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

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Law societies shouldn’t accredit legislation colleges which have discriminatory admissions insurance policies. In my opinion, this assertion has all the time been morally true. However we now know that this assertion is legally true due to the Supreme Courtroom of Canada’s selections within the two latest TWU instances (see, right here and right here).

The Courtroom’s evaluation in each instances purportedly proceeded underneath a “reasonableness” commonplace of evaluation and, thus, professed to not converse on to the last word correctness of the legislation societies’ refusals to accredit a proposed legislation faculty that, to make use of the Courtroom’s phrases, “successfully bars many LGBTQ individuals from attending.” Considered critically, nevertheless, what the Courtroom really did in these instances was to “have interaction in de novo evaluation of the entire authorized points raised by TWU’s utility” and attain its personal conclusions about these points (Alice Woolley and I’ve beforehand made this level right here). Among the many conclusions reached have been that the governing laws of the legislation societies required them “to think about the overarching goal of defending the general public curiosity in figuring out…whether or not to approve a selected legislation faculty”, that “limiting entry to membership within the authorized occupation on the premise of non-public traits, unrelated to benefit, is inherently inimical to the integrity of the authorized occupation”, and that by not approving a proposed legislation faculty with “inequitable boundaries to entry” the legislation societies considerably superior their statutory goals to guard the general public curiosity. The Courtroom’s selections in these two instances have been primarily based on the actual details surrounding this explicit proposed legislation faculty. They do, nevertheless, present a powerful foundation to conclude that, if a legislation society selected to accredit a proposed legislation faculty with a discriminatory admissions coverage sooner or later, it might danger a court docket discovering that it was appearing opposite to its statutory goals.

However why depart room for any doubt? We should always embrace non-discrimination provisions within the related statutory schemes that govern legislation societies’ accreditation of legislation colleges.

Including non-discrimination provisions would affirm the dedication of legislation societies to the values of equality and inclusion within the authorized occupation. To be clear, I don’t consider that together with such provisions would repair the deep-seated issues of our occupation in relation to equality and inclusion. The reality {that a} non-discrimination provision can’t do all the things, nevertheless, doesn’t imply that it might do nothing. As my colleague Constance Backhouse explores in her compelling paper titled “Gender and Race within the Development of ‘Authorized Professionalism’: Historic Views”, our occupation has a historical past deeply marked with “energy, exclusion, and dominance.” On this context, taking a small step to obviously reject one kind of discrimination is significant and a superb, if effectually restricted, factor.

Different organizations and regulators have already adopted non-discrimination insurance policies. Universities Canada, an advocacy group for Canadian universities, requires every institutional member to affirm “its dedication to equal remedy of all individuals with out discrimination, on the premise of race, spiritual beliefs, color, gender, bodily or psychological incapacity, age, ancestry, fatherland, marital standing, household standing, intercourse, and sexual orientation, or different grounds recognized in relevant human rights legislation.” The Committee on Accreditation of Canadian Medical Schools (CACMS)’s Requirements and Parts doc, which types the premise of medical faculty accreditation selections, requires that medical colleges and their scientific associates “not discriminate on any grounds as specified by legislation together with, however not restricted to, age, creed, gender id, nationwide origin, race, intercourse, or sexual orientation.” The American Bar Affiliation (ABA)’s requirements for approving legislation colleges mandate that “a legislation faculty shall not use admission insurance policies or take different motion to preclude admission of candidates or retention of scholars on the premise of race, shade, faith, nationwide origin, gender, sexual orientation, age, or incapacity.”

None of those examples present completely analogous precedents. Universities Canada is, as famous above, an advocacy group and never an accrediting physique. CACMS has the facility to accredit, however this energy extends to, clearly, medical colleges and never legislation colleges. The ABA approves legislation colleges, however its non-discrimination provision notably accommodates exemptions for “religiously affiliated colleges” that might unlikely face up to judicial scrutiny post-TWU.

That mentioned, the truth that non-discrimination provisions in relation to admissions may be discovered elsewhere ought to give Canadian legislation societies some measure of assurance that administering such provisions in relation to legislation colleges wouldn’t result in regulatory catastrophe. Certainly, others have already steered that it might be a good suggestion. In 2014, the Canadian Bar Affiliation handed a decision stating:

BE IT RESOLVED THAT the Canadian Bar Affiliation urge the Federation of Law Societies of Canada and the provincial and territorial legislation societies to require all authorized teaching programs acknowledged by the legislation societies for admission to the bar to offer equal alternative with out discrimination on the premise of race, nationwide or ethnic origin, color, faith, intercourse, sexual orientation, gender expression, gender id, age or psychological or bodily incapacity, or conduct that’s integral to and inseparable from id for all individuals concerned in authorized training – together with college, directors and workers (in hiring, continuation, promotion and persevering with college standing), candidates for admission, enrolled college students and graduates of these instructional applications.

Following this decision, in early October 2016, the Federation of Law Societies of Canada launched a “draft report for session” on the query of whether or not the Nationwide Requirement needs to be amended so as to add a non-discrimination provision however then suspended its session a number of weeks later citing the “the continuing litigation between Trinity Western College and the legislation societies in Ontario and British Columbia.”

With this litigation now resolved, it’s time to embrace non-discrimination provisions within the statutory schemes that govern the accreditation of legislation colleges. I might argue, nevertheless, that this measure is greatest undertaken by every particular person legislation society moderately than on the stage of the Nationwide Requirement adopted by the Federation of Law Societies. As famous within the Federation’s session report on this situation and as was obvious within the Supreme Courtroom’s selections in TWU, every legislation society’s relationship to the act of accreditation is ruled by a singular statutory scheme. Given this actuality, much less battle and confusion will outcome by coping with this within the context of every of those particular authorized contexts moderately than making an attempt a national-level resolution. Additional, for further accountability and good governance causes that Alice Woolley and I elaborate at size right here, there are sturdy causes to consider that one of these public coverage choice rests bests with the legislation societies themselves.

The Supreme Courtroom of Canada’s selections within the two TWU instances concluded litigation on the query of whether or not the legislation societies of Ontario and British Columbia acted fairly in refusing to accredit TWU’s proposed legislation faculty. Canadian legislation societies are probably relieved that this contentious chapter is over. However, a broader query raised by this litigation – how legislation societies ought to take care of proposed legislation colleges with discriminatory admissions insurance policies – has not been totally answered. It’s time for legislation societies to steer as fashionable regulators by adopting non-discrimination provisions or, the place legislative change is critical, advocating for this legislative change.

http://www.slaw.ca/2018/08/09/lets-be-clear-the-case-for-explicitly-banning-discriminatory-law-schools/

 

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