Field, Rachael --- "Women in the Law School Curriculum: Equity is About More Than Just Access" [1999] LegEdRev 6; (1999) 10(2) Legal Education Review 141

Women in the Law School Curriculum: Equity is About More Than Just Access

RACHAEL FIELD *

INTRODUCTION

In an article highlighting a number of problems with regard to the way in which centralised equity policy has been implemented in Australian universities, Eleanor Ramsey has noted the lack of equity programs directed at participation- based issues. In particular she comments that programs which target the content of courses, and the pedagogy of those who teach them, are rare.1
The rarity of such programs is connected with the fact that much of the focus of analyses of equity in curriculum has centred on secondary and primary education.2 As Thomas comments, “what is surprising is that so few feminist researchers in the sociology of education have chosen to look at higher education.”3 It has been left to the radical feminists to argue, for example, “that higher education curricula are as biased towards male experience as secondary education curricula.”4
Participation-based equity issues, such as curriculum issues, have also been overshadowed to date by concerns about access.5 In the context of tertiary legal education, however, access for women (at least white, middle-class, English speaking, city-dwelling women) is no longer a significant equity issue.6 Women students of law are not included, for example, in the table of targets for enrolled students in equity groups in the Equity Plan of the Queensland University of Technology.7 Five years ago women represented approximately 50% of students studying law in Australian universities.8 This continues to be the case at the Queensland University of Technology Faculty of Law.9
Equality of access to law schools for women has not levelled the law school playing field, however. The temptation to see women who have made it to law school as “successful”, and to consider that equity concerns are better focused elsewhere, must be resisted.10 This is because despite the apparent equality of access for women students of law, the reality of women’s experience of learning at law school continues to be unequal to that of men.11 That is, women do not yet have equity of participation in tertiary legal education.
One of the most important reasons as to why women’s experience of tertiary legal education is inequitable relates to the content of the law school curriculum. In 1993, the Australian Law Reform Commission’s (ALRC) Equality Before the Law Inquiry devoted an entire chapter of its report to the issue of gender bias in legal education and looked in particular at the issue of the law school curriculum. The ALRC reported that “the experiences and perspectives of women are lacking in course materials and textbooks,”12 and recommended a two part reform strategy: first, that feminist legal theory be introduced into the curriculum and secondly, that women’s experiences and perspectives be integrated into the content of courses, generally.
This article aims to highlight the importance of equity in terms of the curriculum content of tertiary legal education. It considers the issue of gender equity in the law school curriculum, five years after the release of the ALRC’s report, and assesses how law schools have responded to some of the Commission’s recommendations.13 The first part looks at why the content of the law school curriculum is an equity issue for women. The second section assesses the current elective curricula of Australian law schools in the light of the ALRC’s recommendation that feminist theory be introduced as a subject.14 Thirdly, I consider the importance of the incorporation of women’s perspectives into the core curriculum in the context of the ALRC’s recommendation to this effect.15

PART 1 — CURRICULUM AS AN ISSUE OF GENDER EQUITY IN LAW SCHOOLS

In the context of Australian law schools, it is only since the mid-1980s, and arguably with the introduction of Regina Graycar’s “Gender and the Law” unit at the University of New South Wales in 1987,16 that the inclusion of women’s perspectives in the law school curriculum has been considered a serious issue. The treatment of this issue by, and the conclusions of, the ALRC’s inquiry into Equality Before the Law, referred to above, were an important advance in 1993. Then, in 1995, the Feminist Law Academics’ Workshop held a conference entitled “Gender in Legal Education”;17 and a 1995 edition of the Legal Education Review was largely devoted to papers on this issue.18
Nevertheless debate has been sporadic and, outside of the ALRC Report, seemingly confined to discussions amongst those who understand the importance of the inclusion of gendered perspectives in law curricula. In terms of the broader legal academy in Australia, this issue has remained relatively low on its list of priorities. For example, there was virtually no discussion of gender in the law curriculum in the Pearce Report of 1987;19 a 1990 Colloquium on Legal Education in NSW which looked at “the problems and challenges within the existing education processes that relate to the transforming of law students into legal practitioners”,20 did not concern itself with the implications of gender bias in the law school curriculum; and in a recent long article on the present status and future prospects of Australian legal education, the authors devote only one paragraph to the issue of ‘feminism’.21 In contrast, the United States legal academy has long acknowledged the need to include women’s perspectives in the law school curriculum,22 and the debate that has emerged on the issue in that country has been thorough and scholarly.23
Why then is the content of the law school curriculum an equity issue for women? The answer calls for consideration from two perspectives. First, from the perspective of women law students, it is important that issues pertaining to their gender are recognised, included, and responded to, if women are not to feel silenced, marginalised and isolated in their legal studies. Secondly, from the perspective of women consumers of legal services, it is important that their needs and perspectives are properly understood through legal education if they are to be adequately served by the legal profession. These matters are discussed in turn below.

Equity in the Law School Curriculum: The Perspective of Women Students of Law

Traditionally, the law school curriculum has ignored the specific perspectives of women, because, according to well-established liberal legal ideological approaches to understanding the law, the law is something which is objective, neutral and value- free.24 Outside of feminist critiques, there is little or no recognition in either the law itself or the teaching of law that our legal system rests on an androcentric vision of reality and human nature which makes it inherently flawed; the reasonable person standard, for example.25 Nor is there sufficient acknowledgment that legal scholarship rests on androcentric primary and secondary materials; judgments written predominantly by men, legislation devised, drafted and enacted predominantly by men, for example.26
Although feminist legal theory has questioned the claim of the law to be rational, objective and neutral,27 it has not yet foiled the perpetuation of male biases in the law and the law school curriculum. And whilst, in some law courses, “there have been efforts to present material about the law’s differential impact on men and women, and to analyse the ‘maleness’ of legal standards and values”,28 such efforts are said to be often “piecemeal and ad hoc, and they are often considered to be — by both students and faculty — peripheral to the main focus of the curriculum.”29 Without, therefore, the introduction of a specific focus on women’s perspectives on law, the curriculum will continue to reflect the persistent androcentric state of legal “knowledge”30 and, importantly, from the perspective of women students of law, women will continue to be cast as “other” by the law and the law school curriculum.31
The challenge for feminists in curriculum reform in law schools is “to transform the normative tradition of law so that what law now recognises as ‘otherness’ is seen as central to an understanding of law and society.”32 Or in other words to challenge dominant assumptions held by law and to develop alternative “conventions which take better account of women’s experiences and needs.”33 Until that is achieved, however, women will continue to study law in a virtual contextual vacuum as far as gender issues are concerned.34 Work to date on the impact of this learning environment on women students has focused on issues arising in the classroom and the methodologies of legal pedagogy.35 Of particular concern has been the silencing, alienation and marginalisation of women at law school as a result of the designation of women’s issues and perspectives as irrelevant.36 I have not uncovered any research, however, which links experiences such as these with decisions by women to discontinue their legal studies, or with decisions of women to opt out of the private practice of law37 and to direct their working preferences towards government or community legal organisations, for example.38 Further research is warranted on these matters.

Equity in the Law School Curriculum: The Perspective of Women Consumers of Legal Services

Not only do “law schools play a critical role in shaping and socializing our attitudes toward the law, the legal profession generally, and appropriate styles of lawyering,”39 but the content of Australian undergraduate law courses satisfies the academic requirements for admission to practice.40 It is fair to say, then, that “legal education is the foundation of every lawyer’s function and performance in the legal system.”41 And to the extent that the law school curriculum ignores gender issues, it legitimises and perpetuates the existing biases in the legal system and the practice of law.42
For example, submissions to the ALRC indicated that women are dissatisfied with the service they receive from many lawyers. They refer to lawyers’ lack of expertise in the kinds of problems women present and to a failure to see how a woman’s perspective may not be properly represented in traditional legal thinking and practice. They describe this as an issue in court cases and in legal practice generally.43 And in relation to the operation of the court system it has been said that “the judiciary, the profession and all who work in the courts need to be aware of and understand the hidden or unconscious gender bias in the law and the administration of justice so that it can be consciously dealt with and consciously eliminated and avoided.”44
It is also important to note, however, that “in Australia more than a third of graduates with law degrees do not practise law.”45 That is, notwithstanding the fact that “in Australia law schools see their primary task as training lawyers for legal practice”,46 many legally trained people are not working “in practice” but rather in contexts such as government, the community sector, academia or jobs in which a knowledge of the law is useful but not essential, for example, business or accounting.
The impact of the biased nature of the content of legal education is not therefore confined to those women who use the services of private legal practitioners, but rather extends to women as consumers of all forms of legal services, from government policy development and law reform to the provision of community legal services.
In terms then of the general calibre of lawyers who graduate from our law schools every year, the equity-based content of the law school curriculum is extremely important47 if they are to be able to serve “women as well as men”.48 Lawyers, therefore, whether practising or non-practising and irrespective of their gender,49 need their legal education to include content relevant to women. Lawyers need an understanding of the way the law excludes, silences and disadvantages women. They need to know how women are affected by the law, what perspectives women might have on the application of laws. They need to understand issues such as the historical and contemporary position of women in society and vis-a-vis the law, what rights women have gained and have yet to attain, and the invisibility of women and their concerns. This is because the law is a real discipline, involving people and their lives, and the study of law, if it is to be equitable, must also therefore be real.50 For this to be achieved the discordance in the curriculum between the reality of the legal order as it is taught, and the reality as it is experienced by women, must be rectified.51
The strength of the influence of law schools and their curricula on the future characteristics of Australia’s legal profession should not be underestimated. Indeed legal education has the power either to create and perpetuate inequality in the practice of the law, or to redress it. As a submission to the ALRC put it: “If students are exposed to the importance of equality before the law in its various forms, the legal profession is likely to benefit from educated individuals who have an understanding of gender politics and the means to put this knowledge into constructive use in practice as legal professionals ...”.52
The reform of the Australian law school curricula to include women’s issues and perspectives is, however, no easy task. There are already many published accounts of the problems women academic staff and students have encountered in the endeavour to date.53 The following part of this article discusses the introduction of feminist legal theory into the elective curriculum of law schools in Australia and the issues this move raises in terms of equity reform of law school curricula.

PART 2 — FEMINIST LEGAL THEORY AND WOMEN AND THE LAW UNITS: WOMEN’S PERSPECTIVES IN THE ELECTIVE CURRICULUM

Before discussing the inclusion of women’s perspectives in the law curriculum’s elective stream it is necessary first to introduce in general terms the structure of the law school curriculum.
The basic Bachelor of Laws (LLB) course is offered by 27 of the 38 Australian universities.54 The course is divided into the core curriculum and elective curriculum. The content of the core curriculum is compulsory and includes units which satisfy the profession’s requirements for admission to practice.55 Courses offered in the elective curriculum generally involve “a more detailed examination of a subject or part of a subject offered in the core curriculum or an area of study not taught in the core curriculum.”56 Whilst the admission subjects in the core curriculum57 are uniform throughout law schools, other subjects in that curriculum, and the elective subjects offered, vary according to the policies and priorities of individual Law Faculties, and according to the skills and talents of those on staff at each respective law school. This diversity is something which is said to be valued and fostered by law schools.58
The ALRC recommended in 1993 that feminist legal theory be offered “in separate elective subjects or in elective subjects that deal with legal theory.”59 This was an important step forward for equity-based curriculum reform. Since the recommendation was made, how many of Australia’s law schools have introduced feminist legal theory units into the elective curriculum? A study of the elective curriculum subject lists of all 27 of Australia’s law schools revealed that currently only eight universities60 offer a specific elective subject entitled “feminist legal theory” (or “feminist jurisprudence” or “feminist theories of law”). A further seven universities offer elective units with titles not restricted to a theoretical analysis of issues for women and the law. For example at Monash University, two electives are available entitled “Crime and Gender” and “Law, Gender and Feminism”; Sydney University offers “Gender, Injury and Compensation”, “Law and Gender” and “Women, Law and Family”; and the University of Western Australia offers “A Feminist Analysis of Law”.61
Fifty-six percent (56%) of Australia’s law schools, then, offer a feminist legal theory elective, or another gender based elective subject or subjects. Importantly, however, the results of this study, when compared with the claim in the ALRC report itself that as at 1993, 17 Australian law schools offered a feminist legal theory elective subject,62 indicate that there has been virtually no progress since that time in terms of the overt inclusion of subjects addressing issues for women and the law in the elective curriculum. In fact we seem to have gone backwards as the ALRC’s study identified two more institutions offering a feminist legal theory elective than this study.63 One of these two is my own institution, the Queensland University of Technology, which has never offered a separate feminist perspectives elective, but which had stated in its response to the ALRC’s Law school questionnaire64 that such an elective was proposed for introduction in 1996.65
It should be noted, however, that feminist legal theory may be included in the general legal theory units of the remaining 44% of law schools (and also that this was an alternative offered in the ALRC’s recommendation).66 It was not within the scope of the present study, however, to review the content of each university’s jurisprudence unit. Nevertheless, it is disappointing that five years after the release of the Equality Before the Law Report, the status quo has been maintained and still only a bare majority of law schools in Australia expressly offer a gender-based elective subject. The implication of this is that the ALRC’s recommendation on this matter has made little or no impact on law school curricula. This in turn means that women and their perspectives continue to be cast as “other” in the law school, and still only an insufficient percentage of our future lawyers are given the possibility of access to a critique of laws and the legal process from a feminist perspective.
Importantly also, it should be noted that the introduction of a gender and the law unit in the elective curriculum is no panacea for women students of law, nor for women consumers of legal services.67 Indeed a number of problems have been identified with this strategy for equity-based curriculum reform. For example, it is a danger that law faculties will substitute offering a feminist law elective for dealing with these issues in the core curriculum.68 Also, the elective curriculum is generally limited to the final years of a law degree, and elective subjects are self-selected by students.69 This means that not only will feminist issues dealt with in elective units not be encountered by all students,70 but also those who choose to do the units are often what might be termed “the converted”.71 Further, the marginalisation72 of feminist perspectives on law that accompanies their relegation or hiving off to the elective curriculum brings with it a stigmatisation of those students, usually women, who enrol in such units.73
In short, although inclusion of gender and the law type electives is an important part of an equitable approach to reform of the law curriculum it cannot be considered the end of the matter. This is because if the feminist content of an elective unit is bypassed by a student, then it is possible that they may never be exposed to information about the experiences and perspectives of women, and may never have an opportunity to experience a critical challenge to the androcentric, liberal legal ideology.

PART 3 — THE INTEGRATION OF WOMEN’S PERSPECTIVES IN THE CORE CURRICULUM

The development of feminist electives in the law curricula of a relatively small number of Australia’s law schools is not sufficient progress for gender equity in the law school. It is too little spread too thin. The real answer, the ALRC has asserted, is to integrate the experiences of women into the content of courses throughout the entire curriculum, including importantly, the core curriculum.74 On this issue a 1972 statement by the Association of American Law Schools is an effective summary of the situation in Australia at the end of 1998:

Basic substantive courses in the law school curriculum traditionally have omitted materials respecting the legal status of women. ... It is not surprising that many students erroneously assume that men and women are treated equally by the law. [Women and the law courses] reach only a small minority of law students. Unless information on the legal rights and disabilities of women is included in the most basic law school courses, the nation’s law school graduates will continue to have scant understanding of the legal restrictions under which 53% of the population lives.75
It is well beyond the scope of the study for this article to assess whether any feminist content has been integrated into core curriculum subjects across Australia’s law schools. Such an assessment would be a massive task. It is, however, a matter deserving future detailed study, and this section highlights the importance of continuing research in this area for achieving a better integration of women’s issues into law courses, and as a consequence, attaining true gender equity in the law school curriculum.
As discussed in Part One, above, the integration of women’s issues into the law curriculum, including the core curriculum, is crucial for gender equity in legal education both from the perspective of women law students, and from the perspective of women consumers of legal services.
Submissions to the ALRC on this issue included statements such as: “If feminist jurisprudence is taught in all stages of a law degree lawyers cannot go on to build a career in ignorance without the knowledge of women’s valuable contribution to society.”76 “The integration of feminist jurisprudence into core subjects would heighten awareness of the issues affecting women amongst all law students.”77 And “it is not asking for a lot for ... students to learn more about half the population, surely this will make them better lawyers.”78 Further, Regina Graycar has said of equity-based curriculum reform in law schools that our aim should be “to reach a situation such as obtains in Norway at the University of Oslo, where in addition to there being a separate department of women’s law, it is required of each compulsory course that there be a feminist component.”79
The process of attempting to integrate women’s issues into the traditionally androcentric core law curriculum is, however, one which is extremely challenging and confronting for legal academics. This is because integration would require all legal academics to “rethink the structure, content and process of their course.”80 As a result, reasons for resistance to integration are many. For example, some believe that making materials compulsory that have a ‘strong ideological perspective’ is inappropriate in the ‘neutral’ world of law and legal education.81 Others consider that inclusion of feminist perspectives in the core curriculum will perpetuate and entrench gender differences.82
Further reasons for resistance have also come to light through a cross-discipline curriculum integration project conducted by MacCorquodale and Lensink at the University of Arizona.83 That project identified at least 6 further modes of resistance to integration.
First, academics in that project found it difficult to integrate perspectives and materials relating to women because they have been traditionally and culturally devalued.84 Second, academics struggled with the question of what to cut from a course in order to include new materials on women, and this was used as an excuse for not including women’s perspectives.85 Third, many academics found the imperative to integrate women’s perspectives to be an encroachment on academic freedom. They considered that “women’s studies is now telling us what to teach.”86
Fourth, some academics simply rejected feminist scholarship as lacking academic value because of its inclusion of issues which are considered to be irrational and unscientific, such as emotion.87 Fifth, some academics resisted the integration of women’s perspectives into their courses on the basis of the argument that women are only one group of many that are oppressed.88 And sixth, others effectively resisted integration by defining their area so narrowly so as to say that women’s scholarship is not applicable.
The potential excuses for avoiding integration are, therefore, many. It is for this reason that diligence is required in assessing the progress and approaches of law schools on this issue. First further research is required on what integration has occurred to date. For example, in each subject, and across every law school in Australia, there needs to be a gendered assessment of the content of course lectures and tutorials, as well as materials, such as case books, text books, reading lists and handouts.89 Secondly, even currently, there is no shortage of material available for use in core curriculum units which would assist with the integration of women’s perspectives, and these need to be more widely promoted and disseminated. Examples of such materials include texts such as Jocelynne Scutt’s Women and the Law90 and Regina Graycar and Jenny Morgan’s The Hidden Gender of Law.91 There are also numerous articles regarding the integration of women’s perspectives into core curriculum subjects.92 Finally and importantly, in response to the ALRC’s recommendation, the government provided funding for the development of gender-sensitive teaching materials on the themes of citizenship, work and violence. These materials are available on the internet through Uniserve Law.93
Helping academics with the content of materials that integrate women’s perspectives into the core curriculum is important. But legal academics may also need assistance and encouragement with process. The third point then is that programs on specific strategies for integrating feminist perspectives into the core law school curriculum need to be developed. A starting point is perhaps to encourage academics to view each small step as important, even ideas as basic as including readings with a feminist perspective, inviting guest lecturers from Women’s Legal Services or other feminist organisations, and re-designing assessment from a feminist perspective.94

CONCLUSION

Feminist scholarship has placed issues for women and the law on the agenda for reform and debate, and has forced the recognition that gender is relevant in legal education.95 To date the greatest advance in equity curriculum reform has been the instigation of feminist electives in some Australian law schools. But this is not sufficient progress in terms of the recognised need to overcome the androcentric nature of tertiary legal studies. For the sake of future women students of law and future women consumers of legal services a comprehensive equity program for all Australian law schools focused on participation-based issues should be developed with the aim of re-igniting the push for elective as well as core curriculum reforms. This is because equity reform of tertiary legal education at the beginning of the twenty first century is about much more than simply access, it is about the future of legal education and ultimately also of the law itself.

* BA/LLB(Hons)(ANU), LLM(Hons)(QUT), Solicitor and Barrister (ACT), Solicitor (QLD), Lecturer, School of Justice Studies, Faculty of Law, Queensland University of Technology. The author would like to acknowledge the valuable comments of the two referees and the editor on this article.

©2000. (1999) 10 Legal Educ Rev 141.

1 E Ramsey, Managing Equity in Higher Education, (1994) 2 The Australian Universities’ Review 13, at 16. See also, M Bowen, Mainstreaming Equity Activities in Universities: The Next Challenge, (1994) 2 The Australian Universities’ Review 19, at 22.

2 See for example the chapter entitled “Social Justice in Education and Gender Equity” in A Sturman, Social Justice in Education, Australian Education Review No.40 (Melbourne: ACER Press, 1997) at 81, and the references there. See also the Commonwealth Schools Commission, National Policy for the Education of Girls (Canberra: Commonwealth Schools Commission, 1987), L Jenkins “Gender Equity in Curriculum Reform Project”, (1992) 12(2) Curriculum Perspectives 28, Australian Education Council, National Action Plan for the Education of Girls 1993-1997 (Melbourne: Curriculum Corporation, 1993) and A Allard, M Cooper, G Hildebrand and E Wealands, STAGES: Steps Towards Addressing Gender in Educational Settings (Melbourne: Curriculum Corporation, 1995). See also, for example, D Spender, Invisible Women: The Schooling Scandal (London: Writers and Readers, 1982). For a United Kingdom perspective see G Weiner, Feminism in Education (Buckingham: Open University Press, 1994).

3 K Thomas, Gender and Subject in Higher Education (Buckingham and Bristol: The Society for Research into Higher Education and Open University Press, 1990) at 10. At 18 Thomas acknowledges some attention has been paid to women in higher education and curriculum issues — but that these issues generally relate to the non-traditional areas of study for women such as science, engineering, architecture and information technology.

4 Id at 20. See also for example, D Spender (ed), Men’s Studies Modified (Oxford: Pergamon, 1981), and G Bowles and R Duelli-Klein (eds), Theories of Women’s Studies (London: Routledge & Kegan Paul, 1983). Note also Griffiths’ comment that “there is a prevailing sexism in and out of formal educational institutions: schools, universities, local authorities, governing bodies, government departments, educational publishing and voluntary pressure groups ... [which] distorts educational practices and educational outcomes. This is precisely the concern of feminist epistemology: how to improve knowledge and remove sexist distortions.”: M Griffiths, Making the Difference: Feminism, Postmodernism and the Methodology of Educational Research, Papers Presented to the ESRC Seminar, Methodology and Epistemology in Educational Research, Liverpool University, June 1992 at 3. See also, L Rowan, The Importance of the Act of Going: Towards Gender Inclusive Education (1997) 19(2) Studies in Continuing Education 124.

5 For a discussion of recent equity policy foci and issues in higher education in Australia see the feature entitled Equity and Diversity in (1994) 2 The Australian Universities’ Review.

6 Studies by the World Bank reflect that world-wide access to higher education in general is no longer the concern for women that it was in the past: K Subbarao, L Raney, H Dundar, J Haworth, Women in Higher Education: Progress, Constraints and Promising Initiatives, World Bank Discussion Paper 244 (Washington DC: The World Bank, 1994). However, even as recently as the 1980s access to legal education has been noted as an international issue for women. For example, on this issue see Consultative Group on Research and Education in Law, Report to the Social Sciences and Humanities Research Council of Canada: Law and Learning (Ottawa, 1983) at 19, and the comments on this matter in note 47 below. In Australia, equity in higher education (particularly in terms of access) has been a central concern for universities since the release of the Department of Education, Employment and Training’s Higher Education: A Policy Statement, (Canberra: AGPS, 1988).

7 QUT Equity Plan: Table 1 at http://www.qut.edu.au/pubs/equity/ plan/equityplan.html. The table reflects that women who continue to be targeted in terms of enrolments include women students of engineering, computer science/information systems, architecture, science and postgraduate research.

8 The figures for 1993 are documented in C McInnis and S Marginson, Australian Law Schools after the 1987 Pearce Report, DEET Higher Education Division, Evaluations and Investigations Program (Canberra: AGPS, 1994, Table A5.20, 448). These figures can be compared with the following: 1984 — 41%, 1980 33.3% and 1974 21.1%: D Pearce, E Campbell and D Harding, Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission Volume 2 (Canberra: AGPS, 1987) para 11.7.

9 Statistics provided by a Senior Administration Officer at the Law Faculty on 2 November 1998 via http://www.qut.edu.au/chan/pb/ planbudg/facultie/law/tables/lawenrg.htm. Since 1995 women have made up 49.5% of the QUT law student body.

10 Thomas, supra note 3, at 20, posits the view that one reason why there is comparatively little analysis of women in higher education is that women who have reached higher education are considered successful.

11 For example, women reported to the Australian Law Reform Commission’s Inquiry into Equality Before the Law concerns in relation to the lack of availability of part-time courses, the lack of availability of child-care facilities, difficulties posed by the time-tabling of classes after 5pm, the time-tabling of exams during the school holidays period, and the difficulties women students have in getting involved as student representatives or on student bodies as a result of family responsibilities: The Australian Law Reform Commission, Equality Before the Law: Women’s Equality, Report No.69 Part II (Canberra: AGPS, 1994) at 140. See also for example, DL Rhode, The ‘Women’s Point of View’ (1988) 38 Journal of Legal Education 39, at 40 and T Lovell Banks, Gender Bias in the Classroom (1988) 38 Journal of Legal Education 137. See also, L Guinier, M Fine and J Balin, Becoming Gentlemen: Women’s Experiences at One Ivy League Law School (1994) 143(1) University of Pennsylvania Law Review 1 which details a comprehensive study of law students over a 5 year period and concluded that “the law school experience of women in the aggregate differs markedly from that of their male peers” (at 2).

12 ALRC, supra note 11, at 137. It is also interesting to note, however, the report’s reference to other submissions commenting “that they perceive little direct discrimination in law schools and that most academic staff are sensitive to gender issues and attempt to use gender-inclusive language. One submission suggests that the situation experienced by women is far worse in the profession itself than at law school.”: Id.

13 The full list of recommendations on legal education is as follows: “Tertiary legal education: 1. Law schools should ensure that the curriculum includes content on how each area of the law in substance and operation affects women and reflects their experiences. The curriculum includes the core curriculum and elective curriculum. 2. Law schools should ensure that feminist legal theory is offered in separate elective subjects or in elective subjects that deal with legal theory. 3. The Department of Employment, Education and Training should assess the incorporation of the experiences and perspectives of women in the law school curriculum as part of its annual quality evaluation of universities. 4. All law schools should encourage staff members to exchange information and advice on the incorporation of the experiences and perspectives of women in the content of all subjects. 5. All law schools should ensure that in recruiting new staff selection criteria assess an applicant’s awareness of gender issues as applicable to the subject area to be taught. 6. Law schools should ensure that all aspects of tertiary legal education, including assessment tasks and course material, employ gender inclusive language and avoid sexist stereotypes of the roles of women and men in society.”: Id at 156.

14 Id at 140.

15 Id.

16 For a discussion of this unit see, K Rosser, The Feminist Project in Action (1988) 13(6) Legal Service Bulletin 233 where the unit is described as “an important contribution to legal education in Australia.”

17 23-24 February at the Australian National University.

18 (1995) 6(2) Legal Education Review at 117–251. See also, J Grbich, Feminist Jurisprudence as Women’s Studies in Law: Australian Dialogues, in AJ Arnaud and E Kingdom (eds), Women’s Rights and the Rights of Man (Aberdeen: Aberdeen University Press, 1990) and V Kerruish, Barefoot in the Kitchen: A Response to Jack Goldring [1988] UWALawRw 5; (1988) 18 University of Western Australia Law Review 167.

19 Pearce, Campbell, and Harding, supra note 8.

20 Law Foundation of NSW, Colloquium on Legal Education — Background Papers, 22-24 June 1990, at 2.

21 The scant and inadequate treatment of the issue reads: “Another major force for change in the traditional aims of legal education is feminism. The patriarchal bias of the modern legal systems is now well recognised. The emergence of feminist liberation movements in the western world in the 1970s led to the establishment of women’s studies programmes in Australian higher education institutions. However, these developments have not altered in any radical way the situation in Australian law schools. Given the central role of the law as mechanism “for transmitting and legitimating societal values” much pressure has been placed on the law and law schools to lead the change towards a recognition of female equality.” There are only two footnotes neither of which provides a sufficient reference to the Australian writing in this area. There is no reference to the ALRC report: M Tsamenyi and E Clark, An Overview of the Present Status and Future Prospects of Australian Legal Education (1995) 29 Journal of the Association of Law Teachers 1. Further, Bird comments that “in the last twenty years there have been some important changes in legal education. ... There has not however been any major assault on the content of the ‘mainstream’ or core curriculum.”: G Bird, Race, Ethnicity, Class and Gender: Integral Issues for a Law Curriculum, in C Hedrick & R Holton (eds) Crosscultural Communication and Professional Education, Centre for Multicultural Studies, The Flinders University of South Australia, Adelaide, 1990, at 11. Debate about the law curriculum has rather been focused on matters such as which units should be compulsory for admission to legal practice. For example, the Pearce Report states that: “The gap in law school curricula most frequently identified in submissions to the Committee was the teaching of legislation”: supra note 19 at 30. There is no mention in the relevant chapter of the summary of the report regarding integration of women’s perspectives into the law school curricula, the only matter that comes close is a reference to the importance of paying attention in curricula to functions of law in society and to underlying policy and ethical issues: Id at 90. Note also that McInnes and Marginson refer little to these issues in their assessment of law schools after the Pearce Report, supra note 8.

22 The first US conference on gender bias in legal education was an American Association of Law Schools (AALS) sponsored Symposium on the Law School Curriculum and the Legal Rights of Women, held on October 20-21, 1972. The focus of that symposium was “on the need to integrate issues concerning women within the basic structure of American legal education, rather than simply relying on the Women and the Law courses that were then developing to remedy serious omissions in the curriculum as a whole.”: EM Schneider, Task Force Reports on Women in the Courts: The Challenge for Legal Education (1988) Journal of Legal Education 87, at 90. Note also that the Women and the Law Project at American University’s Washington College of Law has convened annual workshops on the treatment of women’s rights in the law school curriculum: A Shalleck, Report of the Women and the Law Project: Gender Bias and the Law School Curriculum (1988) 38 Journal of Legal Education 97.

23 See for example, the symposium in (1988) 38 Journal of Legal Education, and KC Worden, Overshooting the Target: A Feminist Deconstruction of Legal Education (1985) 34 American University Law Review 1141. Note also that in J Morgan, Feminist Theory as Legal Theory [1988] MelbULawRw 17; (1988) 16(4) Melbourne University Law Review 743 the centrality of the feminist legal project to law and legal education in America is acknowledged.

24 For a comprehensive discussion of the existence of gender bias in the substance of legal principles and in the decisions of courts see Chapter 2 of the ALRC’s Report, supra note 11. For the work of feminist legal theorists that has helped reveal the systemic gender bias of the law see, for example, R Graycar and J Morgan, The Hidden Gender of Law (Sydney: Federation Press, 1990), C MacKinnon Feminism Unmodified: Discourse on Life and Law (Cambridge MA: Harvard University Press, 1987), LM Finley, Breaking Women’s Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning (1989) 64 Notre Dame Law Review 886, N Naffine Law and the Sexes: Explorations in Feminist Jurisprudence (Sydney: Allen and Unwin, 1990), and M Davies, Asking the Law Question (Sydney: The Law Book Company Limited, 1994) at Chapter 6. See also R Morgan, Legal Education Watershed (1992) 17 Alternative Law Journal 140, M Thornton, Portia Lost In the Groves of Academe Wondering What to do about Legal Education (1991) 34 The Australian Universities’ Review 26, CA MacKinnon, Feminism in Legal Education [1989] LegEdRev 7; (1989) 1 Legal Education Review 85, BA Hocking, Feminist Jurisprudence: The New Legal Education [1992] MelbULawRw 16; (1992) 18 Melbourne University Law Review 727, E Jackson, Contradictions and Coherence in Feminist Responses to Law (1993) 20 Journal of Law and Society 398, and M Thornton, Women and Legal Hierarchy [1989] LegEdRev 8; (1989) 1 Legal Education Review 97.

25 L Bender, A Lawyer’s Primer on Feminist Theory and Tort (1988) 38 Journal of Legal Education 3. We have a “curriculum designed, in the main, by male, middle class, ‘Anglos’ and reflecting their perceptions of the reality of the legal order.”: Bird, supra note 21, at 30.

26 M Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations (1987) 22 Harvard CR — CL Law Review 323 at 344

27 KT Bartlett, Feminist Legal Methods (1990) 103 Harvard Law Review 829, at 831.

28 MJ Mossman, ‘Otherness’ and the Law School: A Comment on Teaching Gender Equality (1985) 1 Canadian Journal of Women and the Law 213, at 214. Mossman also refers to Katherine O’Donovan, Before and After: The Impact of Feminism on the Academic Discipline of Law in D Spender (ed), Men’s Studies Modified (New York: Pergamon Press, 1981). See also the discussion of gender electives offered in Australia in Part 2 below.

29 Mossman, supra note 28, at 214.

30 Id.

31 “Now what particularly signalises the situation of woman is that she — a free and autonomous being like all human creatures — nevertheless finds herself living in a world where men compel her to assume the status of Other.” Simone de Beauvoir, The Second Sex, trans HM Parshley 1953, reprint (New York: Random House, Vintage Press, 1974) at xxxiii. Mossman has commented that this statement of de Beauvoir, written in 1949, still applied in 1985 as an apt characterisation of women in most Canadian law schools: Mossman, supra note 28, at 214. It could be said that 13 years on it still applies in most Australian law schools, notwithstanding some improvements to the curriculum.

32 Mossman, supra note 28, at 218. Feminist legal theorists are seeking “not just to tinker with the legal system, but to fundamentally change it.”: Id.

33 See Bartlett, supra note 27. Some of the different feminist approaches include: C Gilligan, In a Different Voice: Psychological Theory and Women’s Development (Cambridge MA: Harvard University Press, 1982), CA MacKinnon, Feminism Unmodified: Discourse on Life and Law, supra note 24, R West, The Difference in Women’s Hedonic Lives: a Phenomenological Critique of Feminist Legal Theory (1987) 3 Wisconsin Women’s Law Journal 81, A Harris, Race and Essentialism in Feminist Legal Theory (1990) 42 Stanford Law Review 581, N Duclos, Lessons of Difference: Feminist Theory on Cultural Diversity (1990) 38 Buffalo Law Review 325.

34 Bird, supra note 21, at 2. Bird argues “for a contextualisation of law school curriculum to bring the teaching of law closer to the reality of Australia’s pluralist democracy”: Id at 20. Bird also states that “Curriculum development must always take account of the curriculum producers (staff on faculty) and the curriculum consumers (the students).”: Id.

35 See, for example, the following papers in (1988) 38 Journal of Legal Education: T Lovell Banks, Gender Bias in the Classroom, supra note 11, PA Cain, Teaching Feminist Legal Theory at Texas: Listening to Difference and Exploring Connections, at 165 and DL Rhode, The Women’s Point of View, supra note 11; and MJ Mossman, Gender Issues in Teaching Methods: Reflections on Shifting the Paradigm, (1995) 6 Legal Education Review 129.

36 See for example, LM Finley, Women’s Experience in Legal Education: Silencing and Alienation [1989] LegEdRev 9; (1989) 1 Legal Education Review 101, SM Wildman, The Question of Silence: Techniques to Ensure Full Class Participation (1988) 38 Journal of Legal Education 147, LM Finley, Breaking Women’s Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning, supra note 24. R Graycar, “to transform the normative tradition of law ...” a comment on the feminist project in the law school, (1986) 58(4) Australian Quarterly 366 at 368 also notes that women are becoming more vocal about being marginalised by the content (and method) of their legal education.

37 See M Thornton, Dissonance and Distrust — Women in the Legal Profession (Melbourne: Oxford University Press, 1996).

38 Women are “far more likely to plan to work in a community legal service organisation”, and are “somewhat more likely to be interested in working in the public sector.”: C Roper, Career Intentions of Australian Law Students, The Centre for Legal Education (Canberra: AGPS, 1995) at 97 (see also Table 8.2) and at 109 (see also Table 9.2).

39 Schneider, supra note 22, at 88. The ALRC comments that “law school provides the foundation of knowledge a student will use to practise as a lawyer. To some degree, it will also mould the attitudes of a student towards the law. For this reason the law school environment contributes to the training of lawyers.”: ALRC, supra note 11, at 136.

40 Pearce et al, supra note 19, at 30. This has resulted in the legal profession having a considerable influence over law school curricula and is, in my view, linked to the lack of prioritisation of women’s issues in legal education, that is, because of the patriarchal nature of the profession. Until recently some people qualified for practice via means such as Solicitor’s Board courses but these are now uncommon, and most lawyers complete their degree at a university.

41 ALRC, supra note 11, at 134. Further, whilst the law school curriculum is important it should also be noted that “legal education is a life long process, involving formal education, the actual performance of legal work, the example of fellow practitioners and self instruction.”: Id at 135. See also J Goldring, Better Legal Education: An Essential Element for All, Convention Papers Volume 1, Day 2, 28th Australian Legal Convention, Hobart 26-30 September 1993, at 36, and also W Twining, Developments in Legal Education: Beyond the Primary School Model [1991] LegEdRev 2; (1990) 2 Legal Education Review 35.

42 Bird, supra note 21, at 7.

43 ALRC, supra note 11, at 134.

44 Chief Justice Malcolm, Women and The Law: Proposed Judicial Education Programme on Gender Equality and Taskforce on Gender Bias in Western Australia (1993) 1 Australian Feminist Law Journal 139, at 144. See also para 1.14 of the Commonwealth Government’s Access to Justice Report — An Action Plan (Canberra: AGPS, 1994). Consider also the following submission to the ALRC: “The gender bias present in Australia’s legal system can, in part, be attributed to the sexist perspectives entrenched in our legal education. Gender bias in legal education breeds gender bias in lawyers and judges.” ALRC, supra note 11, at 134 quoting J Jago (ed) Submission 160.

45 Committee of Australian Law Deans, Studying Law in Australia (Canberra: AGPS, 1994) at 10.

46 ALRC, supra note 11, at 136. See also S Bottomley, N Cunningham and S Parker, Law in Context (Sydney: Federation Press, 1991) at 118.

47 The form and content of the law school curricula have been identified as perhaps the most frequently debated topics in law schools: Pearce at al, supra note 19, at 29. In America a Report of the American Bar Association of 1987 said that “the curriculum is the heart of the law school education program. As such, it requires constant attention to ensure that it meets the present and, to the extent determinable, the future needs of students released into a constantly changing profession.”: Council of the American Bar Association Section of Legal Education and Admissions to the Bar, Long-Range Planning for Legal Education in the United States, July 1987 at 28. However, it is worth mention that the report identifies (at 11) recent “significant but scarcely revolutionary” changes to the curriculum as being issues such as methods of instruction, professional skills training, ethics education and the introduction of Alternative Dispute Resolution subjects (at 11–12). There is no mention of women’s issues in the curriculum notwithstanding the work that had been done by groups such as the AALS since 1972. Interestingly, where women are mentioned in the report it is in relation to access issues to legal education. For example, the report mentions affirmative action programs in the US to give women access to legal education and the section of the American Bar Association which authored the report sponsored a Conference on Legal Education in the 1980 (Nov 12-14, 1981 in New York) at which issues of access were a feature.

48 ALRC, supra note 11, at 134. Desired goals for legal education and the legal profession as outlined by the ALRC “are that all people who administer the legal system, magistrates, judges, solicitors, barristers and court staff, take account of the needs of women and that the perspectives of women are included in the shaping of legal concepts and doctrines.”: Id at 135. See also Australian Law Reform Commission, Equality Before the Law, Discussion Paper 54 (Sydney: ALRC, 1993) particularly at para 7.2.

49 ALRC, supra note 11, at 135.

50 As Bird puts it: “The image of the plaintiff or defendant in a civil or criminal action stripped of attributes of race ethnicity, gender and class appearing naked and equal before the law can be seen ... as a fairytale.” Bird, supra note 21, at 16.

51 Id at 12.

52 ALRC, supra note 11, at 141 quoting J Jago (ed) Submission 160.

53 For example, LG Espinoza, Constructing a Professional Ethic: Law School Lessons and Lesions (1989–90) 4 Berkeley Women’s Law Journal 215, M Torrey (et al), Teaching Law in a Feminist Manner: A Commentary from Experience (1990) 13 Harvard Women’s Law Journal 87, LM Finley, Women’s Experience in Legal Education: Silencing and Alienation, supra note 36, KB Czapanskiy and JB Singer, Women in the Law School: It’s Time for More Change (1988) 7 Law and Inequality 135, M Stewart, Conflict and Connection at Sydney University Law School: Twelve Women Speak of Our Legal Education [1992] MelbULawRw 20; (1992) 18 Melbourne University Law Review 828. These writings are referred to at p 137 of the ALRC Report, supra note 11.

54 Australia’s universities are listed on the AVCC Australian Universities WWW Servers page (http://www.avcc/uniwebs.htm).

55 The Hon. Mr. Justice R McGarvie, The Function of a Degree: Core Subjects, Law Council of Australia Legal Education Conference Papers, Bond University, Queensland, 13–16 February 1991. C Sampford, Rethinking the Core Curriculum [1989] AdelLawRw 3; (1989) 12 Adelaide Law Review 38. See also note 57 below.

56 ALRC, supra note 11, at 141–42.

57 See discussions at Id para 8.15 and 8.16 (at 142–3). The eleven subjects are: criminal law and procedure, torts, contracts, property (including torrens title), equity (including trusts), administrative law, federal and state constitutional law, civil procedure, evidence, professional conduct and company law. See also Consultative Committee of State and Territorial Law Admitting Authorities, Uniform Admission Requirements: Discussion Paper and Recommendations, April 1992, Appendix A. See also Uniform Admission Rules, rule 3(b).

58 ALRC, supra note 11, at 141–42.

59 Id at 156: Recommendation 8.1 at para 2.

60 The lists were accessed through the internet home pages for each university via the AVCC Australian Universities WWW Servers page (supra note 54) and the details are current as at second semester 1998. The 8 universities are: University of Queensland, University of Melbourne, University of Adelaide, Murdoch University, University of NSW, Northern Territory University, University of Tasmania and the Australian National University.

61 The other universities offering such electives are The Flinders University of South Australia, Bond University, University of Wollongong and the University of Technology, Sydney. Further, a number of universities offer discrimination based electives which link closely with gender issues, for example the University of Melbourne offers “Law and Discrimination”; “Anti-Discrimination Law” is available for study at the University of Wollongong, the University of Tasmania and the Queensland University of Technology; and the University of Western Sydney and the University of NSW offer “Discrimination and the Law” electives. Further, The Flinders University of South Australia offers a subject entitled “Women’s Rights and International Human Rights”.

62 ALRC, supra note 11, at 148. See the lists of universities at nn 88, 89 on that page.

63 Id at n 89.

64 The Commission did a survey of law schools to gauge “the extent to which feminist legal theory and women’s perspectives were incorporated into their curricula.”: Id at 136.

65 In 1999 a Women, Children and the Law Research Concentration was initiated at the Queensland University of Technology.

66 It should be noted in relation to this study that: 1. Only law courses were canvassed. Other justice related courses may include content relevant to women. For example, it is a founding principle of the School of Justice Studies at QUT that issues of race, gender, class and ethnicity are incorporated into teaching. 2. The search was conducted by unit name only — so where women’s perspectives have been integrated in other ways this is not apparent. 3. Some electives may have been offered in the past but don’t appear now, for example, La Trobe University is listed in the ALRC report (supra note 11, 148 at n 89) as offering a feminist legal theory unit, but has no such unit listed currently. 4. Also, most universities offer jurisprudence as an elective and some make it compulsory and this may be one area where issues are integrated. For example, at the Queensland University of Technology 1 week of the Theories of Law unit is devoted to feminist jurisprudence.

67 For a contrary, extremely optimistic view see, for example, L Spender, Women and the Law (1990) 15(1) Legal Service Bulletin 38.

68 ALRC, supra note 11, at 147. “It is possible that the existence of a specialised course in law and feminism can lead an institution to think that it now has ‘gender equality’ and thereby ignore the implications of feminism on the rest of what is taught.”: Id quoting a submission from C MacDonald (et al) Submission 333. Mossman, supra note 28, at 214.

69 ALRC, supra note 11, at 147.

70 Mossman has noted the issue of limited enrolments, supra note 28, at 214.

71 ALRC, supra note 11, at 147 and Graycar, supra note 36, at 370.

72 Graycar, supra note 36, at 369 and ALRC, supra note 11, at 147.

73 Mossman, supra note 28, at 214. Also Erickson has commented that “[s]ometimes a law school does not omit subjects of special interest to women but treats them as ‘fringe’ courses. For example, such courses may be offered only rarely or less often than the demand for them would call for.”: NS Erickson, Sex Bias in Law School Courses: Some Common Issues (1988) 38 Journal of Legal Education 101, at 103.

74 ALRC, supra note 11, at Recommendation 8.1, para 1 at 156 and see also comments at 140.

75 American Association of Law Schools Symposium on the Law School Curriculum and the Legal Rights of Women, Advance Notice (1972), quoted by Erickson, supra note 73, 101 at n 1. See also, A Wallach, Book Review: Women and the Law (1975) 10 Harvard CR-CL Review 252.

76 ALRC, supra note 11, at 144 quoting T Jowett Submission 544.

77 Id quoting C MacDonald (et al) Submission 333.

78 Id at 145 quoting T Jowett Submission 544.

79 Graycar, supra note 36, at 370.

80 P MacCorquodale and J Lensink, Integration Women into the Curriculum: Multiple Motives and Mixed Emotions in GP Kelly and S Slaughter (eds), Women’s Higher Education in Comparative Perspective (Kluwer Academic Publishers: Netherlands, 1991) at 305.

81 ALRC, supra note 11, at 147 referring to the Queensland Law Society Submission 324.

82 For example, in a survey conducted by students at the University of Tasmania, 75% of students took this view on the inclusion of feminist legal theory in the core curriculum. The survey was conducted of third year women students and received 40 responses in total: Id referring to submission 258.

83 The project worked with tenured academics over a number of years to encourage the incorporation of materials concerning women in the general curriculum.

84 MacCorquodale and Lensink at 302. That is, “[t]he new scholarship on women asks its readers to re-examine assumptions, values, and practices from a new perspective that challenges taken-for-granted viewpoints.” This can be compared with Catharine MacKinnon’s analysis of the point-of-viewlessness of liberal legal ideological notions of law: see MacKinnon, supra note 24.

85 MacCorquodale and Lensink, supra note 80, at 303.

86 Id.

87 Id.

88 Id. “The uniqueness of women’s position and experience was obscured by deflecting the discussion to other groups who experience discrimination (eg blacks, the impoverished, the untenured, even ‘the ugly’).”: Id.

89 For example, in the US Erickson and Taub set up a criminal law project where they reviewed all the common criminal law texts, reviewed the sex bias in cases and legal doctrines in the criminal law, and looked at ways (until case books are improved) that teachers can remove sex-bias from courses even whilst using materials that contain sex bias. The Criminal Law project found that 15 years after the 1972 Symposium the goal of integration had not been accomplished: Erickson, supra note 73.

90 J Scutt, Women and the Law — Commentary and Materials (Sydney: The Law Book Company Limited, 1990).

91 R Graycar and J Morgan, The Hidden Gender of Law, supra note 24.

92 KA Lahey and SW Salter, Corporate Law in Legal Theory and Legal Scholarship: From Classicism to Feminism (1985) 23 Osgoode Hall Law Journal 543, M Maloney, Women and the Income Tax Act (1989) 3 Canadian Journal of Women and the Law 182, E Inguili, Transforming the Curriculum: What Does the Pedagogy of Inclusion Mean for Business Law? (1991) 28 American Business Law Journal 605, MJ Frug, Rescuing Impossibility Doctrine: A Postmodern Feminist Analysis of Contract Law (1992) 140 University of Pennsylvania Law Review 1029, S Wright, A Feminist Exploration of the Legal Protection of Art (1994) 7 Canadian Journal of Women and the Law 59. See also, Graycar and Morgan’s, The Hidden Gender of Law, supra note 24, at 8 n 33. See also the following papers in (1995) 6 (2) Legal Education Review: N Seuffert, Feminist Epistemologies and a Law-in-Context Jurisprudence Course: A New Zealand Experience at 153, L Behrendt, Women’s Work: The Inclusion of the Voice of Aboriginal Women at 169, L Bennett, Gender in the Labour Law and Occupational Health and Safety Law Curriculum at 175, RJ Owens, Work and Gender in the Law Curriculum at 183, P Spender, Women and the Epistemology of Corporations Law at 195, L Sarmas, Uncovering Issues of Sexual Violence in Equity and Trusts Law at 207, D Otto, Integrating Questions of Gender into Discussion of ‘the Use of Force’ in the International Law Curriculum, at 219, J Stubbs, Teaching About Violence Against Women: An Interdisciplinary Project at 229 and K Rubenstein, Citizenship and Gender in the Public Law Curriculum: Reclaiming Political Stories and Context at 241.

93 See http://www.anu.edu.au/law/pub/teaching_material/wem_index. html

94 Bird, supra note 21, at 31.

95 Graycar, supra note 36, at 371.