In 2021, a judge of Ontario’s Divisional Court found that mandatory math competency tests for incoming public school teachers constituted discrimination against racialized teaching candidates. The decision, Petrucci v. Ontario, was a bombshell, representing a highwater mark of judicial DEI countenance. It was deemed a “surrender to, indeed an embrace of, irrationality masquerading as legal doctrine” by constitutional scholar Leonid Sirota. Happily, the decision was overturned unanimously by the Court of Appeal last week, but the whole affair and the tangled equality rights jurisprudence that led to the original outcome bear accounting for.
In response to falling math scores across Ontario schools, the Ontario government mandated a basic math proficiency test (MPT) for all public school teachers. The MPT barely reached a Grade 9 level, with many questions well below that threshold. The test was screened twice for “bias and sensitivity to equity issues.”
A Divisional Court decision was issued on the basis of one round of the test being administered. It found that the test constituted a form of “adverse impact discrimination”, accepting an assertion that “Black and Latinx teacher candidates are much more likely to fail standardized teacher tests than their White peers,” and that standardized tests are categorically “biased against almost all vulnerable classes of potential teachers other than women”. They reached this conclusion even though it was common ground that teaching candidates were permitted to take the test as many times as needed.
The allegation that standardized tests, whether for students or faculty, contain implicit biases is a familiar one. Staff with the Toronto District School Board’s Mathematics and Numeracy Department have given presentations suggesting that the province’s standardized testing was an example of “white supremacy in K-12 mathematics education.”
The hearing of the appeal, held at Osgoode Hall this fall, was bracing to witness. In one exchange, Justice Monahan remarked, upon hearing that the content of the MPT was biased against non-native English or French candidates, that he felt like he was in Alice in Wonderland absurdist territory. Clearly, basic competence in English or French is a requirement to teach in an Ontario public school.
Counsel for the candidates argued that even the government’s accommodation of multiple test rounds was insufficient and that the disparity in test outcomes created sufficient evidence of discriminatory impact. He argued that to demand more evidence would be “unduly onerous” for the candidates. This was posited due to the excessive burden for racialized candidates of having to “see their white colleagues passing, give up jobs and time with family.” They feared that some candidates who failed the first time would just give up.
With an eventual pass rate for racialized candidates of 93 percent, the court didn’t accept this, as there was no indication that the test served as a meaningful barrier to the diversity of the teaching profession. And thank God. If the standard of a basic test of grade nine math abilities for an educator is too meritocratic for our society, and asking intended teachers who don’t pass right away for a bit of perseverance, things are pretty hopeless. (And I say this as somebody who failed her G2 driving test four times, with considerable humiliation!)
In the result, Justice Monahan found that the test was not discriminatory: candidates who had not passed could rewrite the test an unlimited number of times without prejudice, and the test itself had already been screened for bias. The legal charity I work for, the Canadian Constitution Foundation, intervened and argued that the test, which already made accommodations for racialized groups, was not arbitrary and thus was strongly presumed to not be discriminatory.
The decision is an opportunity to consider how the guarantee of equality under the Charter has metastasized in the last forty years since its adoption and offers a somewhat hopeful check on s. 15’s drift towards creating positive obligations on the state to produce uniform outcomes between all societal groups. From the perspective of the candidates and the Divisional Court, substantive equality demanded that the government fill in any gaps in outcomes between groups, even if that means eliminating the requirement of proving basic skills for those who would educate our children.
Section 15(1) states “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” The landmark case defining the scope of s. 15(1)’s protection, Andrews v. Law Society of British Columbia, guaranteed “equality before and under the law, as well as the equal protection and equal benefit of the law without discrimination” and clarified that its protection “was not a general guarantee of equality.” In other words, it was a negative guarantee of formal equality rather than substantive equality: equality of treatment under the law, free from state distinction, rather than equality of outcomes.
Now-retired Justice Rosalie Abella, however, made it a hallmark of her judicial legacy to entrench a thick conception of substantive equality in which each social group ought to enjoy equal outcomes on every measure of achievement, and a group’s demonstration of unequal outcomes served as prima facie evidence of discrimination.
This view prevailed in the Supreme Court’s 2020 Fraser decision, which found that RCMP officers who opted to switch to part-time work after their maternity leaves were entitled to full-time pension benefits in retirement. Abella found that to hold otherwise would perpetuate historical disadvantages of women, and counselled lower courts, when reviewing laws for discriminatory impact, to disregard legislative intent, as it was not important to show discrimination. Mere “headwinds” against which a certain group might struggle were sufficient.
However, concerns about whether equality doctrine was becoming unwieldy and all-encompassing were addressed in 2022’s R. v. Sharma, which was released after the divisional court’s decision in Petrucci. The majority decision reins in Fraser in a few ways. First, it clarifies that any gap in outcomes between groups does not mean there has been a breach in equality rights, only “disproportionate” gaps. Second, it emphasized that the distinction had to be arbitrary in order to ground a claim of discrimination: “a distinction that is based on an individual’s actual capacities will rarely be discriminatory; but a distinction that fails to respond to the actual capacities and needs of the members of the group will often be discriminatory.”
The proposition upheld by the Divisional Court—that fear of burdening racialized candidates should lead the government to scrap a test meant to boost poor math scores throughout public schools—represents a nadir of bigotry of low expectations. It also threatens to entrench poor math outcomes for all students, including racialized ones, by doing away with the requirement of basic teaching knowledge requirements. Finally, its view of the aptitudes of racialized Canadians is both condescending and unsupported by evidence. A recent study from the Aristotle Foundation, for example, shows many Canadian visible minorities outpacing white Canadians in income and educational attainment. Disparities do not imply discrimination, and it is by fostering a culture of excellence rather than a race to the bottom that society flourishes.