Critical Race Theory in Legal Education

Canada has a long history of (mostly) productive tension between the profession and law schools about the preferred content and mode of legal education, but occasionally, this productive tension deteriorates into stereotyping. In those low moments, the practicing bar is accused of narrow-mindedly favouring black-letter law and practical skills training, while the legal academy is off on some buzzword-heavy frolic of its own. In this parallel and distinctly two-dimensional universe, lawyers in the process of hiring articling students or associates are readily able to spot problems with legal education from student transcripts without any detour through actual law classes or syllabi, flagging “and courses” as well as anything with the words “theory” or “critical” in the course title.

As well rehearsed as these allegations may be, they do represent a caricature of learning and practicing law in Canada in at least two important ways. Firstly, it suggests that we are more divided than we actually are. Few legal educators doubt that students should learn legal doctrine, research and analysis. Few advocates believe that you can win cases or shape agreements without paying attention to the human relationships, economic impacts or social realities that surround the law. Secondly, neither the profession nor the legal academy are monolithic. At the Bora Laskin Faculty of Law, we strive to graduate practice-ready lawyers and our Integrated Practice Curriculum ensures that our graduates are indeed ready to hit the ground running. As the dean of this young faculty, I listen to students, lawyers, judges, scholars and community members, and I spend a great deal of time thinking about what our graduates will need in the summer after they graduate and are called to the bar, but also what they will need for a lifetime in the law.

The latest version of criticism regarding the law curriculum is the inclusion of Critical Race Theory, served up with a side of denigration for its teachers. While I am generally fairly open-minded about what is essential in the curriculum, I have no tolerance for social media assaults on junior faculty members, and neither, dear reader, should you. The question surely must be whether a course is sufficiently in demand, useful, interesting and engaging to warrant a place in the schedule. There is considerable student demand for a CRT course at the Bora Laskin Faculty of Law. Students argue that such a course meets the standard I have set out, and in my view, the students are right. Canada is a jurisdiction where courts take a sophisticated and nuanced view of the role of social facts. Decisions from our highest court rely on various critical legal theories to arrive at decisions that are not merely formally correct, but that also seek to bend the arc of history towards justice. As well, Canada is a jurisdiction with a complex and not infrequently unhappy legal history of race relations. The Charter guarantees racial equality in s. 15, and questions of race and racialization are highly important to Charter guarantees related to criminal justice. Even those of us who went to law school in the pre-Charter era may recall the importance of racial discrimination in restrictive covenants. There are few, if any, areas of law that are untouched by race and racialization. To prepare students adequately for the practice of law, many law teachers think that CRT should be taught in law school.

There are interesting conversations to be had about whether CRT should be taught as a freestanding course and/or embedded in other courses. Some of those conversations may track the discussion we have been having about Calls to Action #27 and #28 of the Truth and Reconciliation Commission. Over the past 40+ years, CRT has been an extremely productive theoretical framework, with a life not only in law but also in other disciplines. Some CRT discussions will therefore be interdisciplinary. There are also interesting questions about whether the analytical toolkit of CRT is helpful in further areas of the law. Finally, there is a rich literature of different CRTs, and sophisticated scholarship that seeks to answer key legal questions of today and tomorrow informed by critical theories. Theory and first principles are our resorts when the law needs to address novel problems and does not have an answer (yet). The lawyers of tomorrow will have to answer questions that we have yet to ask. Let’s make sure they have as much help as possible.