This note to the Attorney General is the culmination of years of frustration with the nature of legal education — a subject on which I have opined at length. The state of legal education in Ontario is, in part, due to tension between universities, which attempt to education in an intellectual, or conceptual, style, and the more worldly concerns espoused by the Law Society of Ontario. It is difficult to reconcile these very different focuses. The twin admissions exams required by the Law Society of Ontario are attempts at ensuring consistency in legal practice. Their broad scope, however, does more harm than good. Hence the present appeal to the Attorney General.

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May 11, 2021

Hon. Doug Downey, MA, LLM, Attorney General of Ontario

Barrister and Solicitor Examinations

Dear Mr. Downey:

My name is Adam Strömbergsson-DeNora. I am a candidate for lawyer licensing who has just started articles.

I have the privilege to request your intervention in the Law Society of Ontario’s current conduct of its licensing examinations. Your intervention is requested pursuant to sub-section 5(c) of the Ministry of the General Act and sub-section 13(1) of the Law Society Act.

My request is admittedly unusual: that you intercede with the Law Society to cancel this year’s licensing examinations, thus allowing candidates for admission to the bar to be admitted solely based on their clerkships.

I am alternatively requesting that you uphold the rule of law by making the appropriate ex parte application to the Superior Court to restrain the Law Society from administering licensing exams.

This letter sets out the reasons for this drastic course. Two arguments support your intervention:

1. The licensing exams in their current form are redundant and impose further costs on candidates for admission to the bar; and
2. The licensing exams in their current form create systemic adverse effect discrimination in the Law Society’s admissions process, in contravention of the Human Rights Code and the Canadian Charter of Rights and Freedoms.

These arguments amount to the same problem: the rule of law is adversely affected if the profession best placed to uphold this value is needlessly inhibited by its regulator. The Attorney General is responsible for safeguarding this precept, hence the present appeal.

Before embarking on my arguments, please recall the Supreme Court’s comments in Trinity Western University v Law Society of Upper Canada. That case touched specifically on why you ought to intercede in the present matter. The majority in that case said that:

it is inimical to the integrity of the legal profession to limit access on the basis of personal characteristics. This is especially so in light of the societal trust enjoyed by the legal profession. As a public actor, the LSUC has an overarching interest in protecting the values of equality and human rights in carrying out its functions.

As well, eliminating inequitable barriers to legal training and the profession generally promotes the competence of the bar as a whole. The LSUC is not limited to enforcing minimum standards with respect to the individual competence of the lawyers it licenses; it is also entitled to consider whether accrediting law schools with inequitable admissions policies promotes the competence of the bar as a whole.^[1]

These words ring somewhat hollow if the Law Society is itself the purveyor of inequitable admissions policies in its approach to lawyer licensing. The Attorney General’s interest in preserving the rule of law to ensure that the Society meets the standard laid down by the Supreme Court merits your intervention.

Please note, moreover, that candidates for admission to the Law Society are unrepresented in the Law Society’s governance: they are entirely at the Law Society’s mercy.

Redundancy and further costs

The licensing exams’ redundancy obtains because they do not fulfill their purpose as ‘objectively valid, reliable, and fair licensing examinations’.^[2] This claim is borne out with reference to the exams’ conception and with reference to the human rights concerns that I raise below.

Redundancy

A redundant exam creates unnecessary costs to applicants. Unnecessary costs for entry into the profession mean that candidates, once licensed, pass the cost of entry onto their patrons. This economic reality raises the cost of legal services, which limits access to justice.

As the Law Society abandoned its educational function to universities in the Cold-War era, universities incorporated experiential learning and practical subjects in their approaches. Graduates of Canadian law schools now have the advantage of substantive legal knowledge and practical training.

Notwithstanding this historical change, the law society continues to administer exams that certify practical training. The quantity of knowledge required for licensing, however, has exponentially increased alongside the growth of the welfare state. The Law Society attempted to address this problem in 2004 with compulsory readings and examinations.

In 2003-4, the Law Society accepted that it should no longer teach substantive law. The Society rightly recognized that universities were doing this work. The Society instead imposed two examinations designed to test candidates’ practical knowledge. This imposition was, from the start, seriously flawed. The Society created a dual system:

Reference Materials will contain examinable material designed to reflect the competencies, but they will also contain non-examinable information for reference after call to the bar.^[3]

The system thus conceived created the conditions for intentionally unfair examinations. Information included in the Society’s reference materials was at the outset conceived as redundant to the examinations.^[4] Examinations were implemented as a disciplinary mechanism to force candidates to read Law Society materials. (Note even at this stage that the Law Society may mandate its members and candidates for admission to the bar to read any text as part of continuing professional development.)

The Law Society’s disingenuity in this regard does not meet the standard of a reasonable decision maker. It created a licensing system premised on forcing the acquisition of knowledge instead of testing candidates’ actual knowledge. The reference materials that constitute the examination study guide, though valuable, are not now allowed to be disseminated to the profession. The laudable goal of preparing a primer for legal practise has thus been set aside. The remaining exams endure under the false pretence of testing lawyer competence.

The sheer volume of study materials, moreover, significantly overlaps with university curricula; the law has expanded at such a pace that the exams do not effectively test knowledge. They instead test candidates’ ability to prepare an index to the study material. This skill is anathema to the common law, which promotes the application of legal principles over wrote learning.

The resulting examination discloses some 2,100 pages of study materials broken into two examinations. The Society permits open-book examinations, but there is little hope for candidates to work with this unwieldly number of pages. Candidates instead prepare indices: much of the exam preparation goes toward learning where concepts are mentioned in a book. This approach is at odds with the Society’s stated purpose, that barristers and solicitors demonstrate competency in fields of law. They instead show that they can find information in a book, which their university education already amply demonstrates.

This irreconcilable difference between competency and an ability to locate information amounts to arbitrariness. The examination does not fulfill its stated purpose, and the Society appears to have known that it could not possibly test candidates’ knowledge as early as 2004.

The obtention, moreover, of a university degree in law, which is based on a curriculum set by the law societies of Canada, demonstrates that candidates have successfully mastered introductory concepts. The examinations do not add to this mastery, and, if the Law Society has any concerns with university education, it is empowered to mandate changes to universities’ curricula.

Discrimination

Stress is a reality in the legal profession, but that reality does not extend to the regulator’s tacit endorsement. The adverse effect discrimination mooted here occurs because the licensing exams currently better test for a candidate’s ability to manage high stress than they test legal knowledge or professional competence. Candidates who, because of their lived experience, are more sensitive to stress are less likely to do well than candidates whose experience insulates them from stressors.

This difference is made out with reference to socio-economic class and ethnicity.^[5]

The present discussion speaks only to the stress created by the Society’s examination process, but greater psychological harm and reduced well being are significant problems in the legal profession.^[6] The effects of licensing requirements must look beyond the absence of disease or infirmity to embrace a person’s complete physical, mental, and social well-being.^[7] The licensing examinations may well be a symptom of the profession’s historically poor track record when dealing with mental health concerns.

Psychological harm

The present examination system appears to endorse stress. The exam process is opaque—the Law Society, for example, refuses to publish a passing grade for its exams. It builds on the stress of obtaining legal education, which is financial, but also includes increasing levels of poor mental health in law schools. These stressors have themselves been labelled as systemic.^[8] Increasing numbers of students are being diagnosed with anxiety, depression, and other mood disorders while in law school.^[9] The bar exams build on this stress by creating another barrier to entry in the profession. As you are well aware, the exam is quite literally for all the marbles.

Adverse effect discrimination comes into view when stress is linked to performance on the bar exams.

Students graduating with unreported, but high, anxiety are disadvantaged by the bar exams’ time-sensitive requirements. Stress inhibits retention of information; working through the 2,100 pages necessary for the exams becomes more difficult. Stress interrupts concentration during the exam, making writing harder.

Testing more generally creates stress because the candidate loses perceived control over the outcome.^[10] Temporary stressors have been shown to lead to chronic stress,^[11] and the greater this stress, the more somatic effects manifest.^[12] Somatic effects occur when stress reaches a point where the body’s voluntary nervous system begins reacting to the stress. Common symptoms include recurrent abdominal pain and headaches. Extreme cases of somatization can result in severe afflictions like sleep paralysis. The Law Society has an accommodations process in place, but this process does not disclose sensitivity to these afflictions.

Another worrying symptom of stress is reduced cognition.^[13] Cognition is a broad term; its import here relates to a person’s memory recall, reading comprehension, and evaluative ability.^[14] Stress lowers these faculties. Lowered cognition has been theorized to be a cause of burnout, which points to long-term psychological harm caused by increased stress.^[15]

In all cases, law students and, one may infer, candidates for admission to the bar are less likely to report mental health challenges due to perceived stigma.

This point is not to say that the Law Society is not entitled to create exams or to regulate exam conditions. Rather, the effect of these exams and their regulation creates unintended consequences that affect a far wider swath of candidates than is presently reported. This result is the hallmark of adverse effect discrimination: disadvantaged segments of law school graduates face further disadvantages in the licensing process. The Law Society has not accounted for these problems, despite publicly proclaiming to be more sensitive to these kinds of issues.

Discrimination

Pre-existing anxiety or other mental health conditions aside, candidates who have faced systemic stress due to their appurtenance to a minority group that faces discrimination are statistically more likely to face higher stress levels and attendant psychological distress.^[16] The present licensing exam scheme places a burden on these populations by creating a flashpoint for stress.^[17] These points disproportionately affect groups predisposed to stress, which confirms an historical implicit bias that benefits a perceived majority culture in Canadian society.^[18]

This adverse effect on individuals hailing from diverse groups undermines the administration of justice and the rule of law; barriers to entry to the legal profession must demonstrably reflect the Law Society’s and Ontario’s commitment to diversity and the cultural competence that it expects of lawyers.

More critically still, adverse effect discrimination tending to affect subjects’ mental health is a ground for Charter review of the Law Society’s examinations. This task implicates sections 7 and 15 of the Charter.

Section 7 is implicated to the extent that the Law Society’s examinations contribute to somatic symptoms, which constitute a level of serious bodily harm. The Supreme Court touched on this point in Smith v Jones—a case that, appropriately enough, dealt with solicitor-client privilege (para. 83). The Court also indicated in R v McCraw that ‘there can be no doubt that psychological harm may often be more pervasive and permanent in its effect than any physical harm’ (p. 81).

Section 15 is implicated because the Law Society’s conduct violates enumerated grounds that are protected from discrimination. Ontario’s Human Rights Code is implicated for similar reasons.

The rule of law and the administration of justice are tarnished if the legal profession’s regulator is notorious for not abiding by constitutional human rights obligations. This fact saps the public’s confidence in the profession and in the justice system.

Conclusion

Your office’s intervention in this matter is warranted because the Law Society has had ample time to change its practice. The lawyer licensing process was reviewed in 2018; the requirement for licensing examinations was maintained, and the Law Society nowhere noted up the program’s discriminatory aspects, nor did it consider the significant overlap between licensing examinations and the required university education. It simply asserted, on the basis of a single opinion piece, that its examinations scheme were ‘psychometrically-defensible [sic] professional qualification assessments’ (p. 16). Such a bald assertion does not properly consider or justify the Law Society’s approach.

The public interest is not served by stressing lawyers with redundant examinations imposed under dubious pretences. The Law Society is required to take an evidence-based approach to its conduct rather than an anecdotal approach.

A self-regulating profession is desirable, but self-regulation is only useful in the measure that it responds to the community’s needs. COVID-19 has exposed the mental health issues that are widespread and latent in the profession; it has also shown that major strides are needed to honour the Charter’s promise of equality before and under the law. Intervention in the public interest effectively addresses the issues raised in this letter. The Attorney General is the statutory officer for this task.

Law students and candidates for the bar are not in an emotional or financial position to pursue the legal challenges necessary to resolve the above-mentioned issues. The Law Society has, moreover, rejected attempts from students and candidates to have a say in the Society’s corporate governance. Your intervention ex parte is thus warranted to preserve the rights of an unrepresented group.

A final word on mental health is in order. The stress that candidates bring to the bar exam does not leave them in practise. A positive approach to mental health in the profession begins with legal education and licensing; it is not a task that should be placed on the individual alone.

Stressed lawyers, simply put, make bad practitioners. Justice Taschereau, speaking to the Law Society of Upper Canada’s convocation on June 28, 1956, enjoined his audience to ‘not try and become lawyers in a “hurry”’. He instead encouraged lawyers to ‘let your hearts and your minds work together’ to achieve greater wisdom over time. Financial strain and the stress of a legal education and licensing make for a poor start in this vein, which results in a profession that every year loses creative minds and caring souls to burnout and disillusionment. Ontarians deserve to have these lost lawyers at their service, and the administration of justice would stand in far better stead as a result.

I hope that you might consider this appeal, which relates to the rights that the Law Society has purported to uphold in other contexts. Admission to plead before Ontario’s courts and to practise law is no longer a profession reserved to a privileged few; the Law Society is, with all the respect due to such a venerable institution, behind the times. Your intervention in this matter would make all the difference.

Should you have any questions or if you would like further details about the above, I am at your service.

Most sincerely,

Adam Strömbergsson-DeNora.

cc.        Mr. Irwin Glasberg, Fairness Commissioner

            Mr. David Corbett, Deputy Attorney General of Ontario

            Ms. Teresa Donnelly, Law Society Treasurer

Canadian doctoral candidates, who study in relative obscurity to advance the state of knowledge, are poorly remunerated (if they are remunerated at all). More doctoral candidates are receiving their degrees at the present time than ever before: federal and provincial funding agencies simply do not have the resources to keep up with demand. Nor do universities, who offer a measure of doctoral funding, have nearly enough to keep a professional researcher going for four-to-six years. Indeed, 54% of doctoral candidates graduating in 2015 carried debt over $25,000. These lucky few entered a saturated market, where some 37,000 doctors of philosophy are now teaching as full-time professors and 55,000 are in progress.

These are worrisome numbers that somewhat explain the steady decline of candidates’ persistence over the degree. Of the 2011/12 Canadian cohort of candidates for a Ph.D, 52% fulfilled degree requirements after six years.

The penible state of graduate education in Canada, and the correlated stress from which many doctoral candidates suffer, may be palliated if society recognizes doctoral research as employment. Such recognition valorizes the incredible sacrifices that doctoral candidates make for their research. It also acknowledges that doctoral research demands a candidate’s utter devotion in much the same way a profession demands devotion from its professors: we promote a mental health crisis by not rewarding candidates’ work in capitalist currency.

Changing social attitudes means re-framing the place of doctoral candidates in the university. We now consider candidates students: they are trainees registered at a university purely for their benefit. Ontario’s Employment Standards Act captures this point in no uncertain terms at section 3:

(5) This Act does not apply with respect to the following individuals and any person for whom such an individual performs work or from whom such an individual receives compensation:

…

2. An individual who performs work under a program approved by a college of applied arts and technology or a university.

Mark these words. They explain that the Act does not apply to a kind of labour, which means that students and candidates for degrees cannot claim to be employed for the purposes of minimum employment standards. These words are exceptional; other fields see employees protected even when they are learning on the job: the Act defines an ’employee’ to include ‘a person who receives training from a person who is an employer’ (s. 2). This definition would, but for section 3, capture doctoral candidates’ labour.

Some European doctoral candidates face no such obstacles. Austria, Belgium, Germany, and Switzerland pay their doctoral candidates over 40,000 Euros in yearly gross salaries. This wage is, at the very least, enough to pay for cost of living. Sweden also offers a monthly salary and frames doctorates as jobs with according status and remuneration. In 2006, Swedish doctoral candidates received an average salary of 2,365 Euros a month.

These may be modest figures for working professionals; they are far more than many Canadian doctoral scholars receive. A $40,000 annual salary for Canadian scholars is usually obtained after submitting to a competitive funding process, one that only accepts a few students a year.

Legal norms

Law offers great potential for shifting this model. The Employment Standards Act precludes doctoral candidates from the benefits of minimal employment standards. The Labour Relations Act in Ontario has no such quibbles.

Post-doctoral fellows and employees have been recognized under the LRA. The seminal case on this point is Canadian Union of Public Employees v Governing Council of the University of Toronto. CUPE applied to create a bargaining unit of post-doctoral fellows working at the University; the University replied that post-doctoral fellows were not employees under the LRA and therefore couldn’t unionize.

The Labour Relations Board ultimately decided for the union, and its rationale built upon earlier analyses from the late 1970s and early 1980s (viz. York University, [1975] OLRB Rep. Sept. 683; Carleton University, [1978] OLRB Rep. February 179; University of Ottawa, [1981] OLRB Rep. February 232; York University, [1981] OLRB Rep. May 601).

Certification decisions must determine an academic worker’s status: they must be employed. The Board described the problem in another decision, University of Western Ontario:

Having said that, the existence of the relationship of student to university cannot be ignored.  The difficulty which arises is that the relationship of student to university as educator can bear many of the hallmarks of the relationship of employee to employer.  That is, the educational relationship may explain the presence of what would otherwise be a hallmark of an employment relationship, and vice versa.

Para. 52.

Employee status is determined by reference to the facts of each case. The student relationship, for example, can occupy the field, thus rendering any payments made between university and student a purely academic matter.

The University of Toronto case doesn’t deal with this point because post-doctoral fellows are admittedly not students. The University unsuccessfully attempted to argue that the fellows weren’t employees, but the Board put paid to this distinction:

The difficulty posed by cases like those of articling students, medical residents and graduate students is that the licensing or academic requirements imposed by an entity upon the individual seeking to be licensed or graduate may serve to explain all or some hallmarks of a relationship which would otherwise be an employment relationship with that entity: direction and control, performance of work, production of something of value, and receipt of income.  This problem was canvassed in the University of Western Ontario decision in the excerpt set out above.  In this case, however, there is no dispute that the University of Toronto does not have the power to licence or grant a degree per se to PDFs: PDFs are not graduate students.  The Board’s past decisions with respect to the employment status of graduate students are thus of limited application to the case at hand.

The fact that the work performed by PDFs is of educational value to them as “academic trainees”, to use the term preferred by the University, is therefore irrelevant.  The fact that work provides an opportunity to learn, even a continuous opportunity to learn, does not transform what would otherwise be an employment relationship into a non-employment relationship for the purposes of the Act.  As argued by the Union, universities are typically a unique environment: one in which learning never comes to an end.  The evidence before me clearly establishes that this is the case at the University of Toronto.

The fact is that the PDFs perform work in the University of Toronto’s labs, using the University’s equipment and materials, produce something of value, i.e. research, and receive compensation from the University for the performance of that work.  These are all hallmarks of an employment relationship.

As noted, direction and control is another hallmark of an employment relationship.  The significance of this factor in a particular case requires consideration of the nature of the work in question.  For example, this Board has had no difficulty in concluding that professionals are employees for the purposes of the Act notwithstanding the fact that the nature of their work is such that they are subject to very little in the way of meaningful direction and control.  The evidence established some variance in the degree of direction and control to which PDFs at the University of Toronto are subjected.  Some are engaged to perform a very specific task.  Some are given greater licence to explore a research area within the general parameters of the principal investigator’s research interests.  But there is no question that in the day to day performance of the work itself, PDFs are subject to very little direction and control.  In my view, this simply reflects the nature of the work: research within an academic setting.  In this respect, the work performed by PDFs is not very different from the research work of the faculty for whom they perform the work, apart from the fact that they are subject to the general direction of those faculty in their capacity as principal investigators.

Paras. 88-91, 102-3.

The distinction between student and employee is razor thin, and the Board here happily does not have to enter into this complicated relationship.

The Board did review the relationship in Western Ontario, where it found graduate students working under many of the criteria that constitute employment (para. 53). The Board, however, concluded that the educational relationship between student and university (largely in the STEM fields on the evidence in that case) provided the student with a preponderant advantage. The Board, however, left open the possibility that its decision could be revised:

Within the context of this analysis, the union’s position would require the assumption that only a graduate student’s work on his or her thesis or own research has educational value to the student.  I do not accept this proposition.  The union’s witnesses generally accepted that within the context of lab based disciplines, where collaborative research is the norm, there is something to be learned or gained from working with and supervising others and skills to be developed from maintaining and operating laboratory equipment which is not directly related to one’s own research.  The problem with respect to activities of this nature may be one of degree.  There may come a point where the performance of this work can no longer be said to be of sufficient educational value to the graduate student, and its required performance gives rise to an employment relationship.

Para. 57.

This quotation begs the question: is doctoral candidates’ labour of sufficient value to the graduate student?

The question is best answered with a view toward outcomes. 55,000 doctorates are currently underway in Canada. If, say, 54% of current doctoral candidates obtain their degrees, the Canadian market is flooded with almost 30,000 new doctors of philosophy. There were only about 37,000 full-time professors teaching in Canada in 2019.

Qui bono?

The traditional career paths for a Ph.D are quite established. They include finding academic employment as a university professor. Other paths include work as professional researchers (typically in STEM fields) or consultants in various capacities.

If a Canadian doctoral candidate aims to graduate and join the academic profession as a professor, she or he faces stiff competition in Canada’s current job market. Professional researchers in STEM fields do have further career options; Ph.Ds in humanities, however, face dimmer prospects. They may consult, which is the product either of personal brio or happy circumstance.

Universities, on the other hand, obtain direct and sustained benefits from graduate enrolment. Take Ontario as a representative example: each university receives funding per student known as ‘Basic Income Units’. Each student has a value. To these units are added things like a ‘Graduate Expansion Grant’, which rewards universities for expanding their graduate enrolments year-on-year. Bottom line: universities benefit from additional government support when they convince students to enrol in doctoral programs.

The situation is such that the Government of Ontario has created and expanded funding incentives for post-graduate employment six months and two years after graduation. Put differently, universities are now not only rewarded for increasing their enrolments, thus saturating sectors of the labour market; universities also benefit from graduates’ future job prospects. This benefit again takes further advantage of the training that students receive.

Come back to the question: is doctoral candidates’ labour of sufficient value to the graduate student? This question pairs with the Latin qui bono. The funds delivered to universities for their students’ labour generally benefit the university more than the student. In undergraduate or masters’ education, one might distinguish the benefit: these degrees are threshold requirements to a broad range of jobs. Students in these degrees do benefit from the education that they are offered.

Doctoral candidates, however, face restricted job prospects due to the specialized nature of their education. They are required to perform intensive research, which (unless the candidate works on the degree part-time) requires the candidate to fully commit herself or himself to the degree. This requirement causes the candidate to lose income from other employment: a disadvantage imposed by the university. The university, however, obtains operating grants for the candidates’ labour and for increasing the number of candidates labouring at the university.

On this cynical view, universities systematically benefit to an overwhelming degree. The circumstances of liberal higher education have changed the educational value of a doctorate. While doctoral candidates obtain value from the education offered, they also face the prospect of lost income. Their labour in fact serves to remunerate the university to such a degree that the university’s requirements become tantamount to an employer-employee relationship. Doctoral candidates may (with a lot more evidence) be in a position to unionize and, thus, to obtain more reasonable working conditions.

The University of Ottawa’s Wellness Week, which aims to help students and staff mind their own mental health during a self-declared mental health crisis, falls well short of a useful response to mental health concerns.

Then again, a recent University report promises a ‘cross-university wellness strategic framework’. If such a framework is going to work, more faculty and departmental solutions are needed because a multiversity of some 41,000 students is too large to effectively resolve personal health problems.

Hence my proposal: the University of Ottawa must afford professors, departments, and faculties more autonomy to foster personal relationships between faculty and student. Such an enterprise notably requires giving professors and faculty administrators more ‘free’ time. This time may foster the relationships necessary to create a collegial, supportive environment.

The University’s best method for providing professors and faculty administrators with this mythic free time is to push against creeping government demands. The managerial welfare state, obsessed, in some sense, with accountability, requires more and more information from universities that it funds.

These demands cause pressure to abound for professors as much as for students. ‘Publish or perish’ is alive and well at universities. New professors must work harder than ever to produce articles and books so that they may have job security; established professors may face pressure from their faculties to annually publish.

The University of Ottawa, which recently signed a strategic mandate agreement with the Government of Ontario, is one of many across the country that now depends on government funding approval, which is now indexed to measurable performance targets: an indication that learning and teaching are being reduced to numbers. We might understand these figures, but they do nothing for wellness.

Wellness Week and the University’s recent mental health review is a poor substitute for the care that students can receive if these pressures are relieved. This argument, of course, proceeds on the assumption that the relationship between professor and student fosters wellness.

I’ve experienced such relationships in my former faculty, the Faculty of Arts, where I could speak with the Dean or the Vice-Deans with relatively few hurdles to clear. Granted, during these times, I was privileged to be a member of the University Senate—and an active member at that. More locally still (and divorced from my senatorial duties), my department head (English) was almost always available for a chat. Professors gave of their time and expertise, which engendered the feeling that one’s ideas and character are being noticed. This feeling goes to the heart of my point.

These conditions and my experience begs the question: how can university administrators foster wellness and impose the need to meet metrics that satisfies government?

Saint Paul University, the old University of Ottawa, offers some answers. It teaches a far smaller group of students of roughly 1,000. Small size fosters closer community because students and administrators come into more regular contact.

I’ve had the pleasure of conducting extensive research on and taking a course at Saint Paul. I got the sense that everyone knew everyone; the school’s lore was, moreover, just around the corner. The Oblates of Mary Immaculate, who still own the University, until very recently maintained their house just beside the University.

Imagine having that closeness and rapport with professors and with a University’s owners. 

Contrast that idyll with the multiversity. The University of Ottawa spends increasing time and effort placating faceless masters. There’s nothing new in this situation: the Oblates sold most of their university to its present incarnation to avoid submitting to government. Even so, in 1965, when the universities split, the Oblates dug in. They claimed that the University of Ottawa was not secular; it was non-denominational. 

This difference is slight, but crucial, for the Oblates were claiming the existence of a soul in the University, one able to assist students and faculty with their mental health. A non-denominational university leaves open the question of faith, or mystery, while not attaching to any imperatives. Faith and mystery exhorts students and professors toward discovering values that go beyond the strictly rational. This was the spirit of Oblate education and they fought for it in the 1960s.

Central administrations won’t cure the wellness issue, and neither will events that responsibilize individuals for their health.

The University community will instead need to take stock of its beliefs, and departments and faculties must be leaders in this regard. Shared purpose must flourish, but the means for that flourishing are not flashy. The old adage of university education, that it is ad studentum et orandum—for study and prayer— evokes the remedy. Scholars must have ample time for introspection because introspection allows us to better teach and to more efficiently learn.

The quality of Anglo-American university education is eroding, and the Government of Ontario this past week confirmed its rapidly decaying state. With its rapidly ageing motto, ‘open for business,’ finally maturing, the Minister of Colleges and Universities announced that a long negotiation with Ontarian public universities resulted in a new five-year plan. Ontarian universities will now receive government funds based on their graduates’ employment success.

Lest the non-Ontarian reader’s eyes glaze over, this trend is growing across Canada, in the United States, and in the United Kingdom. It strikes at the soul of a university and the souls of university students now adrift without a unified worldview with which to navigate.

I could not be more afraid because I feel the passion for university education that once animated my studies now dwindling in an era where governments require quantifiable performance. My most memorable vote as a university senator works to this point. It occurred after an in-camera session where the Senate debated the University’s adoption of a strategic mandate agreement. These agreements are contracts between the university and the Ontario provincial government that set strategic priorities and performance indicators for each university in exchange for government funds. The University of Ottawa Senate accepted its strategic mandate agreement with a single abstention from my dweeby undergraduate self. No one voted against.

My abstention was at the time the subject of good-natured levity, but I think that it expressed the palpable apprehension that filled the room. Most members were career academics. The university was a home for their passions. I knew from some that they were uneasy with the idea of tying financial support to the university’s strategic decisions. A lay academic could describe this reticence as an alpha personality, one that brooks little to no intervention in scholarly work.

I think, however, that the old description of a university education in William Blackstone’s work still applies. Scholars (students and professors alike) collectively work ad studentum et orandum: for study and prayer. Prayer is so little-noticed in the multiversity, but it speaks to the passion for knowledge that might be awakened in every student’s soul. That passion is the education because students learn to weave narratives and pull them apart. No human discipline can survive without this critical skill, yet governments now insist on hard skills that lead to immediate employability.

Prayer connotes an openness toward realms of knowledge that are structured in expanding concentric circles. A medieval studies professor that I knew described movement toward this knowledge as a dangerous mysticism. John Henry Newman and others of the Oxford Movement tried to evoke this view by projecting the Christian God as the center of a virtuous and effective humanist education. We have now moved beyond this (and other) exceptional worldview(s). The university can only house multiple faiths if it publishes its own creed. Professors may have to temporarily abandon the certainty of scholarly production to speculate on the nature of their creed with a view to publishing a collegial expression of beliefs about education.

A university’s Book of Common Prayer rejuvenates each university far better than any strategic mandate. Strategy performs a university’s social role, but performance makes no substantive contribution to a student’s life, or to their university education. Prayer is instead a genuine vulnerability between professor and student, and between university and pupils. Nor does hyper-specialization: prayer evokes purpose in which each professor might find a calling. Callings, however, demand profession, and true profession requires meditation. Hence the need for collegium in that older sense of the word. Departments, faculties, and universities are nothing more than their academic officers. They impose collective rights and obligations, the most important of which is sustaining that common prayer—whatever the college decides that may be.

My alma mater, the University of Ottawa, was once an example of this point. Its Catholic and particularly Oblate identity informed its mission from 1848 through to the 1950s. Economic circumstance eventually removed the religious order in a two-pronged attack. The Government of Ontario systematically withheld funds and the rapidly growing professoriate did not hold a religious view of the University. The Oblates petered out and with them went a century of charism that had informed the University’s teaching.

The University of Ottawa is but one case: many other universities attest to religious foundation and subsequent secularization. We now conceive of the university as pillars of rational thought and democratic debate, and they are to a certain degree. Academics, however, now face the twin pressures of securing government funds and pleasing a restive, entitled student population. Universities and their scholars must perform.

History tells us that university education which moves beyond performance in some common spiritual purpose faces censure regardless of teaching. The brunt of Ontario’s universities have, for example, religious histories, and the need for government funds forced religious groups to cede charters to preserve their educational missions. The University of Ottawa is an example of a holdout. When its religious owners finally sold the university, they faced serious government opposition to a fair valuation of the University’s assets. The Oblates sold their university for $4 million less than their initial valuation. (That’s $32.5 million in today’s currency.)

A modern Canadian example of censure is Trinity Western University, an evangelical undergraduate university in Langley, British Columbia. This university was censured by law societies because it refused to acknowledge LGBTQ rights because its governors viewed these rights as contrary to the University’s religious creed.

Hence my desire to move away from established, religious worldviews as spiritual glue for universities’ missions. We nevertheless need a narrative that can be more evocative of universities’ ancient purpose to teach ad studentum et orandum because current concerns about accountability don’t suffuse teaching with purpose.

Transmitting knowledge is defeated by bare focus on learning outcomes. The prayers that are now more essential than ever must aim to recreate a collegium working in modern values.

Working to that end is a fraught enterprise, and one made difficult by modern universities’ size. A firm grasp of the history of higher education might help shape efforts in this regard. Knowledge, however, of that history also suggests that, at the last, the modern university might occupy untenable ground as fountains of knowledge. If professors cannot define their enterprise beyond strategic goals foisted upon them by government, their ultimate recourse may lie in smaller eleemosynary corporations, where shared values can suffuse teaching.

The converse view—and I make this observation as a young man who might one day have to send a child to higher education—is that universities without a spiritual purpose might not carry the weight and prestige that somehow still defines their enterprise. Higher learning that cannot teach a narrative and the tools with which to pull narratives apart doesn’t merit the title, nor can its sponsors purport to assemble all of the knowledge that exists without a golden thread that strings it all together. I’d rather just homeschool my lads and lasses.

On a related note, you might enjoy this film:

The Solicitors Regulation Authority (SRA), the United Kingdom’s statutory regulator for one branch of the legal profession, has done away with the requirement for a university degree in law, which news has caused me to wonder about Canadian legal education. As a law student paying $9 000 per term (for 6 terms, and my tuition is relatively cheap) for the privilege to access the qualifying exams that let me into the legal profession (after articling), I find the present requirement for a university degree in law unnecessary. A law degree does not prepare aspiring lawyers’ critical abilities for practise. Law degrees today discipline students to understand rules in ways that the profession accepts. In other words, Canadian legal education is premised on teaching a curriculum of hard rules. Lawyers spend their time fitting individual cases into general rules. They must possess a generalist’s humanist education reminiscent, but not identical to a nineteenth-century liberal arts curriculum.

The difference between studying law and practise is, as Harry Arthurs points up, interactions between complex, human systems animated by personal interests, group claims, and the historical baggage that comes with each. Learning law for law’s sake indoctrinates the pupil. What’s needed in legal education is regard for the emotional complexity inherent in legal decisions.

Awareness of such complexity in the twenty-first century flows from a revised humanism, one that goes beyond the western canon to appreciate a wide swath of global cultures. The staid nineteenth-century humanist curriculum of classics, history, philosophy, and literature no longer fits the bill; specialization in a single field, however, ignores these more general concerns. The midpoint between these poles values law as a historical force, understands people’s intellectual and emotional preoccupations, and applies law—no matter how specific the case—with regard for the parties.

I am describing a difference between law and equity (one that I relish). Law is used to ferret out a person’s rights and responsibilities. Equity (in abstract form) resolves disputes with regard for what is conscionable. Law enforces rights; equity appreciates the human context of each problem.

Legal education largely eschews this latter form because lawyers, at least in our time, teach rights over equity (indeed, one maxim of equity is that it follows the law). Teaching in this vein ignores a humanist inheritance that was once common to lawyers. More importantly, and in line with the SRA’s reason for updating access to the English profession, equity better appreciates diversity.

Those who have engaged a lawyer’s services know why diversity is important: a councillor or an advocate must feel the patron’s reality to represent the patron’s context to others.

Preparation for the legal profession at one time acknowledged the necessity for broader learning. The Law Society of Upper Canada established a law school in 1881 that required articling students to study classics, literature, history, French, mathematics, and natural philosophy. (These subjects were common for matriculation into professional degrees and obtaining the B.A.) Lectures and examinations in substantive law were upper year subjects for admission to practise. The 1889 rules exempted university graduates holding degrees from faculties of arts from examinations; university graduates from Ontario had to demonstrate their knowledge in these subjects alongside advanced knowledge of law. Law schools in the province, whether run by the Society or by universities, were required to offer examinations in classics, literature, history, French, mathematics, and natural philosophy.

Ontario’s legal education, however, changed drastically as Canadian society industrialized. By 1919, the Law Society had all articling students in Toronto attending the school during the last three years of their articles. Students could attend law faculties instead of the law school. Those who didn’t, presumably, matriculated along lines similar to a humanist education. The 1919 curriculum lists pure law without reference to any humanist concerns.

The absence of any reference to humanities may simply be an omission, but legal education developed alongside higher education. Western universities after World War One grew alongside increased industrialization. The humanist liberal arts curriculum that dominated undergraduate education gave increasing ground to well-defined disciplines. Knowledge became siloed, and law schools were no exception.

This review has been a potted history that doesn’t do the subject justice. As higher education became siloed entering the twentieth century, legal education trundled on with little change. Another hundred years on, the plethora of undergraduate degrees now available from departments with very tight focuses means that law schools admit a wide range of student, yet the humanist underpinnings of the field remain somewhat assumed. Law school teaches its narrow curriculum, with allowances made for new legal fields.

Entrants from different intellectual silos encourage diversity in the profession; the profession’s failure to maintain the curriculum that it once assumed was common to all lawyers limits law’s ability to serve as a meaningful social institution.

This argument might be regressive: modernity relies on siloed knowledge, and lawyers tend to enjoy similar internal divisions. I think, however, that the humanist curriculum can, if updated, revitalize law schools for the information age (yes, I think that law school curricula pre-date the mid-twentieth century). Lawyers have access to more information than ever before, and they work in a profession that weaves narrative with rules. A lawyer funnelling information into a narrative must understand how her or his narrative ‘fits’ into social life.

I’ve set the bar mighty high, but lawyers know that my bar cannot be higher than the tired mythology of a profession that protects individual rights. This narrative issues from an English tendency to rebel within legal limits. Common law is the language that constrained the Crown’s despotism during the Glorious Revolution of 1688. The older language of pure equity looks beyond such constraints because it is rooted in judicial officers’ charity. Charity, the manifestation of conscience, is the ideal outcome of a humanist education. That’s why I want to see lawyers constantly returning to their impact on social life.

That return starts with education. Law schools teaching law to prepare students to write exams that test for legal knowledge doesn’t seem like a good value proposition. That exercise teaches a person about the narrow field of law, which, at its worst, is entirely self-referential: a caustic quality. Law school can instead teach in that humanist vein once required as a condition for study. There is an opening toward this view as schools embrace professors with doctoral training in other disciplines. The trend needs to go further. Law faculties can offer joint programs with faculties of arts and social science. Human sciences have to cross pollinate at the very earliest moment in legal life. In short, collect the ‘law and …’ movements in law faculties and synthesize a curriculum around these fields, and more besides. Teach a generalist program that lets students see the world on which they will practise. Law societies might do well to consider such an open stance toward education, with preparation for the bar and legal practise left to a student’s articles.