by April Burey, B.A, LL.B. LLM. (Harvard)
Dear Dean Daniels:
Re: Recent Faculty Position on Race and Gender
As a black woman with a physical disability, I have often inwardly mused with a “philosophic mind” at the myriad of incidents of discrimination I have personally experienced and observed, and of which I have read and heard. The most recent and blatant example of discrimination in the entire process regarding the above full time position, impels me not only to muse but also to write this letter.
With one very recent exception of a black man, all full-time faculty members at the Law School of the University of Toronto are white. In February of this year, 1997, the Law School advertised a new full-time position on race and gender issues, to be shared in lesser part with Women Studies at the University. I have recently been told, and have since confirmed, that the Law School offered the position to a white woman.
Several highly qualified women of colour, of whom I am one, applied for the position. I was not even granted an interview. This latter exclusion was the most of a series of similar rejected applications I have made to the law school for a full-time faculty position, since the conferment of my LL.M. degree from Harvard in 1991.
I propose to divide my comments into three parts. First, I will address some of the Law School’s illegal, discriminatory actions, with respect to me in particular. Second, I will discuss some of the implications of this discrimination for the Law faculty, including the student body. Third, I will explore some of the broader societal impact of this discrimination. These three comments are not distinct, but are very much inter-related.
1: THE LAW SCHOOL’S DISCRIMINATORY ACTIONS REGARDING ME
In this section I propose to discuss first some of my own, very high, “merit” qualification and second why my exclusion, from even an interview, was discriminatory.
A. “Merit”
Among my exceptional “merit” academic qualifications are these:
I hold a Master of Laws (LL.M.) degree conferred in 1991, from Harvard University. At Harvard, I specialized in public international law, with an emphasis on human rights law and its relationship to Canada’s Charter of Rights. At Harvard, too, I was privileged to take a course from, and come to know, Professor Derrick Bell. and Professor Bell is widely acknowledged as the father of Critical Race Theory - a new and transformative vision of the inter-relationship between law and race. His teaching and example transformed me. In particular, I came to understanding that my experience of life as a black woman was integral to, and not divorced from, law.
I hold an LL.B. degree (conferred in 1983), and a B.A. degree (majors French and Spanish, conferred in 1980) from Dalhousie University, where I was an outstanding student, including having straight “A’s” in my undergraduate courses at Dalhousie. I was called to the Ontario Bar in 1985, on completion of the Bar Admission Course.
My exceptional “merit” work experience include:
In March of this year, I appeared as Counsel before the Supreme Court of Canada in the first case to deal with race equality under Section 15 of the Charter before that Court. The case dealt with the Crown’s allegations of racial bias against a female judge in her acquittal of a black youth. It raised important equality issues of both race and gender. My appearance was the subject of the enclosed article in the following day’s Ottawa Citizen.
Since 1982, I have been a part-time lecturer in human rights at this Law Faculty. My course has always focused on equality, including the equality of women and/or blacks. I have been nominated by my students for a teaching award (and to my knowledge, not ever previously done for a lecturer here) and am consistently very highly rated by students.
In 1991, I became Legal Counsel in the Equality Rights Branch of the Ontario Ministry of the Attorney General, Policy Development Division. In that capacity, I developed legal policies for the Attorney general in areas dealing primarily with equality rights, including those of “minorities” and/or women.
I practised law as a civil litigator with the Federal Department of Justice where I was employed between 1985-1990. I dealt with a wide range of constitutional, including Charter, issues. Section 15 of the Charter (the main equality rights provision) was then only newly in force (April 1985) and gave rise to some interesting and important litigation.
The three referees in support of my application for the instant position were Professor Derrick Bell, former Weld Professor of Law at Harvard Law School; Ms Thea Herman, the most senior woman public servant in the Federal Department of Justice, under whom I worked directly when she headed the Equality Rights Branch at the Ontario Ministry of the Attorney General. Ms Herman is now in charge of the Federal justice policy on inter alia equality rights; and Professor Leon Trackman, Dalhousie Law School. Professor Trackman was one of my law professors at Dalhousie and has his doctorate in law (S.J.D.) from Harvard University. He is widely acknowledged as a brilliant and outstanding legal academic in Canada.
B. The Law School’s Discrimination Even in the Presence of “Merit”
In the leading decision on equality under section 15 of the Charter, the Supreme Court of Canada defined discrimination to include "...a distinction, whether intentional or not, but based on grounds relating to personal characteristics of the individual or group, which has the effect of ... withhold[ing] or limit[ing] access to opportunities, benefits and advantages available to other members of the society.” The Court went on to explain that where the discrimination is not based on merit, but rather has the effect of excluding individuals and groups on the basis of personal characteristics, such as race, the withholding or limiting of opportunities is discriminatory. (see Andrews v. Law Society of British Columbia, (1989), 56 D.L.R. (4th) 1 (S.C.C.), at 18)
Under whatever criteria of “merit” are applied, I certainly have, as did other women of colour applicants, far more than enough “merit” qualifications to be interviewed and/or hired. The distinction made in not even interviewing me and in not hiring any meritorious women of colour, clearly had the effect of discriminating on the basis of the personal characteristic of race. Such discrimination, along with others, is also specifically prohibited in the area of employment under the Ontario Human Rights Code.
I have concluded that “merit”, for the purposes of full-time faculty status at the Law School of the University of Toronto, is an illusory concept. The standard of “merit” is so shiftingly, variously and arbitrarily applied by the Law School as to be meaningless. Does “merit” have to do with an American Ivy League LL.M. degree, which many, but not all, full-time faculty, hold? Does it have to do with with an established publishing record, which most, including very recent full-time faculty, do not have on being hired? Does it have to do with excellent or even adequate student reviews, which even full-time faculty may or may not have? Does it have to do with proven teaching experience, which many did not or do not have on being hired? Does it have to do with excellent referees? Does it have to do with brilliance? Does it have to do with practical litigation experience? Perhaps most importantly for the instant position, does it have to do with with a personal, deep , experiential commitment to the area of law in which one proposes to specialize, and for which one is being hired? The Law School uses an illusory standard of “merit” as a mask behind which to hide what is effectively constitutes continuing discrimination on the basis of race.
Further, rather than having anything to do with some illusory objective standard of “merit”, decisions on whether or not to interview or hire at the Law School appear to depend on subjective status-quo determination of whether or not someone will “fit”. In a virtually all-white faculty, it is perhaps easy to understand why women of colour would not be perceived by the Law School’s existing status-quo to be qualified. Past exclusion perpetuates present and future discrimination.
I lack words to fully, or even sufficiently, describe how this discrimination affects me personally. Years ago, I had almost left law entirely because of the disheartening and insidious despair that was creeping into my life practising as a civil litigator in the courts. Seeking earnestly for inner redemption, I resolved to contribute positively to law and society by teaching law students. Although still groping, I sensed that this teaching would be done in a way that could transform law to truly serve the public, instead of being a mechanism for the maintenance of the status-quo, and the legal institutional championing of the powerful over the weak. Having regard to the established “merit” criteria, I applied to, and was accepted by, what some call the premier Law School in America, Harvard. There I was privileged to learn from two teachers, Professor Bell and Professor Roberto Unger, an acclaimed Critical Legal Scholar, who transformed my understanding of a “juster justice” and a more “lawful law.” Later, as a part-time lecturer at this Law School, I was exhilarated to have finally found the vocation to which I am called - teaching law. (Teaching is, of course, an act of creation, including: thinking, reading, inspiration, vision writing, listening, learning as well as lecturing.) The Law School’s effective, continuing exclusion of people on the basis of race, has had unspeakable negative effects on me personally as a human being.
2: SOME IMPLICATIONS OF THIS DISCRIMINATION FOR FACULTY AND STUDENTS
Having taught as a part-time lecturer at this Law School since 1982, I feel I have a unique insider qualification to write on this subject. My “outsider-other” experiences, as a black women in a wheelchair, lecturing in this Law School, have also given me an invaluable and advantageous outsider “bird’s eye view” of this topic.
The vast majority of my students will know that I write, in particular this section out of a deep commitment to, and concern for, the quality of legal education that they receive at this faculty.
Law is as diverse as life itself. For this reason, a well-rounded, and profound academic legal education must include diverse visions of law. This diversity must be reflected in the areas of law which are taught, as well as the professors who make up the full-time faculty. To deny students this exposure, is to deny them a full legal education.
Exclusion of these diverse visions serves to give students the erroneous impression, that certain areas (e.g. race and law) are neither legitimate nor worthy of academic legal study. The the contrary, I have learned through continued experience, that study of the so-called margins reveals much that is hidden about the whole (including the so-called centre and mainstream). Further, those very areas (e.g. law at the intersection of race and gender) which are presently rejected by mainstream legal builders as marginal, in fact form the cornerstone, and are integral to any true understanding of law itself. Indeed, this is one of the central lessons of Critical Race Theory.
Exclusion also sends students the very wrong message that certain people (e.g. women of colour) lack the academic capacity to be full-time members of a law faculty. Even in my very limited capacity as a part-time lecturer, teaching only one course, I know that I have had a remarkable impact as a role model on all of my students, of whatever colour. It is of incalculable importance that law Students - who after all should be trained as servants of the public in the truest sense - learn by experience that people of all races, abilities, genders, creeds, origins ... have the intellectual capacity and academic learning to be full-time lecturers. This experiential understanding of the equality (not sameness) of all human beings is essential to whether and how law students become properly educated to serve a diverse society. I have also taken much pride in my relationship with women of colour law students. They have often expressed that it has been like a breathing space for them to have me, even as a part-time lecturer. My presence, and my words too, remind them that going on to further, graduate study in law is a viable choice and that legal academia is a place where they, too, belong.
For full-time faculty at the Law School, much of what I have just written applies. Stagnant, mainstream versions of law can be revitalized by the infusion of new, formerly ignored, legal visions. In Canada, race remains one of those marginalized areas that cries out for academic legal study. (One significant manifestation of this margainization is that today there remains only one tenured black law professor in all of Canada!) The inter-change of ideas between diverse faculty members can lead to an understanding of, respect for, and incorporation of different legal academic views. Through diversity, all faculty members can benefit form, and pass on to their students, a broader, more expansive and truer vision of law. (I give one example here. I recently had a discussion with a white, male, Harvard LL.M. classmate, who is a full-time faculty member here, about the Supreme Court of Canada decision on the Income Tax Act in Symes. Our discussion revealed that a traditional, mainstream version of that case was transformed by a critical race theory analysis of its meaning and implications. (see Symes v. Canada [1993] 4 S.C.R. 695))
Further, I say that having a legal academic woman of colour is indespenible to the instant position. To say otherwise is almost too absurd an argument to address! Race remains one of the most excluded areas of law. Only from among those who have been so excluded can any true vision emerge. Only from those who have been silenced can an undeniable true, and heretofore unheard voice, be sounded. It would be immoral to further exclude and silence this voice by allowing it to be appropriated and supplanted by a white voice. Access to full-time legal academic position brings with it important, and often necessary opportunities, for the development and sounding of that silenced voice. These opportunities include the Law School infrastructure, grants, student assistance, library support, ongoing interchange of ideas with faculty colleagues, encouragement and knowledge of where and how to be published, interesting and lucrative contracts and tenure. The areas of race law, and people of colour, need these opportunities desperately. For the Law School to say that it was unable to find even one highly qualified woman of colour to fill a position dealing with the intersection of race and gender is discriminatory, insulting, arrogant and untrue!
The Supreme Court of Canada has spoken definitively on the necessity of including members of marginalized and excluded groups in workforce. Specifically, the Court has adopted the concept of systemic discrimination, holding that:
Systemic discrimination in an employment context is discrimination that results from the simple operation of established procedures of recruitment, hiring and promotion, none of which necessarily designed to promote discrimination. The discrimination is then reinforced by the very exclusion of the disadvantaged group because the exclusion fosters the belief, both within and outside of the group, that the exclusion is the result of “natural” forces, for example that “women just can’t do the job”... To combat systemic discrimination, it is essential to create a climate in which both negative practices and negative attitudes can be challenged and discouraged. (See Action Travail des Femmes v. CNR (1987), 40 D.L.R. (4th) 193 at 210 )
The Court went on to state that the benefits of including such groups are three fold. First, inclusion counters the cumulative effects of systemic discrimination by rendering future discrimination pointless. Second, “by placing members of that group that had previously been excluded into the heart of the work-place and by allowing them to prove ability on the job, ... [such inclusion] ... addresses the attitudinal problem of stereotyping.” Third, such inclusion “...create[s] what has been termed a ‘critical mass’ of previously excluded group in the workplace. This ‘critical mass’ has important effects. The presence of a significant number of individuals from the targeted group eliminates the problem of ‘tokenism’ ...the ‘critical mass’ also effectively remedies systemic inequities in the process of hiring: ‘There is evidence that when sufficient minorities/women are employed in a given establishment, the informal process of economic life, for example the tendency refer friends and relatives for employment, will help to produce a significant minority [or female] applicant flow’.” (See Action Travail des Femmes v. CNR (1987), 40 D.L.R. (4th) 193 at 213 -221)
The Law School clearly perpetuates systemic discrimination in its exclusion of people, particularly women, of colour.
3: SOME EFFECTS OF THIS DISCRIMINATION ON SOCIETY AS A WHOLE
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 the 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.
CONCLUSION
Here, on the cusp of the twenty-first century, in this country and particularly in this city, I find it difficult, even impossible, to believe that I have had to write you this letter on the moral and legal necessity of diversity and inclusion.
There is much about which I have not written, including: the secretive and exclusionary nature of many aspects of the hiring process; the oppressive nature of law school itself; the continued silencing at the law school of “others” whose voices are different; the lack of diversity within the student body, particularly with respect to black students; and the continued unwillingness of the law school administration to change.
Writing this letter has cost me a great deal personally. I have had to overcome my natural tendency (inborn and inbred) to focus solely on quiet and meditative contemplation as a way of finding inner peace in the face of discrimination. I have had to combat extreme fatigue which comes on with so spending my limited energy reserves (because of my multiple sclerosis). I have had to force unwilling and largely unable fingers (again because of my m.s.) to physically type this letter. It has been a time-consuming, energy draining and painful process as I have written about his latest, blatant, dehumanizing incident of discrimination.
In his timeless sonnet, "Yet Do I Marvel" Harlem Renaissance poet Countee Cullen wrote that despite the inscrutability of injustice, he would continue to marvel at the wonder and beauty of his own life:
I doubt not God is good, well-meaning, kind,
And did He stoop to quibble could tell why
The little buried mole continues blind,
Why flesh that mirrors Him must some day die,
Make plain the reason tortured Tantalus
Is baited by the fickle fruit, declare
If merely brute caprice dooms Sisyphus
To struggle up a never-ending stair.
Inscrutable His ways are, and immune
To catechism by a mind too strewn
With petty cares to slightly understand
What awful brain compels His awful hand.
Yet do I marvel at this curious thing:
To make a poet black, and bid him sing!
Like him, and so many sisters and brothers before and to come, I join in the sense of marvel at the universality of the creative Spirit and at the inner joy found in the Oneness of all.
Sincerely,
April Burey
August 24, 1997
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