"Don't go searching for war, but if war comes, look the enemy in the eye and do your duty."
by S. Pieters, B.A.
In Pieters v. University of Toronto Faculty of Law and Dean Ronald Daniels a complaint was filed against the University of Toronto Faculty of Law for denying Selwyn Pieters, B.A. (Toronto) 1997, admission to its 1998-1999 undergraduate incoming law class - despite the fact that the applicant has an undergraduate degree and has successfully completed the LSAT. Mr. Pieters is an African Canadian male.
He has demonstrated sustained and extraordinary involvement in activities in service to the community. Member: University of Toronto Academic Board, 1993 - 1998, Member: Committee on Academic Policies and Programs, 1993 - 1995; Member and Secretary, Board of Directors, of the African Canadian Legal Clinic 1997 -1998; Member, Legal Committee, African Canadian Legal Clinic, 1996 - 1998; Volunteer Probation and Parole Officer, Ministry of Correctional Services' Yonge Street Probation and Parole Office, 1992- 1998; Vice Chair: Ontario Public Service Employees Union - Region 5, Human Rights Committee, 1998 - 1999; employed: Federal Court of Canada, Toronto Local Office (1999).
In 1995, Mr. Pieters was a recepient of the Gordon Cressy Student Leadership Award by the University of Toronto Alumni Association in recognition of his substantial extra-curricular contributions to the university as a whole. This is the most prestigious student leadership award at the University of Toronto (for undergraduate or graduate students).
Mr. Pieters' complaint to the Commission was filed (on May 08, 1998) shortly after the release of the report by the Canadian Bar Association entitled "Racial Equality in the Canadian Legal Profession". The CBA report which was critical of legal profession, also looked at the admission policies of law schools and noted that "grade and test-based policies . . . look at one narrow set of skills and fail to assess the breadth of an applicant's knowledge and experience." The CBA report recommended that "law schools must broaden their admissions policies and judge applicants on a range of criteria, which have been carefully examined to ensure that they do not inadvertently perpetuate racist assumptions."
In the graduating class there was no African Canadian graduands in the 1996-1997 or 1997 - 1998 class.
A recent report written by Siobhan Alexander for the Faculty of Law in respect to practice of the University of Toronto of denying access to black students and its disrespectful treatment of African Canadian students when they are admitted to the law school, criticized the law school for its lack of effort and its tokenism. Ms. Alexander observed that:
The low admission rates of Black students at this law school (3.8% in 1991 compared with 13% of the general pool) demonstrates that barriers of a systemic nature are operating in the lives of Black students... The University of Toronto is anachronistic in its refusal to deal with this problem at its root. Despite the Assistant Dean’s warning against proposing an equity program, it would be unprincipled and irresponsible for me not to point to the very essence of the solution to the problem for which she seeks my advice. An increase in the applicant pool, and a higher acceptance rate of offers made, will be easier to accomplish in combination with an access program that explores other means of evaluating applicants. Overcoming or having to struggle with the problems of institutionalized and systemic racism should be valued as experience which makes one better prepared for legal education and the legal profession. Is it not true that an accomplishment in the face of adversity is a greater demonstration of personal strength, motivation and intelligence then the same accomplishment under favorable conditions?
Thus, an access program, which will counter the cumulative effects of racism, eliminating stereotyping, and create a critical mass of Black students, is an essential part of any commitment to correct the under-representation of the African Canadian students at the law school. The Faculty of Law must make this commitment . It is fundamentally unjust that the most prestigious law school in Canada, situated in the most multicultural city of Canada, refuses to contribute to the legal education of an entire race of people.
There is only one full time black law professor at the school. Kevin E. Davis, B.A. (McGill) 1990, LL.B. (Toronto) 1993, LL.M. (Columbia) 1996, called to the Bar of Ontario in 1995, is Assistant Professor of Law. Professor Davis joined the Faculty of Law in 1996.
In a recent high profile case April Burey, B.A. (Dalhousie) 1980, LL.B. (Dalhousie) 1983, LL.M. (Harvard) 1991, called to the Ontario Bar in 1985, was denied tenure for a position in race and gender studies at the faculty of law in favor of a white candidate. Ms. Burey was a civil litigator with the Federal Department of Justice between 1985-1990 where she argued a wide range of Constitutional, including Charter, issues primarily in the Federal Court of Canada (trial and appeal divisions). In 1991, Ms Burey became legal counsel in the Ontario Ministry of the Attorney General, Policy Development Division, Equality Rights Branch, where she developed legal policies for the Attorney General in the area of equality. Most recently Ms Burey appeared as Counsel before the Supreme Court of Canada in the first case dealing with racial equality under Section 15 of the Charter before that Court.
Ms. Burey, in an Open Letter to Ronald Daniels, Dean, Faculty of Law, University of Toronto, wrote:
Law schools are public institutions. A large part of their responsibility and reason for existence is to educate the future participants in our society’s justice system. Law students will participate in several societal justice system functions, including those of lawyer and judge. Lawyers and particularly judges, are powerful arbiters in formulating, determining and applying the very rules by which our society lives. Equality, including respect for the equal dignity and worth of all human beings, is a foundational tenet of our society. Our constitution reminds us, and mandates that it is. This Law School undermines and frustrates society’s very mandate of equality, when it discriminates against women of colour.
As public institutions, with an important societal responsibility, it is particularly egregious when law schools acts as private fiefdoms and declare, on a despotic whim reminiscent of the divine right of kings, that access to opportunities should be effectively be withheld from people of colour
Law (including law faculties) is not distinct from the society of which it is a part. All society suffers an incalculable loss when all human beings are not given access to participate equally in law. This illicit, political maneuvering which continue to keep certain groups outside of law faculties are reflected in the larger society to which these faculties are integral.
The University of Toronto Law School had responded to Mr. Pieters human rights complaint asking the Commission to dismiss it on the basis that it is "frivolous and vexatious" within the meaning of section 34(1)(b) of the Code.
Mr. Pieters filed a reply submission in response to the Faculty of Law response. In that submission he noted that, despite the assertions of the law school, his complaint is highly meritorious and very serious. Mr. Pieters also noted that his case is about systemic discrimination, since it:
present issues of the exclusion of a significant number of African Canadians, an historically disadvantaged group in Ontario, from equal educational access and educational opportunities at the University of Toronto law school due to adverse effect discrimination; challenges the formal admissions policy of the law school which excludes a significant number African Canadian applicants, including me, to the law school; creates a racially isolated and “inhospitable” environment for those African Canadians who do attend the law school; and deny me the benefit of a legal education at the law school due to adverse effect discrimination contrary sections 1, 9, and 11 of the Code and is the very basis of systemic discrimination may lead to the creation of an affirmation action program that can be adopted as a model in other strategic cases dealing with university admissions.
What is the status of the human rights complaints at the Ontario Human Rights Commission?
The Ontario Human Rights Commission upon reviewing the Faculty of Law section 34(1)(b) response observed that:
"The University's assertion the Mr. Pieters' complaint was 'frivolous and vexatious' within the meaning of subsection 34(1)(b) of the Code, was without merit (i.e. incorrect)."
The University of Toronto has since withdrawn its request that the Commission not deal with this complaint. Bonnie Croll, on behalf of the Faculty of Law, wrote:
"this will confirm that the Faculty of Law will withdraw its request under Section 34 of the Ontario Human Rights Code and we understand that an investigation will be commenced."
Between September 1998 to October 12, 1999, the complaint remained inactive at the Investigation Branch of the Commission.
As of November 1999, there has been some activity. The human rights complaints against the Respondents, University of Windsor, Faculty of Law; Queen's University, Faculty of Law; and Osgoode Hall Law School of York University; were served upon the respondents and the Commission is awaiting the Respondent law schools' response. Upon receipt of the law schools' response Mr. Pieters will be afforded a right of reply.
The human rights complaints against the University of Toronto, Faculty of Law; University of Windsor, Faculty of Law; Queen's University, Faculty of Law; and Osgoode Hall Law School of York University, will be investigated, in early 2000, by a team of investigators under the supervision of Dora Nipp, a lawyer at the Commission.
LSAT Test Scores
The University of Toronto Faculty of Law admissions' policy, practices and procedures excludes blacks from the law school by requiring:
LSAT: ...Percentile Rank of 85 or greater, Scores averagedAcademic Minimums: "A-" on 3 best years for regular applicants [Information obtained from the Ontario Law School Application Service (OLSAS) webpage]
The LSAT tells you nothing about how a person is going to perform in law school, nor does it tell you anything about the ability of the person.
Academics, and equal opportunity experts, who have written extensively on the subject of standardized test notes that:
i. Performance on the LSAT is not a reliable predictor of performance at law school.
ii. African Canadians and African Americans who falls under Affirmative Action programs do not do well on the LSAT regardless of socio-economic status or academic preparation they tend to score lower than do white students. Using the LSAT to bar consideration, therefore, is adverse effect discrimination against African Canadians.
Following from the two postulates cited above, it is Mr. Pieters position that:
i. using LSAT scores is an arbitrary or irrelevant measure of merit;
ii. using an arbitrary or irrelevant measure of merit to bar consideration for admission to the law school is discrimination.
As noted by Philip D. Shelton, President and Executive Director, Law School Admissions Council (which administers the LSAT):
"Surely, we know that qualities like energy, self-discipline, diligence, persistence, and willingness to work hard and long are all indicators likely to produce success .... We know the LSAT tells us absolutely nothing about any of these qualities."
The standard that law schools are using to determine an applicant’s ability is arbitrary, irrelevant, unfair and discriminatory.
What is Required?
The Association of American Universities has adopted a statement that:
the evaluation of an individual applicant to our universities cannot ... be based on a narrow or mainly "statistical" definition of merit. The concept of merit must take fully into account ... the many unquantifiable human qualities and capacities of individuals, including their promise for continuing future development. It must include characteristics such as the potential for leadership -- especially the requirements for leadership in a heterogeneous democratic society such as ours.
The LSAT is not a culturally appropriate tool to measure merit for the purpose of law school admissions and is a systemic barrier for Blacks and Latinos. Common Law Schools in Ontario must be prohibited from using the Law School Admission Test as a measure of merit for the purpose of determining whether a Candidate is admitted to a common law school.
Without the LSAT, Law schools can focus on, amongst other factors, undergraduate grade point average, personal achievement, community service, historically disadvantaged by virtue of race or socioeconomic status, underrepresented racial minority groups, and the background of the applicants. Applicants selected based on these qualities and characteristics may bring a different perspective to the law school: "Stagnant, mainstream versions of law can be revitalized by the infusion of new, formerly ignored, legal visions."
Because of the under-representation of Blacks at University of Toronto, Faculty of Law, an "access" or affirmative action program must be imposed on the University of Toronto law school by the Ontario Human Rights Commission because the voluntary measures "minority outreach program" at the University of Toronto law school is ineffective and useless.
And, moreover, an affirmative action remedy is necessary because the law school rejected the proposal of African Canadian groups and law school graduates to form an "African Canadian Advisory Committee" to assist in the removal of systemic barriers that accounts for the under-representation of African Canadian students.
The Application for an Injunction in the Ontario Superior Court of Justice
On October 12, 1999, Mr. Pieters moved to the Ontario Court by way of an Application for Judicial Review due to the delay at the Ontario Human Rights Commission in processing his complaint through the normal course of investigation seeking the following remedies:
An order in the nature of prohibition prohibiting the Respondents law schools, the University of Toronto, Faculty of Law; University of Windsor, Faculty of Law; Queen's University, Faculty of Law; and Osgoode Hall Law School of York University, and all other law schools in Ontario from using LSAT test scores as a measure of merit for the purpose of determining whether a Candidate, including me, is admitted to a common law law school in Ontario until the Commission and/or a Board of Inquiry has made a determination in respect to the merits of the Applicant's human rights complaints...
Mr. Pieters has also brought a motion to the Ontario Superior Court of Justice, Divisional Court seeking a court injunction against all of the of the law schools in the Province of Ontario to prevent them from using the LSAT test scores as a measure of merit for the purpose of choosing which students will be offered admission to law school in 2000- 2001. Mr. Pieters will ask that this injunction be effective until the Ontario Human Rights Commission rules on his complaint of racial discrimination against the Respondent law schools.
On January 31, 2000, a Notice of Abandonment was filed in the Ontario Superior Court of Justice (Divisional Court) termination the application for Judical Review.
What you can do to help
1. If you are a black law school candidate and was rejected from the University of Toronto, Faculty of Law; University of Windsor, Faculty of Law; Queen's University, Faculty of Law; and Osgoode Hall Law School of York University, because of a low LSAT score, please contact us via the email address below if you are willing to provide a written statment of fact to the Commission and we will mail you the form.
2. If you have experienced systemic discrimination at the Faculty of Law, University of Toronto, or has witnessed systemic discrimination or knows of anyone who has experienced systemic discrimiantion at the Faculty of Law please contact us via the email address below if you are willing to provide a written statment of fact to the Commission and we will mail you the form.
|| Case Analysis, Queens University, Faculty of Law |
Case Analysis, University of Toronto, Faculty of law |
Case Analysis, University of Windsor, Faculty of Law |
Case Analysis, York University, Osgoode Hall Law school |
Index of the complainant reply to the Law Schools response to the human rights complaints |
Further Response from University of Windsor, York University and Queen's University Law Schools |
Complaint Against University of Toronto Law School |
Complainant Reply to University of Toronto Law School Response
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Complainant Reply to WindSor University and Queen's University Law School Response(s)
|Racial Equality in the Canadian Legal Profession Canadian Bar Association |
British Columbia (Public Service Employee Relations Commission) v. BCGSEU Supreme Court of Canada|
Affirmative action needed at law by S. Pieters, The Bulletin, November 30, 1998 |
Law does consider minority circumstances by U of T Law Dean, Ronald Daniels, The Bulletin, January 11, 1999|
Graduate to test law school admission process in court action: Rejected applicant says assessment discriminates against minorities by Adrian Humphreys, National Post, October 14, 1999 |
Law school sued for discrimination by Paul-Mark Rendon, The UWO Gazette, October 19, 1999 |
LSAT isn't all about intelligence by Aleem Visram, The UWO Gazette, October 26, 1999 |
LSAT discriminates, says former U of T student: Court injunction would prevent its use across the province By Richard McKergow, The Varsity, October 28, 1999 |
LSAT's day in court postponed by Paul-Mark Rendon, The UWO Gazette, November 4, 1999|
Lupus patient sues after extra time on test denied Ontario woman seeks $3.25M after poor score on LSAT by Adrian Humphreys, National Post, November 10, 1999 |
Student complaint leads to review of faculty's
admissions policy: Human Rights Commission to investigate use of LSAT by James Hoffner, Ultra Vires, November 11, 1999 |
Judging the LSAT, judging the professionEditorial: Ultra Vires, November 11, 1999 |
Law school test ‘culturally biased’ by Ron Fanfair, The Share, November 11, 1999 |
Can’t get no SATisfaction: Why the LSAT needs to be scrapped By Vilko Zbogar, The Varsity, December 6, 1999 |
JUSTICE DEPARTMENT SUES LAW SCHOOL ADMISSION COUNCIL OVER TESTING POLICIES AND PRACTICE December 8, 1999 |
Equity and Diversity Action Plans Law Society of Upper Canada |
"The Compelling Need for Diversity in Higher Education" (expert reports prepared for the lawsuits, January 1999) |
EXPERT REPORT OF DEREK BOK |
EXPERT REPORT OF CLAUDE STEELE |
EXCELLENCE, COMPETITION AND HIERARCHY: Workshop on the Future of Canadian Legal Education Legal Research Institute University of Manitoba, May 1999|
On the Importance of Diversity in University Admissions |
American Bar Assoc. Considers Plan to Reduce Use of LSAT |
Gratz and Hamacher v. Bollinger et. al.,
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Grutter v. Bollinger et al |
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This page was updated on February 11, 2000.
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