In case you missed it, the Law Society of Ontario now requires lawyers to prepare and embrace a ‘Statement of Principles‘ regarding diversity in their practices. I have been critical of the initiative because, at the end of the day, it requires no more than yet another act of lip service to fix real diversity deficits in the senior bar and judiciary of Ontario in relation to the public they serve.
At the end of the day, most law firms and public legal institutions already have diversity mission statements and accommodation policies as good as any drawn up by our Law Society. Our Rules of Professional Conduct, rule 2.1-1, commentary 4.1 already impose on every lawyer ‘a special responsibility to recognize the diversity of the Ontario community.’
Many have come to the defence of the Law Society, however, in saying the initiative supports worthy goals. One such goal, although unintended, has been to draw out members of the bar who are uncomfortable with being told what to do or think about diversity. Our self-governing profession has always had members who resist being governed, and the occasional notable ‘freedom-fighter’ has lost his or her right to practice.
The loudest resistance to the Law Society’s equity and diversity initiative has come from defenders of ‘free speech.’ In his op-ed in the National Post, Prof. Bruce Pardy of Queen’s University Law School expressed skepticism about the conclusions of a Law Society working group on systemic racism in the legal profession, and objected to the Statement of Principles requirement as a breach of personal freedom, comparing the Law Society to the regime in North Korea. Pardy, who previously complained about the public use of non-binary pronouns to accommodate people who do not self-identify as men or women, concluded his piece by challenging lawyers to ask themselves ‘whether elected “Benchers” actually represent them.’ That, perhaps, is a question better directed at lawyers themselves.
Opinion or Fact?
The way we approach diversity is analytically similar to the debate over Climate Change, in that the topic is a matter of opinion for some and fact for others. In Canada, diversity is a fact: the Census, despite those who have tried to thwart its operation, has proven that diversity exists. The stress on a society whose public and private institutions fail to keep up with diversity-as-fact is the source of many conflicts and social ills. The lack of advancement of racialised persons in the legal profession and judiciary is also a matter of fact, although the documented evidence is less easy to find. (Embarrassment, and not lack of means, explains our institutional lack of enthusiasm in seeking that information.)
Because diversity is a fact that poses challenges, people in Canada ask questions about diversity in the context of the legal system, not whether it is a social good or not a social good, but rather in terms of the actual problems that diversity, or our failure to keep up with it, presents us. People ask questions such as: Why there are so many black and indigenous accuseds and so few black and indigenous lawyers and judges? The first half of that question leads to topics related to policing. Eg.: Do we successfully recruit police officers from those communities? The second half leads to topics related to the professional pipeline. Eg.: Do law schools successfully recruit students as well as teaching and research faculty from those communities?
If, after trying to answer either of these questions, the answers are: “Our efforts have failed to produce any recruits,” or “We recruit based on merit only,” or “The cause cannot be systemic racism,” these cannot be the end-points but rather the categorical imperatives for trying harder to address the original issue: How to make these public institutions more experientially representative of the population flowing through the legal system, or what are we doing now that has caused such disparity?
Both the Law Society and Prof. Pardy have, however, framed the issue in terms of personal opinion or freedom. Diversity, by its nature, is a matter of the fact of a particular group or population. Whether the accommodation of diversity is a good thing or not a good thing is not up for consideration. Expressions of personal support for the concept betray a fundamental lack of understanding that diversity as a phenomenon both enriches our society and evokes xenophobia or fear of the other. We are contending with public policy, not choosing a favourite colour or flavour of ice cream.
It is a fact of our multiracial and multicultural society that there are some who would prefer that Canadian society revert to a state of less diversity. Lawyers also owe a duty to support freedom of thought and expression, within constitutionally protected limits, including the freedom to hold the view that we should only live and work with one’s kind. The assumption, in such descriptions of the lawyer’s duty, is that we defend the freedom of expression of those opposed to diversity initiatives even though we, as lawyers, believe in a consensus that embraces measures to reduce social stresses caused by living and working with people who are different or come from other places. Many lawyers like to think of themselves as capable of defending unpopular or even reviled people or causes, and that makes us feel good. Thinking one is not racist or xenophobic, however, is not the same as holding a belief in the benefits of diversity, or in the need to provide accommodation for newcomers and people different from ourselves.
Where is the Proof Lawyers are Intrinsically Pro-Diversity?
But what is the proof of of such a consensus? There can be no presumption, because historically the evidence of overt racism in our legal profession is similar to that of the rest of Canadian society. We must resist the temptation to prejudge our colleagues as being intrinsically progressive or worldly.
Consider the prediction in the 2016 U.S. election that the vast majority of women would vote for Hillary Clinton, especially after the tapes came out with Donald Trump boasting about being a serial harasser and groper, and after endorsement of the Trump campaign by white supremacists. In the end, about 42% of women, many of them college-educated, voted for Trump. These empirical results showed that we expect our fellow citizens to think like we do when they don’t. It also calls on each of us to think harder why we hold certain beliefs, or why we tell people we have them. If the Law Society’s ‘Statement of Principles’ initiative has done nothing else, it has required Ontario lawyers to pause to think what they really believe.
Take the Survey
Do lawyers believe in diversity? We do not know, because we have not invested in the use of tools available in the scientific community to measure the prevalence of institutional racism, either due to cost or institutional inertia. The question, to some extent, can be answered by the result of an adjunct to the initiative, a voluntary survey prepared by the Law Society. How it will answer the question may be a matter of debate.
Belief in diversity has a pretty low threshold in terms of being on the plus side of the zero marker. It is sort of like belief in God. To paraphrase liberally from a Salman Rushdie illustration in Is Nothing Sacred?, belief in God will send droves into the mosques, temples and churches in some parts of the world but is incapable of resisting the temptation of sleeping in, in other parts of the world. In both instances, a majority of people will, if asked, say they believe in God. But there are places in the world where one will say one believes in God even if one doesn’t. In this respect, Pardy and others who have criticized the Law Society’s ‘Statement of Principles’ measure may have a point.
What might be more instructive is participation in the survey, or the expected lack of participation. If few lawyers take the time to complete it, belief in accommodating diversity as an important part of legal practice in Ontario will be proven about as strong as the pull of Sunday Service for those who would prefer to sleep in.
One should be surprised if even a simple majority of lawyers actually take the survey and tell us how they actually believe in diversity principles. It is rather long, and that in itself will turn off some. Based on the common wisdom of pollsters, one should expect less than 15% of members to take the survey. (A reasonable guess, since only about 35% of members take part in Bencher elections, and the survey takes much longer to fill out than the bencher election ballot.)
Out of the 15%, 5% are likely to start but not complete it, or are warded off by the warning of how long it will take. One might also predict that a majority of the 10% (or some other small number) completing the survey will self-identify as being part of a racialized group.
Data such as these will not mean that 90% of lawyers in Ontario do not believe in diversity, or that most are racist. It will only mean that 15% believe in it enough to click on a button, and that 5% don’t believe in the promotion or accommodation of racial diversity enough to complete the survey. Given that lawyers in Ontario have a rule-mandated special responsibility to recognize the diversity, a low turnout for the survey will tell us that most lawyers are not aware of the rule, or at least do not believe enough in the values stated in the rule to take a half hour out of their day.
In the context of lawyers and diversity, instead of assuming that we as a professional class are more ‘right-minded’ than others in Canadian society, it would be more accurate to say that few lawyers will go on record or say even to their friends and colleagues that he or she is a racist, or say that one does not believe in equality, diversity, and inclusion. (People whose neighbours or work colleagues are uncovered as participants in racially-motivated incidents invariably express surprise.)
Belief in racial diversity principles, therefore, involves a sliding scale of belief. Say, -10 for members or sympathizers of a racial supremacist league, +/-0 for those who only think about diversity when someone else talks about it, and +10 for those active in various diversity groups. What a low turnout for the survey would prove, or at least tend to prove, is that the vast majority of lawyers belong to the middle category, with as many on the moderately negative side as on the positive side. Those on the moderately negative side would never call themselves racist (and ‘some’ of their ‘best friends’ are black, indigenous or East-Asian, etc.), but they are true non-believers in diversity nevertheless.
What, then, if the Law Society were to make the survey mandatory and anonymous (thus minimizing the authoritarian bias in the ‘Do you believe in God’ question)? Are we prepared for what we might find out about ourselves?