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Sunshine as diversity disinfectant | David Latner

Thursday, June 24, 2021 @ 12:58 PM | By David Latner

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David Latner %>
David Latner
Three recent events inspired me to consider how our law schools could lead by example in advancing diversity.

First, the Supreme Court of Canada recently unsealed the estate files of murder victims Barry and Honey Sherman, so the public can access the information concerning his will and her intestacy. The Supreme Court thus reaffirmed the principle that courts should generally be open, privileging the public’s right to know what is occurring in the justice system, however prurient the public’s motivation. “As a general rule, the public can attend hearings and consult court files and the press — the eyes and ears of the public — is left free to inquire and comment on the workings of the courts, all of which helps make the justice system fair and accountable” (Sherman Estate v. Donovan [2021] S.C.J. No. 25)

Who can be against fairness and accountability?

Second, the University of Toronto (UofT) is being boycotted by some academics and grad students. Why? An applicant for a teaching position at the faculty of law was rejected. Her proponents state that her scholarship is impeccable, and that she was rejected because a wealthy alumnus, who is also a judge, chatted with the dean and allegedly described reputational damage to the school that her hiring might cause because of her politics. The dean says the offer wasn’t implemented because of immigration issues. However, the applicant’s proponents don’t believe the dean. For the sake of argument, let’s assume her politics and the risk of reputation damage was a factor in the dean’s decision.

The academic boycott by the Canadian Association of University Teachers (CAUT) council was triggered because taking into consideration the applicant’s political views, and the impact it might have on the university’s reputation among alumni and donors, is apparently a violation of “academic freedom and other principles.” The decision not to proceed with the hiring is abhorrent because it was “politically motivated.” Professors, of course, are famously apolitical. They never insinuate their personal political views into their teaching or their hiring decisions, which is why Canadian professors are known for their ideological diversity, from left all the way to centre-left    

Which brings me to the third event. Many universities and businesses are actively pursuing increased racial diversity. The U.S. Supreme Court will soon consider whether to hear Students for Fair Admissions v. Harvard

Who could be against diversity?

Some Asian American applicants are challenging Harvard’s race-conscious admissions process. Their argument is that “race conscious” admissions to foster diversity translates into refusing better qualified Asian American candidates because they are disproportionately represented at Harvard, relative to their percentage of the U.S. population. Bluntly, they allege that a person in an underrepresented group with a 40th academic percentile has a better chance of being admitted than an Asian American in the 90th percentile. They allege that racism is being practised against one group to solve a diversity problem. 

This raises interesting questions for UofT. What are the objective metrics for choosing which students are admitted into law schools? Should those metrics be published so applicants know their chances and what they need to achieve for admission?

To achieve diversity, what is the relevant ratio? For UofT, is it the population percentage of a certain group (e.g. gender, race, class, ethnicity, religion etc.) within the GTA or Canada? Or should it be the percentage of applicants? Or the percentage of applicants above a certain threshold of academic achievement? E.g. if the percentage of GTA that is a visible minority is 52 per cent, and the percentage of Asian students is 11 per cent,  but 25 per cent of the applicants that meet the objective criteria (marks or whatever is set out) are Asian, would it be fair — or racist — to reduce their representation in the student body to 11 per cent?

To what extent is economic class relevant? If a deserving student is middle class or wealthy, but her group’s “quota” is full (as a percentage of GTA population), is it fair to decline her application as the combination of her high marks and her parents’ relative wealth gives her a better chance of getting into, and affording, an out of town school than a person from a “higher priority” ethnicity that lacks the parental resources?

The three events highlight an interesting opportunity for law schools to lead by example. Assuming transparency and diversity are both important, that racism is a bad thing and that diversity is a good thing because it provides different perspectives, perhaps we can create a different approach to law school admissions and the hiring of professors?

As the Supreme Court of Canada noted in Sherman, fairness and accountability are important.

And we all know discrimination based on race, religion, gender etc. is bad.

Doesn’t that militate in favour of law schools publishing their criteria for hiring professors and admitting students? Won’t sunshine make the admission and hiring processes more transparent, and therefore likely to be more fair?

If the goal is diversity, it is important that students (and teachers) know which groups are over and under-represented, so they can decide in advance whether to bother applying. If a particular attribute (class, race, gender, religion, disability etc.) is a significant determinant, and the decision is made to favour a certain category of applicant, then potential applicants (for student admissions or teaching roles) should know that.

I know it is far-fetched because the CAUT — boycotting UofT — has indicated that in its view an applicant’s ideology is irrelevant. However, hypothetically, if a teacher’s ideology were ever a factor in a hiring decision, that should be explicit too. (While I’m sure it never happens at UofT, theoretically, academics on hiring committees might be biased in favour of candidates whose ideology mimics their own views.)

No doubt law school admissions departments and university hiring committees will welcome the spotlight. After all, who could be against transparency and accountability?

David Latner is a co-founder of Advocan Law LLP, a boutique focused on IT and medical technology, acting for startups, their founders and investors. You can reach him via LinkedIn.

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