Disabled persons and Canadian law schools: the right to the equal benefit of the law school.

• Author: Lepofsky, M. David

Introduction

Over the past decade, Canada's legal establishment, including courts, the profession and legal educators, has directed unprecedented attention to equality issues. A decade ago, human rights codes were being expanded across Canada to outlaw discrimination on grounds which were hitherto unconsidered. Early in the 1980s, Canada's constitution was amended to include a supreme guarantee of equality rights. Policy initiatives in the mid-80s have led to the introduction of pay equity and employment programs, and to calls for their substantial expansion.

As the 1980s drew to a close, this increasing attention to equality issues was directed in a serious way not only to the social institutions to which the law applies, but, as well, to the very institutions which are responsible for the legal system itself. Canada has had a number of studies into racial bias against native persons in the judicial system. Conferences and other activities have drawn attention to concerns of gender bias in the law, and in the judiciary. As well, public and professional attention has been directed at Canada's law schools, to identify possible barriers to equality inherent in the legal education system.

With this examination of the various institutions in Canada's legal system now underway, it is important to ensure that its scope is broad enough to make certain that the concerns of all disadvantaged groups are taken into account. In this context, it is very much to the credit of the Canadian Council of Law Deans that the concerns of persons with disabilities in the legal education system were placed on the agenda at its 1990 Ottawa Conference. Disabled persons are among the ranks of clients who need the services of lawyers trained in Canadian law schools. As well, persons with disabilities are among the ranks of those seeking admission to Canada's law schools, for the purpose of pursuing careers in the legal profession.

This paper addresses two distinct, thematically-linked questions pertaining to Canadian law schools and disabled persons. First, it considers how law schools can effectively accommodate disabled law students in order to ensure that disabled persons have equality of access to the practice of law. The second issue concerns how law school curriculum can be shaped to ensure that the law itself and law graduates, who go on to practice law, are effectively equipped to serve clients with disabilities.

There are two common denominators among these questions. First, both are of fundamental importance to the 10 to 15 percent of Canadians who have a physical or mental disability. Second, both issues have received insufficient attention to date. This inattention is not the product of any design or desire; rather, it forms part of a larger trend, whereby disability equality issues have tended to secure attention much later than equality issues regarding gender, race or certain other grounds.

The primary focus of this paper is to provide practical recommendations which can be implemented in Canada's law schools with dispatch. Only a brief discussion is provided of the origins of the problems which these recommendations seek to rectify. Of course, this brevity is not because these problems merit little attention. Rather, it is because this paper's discussion refers the reader to other published sources which can provide a more thoroughgoing description of the dimension of the problems to which these recommendations pertain. As well, no assessment is attempted here of which of the recommendations set forth below are now provided, formally or informally, at any Canadian law school.

The focus of the discussion and recommendations set forth below is exclusively on action that can be taken in and by law schools to address the twin issues of training disabled persons to practice law and of ensuring that both the law and lawyers effectively meet the legal needs of disabled persons. Action in these areas is also required outside of Canada's law faculties, i.e., by the legal profession itself, by the provincial law societies, by the courts, and by government agencies which are responsible for the administration of Canada's justice system. However, these activities and actors are beyond the scope of this paper. Moreover, in the long run, action in law schools is likely the most critical first step in fostering reform in these areas.

While this paper's focus is on issues concerning persons with disabilities, it should not be inferred that the paper's themes are only relevant to disabled persons. To varying extents, similar concerns over law school accessibility and legal curriculum content can apply to other disadvantaged groups in society. A principled commitment to the goals of equality and education equity requires a comprehensive focus on all disadvantaged persons and groups, and not an exclusive single-group or single-issue orientation, wherever possible. Indeed, any effort at opening up the legal education system which focuses only on one disadvantaged group runs the risk of unintentionally disregarding or marginalizing the serious barriers which present themselves to other minorities.

It is hoped that this paper will serve to inform law teachers, law deans, law school administrative staff and law students about the ways in which Canadian law schools can widen their focus to include both able-bodied and disabled persons. It is hoped as well that this paper will assist disabled law students and law school applicants to formulate strategies for succeeding in their legal education. Finally, it is hoped that this paper, which was originally delivered at a conference of the Canadian Council of Law Deans in Ottawa on November 8, 1990, might serve as a yardstick by which future law school initiatives in the disability area can be evaluated in the months and years after the meeting at which it was first distributed.

1. Accommodating Disabled Law Students in the Law School

   1. Discussion

      How can a law school most effectively ensure that disabled students have equality and equity of access to a legal education, and hence, to the legal profession? A law school's desire to effectively accommodate disabled law students need not solely be motivated by the legal duty to accommodate, enshrined in human rights legislation, or by the Supreme Court's important recognition of equality of access to the legal profession as a Charter (1)-protected value. (2) It is tied as well to a fundamental commitment to simple fairness and equity.

      When translating this desire into action, five general observations should be born in mind from the outset. First, there is no magical formula for accommodating all disabled students in one fell swoop. Disabilities vary from individual to individual. While this paper refers to examples of specific accommodations relevant to certain disabilities, there are a diverse range of needs which can arise, but which are not individually canvassed here. In addition to the fact that each disability can present differing accommodation needs, the same disability can have a very different impact on different persons, depending on a myriad of factors, such as attitudes, internal and external resources, social support and general environment and the availability of training and accommodation techniques.

      Thus, effective accommodation is often the product of open-mindedness, "adhocracy," and ongoing trial-and-error experimentation. It is usually not the product of a simple, once-and-for-all quick fix, with the possible exception of the removal of physical barriers to wheelchair access.

      Second, while it is often fair to expect a disabled law student to play an active role in finding solutions to accommodation issues, the law school must take positive action and primary responsibility in advance to assist students in searching for effective accommodations, and to ensure that once found these solutions work to their maximum effectiveness. This is so because a newly admitted law student will not necessarily know all of the ins-and-outs of law school when he or she first arrives, so as to be able to quickly identify the most effective accommodations on his or her own. Hence, the recommendations below are generally organizational and structural in focus.

      Third, the greatest barrier to reasonable accommodation of disabled persons generally is neither financial nor technological. The greatest barrier in society tends to be attitudinal. Most barriers confronting disabled persons can be readily eradicated if sufficient attention and imagination is applied to the problem.

      However, accommodations are often missed or refused because the matter is considered of insufficient importance, because of an incorrect presumption that no effective accommodation is available, because of an unfounded presumption that such accommodations necessarily involve excessive costs, or because expenditures, if required, are considered to be low in priority. In considering a school's spending priorities vis-a-vis the following recommendations, a faculty should reflect on how many resources were channelled to these disability issues in the past. As well, the fact that many if not most of these recommendations involve little or no cost whatsoever should be remembered.

      Fourth, with a scarcity of resources confronting all law schools, and with disabled law students and lawyers spread out across this enormous country, it will be difficult to ensure that new, incoming law students can benefit from the successful accommodations fashioned by others in the past. Hence, it is essential to co-ordinate efforts among all law schools, and to keep all posted on the experience gained at each faculty.

      Fifth, as technology for disabled persons rapidly develops, approaches to accommodation will evolve commensurately. Yesterday's workable accommodation may be today's antique. As well, yesterday's insurmountable barrier may be today's easily conquered challenge.

      The following is a...