Follow the Drinking Gourd: Our Road to Teaching Critical Race Theory and Slavery and the Law, Contemplatively, at McGill.

• Author: Blackett, Addle

And so the document or music ... is not just the hidden transcript of repressed knowledge of alienation but is the reservoir of a certain knowledge of freedom. (1)

This short essay reflects on two recent pedagogical initiatives at McGill: the development of a regular, elective course on Critical Race Theory (CRT), and teaching Slavery and the Law as a specialized topic course. The initiatives could be seen as ad hoc, sitting outside of the various, formal, federative moments of major curricular reform that the Faculty of Law has undertaken over the past several decades, and that have come to characterize the faculty's self-understanding as transsystemic. (2) In this reflection, however, I argue that the progression at McGill toward teaching CRT and Slavery and the Law should be understood as an integral part of the collective project of cultivating jurists who live rooted, (3) multilingual, (4) and layered lives in law. (5)

When the sun comes up and the first quail calls, Follow the drinking gourd.

These are the words of an African American slave song that pointed the way to freedom. The Rev. Dr. Martin Luther King, Jr., in his 1962 Massey Lecture entitled, Conscience for Change, wrote the following gracious account of the "singular" relationship between African Americans and Canada:

Deep in our history of struggle for freedom Canada was the north star.... Our spirituals, now so widely admired around the world, were often codes. We sang of "heaven" that awaited us and the slave masters listened ..., not realizing that we were not speaking of the hereafter. Heaven was the word for Canada and the Negro sang of the hope that his escape on the underground railroad would carry him there. One of our spirituals, "Follow the Drinking Gourd", in its disguised lyrics contained directions for escape. The gourd was the big dipper, and the north star to which its handle pointed gave the celestial map that directed the flight to the Canadian border. (6) I had not expected to encounter the Drinking Gourd (7) in law school. Like many law students, I came to the study of law expecting--or at least hoping--to engage with notions that looked more like Dr. King's capacious vision of social justice, (8) than a close study of riparian rights. To a first-year law student coming from undergraduate studies in history, the past too often seemed conspicuously absent, (9) and everyday life far removed from Old Chancellor Day Hall's ornate, elegant, and "noble" (10) doors.

Yet my first years studying law at McGill could hardly have been more context-laden: they included the fall of the Berlin Wall, alongside encounters with resistance to settler colonialism here and abroad, including a seventy-eight-day armed resistance to further territorial dispossession by Mohawk nationals of Kahnawa:ke--facing the Surete du Quebec, the Royal Canadian Mouted Police, and ultimately, the Canadian army--in defence of neighbouring Akwesasne territory (the so-called "Oka Crisis"), and soon-to-be president Nelson Mandela's triumphant release after twenty-seven years in prison under apartheid in South Africa. They included the tragic violence of misogyny, in Mark Lepine's mass murder of fourteen women at Ecole Polytechnique de Montreal. After living in deep admiration of the Honourable Justice Thurgood Marshall, I witnessed in horror the Senate Judiciary Committee hearings of his replacement on the United States Supreme Court, Clarence Thomas: Professor Anita Hill's sexual harassment allegations, located in "the overlapping margins of race and gender ? discourse and in the empty spaces between, ... resisted] telling." (11) In Montreal, the 1987 Remembrance Day shooting of an unarmed nineteen-year-old Black man who was exponentially more likely to be my classmate in high school than in law school--Anthony Griffin--led to mass community protest of systemic, anti-Black racism alongside the manslaughter and criminal negligence trial of Constable Allan Gosset, which ended with his acquittal on appeal. (12)

While social context sometimes felt distant, several professors worked hard to ensure that it was understood to be a Crucial part of the legal education we received. Even on the first-day welcome of first-year students to the Faculty of Law in 1989, then Dean Yves-Marie Morissette invoked one of the most pressing legal battles to unfold in Canada: Chantal Daigle's decision to slip across the Canadian border into the United States to obtain an abortion, in the midst of her urgent, public fight through Canadian courts against her ex-boyfriend's successful temporary injunctions preventing her from obtaining an abortion in Quebec. The Supreme Court of Canada issued its decision--with reasons provided later--apparently to prevent any other woman from living a similar judicial nightmare. (13)

But mostly, I experienced the study of law by observing those students who spoke out without bearing the implicit burden of representing their underrepresented racialized community, and who seemed to know that they would be validated, and heard. In contrast, I rarely spoke, and chose my moments with what might have seemed like excessive care. (14) I knew that from the tenor of some classroom discussions, some forms of privilege were not ready to be named. (15)

The riverbank makes a very good road. The dead trees show you the way.

"It is unusual to remember an article after twenty-five years." (16) Neil Gotanda's opening words ably capture how Mari Matsuda's multiple consciousness framework honestly and urgently mapped a jurisprudential method--explicitly built upon W.E.B. Du Bois' theorization of "double consciousness" through which African Americans see the world at once through the perspective of the dominant group in society through which they are oppressed outsiders and from their own perspective--for generations of lawyers and law students, myself included. (17) Matsuda's method is literally a map, offering an alternative geography of the study and practice of law that enabled outsiders from historically marginalized communities to see and live our own interlegality. (18) Her courageous and compelling article draws its title--"When the First Quail Calls: Multiple Consciousness as Jurisprudential Method" (19)--from the first line of the spiritual alluded to by Dr. King, embodying a call to action, and a map: Follow the Drinking Gourd. (20)

While studying law, multiple consciousness as jurisprudential method helped to support devoting myself fully to mastering what was being taught in law--within and beyond classrooms, including law journal membership, mooting, and work as a student clerk. It added critical layers to any discussion of the significance of legal translation. And it validated my soul-sustaining decision to remain in active communion with community, in part by volunteering and ultimately joining the board of the Montreal Domestic Workers' Association. Inviting inspired speakers like Professor Patricia J. Williams, who first visited the McGill Faculty of Law in the context of the Annie Macdonald Langstaff Workshop Series in 1990, was part of the multiple consciousness strategy. (21) Williams' authoritative and affirming analysis of race in the United States (22) was paralleled only by how meaningful it was to have her claim the hallowed space that was the faculty's main seminar room. The room was packed, and not only with the usual suspects. One McGill law professor leaned over to me and mentioned with enthusiasm how different the seminar room looked. And true to her inimitable style, when Williams' presentation ended, the room so typically full of the comments of seemingly self-assured speakers accustomed to claiming space and being heard, fell silent with the weight of what had been experienced. (23) The room not only looked different; it felt different, as members of the faculty and university community came to terms with the need to sit still and contemplate ...

Left foot, peg foot, travelling on. Follow the drinking gourd.

It is with that call to action and map that, on my return to teach law at McGill in 2000, I encouraged a generation of students who seemed also to be searching for an alternative imaginary, to hold on to the kind of social justice our communities recognize in Matsuda's words: "children with full bellies sleeping in warm beds under clean sheets." (24)

Although I expressed an interest in CRT, I taught mostly in the fields of labour and employment law as well as international trade law. A few years later, I stepped into the first-year course, Foundations of Canadian Law, into which I introduced a segment on CRT. Alongside other readings, students were introduced to Matsuda's pivotal piece. That module was taken up by many of my colleagues and is still taught in some sections of the required course, over a decade later. But for over a decade, students yearned for opportunities to engage in a fulsome manner, when they struggled with representations of race that may have reinforced racialized "othering": when the principle of the best interests of the child was applied through international law to the consideration of immigration claimants, while the overtly racist statements of the immigration officer were strategically not litigated; (25) or when the relationship between social context and impartiality was put to stark relief when embodied in the first Black judge in Nova Scotia, who had attended segregated schools in Nova Scotia; (26) or to cases in my own subject area, labour law, that subsume claims of Aboriginal rights to the division of powers while espousing a "frozen rights" assumption that at once ignores and yet illustrates the ongoing enactment of settler colonialism. (27) Each such moment across the curriculum runs the risk of yielding a form of racial invisibility, in which the terms of entry about the knowledge of racialization and settler colonialism are erased, or mediated, or disciplined. Collectively, students...