new study finds that judges who have a daughter are more likely to make decisions that favor women’s rights. Adam Liptak of the New York Times cites Chief Justice William Rehnquist’s “feminist” decision in a case involving the FMLA, Nevada Department of Human Resources v. Hibbs. Following the landmark decision, Justice Ruth Bader Ginsburg proclaimed that Rehnquist’s “life experience” as the father of a recently divorced mother helped him better understand the matter.
Rehnquist, it should be noted, opposed the Equal Rights Amendment while serving in the Justice Department during the Nixon years and dissented in other sex discrimination cases. However, in his final years on the bench, he authored an opinion upholding the FMLA, which, he said, addresses what he called, “the pervasive sex-role stereotype that caring for family members is women’s work.”
Liptak reports that in the year Rehnquist wrote the opinion, he was 78; and he sometimes left work early to pick up his granddaughters from school. Ginsburg said in a 2009 interview with Emily Bazelon with The New York Times that “he became more sensitive to things that he might not have noticed [before he took on a childcare role].”
Maya Sen, a political scientist at the University of Rochester and Adam Glynn a government professor at Harvard, found that Ginsburg’s supposition about her colleague was right on target. Sen and Glynn have found that personal experience has a high degree of correlation with the way a judge will decide a case.
Sen stated, “Things like having daughters can actually fundamentally change how people view the world, and this, in turn, affects how they decide cases.” In the study, the researchers looked at 2,500 votes by 224 federal appeals court judges, and stated, “Having at least one daughter corresponds to a 7 percent increase in the proportion of cases in which a judge will vote in a feminist direction.”
They also found that members of Congress with daughters were also influenced in their votes, particularly relating to abortion rights. She continued, “By having at least one daughter, judges learn about what it’s like to be a woman, perhaps a young woman, who might have to deal with issues like equity in terms of pay, university admissions or taking care of children.”
For years, I have been discussing with my students what happens when the demographics of the court do not reflect the national demographics, and this study makes it clear that a lack of diversity of experience among the judiciary does in fact have a measureable effect.
One can also extrapolate from this that an educational system that affords students the opportunity to study and discuss matters related to democracy, diversity, and civic engagement are crucial to a well-rounded and empathetic electorate.
Service-learning courses give students a chance to get out of the classroom and into the community, provide the opportunity to broaden their perspective and better understand the circumstances and lives of others.
In fact, developing empathy and community-mindedness may be the best thing that can happen to a system that seems on the verge of consuming itself in its clamor to pursue rugged self-interest.