Chester, R --- "History's orphan: Arthur Maclean and the legal education of women" [2011] LegEdDig 34; (2011) 19(3) Legal Education Digest 8

• History’s orphan: Arthur MacLean and the legal education of women

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History’s orphan: Arthur MacLean and the legal education of women

R Chester

American Journal of Legal History, Vol. 51, 2011, pp 305-331

In the spring of 1941, Arthur Winfield MacLean, 61 year old Dean and founder of Boston’s Portia Law School for women on Beacon Hill hailed ‘the largest [class] ever to graduate from Portia’s halls.’ Ninety-four women graduated.

But in fact the school MacLean founded in 1908 was beginning to unravel due in large part to the impending war. Women were being recruited for the war effort both by government and by private industry.

During the late 1920s, MacLean’s all women law school was regularly enrolling more than 400 students per year. During the 1920s and 30s the school was well known both nationally and internationally. In every way, MacLean and his unique law school were successful and well known. But first the Depression slowed the growth of his school, and World War II effectively killed it.

Despite the marked success of his unique venture for more than two decades and the prominent place both MacLean and Portia Law School should have in women’s history, both have been largely ignored.

Arthur MacLean died in near obscurity.

If one were to view books on women’s education or search the Internet, apart from materials published by his own law school, MacLean is largely absent from the historical record. This was a man who founded and ran a law school, unique in the world, which today is the successful New England School of Law in Boston.

When MacLean graduated from B.U. Law School in 1906, he went into practice with a fellow graduate, Gleason Archer. Soon he and Archer saw the vast market in Boston for the children and grandchildren of immigrants who wished to better themselves by entering the law. In short time, the two men founded two part time law schools. Archer founded Suffolk Law School in 1906 (at which MacLean taught), but when young women applied for law courses,

Archer refused them as a ‘distraction’ to men. MacLean decided that he was happy to educate women in the law and opened his doors to female applicants in 1908.

From this small beginning, the large and important Portia Law School for women was to grow. At the time, the sphere of women’s only education was dominated by colleges catering to well-off women who were riding the high of the feminist movement and sought education and gainful employment ‘not simply out of economic necessity but because they enjoyed their particular occupations and [found] them important to their existence’. However, Portia targeted already disadvantaged women whose ambitious reasons for seeking a legal education may have had more financial incentives in the mix.

Chesley York, a prominent Boston lawyer was involved with MacLean’s enterprise from the start. He was later joined on the faculty by lawyers such as the influential Bruce Wyman, who also taught at Harvard Law School. Ever the entrepreneur, MacLean continued to teach at both Suffolk and Portia, while running the latter institution. In 1910 he married Bertha Robinson, nine years his junior. She became interested enough in MacLean’s burgeoning enterprise to study law herself at Portia Law School, graduating magna cum laude from the school in 1920 and passing the Massachusetts Bar Exam in August of the same year. According to their daughter Jean, Bertha ‘would not have let Arthur be anything less than an advocate for women’ and was herself an active suffragette. She ‘would not have stood’ for a mere entrepreneur who would be more interested in profit that in the cause of women.

Accompanying Portia’s newly granted authority to confer the LLB to women in 1919, came the victory of full women’s suffrage in 1920. Previously, ‘their status as citizens and legal persons had been suspect, and holding most elected offices had been out of the question’. Now women were adequately equipped to take advantage of the opportunities Dean MacLean offered.

Even though many of the women who had entered the work force or enrolled in school during the First World War returned home after the war, Portia’s enrolment steadily increased as MacLean began to show the world exactly what women could do. In October of 1919 he told the Boston Sunday Advertiser that women made the best law students. ‘It isn’t a theory, it’s a fact. Five or six of the Suffolk Law School professors deliver the same courses of lectures to the women of our school and our women students rate higher than the men who take the course at Suffolk ...’

In a statement three years later, MacLean focused his attention more directly on the practice of law, emphasising that women ‘excel in the work of handling divorce cases’:

Within a few years, women lawyers will be the only ones employed by the wife or female co-respondent in a divorce case ... women [in a divorce] dislike to reveal the inside details to a man, but that reticence is not noted when they consult a woman attorney ... [the female lawyer understands] the workings of a woman’s mind better than the best of her male rivals. Woman lawyers are not anxious to rush a case into divorce court and as a result many marital tangles are settled in their law offices.

That same year, MacLean made a rather remarkable statement about women’s general superiority to nationally syndicated United News Service. ‘There is no man whom some woman cannot outwit. Women think straighter than men do, and they attend to business. In a Congress of Women, there would be no time lost in the cloak rooms and the members would know better than to introduce foredoomed bills concerning trivial matters’. Finally, MacLean asserted that women possess ‘relentless logic’ and are ‘far superior to men in detail work’.

According to Virginia Drachman, a noted historian of women’s access to the legal profession, ‘although MacLean was a strong believer in women’s abilities and a vocal defender of women in the law, his views were shaped more by the Victorian belief in women’s uniqueness than [any] belief in sexual equality’. Drachman notes MacLean’s pronouncements on women’s abilities as divorce lawyers (above) and real estate attorneys were due to women’s ‘attention to detail’. Thus, according to Drachman, MacLean’s ‘traditional’ views about women created an atmosphere at Portia that attracted a less activist group of students than those at a co-educational law school run by women in Washington, DC – the Washington College of Law. Portia students often had little financial support from their families and were too busy working and attending law school to become engaged in the pursuit of social reform.

Beatrice Doershuk’s Women in Law, published in 1920 to provide an account of women’s entry into the legal profession, took a decidedly different view of women’s abilities than Drachman attributes to MacLean. Doershuk concluded, ‘There is nothing in the fifty years of experience of women lawyers to indicate that they are, as women, better adapted to any one kind of legal work than any other’.

However, perhaps in part because of the discrimination they faced in law practice, women lawyers in the 1920 ‘saw themselves as negotiators, mediators, problem solvers, and drafters of legal documents to assist individuals and families’. Their major practice areas were probate, wills, domestic relations, general office practice and real estate law [all of which] relied on qualities traditionally associated with femininity. By the 1930s women lawyers ‘had generally achieved modest professional success, but primarily in areas of the law relating to an office practice’, as opposed to a court room, where they were still viewed as too emotionally weak and delicate to handle litigation.

Surrounded by these difficult professional realities, MacLean’s law school still enjoyed remarkable success during the 1920s. Portia’s ‘deliberately democratic approach attracted hundreds of women and played a major role in accelerating the sexual integration of the legal profession’.

It is undoubtedly true that MacLean had ‘identified women as an untapped clientele in an increasingly competitive educational marketplace’ and at least at its founding Portia was ‘purely a money-making venture’. But by the mid 1920s, MacLean found himself ‘riding the tiger’ of women’s optimism and demands for professional access. With each effort MacLean made to promote his extraordinary school, he increasingly became a spokesman for women’s dreams.

Portia was part of the nationwide push to bring higher education to women and faced many of the same difficulties as other colleges. For example, when another Scotsman and Methodist, Clarence P. McClelland, delivered his 1927 annual president’s report on the state of the Illinois Women’s College, in Jacksonville, Illinois, his words reflected the situation that MacLean himself confronted: ‘Women have not had a fair chance at higher education. It is only within the last fifty years that they were allowed to enter this field. During this period, the chief aim of those fostering higher education for women has been to demonstrate woman’s intellectual equality with man’.

The part-time legal education offered by Portia appealed to large numbers of women of working class or lower middle-class origins. Occasionally, it also appealed to women of colour from the same groups.

However, Jama White, a black woman from Cambridge, who was expelled by Dean MacLean in 1926 and who later sued the school, provided a sort of litmus test of his racial tolerance. Virginia Drachman sees this episode as discriminatory and suggests that MacLean and his school became more racially tolerant after it. A careful examination of the facts paints a somewhat different picture.

According to her biographer, Katherine Ross, White was only days away from registering for her fourth and final year of law school and was a working mother with two young children, whose estranged husband, William paid his court-ordered support erratically or not at all. Frustrated by her husband’s failure to pay for support, she found another way to extract it. Under the common law doctrine of ‘necessaries’ a third-party creditor could recover from a husband purchases of necessary household items made by his wife. Thus Jama White ran up huge bills with grocers and coal deliverymen who she refused to pay, citing the doctrine.

At Bessie Page’s behest, White found herself in MacLean’s office, but remained defiant. She informed MacLean that she never intended to pay for the ‘groceries’ including fancy soaps, perfumes and bon bons, and regarded them all as necessaries.

So with the advice of Portia’s leading woman teacher Bessie Page, Dean MacLean expelled Jama White. After an unsuccessful political attempt to become an Everett City Councillor, she decided in 1929 to file a suit against Portia Law, Dean MacLean, and Bessie Page. In her complaint, she said ‘[Portia] holds itself forth as an institution free ... from bias and prejudice’. Instead, she had encountered ‘unfair discrimination and criticism’ which led to her expulsion. This lawsuit went nowhere, but the publicity was not helpful to MacLean and his law school.

This rather astonishing lack of due process by modern standards was founded on the principle that ‘[a]ttendance at the law school is a privilege and not a right’.

Despite Drachman’s conclusions about race and Katherine Ross’s somewhat more nuanced acceptance of them, MacLean’s response to White probably had little or no connection to race. As Drachman admits, other black students, including Jacqueline Guild Lloyd, Blanche Braxton, and Dorothy Crockett, attended Portia without incident and were often affirmatively helped by the school. Guild belonged to a clique of ‘serious students’ at Portia – those who intended on becoming real lawyers, and was the third black woman to pass the bar in Massachusetts. In 1923, Braxton was the first African American woman admitted to the Massachusetts bar and in 1932 Crockett was the first African American woman to pass the bar in Rhode Island.

MacLean was a master of publicity in advancing his institution; he simply could not tolerate a student’s bringing such disrepute to Portia Law School by misusing the law she had been taught there.

By the end of the 1920s, Portia was enjoying great success. According to Professor Philip Hamilton, 1928 saw 414 students enrol and 1929, 410. The stock market crash and ensuing Depression knocked down enrolments significantly during the first years of the 1930s. In 1933, Portia enrolled only 275 students, a number that was to drop to 240 by 1935. Nonetheless, Arthur MacLean emerged in the summer of 1933 as somewhat of a national spokesman for women’s education. He took a steamship tour aboard the United Fruit liner Chiriqui, to the West Coast, and notice of his arrival appeared in the newspapers of his various ports of call. Exemplary were his comments in the Long Beach Press Telegram upon his arrival on July 18. Headlined ‘Law School Head Thinks Women Lead as Lawyers: Boston visitor Sees Men’s Supremacy Challenged by the other Sex,’ the article quoted MacLean saying that ‘man’s age-old supremacy in the legal profession is being questioned by women’.

On the following day, The Los Angeles Times ran the story ‘Women Win Praise for Law Work: Founder of Portia Law School here on Sea Trip Tells of Their Adaptability’. Then he launched into his ‘women as uniquely better’ theme although he had expanded the areas in which he believed women to have special expertise: ‘In a criminal case a client will invariably confide entirely in a woman attorney, whereas he often withholds pertinent information from his male counsel. By nature, women attorneys are more thorough in the exacting detail of civil procedure, as well as title examination, and corporation practice’.

No longer was MacLean saying that women were merely superior law students: he was touting their entry not only into the big-money corporate world but the courtroom itself, a place like the surgical suite, where women had historically been considered unfit to enter due to intelligence and temperament.

As the 1930s began, economic gloom settled on all colleges (which functionally Portia still was until 1934) and especially those for women. Not only were enrolments largely on the decline but also whatever opportunities there had been for women entering the legal field began to evaporate. ‘During the great Depression, the argument [that there should be] a family wage was reintroduced with new vigour, and there was an insistence that women leave the labour force to make room for men in a scarce labour market’. Although women were still matriculating at Portia in fairly large numbers during the 1930s, the optimism of the previous decade began to founder on the rocks of largely non-existent job opportunities.

So as MacLean sat down to write his message to the Class of 1941, he may have been composing a valedictory both for himself and for the school he founded.

The message penned to the class 1941 was aimed toward the past and not toward the future and is not without a certain melancholy: ‘If I had attempted to look ahead, from the time Portia Law School was founded, 33 years ago, to the present, the intervening period of some 400 months would have seemed almost interminable, but in retrospect, the time has been very short’.

Later in 1941, as the War became a reality and his law school faced severely diminished enrolment, MacLean married a second time, to Mary Coleman, an Irish-Catholic who came from the same area in Northern Maine, as had MacLean’s own parents.

Little is known of Mary Coleman, other than that MacLean’s family did not really approve of her, probably because of cultural, class, and religious differences. She and Arthur were married only a year and one-half before he died.

Apparently, Mary invited the family to her small apartment for MacLean’s wake. The family did not feel this was the kind of send-off that one would expect for a man who was so prominent in the Boston area, and to some extent nationally – and they were upset by it. By the time of Arthur MacLean’s death on February 28, 1943, the law school itself was in such bad shape that it, too, failed to publicise his passing. Only eight people graduated from Portia in the spring of that year. The following year saw only two graduate. In effect, Dean MacLean and the old Portia Law School had died together, and no one much noticed. There was after all, a war on.

Arthur MacLean effectively disappeared from the history books until the law school that he had founded began to remember him in the 1980s. This article is in part an outgrowth of that renewed interest.

Described as ‘dignified, courteous, even tempered, sociable, and witty’, Arthur MacLean should be fondly and adequately remembered. Drachman’s views that at least in the Jama White case, he was guilty of racism; that he had an old-fashioned view of women; and that he was far more interested in making profit than in the education of women are simply not supported by the facts.

While MacLean viewed women as different than men, he pled the case for their excellence both long and well. When he incorporated his law school in 1919, he did so as a charitable, non-profit corporation, like any college or university. Arthur MacLean believed ‘that no gender or stratum of society was inherently “inferior” to any other’ – he was, in fact far ahead of his time.

If one finally is to understand Arthur MacLean, one must focus on MacLean’s abiding belief in equal opportunity – that everyone, black, white, male, female, poor or less so should be given a chance – and that this chance came largely through education. His part-time law school for working women embodied this credo. He lived the equal opportunity dream and he spent his life offering opportunity where there had been little. While it can be argued that his efforts were not entirely successful during his lifetime, the seeds he planted cannot be denied: today women of all social classes and ethnicities are entering the legal profession in huge numbers.