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Let’s Be Clear: The Case for Explicitly Banning Discriminatory Law Schools

Law societies shouldn’t accredit law schools that have discriminatory admissions policies. In my view, this statement has always been morally true. But we now know that this statement is legally true thanks to the Supreme Court of Canada’s decisions in the two recent TWU cases (see, here and here).

The Court’s analysis in both cases purportedly proceeded under a “reasonableness” standard of review and, thus, professed not to speak directly to the ultimate correctness of the law societies’ refusals to accredit a proposed law school that, to use the Court’s words, “effectively bars many LGBTQ people from attending.” Viewed critically, however, what the Court actually did in these cases was to “engage in de novo review of all of the legal issues raised by TWU’s application” and reach its own conclusions about these issues (Alice Woolley and I have previously made this point here). Among the conclusions reached were that the governing legislation of the law societies required them “to consider the overarching objective of protecting the public interest in determining…whether to approve a particular law school”, that “limiting access to membership in the legal profession on the basis of personal characteristics, unrelated to merit, is inherently inimical to the integrity of the legal profession”, and that by not approving a proposed law school with “inequitable barriers to entry” the law societies significantly advanced their statutory objectives to protect the public interest. The Court’s decisions in these two cases were based on the particular facts surrounding this particular proposed law school. They do, however, provide a strong basis to conclude that, if a law society chose to accredit a proposed law school with a discriminatory admissions policy in the future, it would risk a court finding that it was acting contrary to its statutory objectives.

But why leave room for any doubt? We should include non-discrimination provisions in the relevant statutory schemes that govern law societies’ accreditation of law schools.

Adding non-discrimination provisions would affirm the commitment of law societies to the values of equality and inclusion in the legal profession. To be clear, I do not believe that including such provisions would fix the deep-seated problems of our profession in relation to equality and inclusion. The fact that a non-discrimination provision cannot do everything, however, does not mean that it would do nothing. As my colleague Constance Backhouse explores in her compelling paper titled “Gender and Race in the Construction of ‘Legal Professionalism’: Historical Perspectives”, our profession has a history deeply marked with “power, exclusion, and dominance.” In this context, taking a small step to clearly reject one type of discrimination is meaningful and a good, if effectually limited, thing.

Other organizations and regulators have already adopted non-discrimination policies. Universities Canada, an advocacy organization for Canadian universities, requires each institutional member to affirm “its commitment to equal treatment of all persons without discrimination, on the basis of race, religious beliefs, colour, gender, physical or mental disability, age, ancestry, place of origin, marital status, family status, sex, and sexual orientation, or other grounds identified in applicable human rights law.” The Committee on Accreditation of Canadian Medical Schools (CACMS)’s Standards and Elements document, which forms the basis of medical school accreditation decisions, requires that medical schools and their clinical affiliates “not discriminate on any grounds as specified by law including, but not limited to, age, creed, gender identity, national origin, race, sex, or sexual orientation.” The American Bar Association (ABA)’s standards for approving law schools mandate that “a law school shall not use admission policies or take other action to preclude admission of applicants or retention of students on the basis of race, color, religion, national origin, gender, sexual orientation, age, or disability.”

None of these examples provide perfectly analogous precedents. Universities Canada is, as noted above, an advocacy organization and not an accrediting body. CACMS has the power to accredit, but this power extends to, obviously, medical schools and not law schools. The ABA approves law schools, but its non-discrimination provision notably contains exemptions for “religiously affiliated schools” that would unlikely withstand judicial scrutiny post-TWU.

That said, the fact that non-discrimination provisions in relation to admissions can be found elsewhere should give Canadian law societies some measure of assurance that administering such provisions in relation to law schools would not lead to regulatory disaster. Indeed, others have already suggested that it would be a good idea. In 2014, the Canadian Bar Association passed a resolution stating:

BE IT RESOLVED THAT the Canadian Bar Association urge the Federation of Law Societies of Canada and the provincial and territorial law societies to require all legal education programs recognized by the law societies for admission to the bar to provide equal opportunity without discrimination on the basis of race, national or ethnic origin, colour, religion, sex, sexual orientation, gender expression, gender identity, age or mental or physical disability, or conduct that is integral to and inseparable from identity for all persons involved in legal education – including faculty, administrators and employees (in hiring, continuation, promotion and continuing faculty status), applicants for admission, enrolled students and graduates of those educational programs.

Following this resolution, in early October 2016, the Federation of Law Societies of Canada released a “draft report for consultation” on the question of whether the National Requirement should be amended to add a non-discrimination provision but then suspended its consultation several weeks later citing the “the ongoing litigation between Trinity Western University and the law societies in Ontario and British Columbia.”

With this litigation now resolved, it is time to include non-discrimination provisions in the statutory schemes that govern the accreditation of law schools. I would argue, however, that this measure is best undertaken by each individual law society rather than at the level of the National Requirement adopted by the Federation of Law Societies. As noted in the Federation’s consultation report on this issue and as was apparent in the Supreme Court’s decisions in TWU, each law society’s relationship to the act of accreditation is governed by a unique statutory scheme. Given this reality, less conflict and confusion will result by dealing with this in the context of each of these specific legal contexts rather than attempting a national-level solution. Further, for additional accountability and good governance reasons that Alice Woolley and I elaborate at length here, there are strong reasons to believe that this type of public policy decision rests bests with the law societies themselves.

The Supreme Court of Canada’s decisions in the two TWU cases concluded litigation on the question of whether the law societies of Ontario and British Columbia acted reasonably in refusing to accredit TWU’s proposed law school. Canadian law societies are likely relieved that this contentious chapter is over. But, a broader question raised by this litigation – how law societies should deal with proposed law schools with discriminatory admissions policies – has not been fully answered. It’s time for law societies to lead as modern regulators by adopting non-discrimination provisions or, where legislative change is necessary, advocating for this legislative change.

Comments

  1. David Collier-Brown

    If the law societies in question honestly believe in a policy of non-discrimination, _failing_ to make it part of their publicly stated policies would reflect greatly to their discredit.

    If the only statement of this policy is a decision of the Supreme Court, the general public and prospective students would see no prohibition of discrimination in the law societies’ policies. “Look, it doesn’t say non-discrimination anywhere, they’re discriminating against us for not liking “.

    –dave
    [In the nerd world this is called “hiding the bug in a page the customer won’t see”, and the diametrical opposite of “Not only must Justice be done; it must also be seen to be done.”, R v Sussex Justices, Ex parte McCarthy]

  2. Hear Hear Amy.

    Briefly, what the critics of the SCC’s majority TWU decision seem not to recognize is that that very decision protects everybody including the Christian community at TWU. The decision prohibits discrimination, not just by religious communities, but against religious communities. No law school in Canada can ever be accredited were it to purport to deny, or make conditional on discriminatory grounds, entry or continued enrollment to any members of any religious group, or any protected group.

    The majority decision does not stop people from practicing their religion; it stops people from forcing their religion onto others in fora where religion is not a critical element to the forum. The right of religious freedom is a critical element to one’s personal beliefs and to a house of worship where the religion is taught and celebrated; it is not a critical element to a law school where the Rule in Turquand’s Case is taught (and celebrated?).

    Further, nothing in the decision stops a student at any law school from practicing her or his beliefs even if those beliefs are discriminatory. It merely stops the law school itself from being discriminatory. It also prevents law societies from being, or being asked to be, discriminatory by proxy.

    The SCC majority got it right, and every member of any group that could ever be discriminated against (i.e., everybody) should be grateful for it.

  3. I note only that your proposed policy would result in the denial of accreditation to most Canadian law schools who do, consciously, discriminate on the basis of age (e.g. mature students), indigenous status, etc. as part of their “access” categories.

    Now, such discrimination is expressly allowed under relevant Human Rights Codes (as, indeed, TWU’s discrimination is allowed under BC’s Human Rights Code), but if we take seriously the claim that law schools shouldn’t be allowed to have discriminatory admissions policies, then clearly such existing practices should be barred, and most (if not all) Canadian law schools should be dis-accredited. (Aside, how do we deal with graduates of foreign law schools who have discriminatory admissions policies?) Somehow, I suspect that’s not what you have in mind.

    Rather, what I think you mean to say is that law schools shouldn’t be allowed to have discriminatory admissions policies that “we” disapprove of – socially acceptable discrimination (for example, to ensure representation of disadvantaged groups) is A-OK. And fair enough, after all, most human rights codes exempt from their non-discrimination provisions potentially discriminatory conduct intended to favour disadvantaged groups. So clearly, as a society, we have deemed some forms discrimination to be acceptable. Maybe we refuse to accredit law schools which discriminate in contravention of applicable human rights law. Mind, TWU’s discrimination is legal under the BC human rights code (and likely under Ontario’s human rights code as well), so such a position would be inconsistent with the positions of legal regulators in Ontario and BC.

    So it seems we’re against discrimination, except for discrimination that we’re not against. Hmmm…

    Or, maybe, just maybe, we leave the regulation of universities to the relevant provincial governments – who are more than capable of amending their human rights laws as they see fit – and let legal regulators focus on their core role of regulator lawyers and protecting the public.

  4. Bradley Wright wrote:

    “The majority decision does not stop people from practicing their religion; it stops people from forcing their religion onto others in fora where religion is not a critical element to the forum.”

    I wasn’t aware that anyone was “forced” to attend TWU. As for the claim that religion is not a “critical element” of a expressly religious university, on it’s face it’s absurd.

    What the SCC has said is that public regulators can sanction religious institutions for their private practices the regulator disapproves of. Somehow I suspect religious Canadians won’t take much comfort from that decision.

  5. Carl, religion may be a critical element of a divinity school but it is not a critical element of a law school. My mother sang in the choir her adult life, believed in God and the afterlife. I hope she was right; I’d give anything to see her again. But what does that have to do with contributory negligence, offer and acceptance, land titles, spousal support, attribution rules under the ITA, judicial deference in Dunsmuir, the presumption of innocence, vicarious liability, intellectual property, defamation, or a snail in a can of ginger beer?

    Religious Canadians should take great comfort in the majority decision. It means that no law school can be set up that denies entry on the basis of your particular religion or any other protected ground, or forces you to attend another school to find protected acceptance.

    Best.

  6. Compelling. Exacting. Thoughtful. Well said, Amy!

  7. I disagree it is best dealt with by each provincial law society. I think it is best dealt with by each provincial legislature, because law and medicine are not the only professions, and a patchwork of what professions do or do not allow education at a school that discriminates but in a way that’s permitted by provincial law (rather than on competence) based on what each profession decides does not make for a consistent policy even within a province.

    Just one question, that I think highlights problems not with the result but the SCC reasons, and why I want legislative policy-making, rather than by the professions: can BC teachers revisit accreditation of the TWU program or not?

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