National Post

Page URL: http://www.nationalpost.com/commentary.asp?f=990421/2505208

Wednesday, April 21, 1999

Prejudice in the law schools

Martin Loney
National Post

Recently, the release of the Canadian Bar Association report Racial Equality in the Canadian Legal Profession, gave wide publicity to claims that racism is rife in Canada's legal profession. Among the report's conclusions were that law school admission tests discriminate against minorities, that academic legal staff include few members of minority groups, and that discrimination in hiring and judicial appointments is widespread.

These are serious charges. But readers who scrutinize the report to find statistical data that support its conclusions will be sadly disappointed. The CBA working group had embraced "critical race theory" -- a legal theory that hitherto had occupied the radical margins of academia -- and its approach was not to question whether racism is pervasive but to assert it -- and that loudly. Thus, the conclusion that minorities face discrimination in law school admission is based not on anything so obvious as a comparison of the relative success of similarly qualified applicants from different ethnic backgrounds, nor on any actual count of the representation of minorities in such programs. Instead the report's authors simply assert that the standard Law School Admission Test fails to take account of such factors as multiple language abilities, cultural knowledge, an applicant's interests and inevitably that great standby of the preferential admission's advocate, community work.

Now, let me make every allowance in the report's favour. The LSAT, an American test instrument, may put those for whom English is a second language at some disadvantage. But the claim that it is racially discriminatory is quite without evidence. Skin colour is no predictor of academic competence: At the PhD level, Canadian visible minorities are represented at twice their proportion in the undergraduate population. And if law schools have failed to capture their share of talented minorities -- a question on which the report presents no evidence -- it may be because they have found careers in engineering and math and physical sciences (where they are strongly represented) more appealing.

Unfortunately the report's authors are no closer to answering such a question than they were four years ago when they began. This would require some grasp of the relevant data at a minimum; again, however, the report fails to offer any definition of which groups are facing discrimination, or any statistics on the representation of such groups in the Canadian population and the legal profession.

The closest the authors get even to defining the subject of their inquiry is to claim that discrimination is experienced by racialized communities -- that is, communities defined by a collective experience of racism. This myopic definition assumes what is supposedly the object of investigation -- that Canadian institutions do indeed treat people unfavourably on the basis of their perceived group membership. How, then, should the CBA inquiry have tested this? The most common outcome of such differential treatment would be exclusion or restricted admission to desirable educational opportunities or employment. Historically in Canada, for example, Jews faced overt discrimination. In the 1930s McGill University required Jewish candidates to score higher than 700 on their matriculation marks, while non-Jewish candidates required a more modest 630. Where variable standards are in force today, however, they universally operate to privilege minority candidates.

Of course, the report's authors claim to have found evidence of discrimination against law school graduates who are members of a minority; but careful reading of the report itself affords evidence only of the lack of scholarship of those who compiled it. One widely reported finding cited a 1996 report from the Law Society of Upper Canada, which had found that visible minorities comprised 17% of those graduating from law school, but a whopping 44% of those unable to find appointments. This appears to be a significant measure of discrimination (though, if true, it also refutes the report's earlier claim that the LSAT is discriminatory, since visible minorities constitute only 12% of the undergraduate population).

Nonetheless, statistical evidence of such apparent discrimination surely merited further examination. Not by the CBA working group, apparently. The alleged report itself was not consulted; a footnote refers readers to a submission by the highly partisan African Canadian Legal Clinic; but this, in turn, refers not to any study but to a report in the Law Times. Repeated calls to the Canadian Bar Association, the Law Society, and the African Canadian Legal Clinic failed to identify any study. Reference to the Law Times indicated the figures came from a bencher, Nancy Backhouse. Ms. Backhouse, in turn, said they were provided to her by the Upper Canada Law Society and they were based on respondents identifying themselves as members of a visible minority. No documentary report existed and Ms. Backhouse acknowledged there were "frailties" about the figures.

Even in a field replete with dubious statistics purporting to demonstrate discrimination by the time-honoured method of comparing apples and oranges, any half-way decent study would at a minimum compare students of similar age, English language fluency, area of specialization, and academic grade, before claiming evidence of discrimination. The results could then be made available for expert review. Nothing of that kind is found in the report.

The absence of convincing evidence of "systemic discrimination" did not, of course, deter the working group from making sweeping recommendations to eliminate it. This will no doubt fortify the University of Ottawa's law school, which attracted some unfavourable comment when it was reported that students facing "barriers related to race or culture" could seek extra time when writing exams. Other law schools have emphasized the value of explicitly considering race and gender when making faculty appointments. Dalhousie boasts the James Robinson Johnson chair, appointment to which is only open to black applicants. And the UBC Law Faculty offers to appoint suitably qualified designated group applicants to senior positions -- an option not available to those lacking in melanin and burdened with the wrong chromosome.

Such reverse discrimination is customarily justified as necessary to eradicate plain, ordinary, unhyphenated discrimination. So these law schools should feel some unease that the CBA report seeking to establish its pervasiveness cannot distinguish between claims, evidence, and proof -- distinctions that should be important to lawyers. Meanwhile, the cumulative effects of their own discrimination will be to encourage prejudicial attitudes, to increase the salience of race, and to inhibit the creation of a colour-blind citizenship. Naturally, it will also afford continuing opportunities to those in the multicultural grievance industry.

Martin Loney is the author of The Pursuit of Division: Race, Gender and Preferential Hiring in Canada.

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