The Truth and Reconciliation Commission and Law School Curriculum Reform

Professor Rod Macdonald had grand ideas about many things, ideas that were insightful, brilliant, quirky, courageous and original. Among these were his ideas about law school curricular reform. In Professor Macdonald’s view, “curricular reform is a continuing enterprise” and “thoughtful curricular debate is a law school’s primary heuristic device”. These are optimistic views about the importance and the promise of constructive curricular reform. But Professor Macdonald also observed, more pessimistically, that “since most curricular changes are implemented or retracted in the general spirit of tinkering, it is not surprising that the integration of new themes into existing programs has been difficult and frequently unsuccessful.” (See Curricular Development in the 1980s: A Perspective, 32 Journal of Legal Education 569 (1982).

In its 2015 report, the Truth and Reconciliation Commission of Canada made 94 ‘Calls to Action’ aimed at addressing the injustices and inequities that are the legacy of the residential school system in Canada. Among these are two calls that relate specifically to lawyer and law student training. Call to Action number 28 calls on Canadian law schools to

…“require all law students to take a course in Aboriginal people and the law, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal Rights, Indigenous Law, and Aboriginal-Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.”

The combination of subjects and skills contemplated here, and the expectation that they would be included in a single, compulsory course, arguably make Call to Action 28 a tall order. All Canadian law schools now include at least some of these topics and skills in their curricula but few, if any, have a single compulsory course that includes all of the Call to Action skills and topics. And so Canadian law schools must now determine how best to respond to Call to Action 28.

How might this Call to Action be answered? One response is to design a specific, compulsory course that would address all of the topics and skills identified in the Call to Action. The compulsory nature of such a course would ensure that all law students, by the end of their three years of law school, would have attained at least a basic level of competency in the topics and skills identified by the TRC. But this ‘compulsory’ course approach also has drawbacks. There are pedagogical advantages to integrating the Call to Action 28 subject and skills competencies in various ways throughout the three-year law school curriculum. This allows for learning that progresses to increasingly deeper levels of analysis and understanding during three years of study. There are many opportunities to achieve this graduated learning in current law school curricula. For example, new causes of action that have been advanced by survivors of residential schools (including, for example, loss of culture) could be explored in Torts and Civil Procedure, conflict resolution skills that address and attempt to overcome the deficiencies in dispute resolution skills and processes identified in the report could be incorporated into negotiation and other dispute resolution courses, and the ways in which criminal procedure and rules of evidence work against access to justice for Aboriginal people, could be dealt with in Evidence and Criminal Law and Justice courses. Other courses and seminars focusing on law reform, natural resources, labour and employment, health policy and human rights could then build on this learning. These are just a few examples.

Such a whole of curriculum approach could achieve the same goal as a compulsory course, while arguably offering a richer, deeper learning experience for students. But it, too, presents challenges. Good curriculum reform takes time. This is especially so if there is an attempt to integrate designated topics and skills across an entire three year curriculum. Considered in this context, some people might find the single compulsory course option the less daunting approach.

Canadian law school curricula currently include at least some of the Call to Action 28 content, with wide variations as to method of delivery, whether the material is compulsory or optional, and the extent to which skills training of the kind contemplated in the Call to Action is available. Regardless of the approach that law schools will take to achieve the aims identified in the Call to Action, no doubt all will be taking a hard look at their curricula to ensure that their students graduate with an understanding of the history and the legacy of residential schools. The TRC’s Call to Action 28 offers an excellent opportunity for law schools to take stock of what is available to their students and to engage in the courageous curricular discussion and reform contemplated by Professor Macdonald.

The kind of knowledge and understanding called for in the TRC Report also require a commitment to lifelong professional learning. Any law school attempt to integrate the Call to Action 28 content and skills competencies in their curricula should include instruction about the importance of lifelong learning in this context. Call to Action 27 recognises this lifelong learning dimension by urging the legal profession to achieve with continuing professional education for lawyers what law schools are urged to achieve for law students.

What would Professor Macdonald say? At the very least, I think he would see the TRC’s Call to Action 28 as an invitation – no, an opportunity – for law schools to continue to engage in the “thoughtful curricular debate” that in his view is a law school’s privilege and ongoing responsibility.