Swift Justice: The Historic Fight for Gender Equality at Berkeley Law

When the law school denied tenure to Eleanor Swift, she took matters into her own hands.
By Erin Blakemore

ELEANOR SWIFT LEFT THE DEAN’S office at Boalt Hall, walked upstairs, and started packing her things. After a promising legal career and eight years as one of Berkeley School of Law’s most beloved professors, she had just been fired—her tenure denied by her overwhelmingly male peers. 

“I had quite an ego,” she says, her words punctuated with a short, sharp laugh. “These people didn’t want me. There were a lot of other things I could do. So I wasn’t going to stay around.” 

But Swift’s 1987 tenure denial was no laughing matter. She was one of just a handful of women on the law school’s faculty; two years before, her closest contemporary, also a woman, had been denied tenure, too.

Though Swift says she doesn’t know who voted against her tenure case, a group of senior male faculty members “were not happy people. They were kind of nasty and critical and obviously somewhat biased against women.”

“Something was really wrong,” Swift says. “We were both very powerful. We were very strong. We didn’t take ‘no’ for an answer. But [senior male faculty] didn’t like this.”

Before coming to Berkeley, Swift had been a successful litigator. She knew she could easily be hired by a private firm and move on with her life. Instead, after colleagues told her she might have grounds for a gender discrimination case, she fought back—and the tenure case that ensued forced a reckoning that reshaped the law school and exposed decades of exclusion.

TO UNDERSTAND WHAT HAPPENED to Eleanor Swift, you have to learn more about Marjorie Shultz, a professor whose seemingly brilliant trajectory at Boalt Hall was cut short in 1985. 

Shultz had been offered a position on the faculty while she was still a student at the law school, an extraordinary vote of confidence that seemed justified when she won a teaching award and published an influential article on marriage contracting. But when she came up for tenure, the male colleagues who had hired and mentored her turned on her. “Everybody seemed to think I was the cat’s meow. Then, by the time my tenure case came up, I was incompetent,” she recalls. “I was so devastated I couldn’t really fight back.”

Shultz’s firing didn’t bode well for gender inclusion at the law school. In the mid-1980s, women made up about 20 percent of law school faculties nationwide. But just two of the law school’s 45 tenured faculty members—less than 4 percent—were women. 

“Certainly, they were not very used to having women around,” says Shultz. “They were fine when it was just ‘hi’ in the hallways. Let’s just leave it at that.”

Though Swift says she doesn’t know who voted against her tenure case, a group of senior male faculty members “were not happy people. They were kind of nasty and critical and obviously somewhat biased against women. They just took over.” Though the atmosphere was collegial on its surface, the women’s work was held to a higher standard than that of their male colleagues, Swift and Schultz reported.

In 1987, Swift was denied tenure. “I wasn’t the best,” Swift says. “I wasn’t the worst. I was in the ballpark, and there’s no reason why they should have voted against me.”

It took a sustained letter-writing campaign by alumni and students to keep Shultz on—but only as a low-status lecturer.

SALLY FAIRFAX DIDN’T WORK at the law school, but she knew how inhospitable the environment was to women. “Law school was a middle-aged men’s club,” she recalls. “Women knew they were in a foxhole.” 

Fairfax, a forestry professor, was the University’s watchdog on the status of women. She took orders from Doris Calloway, the University’s first woman provost and its highest-ranking female administrator. When Calloway heard that Shultz had been denied tenure, she gave Fairfax a commission: Find out more about the law school’s hiring practices. 

“I knew where a lot of the skeletons were buried,” says Fairfax. Her job afforded her unprecedented access to University documents, and she spent a summer reading through the tenure files of every faculty member hired at the law school since the 1950s and compiled a comparative analysis of 20 years of tenure decisions. 

In 1987, Swift was denied tenure, too. “I wasn’t the best,” Swift says. “I wasn’t the worst. I was in the ballpark, and there’s no reason why they should have voted against me.

Fairfax met Swift for coffee and told her that if she filed a gender discrimination grievance, the report could see the light of day. 

Though Fairfax didn’t come out and say it, her message was clear. “Doris was going to take on the law school with Sally,” says Swift. 

Swift didn’t know what Fairfax’s dossier contained, but the meeting convinced her she had a case. After consulting with friends, family, and her attorneys, she decided to file a grievance with the Committee on Privilege and Tenure. “Nobody was going to fight back if it wasn’t me.”

MEANWHILE, LAW STUDENTS WERE seething. The tenure denials of two beloved professors poured fuel on longstanding anger about the law school’s lack of diversity. At the time, Boalt only had one Black professor with tenure and no other tenured faculty of color, and the school had only given tenure to two women in 93 years. In response, a group of students revived the Coalition for a Diverse Faculty, a group that had advocated for more inclusive hiring practices a decade before.

The students’ first attempts to diversify the law school’s faculty had failed in 1978. Despite organizing a student strike and teach-in and gaining support among some key faculty members, the group had folded after the administration refused to adopt its demands.

Now a new generation of students took up the fight, demanding the school give tenure to Shultz and Swift and hire more women and more faculty members of color. In March 1988, they organized a boycott of law school classes. Eighty percent of students participated in the strike, and 28 were arrested after a sit-in in Dean Jesse Choper’s office.

Student activism ranged from demure to daring: Some wore buttons that said “Bring Swift Justice,” and others hired an airplane to buzz a graduation ceremony with a banner that read “GIVE SWIFT AND SHULTZ TENURE.” Shultz remembers the campus was papered with posters demanding a more diverse faculty. “It was viral,” she says. “They were everywhere on campus. I thought it was fabulous.”

As time went on, the Boalt Coalition for a Diverse Faculty gained even more momentum. Members connected with student groups all over the country. Law students nationwide demanded their administrations commit to more inclusive hiring practices. In April 1989, their efforts culminated in a nationwide strike. Students of at least 35 law schools boycotted class, and, at Boalt, the New York Times reported, students made so much noise demonstrating in the hallways that professors complained.

“It was a brilliant move to turn it into a gender discrimination issue that could actually be resolved with very specific data.”

MEANWHILE, A PANEL WAS considering Swift’s case. She claimed she had been held to a higher standard than male faculty members and that the school had made procedural errors during the tenure process. After reviewing Fairfax’s report, the Privilege and Tenure Committee determined there was sufficient reason to believe Swift had been discriminated against because of her gender. 

Swift and her lawyers negotiated with Berkeley and Boalt Hall attorneys for a settlement that would prevent the need for a hearing. Instead of taking the issue to court, they agreed to an entirely new kind of tenure review. Swift’s claim to tenure would be considered by an ad hoc, blue-ribbon panel that compared her work to that of the five men who had been tenured during her career at Berkeley.

“It was a brilliant move to turn it into a gender discrimination issue that could actually be resolved with very specific data,” Swift recalls.

Swift “showed her litigation skills and her own brilliance in strategy” during settlement negotiations, says Shultz. It was unheard of for a professor to demand a comparison between their file and that of other tenured professors.

Shultz kept teaching on campus during her colleague’s tenure review, facing tension, and even animosity, from administrators and fellow faculty members. “The notion that the campus could overturn a decision made them furious. You wanted to hide in your office, or you might explode from the ambient temperature in the hallways.”

As pressure on campus mounted, Swift awaited the verdict on her career.

IN AUGUST 1989, JUST THREE days before the school year began, Boalt School of Law awarded Eleanor Swift full tenure. The committee found that her work met the same standards as four of the five men who had recently been granted tenure. Eighteen days later, it reinstated Shultz with tenure, too. 

“It just came out of the woodwork,” she says. “Women realized this is happening all over.” At least two on Berkeley’s non-law school faculty achieved tenure with the same panel process that came out of Swift’s grievance.

After her case concluded, Swift returned to teaching. When she walked into her civil procedure class, she was greeted with cheers. Her female colleagues were there with bouquets of flowers and open arms. “It was very, very moving,” she recalls. So was Choper’s insistence that she come to him immediately if anything seemed amiss. 

Energized by her reinstatement, Swift got back to work—and used her experience to help other women who had been denied tenure. “I really wanted to give back,” she said. “I began to get calls [from] all over the country about what was happening to some women in law schools,” she recalls. Swift gave lectures and spoke to women nationwide; she also helped women closer to home who had been denied spots on the University’s faculty.

“It just came out of the woodwork,” she says. “[Women] realized this is happening all over.” At least two women on Berkeley’s non-law school faculty achieved tenure with the same panel process that came out of Swift’s grievance.

In 1988, in the face of increasing public pressure, four out of five of Berkeley Law’s new hires were women or people of color, and a Latina woman professor, Rachel Moran, got tenure. Two years later, in the wake of the nationwide student strike, hires of people of color rose 61 percent at law schools across the country.

“All of a sudden,” Swift recalls, “the whole cohort of women on the faculty just started to grow.” And she began “to have lots of fun with this career.” She taught generations of students civil procedure and evidence, but her pet project was Berkeley Law’s coveted clinical education program, which she helped develop from the ground up.

When she began teaching at Boalt, the school had no experiential education classes. That seemed wrong to Swift, who had cut her teeth as a law clerk and practicing attorney before joining Berkeley’s faculty. After partnering with the East Bay Community Law Center, she helmed a push to start a legal clinic at Berkeley itself. 

Today, Berkeley Law has eight community legal clinics and six within the law school, a robust field placement program that gives students experience at law firms, courts, government agencies, and nonprofits all over the world. All are the result of Swift’s stewardship.

Berkeley Law began hiring more women—and went from one of the nation’s most male-dominated law school faculties to near gender parity.

She also co-founded Berkeley’s Center for Social Justice in response to the passage of Proposition 209, a 1996 law that halted affirmative action in California. And during her 35-year career at Berkeley, she stood up for fellow faculty and staff members. “She pushed for better pay, more secure contracts, and greater levels of participation in faculty governance,” wrote Berkeley Law Professor Jeffrey Selbin.

THOUGH REINSTATEMENT COULDN’T undo the slights both women had endured, it broke a hiring logjam. Thanks in part to Swift’s case, Berkeley Law began hiring more women—and went from one of the nation’s most male-dominated law school faculties to near gender parity.

Swift was “very important in helping to push Berkeley Law to increase diversity,” says Berkeley Law Dean Erwin Chemerinsky. He says today’s faculty is more than 40 percent women, and over 60 percent of students are women. “I am committed to doing all I can to make Berkeley Law a terrific place for our women faculty,” he says. 

For all the progress, the law school hasn’t been immune from controversy since. In January of this year, the law school decided to drop the name of John Boalt, after the discovery of Boalt’s virulent racism and his role in the passage of the Chinese Exclusion Act of 1882. And in 2015, a university panel found that Dean Sujit Choudhry had sexually harassed his female assistant. He resigned the following year but was reinstated as a faculty member and received tenure and research funding until 2018—part of the terms of his settlement agreement with the University.

Meanwhile, progress in racial diversity has been slow. About 18 percent of Berkeley Law’s faculty are people of color, though this is slightly better than other universities. According to the Association of American Law Schools, people of color make up less than 17 percent of faculty members at law schools nationwide.

Women still face disparities in representation and pay at universities across the country. According to the AALS, only 40 percent of law school faculty nationwide are women, though women now outnumber men in law school enrollment. And even though women are more likely to obtain a faculty position than ever before, they are still less likely to achieve tenure. At Berkeley Law, women make about 10 percent less than their white male counterparts.

While Swift felt welcomed by the faculty upon her return, Shultz says tensions endured for decades after her own reinstatement.

Still, says Swift, she’s gratified by the increase in diversity that followed her groundbreaking grievance. “It really changed the dynamic. It had to. It just had to.”

Erin Blakemore is a journalist from Boulder, Colorado.

***Correction: A previous version of this story incorrectly stated that Berkeley Law Dean Sujit Choudhry resigned in 2016 but “was reinstated as a faculty member and received tenure and research funding—part of the terms of his settlement agreement with Tyann Sorrell, the woman he admitted to touching inappropriately.” It was, in fact, “part of the terms of his settlement with the University.”

From the Fall 2020 issue of California.
Filed under: Law + Policy
Image source: Berkeley Law
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RBG IS AN EQUAL RIGHTS ICON, BERKELEY ESTABLISHMENT ISN’T Three recent Berkeley related articles testify to the differences between RBG and the Berkeley establishment: “Swift Justice When Berkeley Law Denied Tenure to Eleanor Swift, She Fought Back” CALIFORNIA Magazine Fall 2020 “The physics community needs to include, listen to and hire Black scientists” Berkeley Blog August 24, 2020 “Berkeley’s handling of sexual harassment is a disgrace” Berkeley Blog March 10, 2016
P.S. This story on Swift Justice When Berkeley Law denied tenure to Eleanor Swift, she fought back, as recently as 1987, that never should have happened at Berkeley at that late a date, but then the Equal Rights Amendment of 1973 is still not ratified. And today we have the Trump era that has sent our democracy into a decline and fall, as demonstrated by the so-called debate on Tuesday. In the meantime, another academic cultural problem was reported in a 2016 Berkeley Blog post “Berkeley’s handling of sexual harassment is a disgrace —- It is now clear that excuse making and wrist slapping in response to sexual harassment is so endemic in the Berkeley administration that it might as well be official policy. And just like there is no excuse for sexual harassing students and staff, there is no excuse for sanctioning this kind of the behavior. It’s time for the administrators – all of them – who have repeatedly failed the campus community on this issue to go. It’s the only way forward.” Most incredibly, it took until 2017 to appoint our first woman Chancellor to finally begin the end of the disastrous era of male domination at Berkeley, because that is an era that must end if we are going to prevent out of control global warming, pandemics, violence and inequalities from ending everything.
The article on the denial of tenure to Eleanor Swift and Marjorie Shultz at the law school, though it evidently ended happily, was disheartening to read. As a student there in the early seventies (I graduated in 1975) my impression was that the faculty was - with a few notable exceptions - more openminded and progressive than that. Either it declined soon after, or they hid their prejudices well, or I failed to pay as much attention as I should.
Ron, the fact of life is that nothing ever changes, even when the male chauvinist pigs are academics, it’s a permanent culture. One explanation is documented: Male Chauvinist Pig https://www.thoughtco.com/male-chauvinist-pig-definition-3524829 These cultural values always have, and always shall exist in academics and politics because they can get away with it. One classic reason was that there are far too many women like Phyllis Schlafly, an American conservative activist and author, who held traditional conservative social and political views, and she most successfully campaigned against ratification of the Equal Rights Amendment to the U.S. Constitution. And we still do not have an ERA today because of this social, political and academic failure. Today, the Trump administration and his congressional sycophants, along with the 2020 election has proven again that this culture is as strong as it has ever been.