I was recently invited to participate in a Runnymede Society debate against Asher Honickman—a co-founder of the Society—on “the future of legal education and curriculum.” I paused. I consulted. I reflected. And now, I am declining that invitation. But I want to explain why.
As a former debater and mooter, I love to argue. But as a legal scholar—and especially, a scholar of critical race theory—I am mindful of power and its inseverability from the conversations we engage in. Thinking about power, and its particular dynamics within the context of this proposed Runnymede Society debate, is ultimately what led me to decide that my participation in this specific debate would do more harm than good. There are five reasons for this:
- the questionable expertise either of us would bring to a debate about law school curricula, and that Honickman would bring to a debate about critical race theory;
- the false premise on which the debate is anchored, i.e., that a field which is barely represented in Canadian law may be overtaking traditional legal education;
- distracting from how the Society misrepresents itself as apolitical, despite being transparently conservative—an objection to its candour, not its politics;
- disinterest in debating whether we should discuss race in law school, when how we have that discussion is an actually relevant and pressing concern facing the legal academy; and
- the fact that I do not want to dignify a debate, the subtext of which is whether law schools should consider the relationship between race and law at all (despite the long and documented past and present of how law plays a central role in Canadian racism).
It is my hope that, by setting out these five reasons here, we can engage in an important conversation about how to interact with organizations like the Runnymede Society. It is also my hope that we can engage in broader dialogue about the strategic deployment of neutral-sounding vocabulary like “objective” and “apolitical”. When accepting his election as the new leader of the Canadian Conservative Party, Erin O’Toole criticized Justin Trudeau’s policies as “ideological” (at 9:58), whereas O’Toole’s agenda to “Take Back Canada”—i.e., winding down emergency benefits during the pandemic, speedy pipeline approval, defunding the CBC, and invoking the notwithstanding clause to impose mandatory minimum sentences for various crimes—lacks ideology? And when giving his final speech as leader of the Conservative Party, Andrew Scheer (at 10:15) directed his audience to “objective” news sources, like The Post Millenial (which is transparently conservative) and TrueNorth (which, for example, considers condemning islamophobia akin to “normalizing Sharia law”). Objective news sources, indeed. This charade of conservative neutrality must end.
To be clear, this essay is not a criticism of those who have already partnered with the Society, many of whom I deeply admire, and who have given presentations for the Society on unquestionably important topics. Further, this is no criticism of law students who are Runnymede Society members: some are finding their way in the law; some are attracted to large student budgets and the high profile speakers those budgets attract; some are trying to influence the Runnymede Society from within; and some are just conservative. Lastly, reasonable people can disagree about the relative benefits and harms of these types of engagements. But, at the end of the day, this is where I land in this particular case. As a Society devoted to “the free exchange of ideas”, I trust Runnymede won’t mind some critique.
My first reason for declining the debate is relevant expertise. The proposed debate would pit me (a doctoral student and public interest lawyer) against Honickman (a civil litigator who, per his website bio, works in areas including insurance and personal injury law). Neither of us is a faculty member—and neither of us, to my knowledge, has ever designed a law school curriculum. The Runnymede Society would like us to debate that design process. Why? If the Society is really interested in the nuances of law school curricula, why not invite, for example, Ian Holloway (the Dean at the University of Calgary Faculty of Law who has actually published scholarship on modernizing law school curricula) and Donna Young (the Dean at Ryerson Law who is currently orchestrating its innovative law school curriculum). I am generally happy to discuss why I think critical race theory is an important field. But staging a law school curriculum debate between a doctoral student and a practitioner—neither of whom has ever designed a curriculum, let alone implemented one—strikes me as an odd, if not inappropriate, fit.
2. False Premise
My second reason for declining the debate is that it is founded on a false premise. To illustrate this—and to illustrate my third reason for declining, distraction—is it helpful to consider the genesis for this debate in social media: two somewhat related exchanges on Twitter. Indeed, the Director of the Runnymede Society—Mark Mancini—indicated the link between those exchanges and the proposed debate in a thread responding to both exchanges and then culminating in the debate invitation.
Exchange one was between Honickman and me about a McGill Law job advertisement seeking “candidates poised to increase our transsystemic capacity respecting Indigenous legal traditions and decolonization, or respecting slavery and the law, critical race theory, and Black life.” Honickman commented as follows (I include a screenshot instead of a direct link because the tweet was subsequently deleted, though a thread of replies remains intact):
Essentially, he was echoing what he had previously co-authored in the National Post:
[T]he traditional core curriculum is slowly being supplanted by courses that promote a particular social policy agenda. These highly politicized seminars have become pervasive and are threatening to undermine the very reason law schools exist: to teach students the law and encourage critical thinking.
I then responded, explaining why I disagree with Honickman. He calls critical race theory “ideological”, implying that black letter law is not (it is); he suggests theory is detached from the legal craft (it is not); and he intimates that learning about how the law affects human beings will result in a “knowledge and skill gap” (just the opposite, actually).
Honickman’s call for critical thinking without critical theory is misguided. As Adelle Blackett observes, critical race theory courses provide students with “a more textured, even ambivalent, understanding” of law and power (at 1272). Further, as Patricia Williams notes, critical race theory excavates insights that “have been buried in relatively arcane vocabulary and abstraction”: The Alchemy of Race and Rights (Cambridge: Harvard University Press, 1991) at 6. Indeed, the legal standards we learn about traditionally “are nothing more than structured preferences” (at 103), while critical theory interrogates the principles by which those preferences are chosen and explored (at 109).
But more to the point—i.e., the false premise—Honickman’s position that critical race theorists are overtaking law school curricula in Canada is demonstrably false. McGill’s job ad seeks a critical race theory scholar. Of their 47 current full-time faculty members, just two include critical race theory in their website biography. That is, just 4% of the full-time faculty. If anything, a group genuinely seeking to “foster intellectual diversity” would support such a job ad.
The scarcity of critical race theory in Canadian law schools is not surprising, as one Twitter thread revealed. Indeed, one of the reasons I pursued graduate legal studies in America was that there are so few Canadian scholars in the field (though the few we have are, in my experience, superb). The dearth of these scholars in Canada makes Honickman’s objection to McGill’s job ad all the more puzzling—he’s not objecting to law schools being overrun with critical race theorists, but, in numerical fact, to law schools having such scholars at all.
The accusation that highly politicized seminars are supplanting “the traditional core curriculum” is equally unsubstantiated. One need only compare the mandatory course lists of law schools across Canada to see that the traditional—and contemporary—curriculum remains firmly entrenched.
In this context, debating about “the future of legal education” masquerades as an innocuous open-ended discussion, while in reality, functioning as a platform for what is, quite frankly, an absurd position: that it is somehow objectionable for McGill Law to contemplate leaping from 4 to 6% of its faculty exploring critical race theory. Indeed, the masquerade became clear as the Twitter discussion unfolded. While Honickman decried “ideological” (read: left-wing) “___ and the law” courses as weakening the quality of legal education, he later softened that position with respect to “Law and Economics”, a notoriously conservative “___ and the law” course (again, I include a screenshot rather than a direct link because the tweet was subsequently deleted):
This is ideology.
Of course, we must discuss how legal education should evolve over time. But this isn’t just any debate about legal education. It’s one that was specifically prompted by Honickman’s objection to what is marginal interest in critical race theory from the Canadian legal academy. In the midst of an uprising against racial tyranny, I’m not all that inclined to “debate” the worth of race-conscious analysis, and whether it warrants modest interest from Canadian law schools. If Canada finally appointed a racialized judge to its Supreme Court—what would be an embarrassingly late historical first (at 7)—I would, likewise, decline a debate about “the future of judicial appointments” with someone who claims that having a single Black or Indigenous Supreme Court justice undermines the Court’s merit.
My third reason for declining the debate is that it distracts from demands for greater transparency from the Runnymede Society. As noted above, this follows from a second exchange on Twitter that occurred shortly before Mancini’s debate invitation. That exchange was between Avnish Nanda (a progressive lawyer, based in Edmonton) and Mancini. Nanda asked for transparency from the Runnymede Society: who funds it, who backs it, and greater candour regarding its ideological commitments. Mancini responded somewhat opaquely, providing few particulars on funding or support, and describing the Society as “a group of cross-partisan students and lawyers interested in debating the Rule of Law etc from all perspectives.”
The proposed debate also distracts from this second exchange. Nanda wants information. I do too. The Society’s public track record suggests that it aspires to perform as Canada’s Federalist Society—indeed, their own “Law & Freedom” conference keynote speaker said as much, describing Runnymede as the Federalist Society’s “intellectual equivalent” (at 49:28). But its organizers hold firm—at least publicly—that the Runnymede Society is “entirely non-partisan.”
Let’s put this claim to rest: the Runnymede Society has an obvious ideological bent. This is apparent both from (1) its self-description and (2) its activities. And I suspect it would be apparent from (3) its funders, as well.
With respect to its self-description, the Runnymede Society’s stated goal is “shift[ing] the legal culture in Canada towards liberty”. Likewise, its architects oppose the “living tree” approach to interpreting the Canadian constitution. These are ideological positions, whether or not the Society names them as such.
But let’s go further. The Runnymede Society bills itself as an organization devoted to “exploring the ideas and ideals of constitutionalism, liberty and the rule of law.” These are code words, a form of neutrality theatre staged with rhetorical props:
- by “constitutionalism”, they mean advancing originalist interpretations of the constitution (see here, here, here, and here);
- by “liberty”, they mean privileging certain liberties over equality (e.g., freedom of religion over gay rights or freedom of speech over trans rights) and privileging formal equality over substantive equality; and
- by the “rule of law”, they mean prioritizing colonial legal systems over pre-existing Indigenous legal systems—which, as John Borrows notes (at 581-584), is antithetical to the rule of law.
These deployments of “constitutionalism”, “liberty”, and the “rule of law” are ideologically loaded. The Runnymede Society is—viewed globally and critically—an organization that favours conservative (or, if you prefer, “small-l liberal”) legal methodologies and principles.
With respect to its activities, the Runnymede Society’s political agenda becomes even clearer. The Society prides itself on viewpoint diversity. But what does that look like in practice? To be fair, the Runnymede Society has hosted some debates featuring a range of viewpoints. That said, other events suggest that the organization’s commitment to ideological diversity acts as a rhetorical shield for hateful views.
A case study of one Runnymede Society “debate” is illustrative here. It considered the resolution “be it resolved that people have the right to decide the pronouns by which they will be addressed” (a gesture at Bill C-16, which, in part, added gender identity and expression as protected grounds under the Canadian Human Rights Act).
First, consider the debaters: Jordan Peterson and Bruce Pardy, who both testified before the Senate in opposition to Bill C-16. Pardy was slotted on the ‘pro-trans’ side of the debate. Yet, at 51:10, Pardy acknowledges that his argument at this event was only devil’s advocacy, and that he considers Bill C-16 “outrageous”—making one wonder why they were positioned on opposite ends of this “debate” to begin with. An explanation is later provided: at 1:14:47, the host—Joanna Baron, another Runnymede co-founder—explains that Pardy “argued devil’s advocate because no other law professor was willing to argue with Professor Peterson.” I have my hunch as to why, given how the “debate” unfolded (discussed below).
Second, consider the topic: whether transgender people have the “right” to decide the pronouns by which they will be addressed, not whether transphobic people have the “right” to harass transgender people with impunity. Phrasing matters. Framing matters. Language matters. By setting the parameters of the debate in these terms, the Runnymede Society is shifting the goalposts of the discussion. The result was that this “debate” invited two cisgender conservative men to pat each other on the back for their joint disregard for the dignity and rights of transgender people. Again, this is ideology.
Third, consider the discussion itself. Just three and a half minutes into this hour and fifteen minute long “debate”, Pardy pivots into what this event is really about—not the substance of existing protections for transgender people under human rights law, but the merit of transgender people having human rights protections at all. What “heterodox” insights did this “debate” feature? [Content Warning: transphobia]:
- comparing transgender people to two-year-old “egocentric” infants (at 23:08);
- claiming that transgender identity is “a game people are playing at that moment” (at 29:00);
- describing the philosophy underlying transgender identity as “pathological” (at 29:40);
- characterizing providing transgender people with human rights as “dangerous” (at 31:15) and inevitably leading to “carnage” (at 38:00);
- dehumanizing nonbinary people by referring to them as “it” (at 36:00);
- calling Bill C-16 “a vicious, ill-written, pathological piece of legislation” (at 40:30) and a “tyrant [that] makes people into its slave” (at 47:42);
- saying that “human civilization progresses and maintains itself when we respect people who’ve earned respect” (at 46:06), implying that transgender people do not deserve respect, at least concerning their pronouns; and
- arguing that transgender people who want validation of their gender identity are demanding that other people act as a “mirror for [their] narcissism” (at 1:06:25).
This is not just ideology—it is bigotry. And as Pardy notes at 1:47, “this is exactly the kind of thing that Runnymede was conceived for.” In response to calls for greater transparency, Mancini wrote that the Runnymede Society holds events and “should be judged as an org based on their quality.” Well, this is an event that the Runnymede Society held. And I judge it—and the Society—accordingly.
With respect to its funding, Mancini is unwilling to disclose who financially backs the group because, in his view, that “sets a bad precedent.” Indeed, he considers such calls for transparency analogous to attacks by oil companies on environmental groups—a questionable comparison, as Nanda observes. (Comparing the power of some of the world’s largest private corporations to a few individual twitter accounts is a stretch, to say the least.) Supporters of the Runnymede Society, like Leonid Sirota, claim that funding is irrelevant to the “ideas” it advances. This is transparently false, as anyone familiar with climate denial and the Koch brothers understands. Money is power. And a lack of candour about funding conceals motivation. For example, if Sirota’s report on the alleged unconstitutionality of anti-vaping legislation was specifically funded by the Vaping Industry Trade Association—which actively lobbies against such regulations—it is relevant context to the political aims of the Canadian Constitution Foundation, which both published the Report and founded the Runnymede Society. Of course, the quality of his legal analysis can be questioned on its own terms. But the genesis of research—like the genesis of the debate underlying this post—is relevant. It speaks to the power underlying the gloss of “debate and free discussion” which is specifically designed to conceal that power.
It is disingenuous to claim that an organization is “expressly apolitical” based on its promotion of ‘discussing ideas’ and ‘asking questions’. What ideas? Which questions? Despite Mancini’s support for “unbridled free speech” in law schools (at 9:32), if a student proposed a panel on the merits of slavery, one would hope that the Runnymede Society would not hold it (not due to a fear of “ideas and intellectualism”, but an exercise of judgment). Yet it does agree to host panels debating the merits of basic human rights for transgender people. And it wants to host a debate where one side seemingly takes the position that learning about the law’s role in upholding racism is a distraction law students should do without. These are choices. And those choices reflect the organization’s ideology and priorities, whether or not the Society sees it that way.
To be clear, I take no issue with a conservative legal organization holding political preferences; but I do mind it hiding them. And to the extent that my participation in this debate assists that concealment—to the extent it distracts from these plain facts—I would rather not take part.
If the Society is really open to comprehensive critique, then its financial supporters should be disclosed. And if the Society really wants to debate whether critical race theory has any place in law schools, it can do so without me.
My fourth reason for declining the debate is interest. There are many debates about legal education that I consider important and worthwhile. How we decolonize our law school curricula in Canada, how we deconstruct the artificial theory/practice divide in the classroom, and how we balance a descriptive account of the law with its normative critique all interest me; whether critical race theory courses distract from a proper legal education does not. Of course, critical theory complements a legal education—indeed, as Lex Gill eloquently observes (seriously, read her thread), critical engagement with law is integral to the legal craft. And as Mitch Brown notes, opposing theory in law school “sets up an indulgent false distinction between theory and practice.” How can you understand the law without understanding its relationship with power? How can you frame a legal argument effectively without being mindful of the politics that inevitably influence the judicial exercise? (This is the case not only for concepts like “reasonableness”, “best interests”, and “proportionality”, but also for the broadly phrased constitutional values that the Runnymede Society itself is interested in.) How can you critique the law without considering its material effects? And even just doctrinally, the Supreme Court of Canada has infused critical race theory principles into Canadian jurisprudence. A recent law graduate, Liam Thompson, made this point (which is no surprise, given that he and his team won Canada’s critical race theory moot—the Isaac—earlier this year).
The Runnymede Society is named after the meadow in which King John signed the Magna Carta—an act which is itself emblematic of the law’s inextricable relationship to contests for power. Its co-founder’s view that dissecting this relationship is a distraction from a proper legal education is a profound irony given his organization’s namesake.
My final reason for declining the debate is dignity. Critical race theory is a foundational intellectual tradition in my doctoral research. Also, I am a Black man. I’m not going to debate whether race is relevant to a comprehensive or ethical legal education in a country with a long past, and present, of racism—it clearly is. The law is a primary instrument through which Canadian racism has been—and continues to be—reified. Lawyers’ competence and ethics demand reckoning with this fact, not ignoring it.
In the various online exchanges underlying the proposed debate, Honickman was right about one thing: we do not share the same “worldview” (again, this tweet was deleted, but unlike the others, I do not have a screenshot of it). However, what he fundamentally misunderstands is that “law is … a series of narratives that reflect a deeper worldview” (at 1276). In other words, our disagreement is not simply political, but also legal. Law performs politics. And Honickman’s desire to exclude politics from law school is itself a political position masked in a façade of neutrality.
Returning to Patricia Williams’ timeless insight: “much of what is spoken in so-called objective, unmediated voices is in fact mired in hidden subjectivities and unexamined claims” (The Alchemy of Race and Rights, supra at 11). These words perfectly capture the Runnymede Society’s operation—a veneer of objectivity, which, when more closely examined, reveals latent political commitments.
I genuinely value speech and debate for testing positions and seeking truth. But they have their limits. Uninformed engagement with complex fields can weaken, rather than enhance, our understanding of those fields. Debates predicated on demonstrably false factual claims—or which lack candour in terms of their motivation—can mislead, rather than enlighten. Antiquated discussions can stymie modern conversations concerning pressing issues. Worse, some discussions platform hate. Lastly, to debate a topic is to recognize that topic as worthy of research, preparation, and discussion. I do not consider providing modest access to critical race theory in Canadian legal education to be such a topic. For all these reasons, I am declining to participate in this Runnymede Society debate.