In 1980, Legal Momentum established the National Judicial Education Program to Promote Equality for Women and Men in the Courts (NJEP) and invited the newly-formed National Association of Women Judges to become NJEP's co-sponsor. Knowledgeable judges, lawyers and journalists warned that the judiciary would never accept gender bias as a legitimate topic for judicial education or be willing to engage in the self-scrutiny necessary to eliminate it. Yet over the years, NJEP has moved the issue of gender bias in the courts from being nonexistent for the judiciary to being the featured educational program at the 1986 annual meeting of the Conference of Chief Justices, grounds for reversal and sanction, and a priority for the state teams focused on building public trust and confidence in the courts today.
Over the past thirty years, NJEP has utilized a three-fold approach to promote access to the justice system and equality for women and men in the courts: education, publications and supporting the task forces on gender bias in the courts.
Judicial, Public and Legal Education
NJEP creates model curricula and presents and advises on programs about gender bias in the courts for judicial colleges and organizations, bar associations, law schools, and legal and lay organizations across the country. Understanding Sexual Violence: The Judicial Response to Stranger and Nonstranger Rape and Sexual Assault was first published in 1994. It continues to be presented across the country and has been adapted as a video/DVD and a curriculum for prosecutors. When Bias Compounds: Insuring Equal Justice for Women of Color in the Courts prompts judges to think about actions they can take to address problems faced by women of color in the courts as litigants, witnesses, defendants, employees, lawyers and judges. Adjudicating Allegations of Child Sexual Abuse When Custody is in Dispute assists judges in dealing with this intensely vexing area of law by providing the most current, empirically-based information about assessing child sexual abuse allegations in the custody context. NJEP’s recently-launched 300-page Web course, Intimate Partner Sexual Abuse: Adjudicating this Hidden Dimension of Domestic Violence Cases, informs judges and other court personnel of the implications of co-occurring sexual and physical abuse in domestic violence cases and how to best protect victims and assess offender risk in these sensitive court proceedings. These and other NJEP programs help judges, lawyers and others understand how stereotypes, myths and biases about the nature and roles of women and men affect fact finding, decision making, sentencing, communication and courtroom behavior.
Among the wide range of issues NJEP programs address are: how sex stereotypes shape the admission of evidence and sentencing in rape cases; devaluation of women and so-called “women’s work” in personal injury and equitable distribution cases; how the courtroom treatment of women litigants, witnesses, lawyers and experts affects women’s credibility; bias in support awards and enforcement, focusing on the sharp economic disparities created by the courts between women and men after divorce; domestic violence; sexual harassment; how gender bias operates against both men and women in child custody disputes and the compound bias faced by women of color in the courts at every level.
NJEP increases professional and public awareness of gender bias in the courts and the ways to eliminate it through publication of articles in professional journals and other media. When NJEP began in 1980, articles about gender bias in the courts were confined to women’s law journals. Today, because of NJEP, the subject is featured in mainstream judicial and legal periodicals and the popular press. NJEP strives to place its articles in the periodicals judges and lawyers regularly read, such as The Judges’ Journal, Judicature and Trial. NJEP Director Lynn Hecht Schafran’s writing has appeared many times in these and similar magazines and journals, including her articles “Overwhelming Evidence: Reports on Gender Bias in the Courts” (published in the February 1990 issue of Trial); “Credibility in the Courts: Why is There a Gender Gap?” (appearing in the Winter 1995 edition of The Judge's Journal); and “Evaluating the Evaluators: Problems with ‘Outside Neutrals,’” (an article about custody evaluators appearing in the Winter 2003 issue of The Judge's Journal).
NJEP has also published Gender, Justice and Law: From Asylum to Zygotes - Issues and Resources for Judicial, Legal and Continuing Legal Education. This is a 500-page compendium demonstrating how gender bias may be a factor across the spectrum of civil, criminal, family, juvenile and probate law, in areas ranging from driving while intoxicated to right-to-die. Gender, Justice and Law covers 62 areas of substantive and procedural law as well as issues related to law practice and law teaching, and highlights the particular concerns for women in each of these areas.
State and Federal Court Task Forces on Gender Bias in the Courts
NJEP's judicial education programs were the catalyst for a series of task forces established by state chief justices and federal circuit councils to examine gender bias in their own court systems. These task forces document discriminatory court decisions, policies and practices and implement recommendations to eradicate these barriers to equal justice. NJEP provides technical assistance to the task forces in all phases of their work as investigating bodies, implementation committees and standing committees of the courts. Task forces in more than 40 states and seven federal circuits are now in various stages of data collection, implementing recommendations and institutionalizing reforms.
At its 1988 annual meeting, the Conference of Chief Justices adopted a resolution urging every Chief Justice to establish a task force "devoted to the study of gender bias in the courts." In 1999, the National Conference on Public Trust and Confidence in the Justice System, attended by teams from every state that included the chief justice, state court administrator and state bar president, voted to make implementing the recommendations of the task forces on gender, race and ethnic bias in the courts a priority.
The findings of the forty-one task forces that have published reports to date are summed up in this quotation from the Report of the New York Task Force on Women in the Courts:
The Task Force has concluded that gender bias against women litigants, attorneys and court employees is a pervasive problem with grave consequences. Women are often denied equal justice, equal treatment and equal opportunity."
The reports of the task forces on gender bias in the courts have now been cited in more than one hundred state and federal judicial opinions. These include cases reversing judges for gender-biased decision-making and sanctioning attorneys for gender-biased conduct. NJEP offers several publications describing how to establish and operate a gender bias task force, implement its recommendations, and evaluate its impact: Operating a Task Force on Gender Bias in the Courts: A Manual for Action (1986); Planning for Evaluation: Guidelines for Task Forces on Gender Bias in the Courts (1989); Learning from the New Jersey Task Force on Women in the Courts: Evaluation, Recommendations and Implications for Other States (1991); Implementation Resources Directory (1998); and Gender Fairness in the Courts: Action in the New Millennium (2001). The publication will provide strategies for implementing recommendations and institutionalizing reforms drawn from the experiences of gender bias task forces throughout the country.
Bar associations are playing a vital role in institutionalizing the work of the task forces and extending the reach of the national effort to eliminate gender bias in the courts. Many task forces made specific recommendations for bar associations in areas such as lawyer education. Bar associations are also collaborating with gender bias task forces and implementation committees to co-sponsor a variety of educational programs and other activities. Task force reports also serve as a stimulus for bar associations to independently establish special committees on gender bias and chart their own strategies for reform. NJEP's Implementation Resources Directory describes actions taken by bar associations that other bars can easily adapt. These actions range from supporting a single piece of legislation to conducting an evaluation of the entire task force implementation effort.
NJEP is Making a Difference
NJEP is the first and only program of its kind. It has provided training for thousands of state and Federal trial and appellate judges, and thousands more lawyers and law students, in every part of the country. NJEP's efforts have generated changes in decision making and the court environment that reflect a new understanding of how gender bias undermines the fair administration of justice. We know that NJEP's judicial education programs, its work with the gender bias task forces, and its publications have improved the quality of justice.
- A judge at NJEP's 1981 pilot course, Judicial Discretion: Does Sex Make a Difference?, presented in California wrote: "I was quite shocked at the information we received indicating the disparity between males and females and the treatment of them in the courts...Many of the myths that are taken as fact by judges were shattered by your presentation and the correct situation was revealed. It was the impact of knowledge on ignorance."
- In 1988, an Oregon judge attending the first presentation of NJEP's model judicial education curriculum, Understanding Sexual Violence: The Judicial Response to Stranger and Nonstranger Rape and Sexual Assault written that he had been on the bench for twenty-five years and that this was the best judicial education program he ever attended.
- In 1995, a Michigan judge telephoned the NJEP Director to tell her that he had that morning read from her "Credibility in the Courts" article in binding over for trial a man who was stalking his ex-girlfriend. The judge followed the article's suggestion to closely question the victim herself in order to establish her fear and the steps she took to protect herself, which the prosecutor had failed to do.
- In response to the 2003 Judges' Journal article "Evaluating the Evaluators: The Problem with 'Outside Neutrals'", the Principle Court Attorney for the Bronx, New York Domestic Violence Court wrote, "Our Court will redo our orders to track many of the recommendations" and the National Council of Juvenile and Family Court Judges distributed the article at a Custody and Visitation Symposium.
- NJEP's 2008 Web course/resource Intimate Partner Sexual Abuse: Adjudicating this Hidden Dimension of Domestic Violence Cases has met with enthusiasm from its pilot evaluators. A Delaware Superior Court judge wrote, "I am forwarding the link to this site to my colleagues in the family court because I think this is the most comprehensive and well documented summary of the law and social research in this critical [area]."
Although the National Judicial Education Program's efforts have made gender bias in the courts a focus for judicial reform worldwide, in many ways, NJEP's work has just begun. The information developed by the state and federal gender bias task forces demonstrates the complex and pervasive nature of gender bias in the courts and the need for a sustained effort to overcome it.
For more information or to purchase materials, contact the National Judicial Education Program:
16 East 34th Street, 6th Floor
New York, NY 10016