The Imperatives of Legal Education

There is no question that legal education has become increasingly complex, partly as a result of the will of educators and students and partly as a result of external forces. While some may argue that legal education has not changed very much since the earliest days (emphasizing the continued emphasis on case law, for example), in my view it has been tranformed over my own legal lifetime. The introduction of “perspectives” courses, intensive weeks, the diversity in students and faculty, experiential learning, various supports, some curriculum review and other efforts towards inclusion have had greater impacts on some schools than others. When I entered law school, we were already experiencing some of that change. As a law professor and dean of law, I became part of it. I wrote and spoke about legal education developments.

This (desirable) move away from the more rigid confines of the old-style law school inevitably brings challenges. If a recent event at the University of Toronto law school is any indication, I wonder whether we have become fearful about teaching future lawyers what they will face in the real world of “practice” (defined broadly). I hope that is not the case. Nevertheless, I believe we need to look seriously at how and what we are teaching law students and why. Do we have anything to learn from the past and efforts to reflect the diversity of people affected by law in other contexts?

According to the report in The Globe and Mail, a professor in the Faculty of Law at U of T had assigned a hypothetical to first year students about which they were to write a memo, a not unusual assignment in form. Rather than an anodyne scenario about tax law (apparently, according to a student, the sort of topic usually used), the hypothetical was about Indigenous parents, “struggling with drug and alcohol issues”, who had placed their children in care. The children were placed with a non-Indigenous family who sought to adopt them after two years. By then the father had turned his life around and wanted access to the children. The report stated, “[t]he students were asked to write a memo about the case, taking into account a 2017 Ontario law that gives priority to maintaining familial and cultural links for Indigenous children”.

Apparently, students complained that the scenario included “racial stereotypes” and in response, the dean distributed an apology, saying,

the hypothetical scenario “included several troubling stereotypes about Indigenous people.”

“I apologize whole-heartedly for the offence this assignment has understandably caused, especially to our First Nations and Métis students,” Mr. Iacobucci wrote. “The faculty will consider means that we can adopt going forward to seek to ensure that something like this does not happen again.”

Some students were also concerned “they did not feel properly supported in having to read upsetting details in real-life case law relating to the hypothetical case”.

In response to the concerns, the students were given a choice between writing the original assignment or a new one due at a later date.

As someone whose teaching and scholarship has been in many respects devoted to diversity and inclusion, albeit not specifically or primarily in relation to Indigenous peoples, I’ve thought about the U of T situation from the perspective of my history with these matters, as well as my view of the necessary objectives of legal education.

Despite the increasing complexity of legal education, student concerns about the subject matter addressed in law and how it is taught are not new. In my student days, much of the focus of that concern was on how professors taught sexual assault (then rape and sexual assault) cases in criminal law and how students (and, indeed, some professors), most often male, made jokes or crude comments about the women involved or the circumstances of the assaults. This was long before, for example, understanding consent as something freely given and not assumed or inferred or lack of it ignored had become as prevalent as today (it might have been an issue in a case, but it was definitely less nuanced). Few female students felt they could speak up about the treatment of women in sexual assault law or what it was like to sit through what were snide whispers or overt disparagement.

The facts of sexual assault cases might involve women dressed in certain ways, on their way home very late, who went home with a man, all situations that were used by accused to defend themselves and too often judges to absolve the accused. They detracted from the responsibility of the attacker for his own actions. We think of them as “myths and stereotypes”. Whatever we call them, they are realities: they were facts in the case. The questions we had to ask were whether they were relevant facts rather than descriptive and whether, in some cases, they needed to be identified at all. Unfortunately, although there is today a much greater appreciation that these are irrelevant facts, they still convince some judges to find the accused not guilty (see my earlier Slaw post on two cases raising these issues, including the Lacombe case in which the Ontario Court of Appeal castigated the trial judge for his reliance on stereotypes).

Learning about sexual assault cases may be difficult for several reasons, including that there may be women in the class who have been sexually assaulted or because for women the lurking potential of violence against women (VAW) is a reality. I remember when women would seek to distinguish themselves from those who were assaulted (“I don’t dress like that”, “I don’t go out drinking or get drunk”, “I don’t walk home alone late at night”). (The same effort to distinguish, I might say, was and still is true of intimate partner violence.) I suspect this effort to immunize oneself from the possibility of assault occurs less often now. The fact is that the circumstances under which VAW occurs are part of women’s lives, stemming from a different time when these behaviours were considered normal or acceptable, even encouraged. And despite changes in law and attitudes, they continue.

VAW is taught in criminal law and in family law, but not only in those areas. The Curriculum Modules in Ontario Law Schools: A Framework for Teaching about Violence against Women released by the Law Commission of Ontario (LCO) in August 2012 recognized that for practising lawyers, these issues and their after effects may arise in almost all areas of law. It recommended all students learn about VAW to some degree and preferably in a way that places it in historical and current contexts.

The LCO report revealed two things: difficulties arising from teaching these issues remain and there are disagreements about when and how to teach about them.

The LCO report included student comments about the teaching of these matters, such as the observations that some professors don’t know how to teach about sexual assault or domestic violence; “[t]here is a lack of respect for women who have experienced violence, a disbelief that it happens to classmates, profs, etc.”; it is “[i]mportant to deconstruct stereotypes about VAW and culture”, among many others (LCO Report, Appendix B, pp. 46ff).

The Report indicated that professors need support in teaching in this area:

Yet intimate partner violence is not an easy subject to address, even for those who are more familiar with the issues and the material. Individual professors may be reluctant to raise these issues in the classroom or may feel ill-equipped to manage the often challenging discussions that teaching about violence against women often engenders. Furthermore, the pervasiveness of violence against women makes it inevitable that some students (and teachers) will have experienced such violence themselves or in their families or circle of friends. This reality requires particular skill on the part of the professor to manage – whether the experience is one from the perspective of victim or perpetrator. There can be an emotional toll for those who teach the subject just as there is for students who engage in clinical activities related to violence against women.

Professors need to be supported in teaching this new material through the provision of resources, teaching tools and discussion guides. Connecting professors for whom this is unfamiliar terrain with those already teaching about violence against women could prove enormously helpful. Faculties of law offering internal teaching clinics or workshops … could dedicate one to the topic of teaching violence against women issues. (pp. 6-7)

With respect to when to teach about them, students had different views, some of which were: “Needs to be available to all students or only self-selected students will participate”; “Should be taught in first year”; “Skills component could be taught in first year small sections”; “Could integrate into ‘law in context’ or ‘legal perspectives’ course”; “Needs to be mandatory in first year, otherwise only people who are already interested will take it”; “Hard to engage students in large class size of first year”; “Incorporate some aspects into legal research and writing sessions in first year”; “Could be raised in the same way that Aboriginal issues are now raised in 1st year law”; “Needs to be integrated across curriculum”; “Should be in every course in first year”; “Bring in outside people”; “Should be mandatory material for all 2nd year students”; “Important to cast net wide to reach as many classes as possible to change the culture overall”.

The report made much of the need to address how VAW plays out in different communities, how it is experienced differently by women on the basis of race, class, disability and yes, Indigeneity, among other factors.

As the Mary Louise Lynch Chair in Women and Law at the University of New Brunswick Faculty of Law, I instituted a mandatory week-long “Feminist Legal Workshop”, which students took in first year (it eventually become an “Equality Workshop” and at some point it seems it disappeared from the curriculum). I and other faculty developed scenarios and role plays designed to address the women’s experiences and their relationship with law, taking into account diverse background factors, with assigned readings. By definition, these could not be in-depth, but the intention was to introduce all students at an early stage to how law often has a different meaning for women and for women from different communities. Note “all” and “early” are the operative words here. Our goal was to show students that women’s experiences, historical treatment and particular needs needed to be integrated into legal frameworks and legal practice.

My experience with the Feminist Workshop was long ago (it started in 1992) and far away (or so it seems to me), but the questions it raised — when to introduce students to important threads that run throughout the law, when to ensure students were exposed to law that is not the law of dominant groups and how to communicate these realities to students who might not otherwise choose to acquaint themselves to them –are the same questions that the students interviewed for the LCO Curriculum Modules report some 20 years later raised. And they are the same questions that are raised about the first year Indigenous child welfare memo assignment at the University of Toronto. This means neither the subject issues raised nor the answers are the same, but one wonders whether addressing them becomes harder with time and the evolution of expectations than easier. Even so, the questions — the challenges — are integral to the necessary and deliberate project of diversifying the curriculum, of including the previously excluded, in the learning and critique of law.

A very few words about the removal of children from their parents. At one time, it was crucial to appreciate that class or economic status played a major role in the removal of children from families and I have no doubt, it still does. This was the focus when I was in law school. Middle class parents could “hide” the problems that were glaring for, say, single (often female) parents working two jobs to get by, keeping their heads above water. According to Child and Family Poverty in Ontario, poverty still results in a disproportionate number of children being removed from their parent(s). We hear about “class” less often these days, however; it has been subsumed within other “characteristics”. And one of those “characteristics” is Indigenous identity (for an article about the displacement of Indigenous children published about 25 years ago, but which still rings true, see Marlee Kline, “Child Welfare Law, ‘Best Interests of the Child’Ideology, and First Nations“, which considers both the disproportionate numbers of children taken from their families and the subtext of background and ideological assumptions).

Back, then, to the assignment. It represented a situation that is unfortunately too common, the disproportionate number of Indigenous children in “care” and reasons for it. This is a reflection of reality. As Cindy Blackstock said, “The reality is that First Nations kids are overrepresented among children in child welfare and that the leading drivers of it are poverty, poor housing and substance misuse linked to multigenerational trauma arising from colonialism writ large and residential schools in particular”. The assignment did not leave it at that. First, the parents chose to place their children in care (we do not know whether it addressed “subtle” pressure to do so); then it presented a father who had managed to transcend the reasons for placing the children in care and who wanted to continue his relationship with them. It required students to engage with an important policy designed to address what has been too common, the placement of Indigenous children with non-Indigenous foster and adoptive parents, reflected in the new Child, Youth and Family Services Act, 2017. Section 74(3) requires a person making an order about a child to “in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the [the other enumerated] considerations” and otherwise makes specific provision for matters related to Indigenous children. It may be worth noting that the other considerations include “the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression” and “the child’s cultural and linguistic heritage”; however, the references are not specific as they are for “First Nations, Inuk or Métis” children.

According to the Law Times, one student suggested, “‘the assignment would have been better suited to an Indigenous law course. In an Indigenous law course for older students, a real case could be discussed in context of Indigenous culture and history — rather than a hypothetical scenario used to illustrate memo-writing skills….'” Another student explained U of T Law has access to myriad resources with relevant expertise and

“[e]ngagement with some of these experts may have provided a basis in Indigenous experiences and law that would have helped avoid this assignment,” she wrote in an email to Law Times. “In addition, the law school has a Manager of Indigenous Initiatives who could have been consulted in the writing of the assignment in order to prevent the display of stereotypes with no context that students received.”

This student continued, “‘the stereotypes in the writing assignment only show part of the reality of Indigenous peoples. The ‘tough reality’ would be to engage with the whole story: ‘things like residential schools, the sixties scoop, discrimination that was enabled by the Indian Act, forced relocations of communities, unequal access to basic services like healthcare and education and more….'”

A lawyer who originally believed the students needed to learn about the realities facing Indigenous peoples had second thoughts, saying

“The only responsible way to practice law is to arm yourself with as much knowledge as you can about the client’s situation before you try to help them. That’s what the Indigenous students at U of T were asking here,” she tweeted. “I ask you to consider whether you can be more gentle with the brave Indigenous students who spoke out. The reality is, our collective histories show that until people truly understand us, they are not to be trusted with our lives, nor with trying to solve our problems.”

All of this is valid: it is a good and necessary thing to obtain as much information as possible; we should not all assume we know how to address the problems people, particularly communities that have been oppressed, face; perhaps the only way to address complex problems is within the context of a course dedicated to those experiencing them. At the risk of jumping into the deep end, though, let me raise some other factors to consider. One of the students quoted in the Law Times mentioned that previously the memo writing assignment might be about tax law. Isn’t it equally important to raise students’ awareness that child protection laws are part of the legal system, just as tax laws are? As someone who tried to incorporate the diversity of the population in my assignments, I can speculate that the faculty member may well have been trying to make “visible” one admittedly bad experience of Indigenous people as part of the legal landscape. This is, one might say, where the stereotypes come in: even if that’s a legitimate intention, why not provide an assignment that focuses on the success of Indigenous peoples? Law isn’t like that, though; it is more often about the negative situations facing people and here, although the assignment begins with a negative situation, it moves towards a more positive one. It does address reality and it raises how the law, a new law, responds to that reality.

While having a more complete understanding of how Canadian authorities and the law have treated Indigenous peoples since colonization is optimal, it is unrealistic to think that all students will acquire that in law school or that all students will receive and process the same information in the same way. Proper preparation of the memorandum would, however, require students to open themselves to how the Child, Youth and Family Services Act, 2017 more fully addresses the importance of connection of Indigenous children with Indigenous culture and communities beyond the “priority” referred to in the description in The Globe and Mail article. It would require the students to grapple with what happens when the father appears to have overcome the difficulties that led to the placement in the first place. What does the law say about that? What arguments can be made for (for example) returning the children to the father? Given the legislation, what matters here?

Lawyers have to learn what “the law” narrowly defined is, but they also need to appreciate the circumstances of their lives that affect their engagement with the law. Law is not neutral: its impact is influenced by the experiences of those it affects, including, but not only, Indigenous peoples. There is no easy what to teach this as fully as possible to as many students as possible. And the cases we study in legal education are often disturbing in different ways and for different students, sometimes because of the facts, sometimes because of how they have been argued and sometimes because of how they have been adjudicated. How we teach caselaw and statutes, for the latter too can raise one’s animosity, and the surrounding legal context, matters a great deal. But we these are situations that will raise the hard issues in practice.

Law is hard and so are the circumstances of many people’s lives, both as they interact with the law and otherwise. As Cindy Blackstock says, law school is the place for future lawyers to learn how to handle the difficlt issues, or actual lawyers will not be able to handle them in practice. This does not mean that we should be cast adrift to deal with our negative response to tough cases or issues more generally. The importance of self-care is increasingly recognized in the legal community. However, it is the responsibility of lawyers to help their clients address problems and this is not always easy.

Some 20 years ago, I wrote a short comment in the UNB Law Journal about academic responsibility (“Reconciling Valuable Interests; Or Academic Freedom as Academic Responsibility” (1995) 44 UNB LJ 79). I said there something that I think may have gone somewhat out of fashion today, yet it still for me describes at least one element of legal education, one that must be informed by a broad understanding of the considerable differences that students bring to the classroom:

The professor’s claim to academic freedom is better seen as a willingness to accept “academic responsibility — a commitment to critically assessing ideas, to challenging their own cultural and political assumptions, and to persuading students to think harder and to question their beliefs. It is my responsibility to provide the means by which students add to their pile of truths and sometimes upset it. (p.82)

Law school is one place that teaches us how complex “truth” can be and by “us” I mean all of us involved in it. And that means addressing some hard realities. Some students will go out and practise law in a traditional way, but others will use law as a way of changing (or at least trying to change) those circumstances that are so upsetting. But we cannot change what we don’t understand. We cannot , understand if we don’t confront the realities of a situation, however upsetting it may be.

I’m not sure why the U of T dean apologized. I do wonder what conversation he had with the faculty member who devised the memo assignment. I do wonder how the faculty member viewed their assignment being characteried as containing “troubling stereotypes”. I wonder, too, why students were allowed to complete the assignment if they chose, given its “troubling” and “unnecessary and offensive” stereotypes, terms used by the anonymous “law school” (“the law school” explained that its committee on truth and reconcilation would review the school’s policies and procedures “‘to ensure that while we do not shy away from discussing difficult issues, we do so while avoiding unnecessary and offensive stereotypes”). From a practical and strategic point of view, I suppose apologizing to one group of students, those who complained about the assignment, yet allowing those who wished to complete it to do so, thereby foreclosing the complaints of those who had already started it, was the most effective response to a fraught situation.

But did the assignment really contain “troubling stereotypes” or (I assume “the law school” meant these terms to apply) “unnecessary and offensive stereotypes”? Did it contain stereotypes at all? Stereotypes are factors irrelevant to the situation at hand. “Stereotype” is defined by the Cambridge English Dictionary as “a set idea that people have about what someone or something is like, especially an idea that is wrong” and by the Collins Dictionary as “a fixed general image or set of characteristics that a lot of people believe represent a particular type of person or thing”.

Here the assignment did not assume all Indigenous parents or people generally engage in substance abuse: that would be a stereotype. It did identify that as the reason these parents placed their children in care; and this is a significant reason for placing children in care or for having children removed from the home. Could it have used a different reason? Of course, but it might well be subject to the same allegation. Could it have been a different assignment, one that presented a false (stereotype or myth) reason for placing the children (or better still for this purpose, having the state place them) in order to allow students to attack the stereotype? It could have done that, too.

Once we use the word “stereotype” to refer to realities that are relevant rather than to “facts” that are irrelevant, we can no longer deal with the issue effectively. Not liking that Indigenous people may be subject to the stereotype by ill-meaning people does not change that in this case — as might be true in a real case — a lawyer handling the case must address the reality. This is true whether we are considering one reason children may be removed from Indigenous parents, when that reason reflects what actually happens, or when we need to consider a sexual assault case in which the matter of how the victim was dressed had been made an issue, when that is raised as a defence. In neither case is the particular factor the whole story: while dress is an irrelevant factor in the sexual assault case, the parents’ substance abuse is tempered in the child protection hypothetical by the father’s conduct and by the focus in the law on cultural and community connection.

In both cases, it is how the law is framed and interpreted that tells us whether the substance abuse and the manner of dress are treated as stereotypes, that is, as “a fixed general image or set of characteristics that a lot of people believe represent a particular type of person” or whether they are treated appropriately as relevant or not in the particular case. And whether that happens in large measure relies on the lawyers who are presenting the case and their abilities to work with the facts as given.