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December 1, 2022 | 23
The Fate of the LSO Inclusion Index The Inclusion Index is the latest causality in a war over equity in the LSO HARRY MYLES (3L) WITH ASSISTANCE FROM ALYSSA WONG (2L) On June 28, 2022, the Law Society of Ontario (LSO) Convocation (a monthly meeting of LSO benchers) approved a motion not to release the Inclusion Index (“the Index”), an initiative meant to chart equality, diversity, and inclusion (EDI) progress in the legal profession. Ultra Vires (UV) investigated why the Index was not released and, in the process, discovered a far more signif icant rift within the LSO about the future of equity and how to address systemic racism within the profession. The Index was developed in 2019 following Recommendation 6 of the Working Together for Change: Strategies to Address Issues of Systemic Racism in the Legal Profession report. The purpose of the Index was to measure the LSO’s progress in breaking down barriers faced by racialized lawyers and paralegals. Many f irms capitalize on EDI branding; however, currently, there is limited regulation and accountability of equity within the profession. The Index would thus provide a measure of transparency and accountability. After the June 28 decision not to release the Index, UV received an email from two licensees questioning the Convocation’s decision. UV proceeded to investigate the issue over the next four months. Under Recommendation 6, the LSO would develop and publish an Index every four years based on questionnaires answered by licensed individuals in workplaces of at least 25 licensees. To create the f irst Index, the LSO collected licensee information in the 2018 Annual Report about self-identity (based on race, ethnicity, gender, sexuality, etc.), experiences related to inclusion, respect, and safety in the workplace, along with workplace EDI policies/programs. Using a series of metrics, workplaces would be given a diversity score (based on demographics), a commitment score (based on EDI programming), and an inclusion score (based on the workplace culture/environment). Workplaces would then be given an overall ranking and the label of superstar, accidental superstar, inclusive, diverse, accidentally inclusive, accidentally diverse, commitment only, and needs improvement. To uncover what happened with the Index, UV f irst considered a Freedom of Informa-
tion request to the LSO. Unfortunately, after speaking with several people knowledgeable in access to information law, UV concluded the LSO would likely not be a covered “institution” under the Freedom of Information and Protection of Privacy Act. This in itself raises questions regarding the accountability of LSO decision-making. As a result, Alyssa Wong (2L) and I proceeded to read through the public minutes and transcripts of the LSO Convocations from 2019, 2020, 2021, and 2022. Several records were only available upon request, but the LSO did not respond to UV’s inquiry. Little was mentioned about the Index in the available materials until the May 26 and June 28 Convocations. Prior to the June meeting, the Index faced staunch criticism. In the May 26 Convocation, Bencher Murray Klippenstein claimed that the Index sought to “enforce a system of de facto race and gender quotas” such that legal professionals “would be hired, promoted and appointed, not based on their competence, their smarts, their skills, their hard work and their contribution, but, instead, based on the skin colour, facial features and sex chromosomes that they were born with.” This statement seems to imply that hiring, promotion, and appointments are currently meritocratic. Bencher Klippenstein also noted the Index was based on an ideology of “wacky wokeism.” Klippenstein later issued a statement of claim on June 17, 2022 with himself as the plaintiff and the LSO as the defendant to access the Index. Klippenstein alleged the conclusions were invalid due to improper data collection. During the June 28 meeting, the benchers debated the recommendation by the Equity and Indigenous Affairs Committee (EIAC)— the body responsible for the Index—to not release the report. At the meeting, Dianne Corbiere, the Chair of the EIAC, explained that a conf idential peer review of the Index found it was not transparent enough, and the methodology was f lawed. Furthermore, the Index was an outdated ref lection of EDI progress in the profession since it was based on data collected in 2018. UV obtained the EIAC report on the In-
dex presented to the June Convocation. The report explained the onset of the pandemic in March 2020 impacted progress on the Index, which prompted the peer review by Michael Ornstein, Sujitha Ratnasingham, and Scot Wortley. The peer reviewers presented their f indings to the EIAC in May 2022, with the relevant conclusions presented to the Convocation in June. Unfortunately, UV could not obtain the May 2022 f indings as all committee materials and minutes are conf idential. During the June 28 Convocation, several Benchers argued for a total abandonment of the Index. Bencher Sam Goldstein called the Index a “race audit” that would divide the profession into “people who are white and people who are not white.” Bencher Michael Lesage felt the index would be a “naming and shaming” of f irms and essentially become a form of advertising for the f irms that ranked highest, which Bencher Lesage thought would likely be some of the largest f irms in the province. Finally, Bencher D. Jared Brown stated: “let's release this turd to the public. Let's show them what you guys have been working on. That's transparent.” Bencher Julian Falconer noted that the above criticisms (from Benchers Goldstein and Brown) came from the slate that campaigned against the statement of principles (SOP) in 2019, another equity initiative proposed by the LSO. In the SOP, licensees would have acknowledged existing human rights obligations (i.e., to not discriminate in practice) and ref lected upon how such duties were relevant to one’s practice. The StopSOP slate (now FullStop) subsequently mobilized to repeal the SOP, claiming it amounted to compelled speech. In the June 2022 meeting, Bencher Falconer noted that the slate consistently campaigned against equity initiatives without providing positive suggestions or alternatives. In the end, a majority of 40 benchers voted in favour of not releasing the Index. While it appears as though the Index was not released due to stale results and f lawed collection, the actual data is still unknown. This fact raises questions by some in the profession about transparency and whether the Index data should still be released as a dem-
onstration of commitment to racial justice. Furthermore, questions remain as to the timeframe from the LSO to address these lingering issues. More broadly, however, it is clear the Inclusion Index was caught in the crossf ire between warring factions of the LSO. Those, like members of the StopSOP slate, oppose equity initiatives of many kinds due to “wacky wokeism,” “stif ling” political correctness, and a perceived culture war. In September 2022, John F. Fagan—a StopSOP slate member—penned an article celebrating the June demise of the Inclusion Index, claiming the actual “fastest and proper way to conquer any residual racism in the Ontario legal or paralegal professions” is to “confront [...] individual instances of provable discrimination based on ethnicity [...] by the traditional methods of accusation, proof, due judicial or quasi-judicial f indings, and enforced due consequences for proven discriminators.” Those in opposition to these licensees, such as Professor Joshua Sealy-Harrington, claim lawyers like Murray Klippenstein think the legal profession is “post-racial” and fail to accept the fact that systemic racism is still alive and well. As demonstrated by John Fagan’s article, some feel that “residual racism” is best fought via the tried and true methods of the law, relying on the belief that the legal system can effectively address social ills. However, as law students and lawyers know, the wheels of justice move far too slowly, and our legal system is likewise founded on white supremacist settler colonialism. Moreover, the Inclusion Index sought to address systemic racism within the profession (like subtle structural barriers in practice), whereas the method proposed in Fagan’s article addresses individual, intentional discrimination. As a result, other methods, like equity initiatives, are required. It appears as if the LSO is caught in the middle of a staunch tug-of-war, preventing it from addressing systemic racism and other equity concerns. Will one side have to emerge victorious for meaningful action to occur? Or can a compromise be reached? Only time will tell.
Food Insecurity Amongst Professional Students and Graduate Students A call for U of T to help mitigate food insecurity on campus VIVIENNE STERN (2L) Food insecurity, defined by University of Toronto researchers as the “inadequate or insecure access to food due to financial constraints,” affects 15.95 percent of households across Canada and 40 percent of Canadian post-secondary students. Although country-wide food insecurity rates have remained steady for the past three years, it is increasingly a problem for low income, BIPOC, international, and professional and graduate students at U of T —especially in light of the COVID-19 pandemic. Food insecurity can manifest in a multitude of ways, from the quality of the food being consumed, to the quantity. Students in particular are known to budget less money for food in comparison to “non-negotiable” costs such as rent and tuition, which can lead to an increase of fast food or less nutritious food in their diets. These types of changes in dietary patterns can negatively affect one's health, possibly causing heart disease or high blood pressure in the future. However, students cannot be blamed for making such food
choices when backed into a corner due to food insecurity. Furthermore, considering the recent rise in grocery store prices (especially in the produce and frozen food aisles), food insecurity is particularly a cause for concern. The question is, what can be done to lessen the impact of food insecurity in the short and long-term? Food banks are one of the quickest ways to mitigate food insecurity in the short-term. The University of Toronto Students’ Union (UTSU) began the UTSU Food Bank in 2001 to help address food insecurity among students. After the UTSU Food Bank was shut down due to the pandemic, the U of T Emergency Food Bank was created. The Emergency Food Bank provided students with weekly food box deliveries and giftcards for groceries. Since creation, it has delivered over 6,650 food boxes and gift-cards to 600 student households. However, the U of T Emergency Food Bank has “temporarily run out of funds” and stopped its programming for the time being.
In the long term, data on the demographics of people accessing food banks on campus, which is currently scarce, is necessary in order to tackle the root problem. The Varsity recently published an article about the benefits of recording such data, highlighting the need to make informed decisions on how to upgrade food bank services and tying the issue “to large societal inequalities.” Another avenue to help tackle food insecurity is by developing partnerships with community organizations to help fund and support food security initiatives. As of today, the U of T Emergency Food Bank has formed more than 15 solidary partnerships. Further, one of the ultimate goals is to de-stigmatize food insecurity on campus, coupled with a change in mindset about how food services should be prioritized. The UTSU recommends that U of T look at food services as “a fundamental right” rather than an “ancillary service”. The systemic and complex nature of poverty necessitates a reconstruction of services for stu-
dents, and the current system does not provide enough support to vulnerable communities. With a “chronic lack of sleep coupled with microwavable noodles” being known as the characteristic student experience, food insecurity is perpetually romanticized. Further, many food banks and other food-related services are encumbered by administrative barriers. U of T, and universities generally, takes pride in delivering education to the next generation. This includes providing an environment where students can excel, which necessarily includes addressing student food security. Although services for physical and mental well-being have improved in recent years, there is clearly a long way to go. With the holiday season coming up and as temperatures continue to drop, take a moment and help in any way you can—whether it is through volunteering your time during winter break, donating to your local food bank or community fridge, or using your voice to push incentives to aid food security on campus.