Using critical race theory to form lawyers

Anyone who was familiar with the phrase “critical race theory” before 2021 probably has to resist the impulse to scream whenever the media frames the current furor over CRT in the United States as a “debate.”

To have a debate, both sides have to be talking about roughly the same things. CRT is a decades-old academic framework that interrogates the role racism plays in, among other things, the creation and enforcement of laws. It’s not about whether a country is irredeemably racist, or teaching white kids to hate the colour of their skin.

In fact, it’s not about teaching “kids” at all; CRT doesn’t really loom large in pre-graduate level coursework and certainly isn’t worming its way into the average North American grade school education. The version of CRT causing pundits to hyperventilate is a rhetorical prop. Like evolution and postmodernism, CRT seems to be opposed most ferociously by people who don’t know (or care) what it means.

That said, trends in U.S. politics (even ludicrous ones) usually leach into Canadian life sooner or later. Some Canadian law schools have incorporated CRT into existing coursework, or into separate courses. Nobody’s asking them to justify that yet — but it could happen.

“I’ve heard some colleagues politely warn me to be on the lookout. Nobody’s said, ‘You’re not getting tenure,’” said Danardo S. Jones, an assistant professor at the University of Windsor law faculty who uses CRT in courses on access to justice and criminal law.

“CRT isn’t political in Canada because it isn’t widespread. Very few universities teach it.”

That appears to be changing. CRT is expanding its footprint in Canadian law schools. Both the University of Saskatchewan and Lakehead University are introducing new courses on CRT and law this fall; USask’s course filled up on the first day and Lakehead’s offering was driven by student demand.

“Many Black and racialized students here feel the need to do more than simply embed some of the principles and tools of CRT in other coursework,” said Jula Hughes, dean of the Bora Laskin Faculty of Law at Lakehead. “They want to drive change in a profession where Black and racialized lawyers rarely become managing partners in firms, where they frequently get mistaken for defendants in criminal proceedings.”

CRT starts with the fact that race is both a biological fiction and a social construct — a type of difference that has little do with genes and much to do with how societies operate. It approaches racism not as an aberration in otherwise egalitarian cultures (the “bad apples” concept) but as something baked into politics and the law. It rejects claims of meritocracy or “colour-blindness” in favour of examining outcomes — in education, economic status and the justice system.

Maybe that all sounds very academic — but CRT has a practical role to play in the education of young lawyers. CRT embraces the “lived experience” of people of colour engaging with the justice system. It rejects the “natural law” school and approaches law as a human construct, with its own inherent biases. Which means it also encourages young lawyers to listen to their clients.

“If you’re taking the approach that everything you do in law has to be a completely neutral application of law to facts, you’re doing your client a disservice,” said Joshua Sealy-Harrington, who draws heavily on CRT in his research and teaching at the Lincoln Alexander School of Law at Ryerson University.

“Judges are called upon not just to evaluate what is legal. They’re asked to consider what is ‘fair’ or ‘reasonable.’ These are value judgments. And judges are not computers.”

“If your Black client is describing being stopped by the police and you’re looking at it exclusively as a Charter matter, you may be missing a critical defence,” said Jones. “Racial profiling is not about the particular intentions of a particular police officer. You have to be alert to the role race plays in policing in order to set up an evidentiary record. Not knowing about this could mean the difference between your client being acquitted and spending a long time behind bars.

“So there’s no theory-versus-practice conflict here. CRT is a practical approach to law.”

It’s also remarkably adaptable. Critical race theory began as an examination of the Black experience in the United States but has since spun off distinct branches dealing with the impacts of systemic racism on Indigenous, Asian and Latino communities. There are CRT theories of constitutional, property and contract law.

And there’s another good reason to expose students to critical race theory, said Ryerson’s Angela Lee: a law school education should be about more than “law and legal doctrine.”

“It is also imperative to teach them about justice — the scope of what justice requires, how justice is hindered and how justice might be advanced, whether through the law or otherwise,” said Lee, an assistant professor at the Lincoln Alexander School of Law.

Critics of CRT in Canadian post-secondary institutions may argue that it’s a poor fit — that there are just too many differences between Canada’s history of race relations and that of the United States. Carmen Gillies, an assistant professor at the University of Saskatchewan’s College of Education, uses CRT in her work on Indigenous education. She said that while the details may differ, CRT’s core insights about systemic racism apply here as well.

“As a foundational theory, CRT dealt more with civil rights than with questions of sovereignty, of land,” she said. “But the oppression of Black and Indigenous people can’t be treated as distinct processes when they’re clearly related.”

Scott Franks, an assistant professor at the Lincoln Alexander School of Law, says law schools applying CRT analysis to the Indigenous experience in Canada should keep in mind one key fact — that anti-Indigenous systemic racism in Canada grew out of the colonial project and was meant to rob Indigenous people of their sovereignty.

“It’s not just racism that structures the oppression of Indigenous peoples,” he said. “It’s also settler colonialism, an ideology that benefits non-Indigenous persons, whether those persons are racialized or not.

“Any critical or anti-racist vision that sustains the state’s assertion of control over Indigenous peoples’ lands and bodies and that imagines the reallocation of settler-state resources — whether material or symbolic — to non-Indigenous persons cannot be considered a full response to oppression.”

Could critical race theory become a political football in Canada? Maybe. Hughes has a more optimistic take. She said she believes that the enthusiasm shown by her students for CRT — and Canadians’ emotional responses to reports of unmarked graves at former residential school sites — suggest that “as a country, we want to do better, that we’re connected to this idea of equality, that it’s the kind of country we want to be.

“I think that’s a very positive thing.”