By Gwyneth K. Shaw
Professor Herma Hill Kay was a true trailblazer in family law and legal academia — the 15th woman appointed to the faculty of an American Bar Association-accredited law school, the second woman on Berkeley Law’s faculty, and the first woman to lead the school as dean.
For decades, she was a leading light at the school: A passionate scholar, tireless policy advocate, and generous mentor to students and other female professors, at Berkeley and well beyond. To this day, she’s known around the school simply as “Herma,” her name universally referenced with great admiration and affection.
When she died in 2017, she left behind a project that dominated her last years: A book telling the story of the 14 women who preceded her as law professors at ABA-accredited schools. Supreme Court Justice Ruth Bader Ginsburg, a close friend of Kay’s for decades, helped cement the publication of the book by offering her own final work to the University of California Press conditional on the two books releasing together.
Paving the Way: the First American Women Law Professors has just been published by the UC Press, on the heels of Ginsburg’s own last work. Kay’s magnum opus features a foreword from Ginsburg and an afterword by New York University law professor and former colleague Melissa Murray.
“Retrieving this history was a huge undertaking, one of inestimable value,” Ginsburg said when she visited Berkeley Law in 2019 to give the inaugural Herma Hill Kay Memorial Lecture. “Without Herma’s prodigious effort, we would scarcely comprehend how women altered legal education and the law itself.”
‘These are our foremothers’
The book begins with another Berkeley Law icon, Barbara Nachtrieb Armstrong ’15, who became a lecturer in economics and law in 1919, the first woman to hold such a position at an ABA-accredited law school. It continues with legal lions like Soia Mentschikoff — who famously bristled at references to her gender — and Miriam Rooney, who became the first woman to lead an accredited law school when she ascended as Seton Hall’s founding dean in 1951.
Kay recounts each woman’s scholarly contributions, but also delves into the personal, especially in regard to the hurdles they faced. One example is Marygold “Margo” Shire Melli, who had to resign her tenured position at Wisconsin so she and her husband could adopt a child. (The school quickly hired her back.)
Professor Patricia Cain, who edited Kay’s book, calls Paving the Way a major contribution.
“It’s good for the current generation to have some sense of what it was like,” says Cain, who joined the Texas faculty in 1971 and remembers when there were so few women in legal academia that she could rattle off all their names.
“It’s really important to understand our history, to understand what early women in the law went through,” says Cain, who’s now at Santa Clara University. “These are our foremothers. And so these are personal stories, and it’s not just the stories about the women. It’s the stories about the times.”
Kay stopped at the first 14 because she didn’t want to write about herself, Cain says. When she began the project in 1989, nine were still alive, and Kay was able to interview them along with their colleagues and students. She also knew many of them personally, especially Armstrong, who had been a mentor after she joined the Berkeley Law faculty in 1960.
“It’s just remarkable to think about how the women whose stories are preserved in his book, how they were able to do all that they did. I mean, they truly were superheroes in some respect,” says Berkeley Law Professor Amanda L. Tyler, who arrived at Berkeley in 2012. “And it’s really important for those of us who follow to remember to honor what they’ve done, to preserve their stories so that we never take anything for granted, and to understand that we have a role in trying to continue to open up opportunities for those who follow in our footsteps.”
Remembering a titan
Kay herself was a seminal figure, especially in the field of family law, where she was a pioneer. As a member of then-Gov. Pat Brown’s Commission on the Family, she helped push for California’s path-breaking adoption of no-fault divorce in 1969. She also served as a co-reporter of the Uniform Marriage and Divorce Act, a law reform project with nationwide impact, and on the American Law Institute’s Family Dissolution Project, recommending legal reforms to ensure that women would receive the kind of support and property awards they needed.
She testified in favor of the Equal Rights Amendment and spearheaded the passage of California’s therapeutic abortion law. She served as president of the Association of American Law Schools and received the organization’s Ruth Bader Ginsburg Lifetime Achievement Award in 2015 — with Ginsburg doing the honors.
Kay met Ginsburg, then a law professor at Rutgers, for the first time in 1971, when Kay and three students attended the first national Conference on Women in the Law, according to emerita Professor Eleanor Swift, who joined the Berkeley Law faculty in 1979. They decided to co-author a casebook on sex discrimination together.
“Thus began a firm friendship that enriched both their lives for more than 40 years, as well as creating a burgeoning new field of law,” Swift said at a recent event to celebrate Kay’s book. “And Herma’s three women students decided on that trip to create a women’s rights law firm in San Francisco, Equal Rights Advocates, the first of its kind.
“The women’s movement in law schools was beginning in ways small and large, and Herma was in the vanguard.”
Swift also recalled that in the late spring of 1969, Kay contacted the women students, then about 10% of the school, and invited them to meet to discuss women in the legal academy and the profession. They gathered in the women’s lounge — basically just a bathroom with a tiny couch, unlike the grander and bigger men’s lounge — for the meeting that would become the founding of the Boalt Hall Women’s Association.
“In an act of political consciousness raising so popular on the Berkeley campus, the women took over the men’s lounge for their meeting,” Swift said. “The women students were ready for the opportunities that Herma gave them.”
Professor Pamela Samuelson came to Berkeley Law in 1996, roughly halfway through Kay’s eight-year tenure as dean. Kay had an indelible impact on the school’s culture, she says, including prioritizing and expanding its clinical law program. She also emphasized hiring women.
“She really was a person who also had a great deal of compassion for students, and for people who were struggling in the profession,” Samuelson says. “There was a time when there were not very many women on the law school faculty, and those that were kind of felt a little on the embattled side. She lived long enough to see the enormous growth and hiring of women, and the ability of women to be as respected as scholars and as teachers and as professionals as the men.”
When Kay died in June 2017, classes were over for the summer, making a big event impossible, Samuelson says. There was a luncheon in Kay’s honor that fall, but Samuelson felt compelled to do more to cement her legacy at the school.
So Samuelson donated the seed money to launch an annual lecture series in Kay’s honor with her husband, Robert Glushko, of the UC Berkeley Cognitive Science Program.
“I was really concerned that not just the junior women on the faculty but also the men on the faculty just didn’t have any appreciation for how many ceilings she cracked and how many things she accomplished,” Samuelson says. “An annual lecture is something that provides an opportunity to say she made a big contribution to this particular institution, and to the legal profession and to advancing the cause of women’s rights under the law, and as well as family law and conflicts of law. She was a real pioneer, and that’s a really important thing about Herma.
“I didn’t want to have that part of our heritage basically just get lost. I hope that both the book and the ongoing lecture series will be opportunities to kind of carry on the legacy of being a person of substance, person of compassion, and a person who tries to make the world a better place.”
A final partnership
The 2019 lecture ultimately sparked the publication of Paving the Way. In addition to her speech, Ginsburg sat down with Tyler, a former clerk, for a Q&A session. The justice had written the foreword for Kay’s book in 2015.
“She really wanted to see that book published, because it was a book chronicling the lives of women who had paved the way for her and Herma to come into the academy and to build the careers that they built. And we knew that for several years, the book had been languishing,” Tyler says.
So they came up with a plan: Offer a book version of Ginsburg’s Berkeley Law event, along with some recent speeches and important briefs and opinions, to the UC Press — if it would also publish Kay’s book.
The gambit worked. Justice, Justice Thou Shalt Pursue: A Life’s Work Fighting for a More Perfect Union, co-authored and with an afterword by Tyler, debuted last month to widespread fanfare.
“I’m really thrilled,” Tyler says. “And I know that if she were here, the Justice would be really just over the moon to see this now all come to pass.”
Murray, whose afterword recounts both her first encounter with Kay, in an office crowded with what she calls “Hermabilia,” and Kay’s strong mentorship of her early career, says Kay would be delighted to see the book in the hands of readers at last.
“I think she very much worried that these women — many of whom were her shepherds — would be forgotten were it not for this book. I think she’s probably right,” Murray says. “Even at Berkeley, where we do remember Barbara Armstrong, she’s not as thickly in our memory, because, we are always so forward looking: What’s the next thing, where’s law going, where are law schools going?
“We don’t really take the time to reflect on where we’ve been.”
Murray’s afterword also highlights a group of law professors outside of the parameters Kay set for her research. Leaving out those professors at non-ABA-accredited schools, many of them women of color, “consigns to the periphery the women who entered into the profession and the academy before Armstrong’s introduction in 1923, resulting in a narrative that is focused predominantly on the professional experiences of white women,” Murray writes.
Were Kay alive today, Murray says, she would probably take the critique in stride. When Murray became interim dean in 2016, she came to appreciate just how difficult it must have been for Kay to be the first woman to serve in the role, especially in the wake of Proposition 206 and other tumult.
“I was always struck by how graceful she was, even in the most difficult circumstances, how she never was overwhelmed by the role. She just took everything as a mountain to be climbed, and she patiently chipped away and climbed those mountains every single day,” Murray says. “When I was interim dean, I really drew a lot of strength and inspiration from her example. I talked to her a lot.
“At every stage of my career, she was a sounding board. She was a shepherd, and a wise and gentle voice that I could rely on.”
Tyler, Cain, Swift, and Samuelson spoke at the virtual celebration of Kay’s book, recalling her passion for the law and scholarship as well as lighter details, such as her penchant for big hats as a younger woman and a lifelong fondness for wearing bright yellow. There was a bittersweet tinge to their memories, but it was mostly eclipsed by their shared delight and pride at seeing Kay’s project finally complete.
“She radiated warmth, and she radiated a positivity, a sort of can-do attitude that I think really drew people to her. She kept coming to faculty meetings, and she kept teaching, right up until the end,” Tyler says. “There were a lot of similarities between her and Justice Ginsburg. They were both built from a fabric that is very special — a fabric that is saying, “As long as I am breathing and on this Earth, I am going to pay it forward. I’m going to contribute, I’m going to serve.’
“And that’s what defined both of them, and it’s no surprise that it led to the two of them building such a profound and beautiful friendship.”
“I think she would have been especially delighted that Justice Ginsburg really brought both projects to fruition by twinning her book with Herma’s,” Murray says. “I just imagine the two of them in legal heaven surrounded by books and memorabilia — Hermabilia and Ruthabilia — chuckling over these two books that have been so well received.”