Deference to administrative decision-makers who limit constitutional rights is, to put it mildly, a controversial issue in Canadian law. It is mandated by the Supreme Court’s precedents, notably Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395. It was challenged by the amicus curiae but not touched in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653. Both co-blogger Mark Mancini and I have criticized it sharply. Some comments in the opinions in the recent decision of the US Supreme Court in Students for Fair Admissions v President and Fellows of the Harvard College are worth considering in thinking about it.
The issue in the case was the constitutionality and legality of the use of racial categories as a factor ― in some cases a very important factor ― in admissions to public or publicly-funded universities. The applicants claimed that it amounted to unconstitutional and illegal discrimination. Harvard insisted that that this was necessary in order to achieve sufficient diversity in its student body. The US Supreme Court had previously held that an “educational judgment that such diversity is essential to [a university’s] educational mission is one to which we defer”. (Grutter v Bollinger, 539 U.S. 306 at 328 (2003))
The majority in Students for Fair Admissions was not sold on the idea. As Chief Justice Roberts put it, “[u]niversities may define their missions as they see fit. The Constitution defines ours.” (26) Far from deferring to universities on whether racial classification is necessary, “[c]ourts may not license separating students on the basis of race without an exceedingly persuasive justification that is measurable and concrete enough to permit judicial review”. (26) Consistently with the general trends of US constitutional law, the courts must verify compliance with the constitution for themselves.
Justice Thomas’s concurring opinion is more instructive, however. He argues that “it is error for a court to defer to the views of an alleged discriminator while assessing claims of racial discrimination”. (27) He points out that the courts
would not offer such deference in any other context. In employment discrimination lawsuits … for example, courts require only a minimal prima facie showing by a complainant before shifting the burden onto the shoulders of the alleged discriminator employer. …
This judicial skepticism is vital. History has repeatedly shown that purportedly benign discrimination may be pernicious, and discriminators may go to great lengths to hide and perpetuate their unlawful conduct”. (27-28)
I think this is very relevant to Canadians, even though the actual questions addressed in Students for Fair Admissions would be dealt with quite differently under Canadian law in light of s 15(2) of the Canadian Charter of Rights and Freedoms.
Canadian law does sometimes require courts “to defer to the views of an alleged discriminator”. One example that comes to mind is the “maths is racist” decision of Ontario’s Divisional Court, Ontario Teacher Candidates’ Council v The Queen, 2021 ONSC 7386. The claim there was that a test that aspiring teachers were required to pass discriminated against non-white candidates in some mysterious way. In deciding whether the alleged discrimination was justified, the Court accepted that it had to defer “to the legislature’s choices”. [132] Whether the Court actually deferred is, admittedly, another matter. As I wrote here, I think it did not. I also argued that the court’s whole approach was misconceived ― it wasn’t a legislative choice but an administrative policy that was under review. But that doesn’t matter for my purposes here because if the Court had followed what I think was the required method and applied Doré, it would have had to defer as well. Either way, it was or would have been deference “to the views of an alleged discriminator”.
I honestly struggle to see why that would be right. I am sure many of my readers do not think much of Students for Fair Admissions and/or of Justice Thomas’s concurrence in particular. But whatever you make of the main issue in that case, what objection is there to this specific point? When the government or one of its instrumentalities is alleged to engage in discrimination, why should its views on the matter carry more weight than those of the people who say they are its victims ― or of independent and impartial judges?
Of course the point generalizes. It’s not just about discrimination. There is no more reason for the courts to defer to alleged censors or religious bigots than to alleged discriminators. “Judicial scepticism” is necessary in the face of allegedly benign restrictions on free expression, religious liberty, and any other right, just as it is, as Justice Thomas rightly says, in the face of allegedly benign discrimination. Insofar as it says otherwise, our law of judicial review is misbegotten and in dire need of reform.
Double Aspect 