What a Difference a Gay Makes: An Empirical Study of the

Impact of 'Out' Gay Law Faculty on Law School Curriculum and Policies

Steven Hartwell - USD Law School [With thanks to Julie Dunlap and Dinyar Mehta for help in gathering data, and Dr. Pat Anderson for data analysis]


In 1985, the Section on Gay and Lesbian Issues of the American Association of Law Schools (AALS) conducted the first survey ever of member schools on gay-related issues. The surveys, which were repeated in 1987 and 1990, asked the member schools to report whether that school had a student gay and lesbian organization, offered any courses that focused on gay and lesbian legal issues and whether the school had any anti-discrimination policies that included sexual orientation. Although the surveys were not designed to meet the standards of empirical research, they clearly indicated a sharp increase over the five-year period from 1985 to 1990 in the number of lesbian and gay student organizations, lesbian- and gay-related course offerings and in anti-discrimination policies.1

This Survey

The present survey was designed to complement the AALS surveys by inquiring how the presence of "out"2 gay and lesbian instructors affect3 the likelihood that a member school has any of the three items surveyed by the AALS study, that is, a gay and lesbian student organization, gay-related courses and a gay and lesbian non-discrimination policy.4 The over-all finding of this report is that the presence of out gay and lesbian faculty correlates strongly with existence of all three items. This report provides evidence for the argument that the gay and lesbian community (as well as the larger community) has much to gain when "out" faculty are hired and when "closeted" faculty feel safe to come out.4

Comparison with the AALS Study.

Data for both the AALS and the present study were gathered by means of mailed surveys. The AALS questionnaires were sent to law deans. Questionnaires in this study were mailed anonymously to clinic instructors. The AALS questionnaires did not ask about the sexual orientation of faculty members or of the individual responding to the questionnaire. The present survey asked about both. To maintain maximum anonymity and confidentiality with the present survey, the first questionnaire, which indicates the respondent's school, and the second questionnaire, which indicates the respondent's sexual orientation, were analyzed separately. The author had no way to match up respondents with their respective schools. Difficulties Historically in Conducting Gay Research.

Historically, all gay research has been hampered by the lack of systematically obtained data. Research money was lacking. Researchers interested in such research ran the risk of identifying themselves to their sponsoring institutions as gay or lesbian.6 Participating research subjects ran the same risk of publicly revealing their sexuality identity. As a result of this complex of bigotry, reliable research data were rare. Although times have changed somewhat since Stonewall, it is highly doubtful even today whether the AALS would consider

---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 227---------------------------------

mailing out a questionnaire requesting, for example, that the responding deans state their sexual orientation or report whether there were "out" instructors on their faculty.

The AALS Clinic Conference Opportunity.

The author was presented with a unique opportunity to gather systematically this kind of sensitive data. He was invited to participate in a plenary session of the Spring, 1992, AALS Clinic Conference in Albuquerque, New Mexico. He prepared a video-tape for the conference that explicitly raised issues of sexual orientation. The video-tape and attendant discussion were favorably received.7 The author surmised that the favorable response and his association with the session provided an auspicious opportunity to administer a questionnaire about gay-related issues. A research assistant randomly selected one clinic instructor from each of the 105 law schools that attended the Clinic Conference and mailed the instructor two questionnaires. The initial mailing produced 53 responses; a follow-up letter produced 15 more responses for a total of 68.8

The First Questionnaire.

The first questionnaire asked about the respondent's law school. The goal of this questionnaire was to investigate what effect the presence of "out" gay faculty might have on gay-oriented student organizations, the inclusion of courses dealing with sexual orientation, school non-discrimination policies and on gay-friendly school promotional material. Responses are summarized in Table One. To determine what correlation existed, if any, between the presence of out gay faculty and these other findings, that is to say, whether the presence of out gay faculty made it more likely that the same school also had a gay-oriented student organization, etc., a chi-square test was applied. This test found a highly significant correlation between the presence of out gay faculty and two items: a gay-oriented student organization (Pearson value = 20.9, p < .00005) and a gay non-discrimination policy (Pearson value = 14.3, p < .001). The data suggest a positive correlation between out faculty and gay-issue courses and also with promotional material that promotional material that welcomes gays as potential students. These results are summarized in Table Two.

The Second Questionnaire.

The second questionnaire inquired of the respondent personally. The goal of this second questionnaire was to investigate the correlation between the respondents' sexual orientation and their teaching, assessment of prejudice facing gay people, their comfort in discussing gay issues with colleagues, and their comfort in revealing personal information. The respondents were asked to indicate their sexual orientation on a Likart scale of 1 to 7, with 1 indicating exclusive homosexuality and 7 indicating exclusive heterosexuality. Eleven respondents marked either 1 or 2 (homosexual), four marked 3, 4 or 5 (bisexual) and fifty- two marked 6 or 7 (heterosexual).9 These data are summarized in Table Three.

Applying again a chi-square test, no correlation was statistically significant. Two correlations approached statistical significance, the correlation between sexual orientation and concern for anonymity, where gay and bi-sexual respondents were more concerned about anonymity than straights, and sexual orientation and courses taught, where gay and bi-sexual were more likely to raise gay issues in their classes than straight instructors. These correlations are summarized in Table Four.

Some Comparisons Between the AALS and the Present Study.

The AALS survey and the present survey asked three questions in common: Is there a gay and lesbian student organization at the school? Are courses offered that focus on sexual orientation? Does the school have a gay and lesbian anti-discrimination policy? The most recent AALS study, conducted in 1990, surveyed 158 schools of which 107 responded (return rate of 70%). Our study, initiated in 1992, surveyed 105 schools of which 68 responded (return rate of 65%). As to the first question, regarding the existence of a gay and lesbian student organization, the 1990 AALS study reported a "yes" percent of 48%. Our survey reported a "yes" percent of 63%. Regarding gay-related course offerings, the 1990 AALS

---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 228---------------------------------

study reported a "yes" percent of 31% and our study 48%. The AALS survey reported that 80% of the schools had in effect gay and lesbian non-discrimination policies. Eliminating our respondents who "did not know," our "yes" percent was 76%. When the "don't knows" are added in, the "yes" percent drops to 63%.

Obviously, we cannot make a strict comparison between the 1990 AALS survey and the author's because the pool of schools that responded differ. However, for purposes of rough comparison, we can note that a substantial increase from the 1990 AALS to the present 1992 survey on two items, gay courses and student organizations, and a decline on a third item, non-discrimination policies. These data are summarized on Table Five and discussed below.


As shown on Table One, the presence of out gay faculty correlated with a more gay- positive result in every category. Two of these correlations were statistically significant. The term "correlation" here refers to the rate at which one event is found when another is present -- in this survey, for example, the rate at which a gay and lesbian student organization was found when out gay faculty were present. Correlation does not mean cause -- we cannot say that out gay faculty caused the existence of a gay and lesbian student organization. "Statistically significant" analyzes the probability that the correlation might have occurred through chance alone. In most social science research, if the probability that some phenomenon might have occurred through chance is less than 5%, then that finding is "statistically significant." In the present research, the correlation between out faculty and a gay and lesbian student organization and the correlation between out faculty and a gay non- discrimination policy far exceeded 5% standard.

The correlation between out faculty and gay-issue courses initially appeared to be significant in that the probability here far exceeded the 5% standard. However the sample size was one unit short of accepted statistical standards, that is to say, the survey did not produce a statistically sufficient quantity of data, so the data cannot be reported as significant.

Although we cannot say that out faculty caused these positive findings, the data support powerfully our intuition that out faculty makes a pivotal difference to the community of gay and lesbian law students. It seems intuitively obvious that a law school with an out gay or lesbian instructor is more likely to teach a course dealing with gay issues or provide a gay and lesbian student organization. Further, our notion that a faculty that has an out gay or lesbian colleague in their midst is much more likely to initiate and support a non- discrimination policy than a faculty composed entirely of straights and closeted gays and lesbians is supported by these findings.

The High Percent of Gay, Lesbian and Bisexual Respondents.

One of the more interesting finding from the second questionnaire was the high percent of respondents who identified themselves as gay, lesbian or bisexual. Among the 67 respondents, 11 identified themselves as "gay or lesbian", 4 as "bisexual" and 52 as "straight" -- according to the author's reading of the seven-point Likart scale. Altogether, 23% of the respondents identified themselves as other than straight. We have no way of knowing whether this sizeable percent of responding gay/bi-sexual clinicians holds true for non-clinic faculty. Perhaps the clinic is, indeed, a very nellie place. Comparing the AALS and Present Studies.

A comparison of the 1990 AALS survey and the present survey indicated that two of the indicators of gay progress (student organizations and courses) showed a positive trend while a third (non-discrimination policies) showed a negative trend. In looking for an explanation for this disturbing negative trend, a school by school comparison was made between the 1990 AALS survey and the present survey. As not all of our respondents indicated their school and not all schools reported this non-discrimination data to the AALS, a one-to-one match was possible at only 41 schools. Among these 41 schools, five schools had indicated "Yes" to the AALS study although our informants at these same schools indicated "No." In all five cases, the schools that had indicated "Yes" to the 1990 AALS survey had failed to provide a copy of their written policy as requested.10 Either our informants were

---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 229---------------------------------

unaware of existing policies at these five schools or some deans' offices were less than careful in responding to the AALS questionnaire. In a sixth case, a school reported to the 1990 AALS survey that they had a non-discrimination clause -- but without documentation. The informant from that school in our study wrote: "Finally, in 1991-92 a sexual orientation clause was passed" (emphasis added).

For the Reader: Some Questions Left Unanswered.

We cannot say that faculty 'coming out' caused gay and lesbian student organizations, non-discrimination policies and favorable promotional literature. We can only say coming out correlated with these events. Would you, the reader, give me some feedback? Could you tell me the following:

Did your "being out" cause (in your opinion) the existence of a gay student organization, and/or a non-discrimination policy, and/or favorable promotional material? If so, could you tell me why you think so? For example, were you asked to chair a relevant committee or did you start the gay student organization? The simplest way to respond is by e- mail to "hartwell.teetot.acusd.edu." Otherwise write me c/o The University of San Diego School of Law, Alcala Park, San Diego, CA 92110 - 2492 or call me at 619 260 2353. When I gather enough information, I will make that available through this journal.

ENDNOTES 1. Gene P. Schultz, "The Inclusion of Sexual Orientation in Nondiscrimination Policies: A Survey of American Law Schools," 2 Law & Sexuality: A Review of Lesbian and Gay Legal Issue 131.

2. A faculty member can be "out" in different ways to different communities. He or she can be "out" to their close faculty colleagues but closeted to the rest or "out" within the gay community but totally closeted to the faculty. This survey did not ask the respondent to describe what they meant by "out". See, generally, John D'Emilio and Estelle B. Freedman, Intimate Matters: A History of Sexuality in American, (1989).

3. "Gay" is employed here as an adjective to describe both gay men and lesbians. "Gay" is a term of ancient linage according to the historian John Boswell in his Christianity, Social Tolerance and Homosexuality, (1980) and is the term generally preferred by gay people.

4. One rationale for including gays and lesbians on a law school faculty is that their presence as role-models will encourage and empower gay students and because they will enrich the curriculum through their diversity. (Jeffrey G. Sherman, "Speaking Its Name: Sexual Orientation and the Pursuit of Academic Diversity", 39 Wayne Law Review 121, 124 (1992)). To date, no empirical research supports either rationale.

5. This study cannot answer the chicken-and-egg question whether "out" faculty promotes a progressive climate or whether the progressive climate increases the number of out faculty. Probably both are truth. My belief, as I argue in the conclusion, is that out faculty promotes the progressive climate.

6. Evelyn Hooker, who received a Distinguished Contribution Award from the American Psychological Association in 1993 for her pioneering work in homosexuality, recently recounted the early barriers to doing scientific research. When she began her research in 1953, homosexuality was considered "a sin, a crime and a disease." The prevailing homophobia fueled by McCarthyism discouraged governmental research funding. University requirements that all research be conducted on campus made it impossible for her to recruit subjects until the university agreed to let her interview subjects privately at her home. For the first ten years, she worked virtually alone without collegial support such that none of her findings could be confirmed by other researchers. Evelyn Hooker, "Reflections of a 40-Year Exploration: A Scientific View on Homosexuality", 48 American Psychologist 450 (April, 1993).

---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 230---------------------------------

7. The favorable response to the tape was due in large part to the skillful presentation and group facilitation led by Professors Isabelle Gunning (Southwestern) and Susan J. Bryant (CUNY).

8. Some of the results tabulate to less than 68 because some respondents did not respond to every question.

9. The author made these demarcations into homosexual, bisexual and heterosexual for consistency and ease of presentation. The respondents might well describe themselves differently.

10. Schultz, supra, note 1 at 166.



"Out" No "Out"

A Gay-Oriented Student Yes 30 13 Organization

No 3 21

Curriculum that offers regularly Yes 14 13 taught courses that include issues of sexual orientation No 5 28

School promotional material that Yes 9 10 welcome gay and lesbian students No 4 21

A non-discrimination policy that Yes 26 5 includes sexual orientation No 16 8


---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 231---------------------------------



Value Significance Sample

Size A gay-oriented student 20.90 .00003 Meets organization

A curriculum that offers regularly taught courses that include issues 20.83 .0003 Fails* of sexual orientation

School promotional material that welcome gay and lesbian students 10.77 .03 Fails

A non-discrimination policy that includes sexual orientation 14.35 .0062 Meets

* 9.1 where 10 required.




Gay/Bi Sexual Straight

Do you raise gay issues in Often or sometimes 7 14 courses you teach?

Never or once/twice 5 36

---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 232---------------------------------

Are you comfortable in More 9 18 asking openly gay colleagues about their Less 5 29 personal lives?

How would you compare Greater 11 28 prejudices facing gay people to Afro-Latinos- Same or less 2 18 Jewish prejudice?

Would you have disclosed this information [including Yes 5 40 your sexual orientation] without an assurance of Maybe or No 9 13 anonymity?




Value Significance Sample

Size Do you raise gay issues in 8.30 .016 Fails course you teach?

Are you comfortable in asking 3.04 .08 Fails openly gay colleagues about their personal life?

How would you compare .88 .35 Fails prejudice facing gay people to

---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 233---------------------------------

Afro-Latino-Jewish prejudice?

Would you have disclosed this 9.18 .06 Meets information [including your sexual orientation] without assurance of anonymity?



Student Organization Courses Non-

Discrimination '85 '87 '90 '92 | '85 '87 '90 '92 | '85 '87 '90 '92

Yes 23 37 56 42 7 10 36 21 23 36 95 40

% Yes 28 34 48 63 11 9 31 48 36 34 80 75

No 41 72 61 25 57 98 80 23 41 71 24 13

No 87 44 41 1 87 45 42 24 87 46 39 15 Response (don't know)

---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 234---------------------------------

Totals151 153 158 68 151 153 158 68 151 153 158 68


write the editor
back to our home page