From a Canadian legal perspective, the notion that a test could be discriminatory and so unconstitutional is not note-worthy in itself. It all follows standard case law there. The legally interesting bit, is the card seemingly dropped in the shuffling, where the court recommends a less intrusive alternative policy that was also considered by the government:
> There is a plethora of evidence in the record highlighting the disproportionate impacts of standardized testing based on race … In contrast, there is no evidence to suggest that these negative diversity impacts would exist in the context of a mandatory math course …
Of course, no evidence exists because no one has looked for it yet. This reliance on single-example small studies to suggest possible less intrusive remedies is probably a path to much legal madness. This will likely be appealed. Politically this is a bit heated as both Quebec and Ontario's governments have recently rubbed up against the limits of the Charter in different areas.
> In contrast, there is no evidence to suggest that these negative diversity impacts would exist in the context of a mandatory math course (i.e. that racialized teacher candidates might disproportionately fail these math courses), and we do not think such an inference can be made on the basis of logic or common sense.
Uh... what? Performance outcomes differ between racial groups in mandatory classes all the time. If the argument really is that "disproportionate impact" in classroom outcomes is enough to render a policy unconstitutional, then your only option is not to measure outcomes at all, because every educational measure shows differences between races.
I edited the quote above to contain the court's entire statement from the finding, because it's even more damning and removes the possibility of a less absurd reading. Apparently the justices know absolutely nothing about education and race because they don't know that "racialized teacher candidates might disproportionately fail these math courses" is exactly what we should expect, because that's exactly what we find in every other educational context.
When a court says that there is no evidence for something, they mean that no evidence was presented to them by the plaintiff (or defendant). It is not the job of the court to be an expert on every subject, it is the job of the plaintiff to present whatever evidence is necessary to support their case. The role of the judge is to weigh the evidence presented to them instead of seeking out evidence of their own to support or refute a claim.
It is a matter of ethics that the decision of a judge is based on evidence presented on the record in open court, and that is available to all the parties.
Is a judge crossing ethical boundaries when they have their clerks research into technical, medical, historical, policy and scientific matters, or even case law from another nation? I believe this happens all the time.
Aren't judges also free to consider or disregard information from friends of the court?
A judge crosses ethnical boundaries when they research questions of fact, they are not crossing ethical boundaries when they research questions of law. The scope of a law clerk's research is restricted to legal questions such as legislative matters, case law (as you point out), etc... It would not only be crossing ethical boundaries for a clerk to research a scientific finding and use that finding to advocate for or against a position, a judgement that is made on the basis of independent research is grounds for reversal by an appellate court. Here are some additional sources you can review on this matter:
An article from an official provincial court's website about whether judges can use their own subject matter knowledge to make a decision:
The ABA's position on the issue, although it focuses mostly on using the Internet for research, it also touches on researching subject matter facts more generally:
A much more formal and comprehensive treatment of the subject, that goes into details about the difference between researching questions of law vs. questions of fact:
You are right, but judge should make use of common sense. The quote is explicitly "we do not think such an inference can be made on the basis of logic or common sense", which is completely ridiculous.
Edit: In other words, is this judge willing to bet? If not why not?
> > In contrast, there is no evidence to suggest that these negative diversity impacts would exist in the context of a mandatory math course (i.e. that racialized teacher candidates might disproportionately fail these math courses), and we do not think such an inference can be made on the basis of logic or common sense.
I'm not ignoring it, you can not deduce an empirical phenomenon on the basis of logic. Whether racialized teachers disproportionately fail these math courses is an empirical finding that must be presented as evidence, not a logical conclusion that one can deduce.
You can deduce empirical phenomenon from common sense, but the idea that it would be remotely appropriate or responsible for a judge to rule on a matter involving the relationship between race, standardized testing, and the ability to teach on the basis of common sense is patently absurd. A judge is not some random commenter arguing on the Internet their personal biases with nothing at stake; a judge is a highly trained professional who is required by long standing ethical standards to be very careful about their decision making.
> you can not deduce an empirical phenomenon on the basis of logic.
Fish are unable fly. Let us set up a flight training course comprised of all different sorts of birds and fish. The ability to fly is required to pass the course. We may logically conclude that the fish would disproportionately fail this course.
I'm not sure what point you're trying to make. The judge said that they think its reasonable to expect teachers could pass a math training course, regardless of race. Do you disagree?
From a Canadian legal perspective, the notion that a test could be discriminatory and so unconstitutional is not note-worthy in itself. It all follows standard case law there. The legally interesting bit, is the card seemingly dropped in the shuffling, where the court recommends a less intrusive alternative policy that was also considered by the government:
> There is a plethora of evidence in the record highlighting the disproportionate impacts of standardized testing based on race … In contrast, there is no evidence to suggest that these negative diversity impacts would exist in the context of a mandatory math course …
Of course, no evidence exists because no one has looked for it yet. This reliance on single-example small studies to suggest possible less intrusive remedies is probably a path to much legal madness. This will likely be appealed. Politically this is a bit heated as both Quebec and Ontario's governments have recently rubbed up against the limits of the Charter in different areas.