Eleanor Swift was the fifth woman professor at the School of Law and the first to be hired through an arm’s-length search process. She grew up in Chicago, close to the University of Chicago campus. She graduated from Radcliffe College in 1967 at a time when Radcliffe women and Harvard men shared the same undergraduate curriculum. The Vietnam War politicized many students on campus. Swift joined the Harvard Crimson and wrote editorials about the war and about social justice. She went on to Yale Law School, where she was a member of the Yale Law Journal. There were only eight women in her class of about 170, but the number of women students increased during her three years.
After graduation in 1970 she worked as a law clerk for Judge M. Joseph Blumenfeld on the U.S. District Court in Hartford, Connecticut. She then clerked for two years for David Bazelon, the Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit. In 1973, Swift joined Vinson & Elkins, a major law firm in Houston, Texas, practicing in the litigation department, a full-time job with the firm’s top trial attorneys.
After five years of law practice, she decided to go into teaching. She accepted Berkeley’s offer because of its mission as a public school, because it enrolled more women and minorities, and because, as she was told by students, it “was not about prestige and hierarchy.” Swift and her 8-year-old son, Ben, from her former marriage moved to Berkeley and she began teaching in the fall of 1979.
Swift taught classes that were relevant to her law practice litigation experience – Civil Procedure, Evidence, and Evidence Seminars. And from the start she was interested in developing the clinical side of the curriculum, in which second- and third-year students would work on real cases for real clients under the close supervision of clinical faculty or practicing lawyers.
Also at the start, Swift met Robert Cole, a member of the law school faculty. They quickly became a couple and in due course were married. Throughout her career, Cole was deeply influential in and supportive of Swift’s development of her teaching, her publications for law journals, her service for the school, and her tenure battle.
Swift’s tenure decision in 1987 became a major event in the history of the school and, indeed, of UC Berkeley broadly. She wrote a lengthy article proposing a new approach to the hearsay rule, a major part of evidence law, which she divided into two separate publications. Thus, at the time of her tenure decision, she had published two articles, but the faculty denied her tenure and the administration accepted its recommendation. Marjorie Shultz, who joined the faculty in 1976, had also published two articles and had been denied tenure in 1985.
There was an uproar within the law school student body about the denials of tenure to Shultz and Swift. There were petitions and marches at the school. As Swift spoke at the graduation, an airplane flew over the Greek Theatre with a banner that read, “Give Shultz and Swift Tenure.” But this was to no avail. Swift packed up her office and went home.
A few months later, in the fall of 1987, Swift was approached by Professor Sally Fairfax, UC Berkeley’s faculty advisor on the status of women. Fairfax urged her to file a grievance with the Committee on Privilege and Tenure. Swift later learned that Provost Doris Calloway was concerned about the law school’s poor record on hiring women and the two consecutive denials of tenure. Calloway had asked Fairfax to prepare an in-depth report on the school’s hiring and tenure cases for some 50 years. This report has never been made public. Swift filed a grievance and hired two lawyers, Mary Dunlap and Charlotte Fishman, both of whom practiced employment discrimination law.
The Committee on Privilege and Tenure, composed of five faculty members, hears tenure and other faculty grievances against the University, as well as charges of misconduct against faculty members. Swift would have to prove that her publications were the equivalent of the publications of the men in her law school cohort who were given tenure. The excellence of her teaching and the denial of tenure to Shultz would also be important in proving discrimination.
On the basis of Swift’s filings, and presumably a confidential study of the Fairfax report, the committee made a preliminary finding of gender discrimination and called for a full evidentiary hearing. This finding led to settlement negotiations between Swift and the law school. The parties agreed to have a blue ribbon outside committee, made up of two non-law Berkeley faculty and three law professors from around the country, compare Swift’s tenure file with the files of the five men who had recently received tenure. All five of these men agreed that their tenure files could be used.
In the summer of 1989, the committee unanimously found that Swift’s scholarship met the same standard as four of the five men and that she should be given tenure. Chancellor Heyman agreed and she was promoted to tenure. As the committee did not consider the reason for her tenure denial, there was no finding of discrimination. This methodology of a comparative tenure review was used later in at least two other cases on campus alleging discrimination in the denial of tenure to women faculty. Both women also prevailed.
Dean Jesse Choper and most of the faculty welcomed Swift back and she resumed her place in the faculty harmoniously, although there were older men who did not speak to her.
Swift returned at a time when clinical education was becoming an important part of a law school’s curriculum. She helped to develop the teaching program at the School’s Community Law Center, taught there for several years, led the Clinical Committee in developing the school’s goals for clinical education within the Law School itself, and was instrumental in hiring clinical teachers and promoting their integration into the faculty.
Meanwhile, the UC Regents had banned affirmative action in UC admissions. The school’s next admissions cycle, 1996-97, saw a disastrous collapse of minority enrollment. Dean Herma Hill Kay appointed Swift’s husband Robert Cole as associate dean and he steered the school’s extraordinary turnaround in the enrollment of African-American and Latinx students in 1997-98.
Dean Kay then asked Swift to be the next associate dean. For two years she continued to develop the clinical education program that the faculty adopted as a blueprint. Professors Angela Harris, Rachel Moran, and Swift created the Center for Social Justice at the law school. It was crucial for attracting and supporting students of color, as well as all students who wanted to work with clients beset by poverty and racism. The center, named for Judge Thelton Henderson, a distinguished judge and graduate of Berkeley Law, still thrives.
In Swift’s years of teaching she wrote several articles on evidence law, served twice as the chair of the Evidence Section of the American Association of Law Schools, and continued to work on the development of in-house and community clinics at the School. She was awarded the University’s Distinguished Teaching Award and the law school’s Rutter Award for outstanding teaching, and was honored by the Law School Alumni Association with its Faculty Lifetime Achievement Award.
Swift retired in 2014. A few years earlier, Sally Fairfax nominated her for the board of directors of the Women’s Faculty Club on the Berkeley campus. Swift now continues to serve on the Board and has for many years been elected president of the 100-year-old club.