Subject: =?iso-8859-1?Q?Short_version:_Le_Mus=E9e_d'art_contemporain_de_Montr=E9al?=
Date: Wed, 18 Aug 1999 20:54:20 -0700


Joanne St. Lewis, Assistant Professor, Assistant Professor of Law at the
University of Ottawa

M. Pierre Bourgie,
Président
Le Musée d'art contemporain de Montréal
185, rue Sainte-Catherine Ouest
Montréal (Québec) H2X 1Z8

July 21, 1999

Dear M. Bourgie:

I am writing with regards to recent communications between  Mr. Julian
Samuel and Le Musée d'art contemporain de Montréal  regarding the
acquisition/purchase of his works. This correspondence  raises issues of
significance which go beyond the boundaries of a  personal difference of
opinion. M. Brisebois’ letter of July 15, 1999,  written on behalf of the
Board, raises serious concerns of possible bias in the decision-making
processes of the Musée and what appears to be a serious misunderstanding of
both the theoretical and practical realities of  institutional racism.

Before I begin, it might be helpful to place this intervention in context. I
am an Assistant Professor of Law at the University of Ottawa and recent
Co-Chair of the Canadian Bar Association Working Group on Racial Equality in
the Legal Profession. I have made numerous presentations and given workshops
on issues of equality. I have held positions with the Ontario Human Rights
Commission, the Ontario Race Relations Directorate and served as the
Executive Director of the Women’s Legal Education and Action Fund. Among my
professional activities, I conduct sessions for the National Judicial
Institute on judicial decision-making on matters of race and culture. Given
the above, I feel ably qualified to comment on the issues of how bias can
affect decision-making without purporting to tender any advice on the
inherent quality of the artistic works in question.

Mr. Samuel’s letter of March 3, 1999, raised a number of pertinent issues.
First, he indicated that after three rejections of his  work, he was
concerned about bias which was either politically or racially motivated. The
political bias he identified was related to the subject matter of his works
which he characterized as ‘overtly pro-Palestinian.’ He noted that racial
bias might also be present because of the lack of representation of
racialized persons on the juries which assessed his work. He specifically
said: “I am not claiming that previous jury members at the Musée are or were
racist. I am, however, claiming that racially uniform juries can,
unwittingly, misunderstand work which is committed to an unconventional,
experimental exposé of colonialism.” He then illustrated this point by
noting the disparate treatment and review of his work by English-language
and Quebec Francophone reviewers  (with one exception). He then made
reference to these factors as indicative of “Québécois cultural ‘nationalism
’ and exclusion.” Finally, he made a request to participate in your jury
selection processes at a more general level.

M. Brisebois’ response, in his letter of July 15, 1999, is brief. He states
that the utmost consideration has been given to Mr. Samuel. He characterizes
this decision-making as being conducted in the difficult circumstances of
“the crudeness of your attacks on their credibility because of their own
race.” The criteria for the decision were (a) the aesthetics and (b) the
conceptual basis of the works. He notes that the “risqué and provocative
formal approach” was a detrimental factor in your decision-making. He states
that there are no vacancies on any of  your committees. Finally, he
concludes that the decision was not motivated by “prejudice but mainly as an
institutional decision.”

M. Brisebois’ response fails to address the specific issues of  possible
systemic bias raised in Mr. Samuel’s letter. I have taken the opportunity to
raise the implications of his concerns in a series of preliminary questions
set out below.

Issue#1 Possible systemic bias in the jury selection process

what is the selection process for the jurors?

what criteria is used to identify qualified jurors?

to what extent is membership in, expertise and experience with
racialized communities factored into the selection process?

what methods are there in place to ensure that bias is not present
in the juror selection process?

is there any statistical data on the demographics of jurors
(present and past) which would assist in determining whether
there is a pattern of systemic exclusion?

Issue#2 Possible systemic discrimination in the jury decision-making
process

what percentage of acquired works have been produced by
racialized artists?

what percentage of purchased works have been produced by
racialized artists?

what is the profile of the works by racialized artists, if any,
which has been acquired or purchased?

does any of the work presently acquired or purchased contain
controversial viewpoints on issues faced by racialized
communities?

does any of the work presently acquired or purchased examine
issues of colonialism?

does any of the work presently acquired or purchased examine
issues of orientalism?

does any of the work presently acquired or purchased contain a
pro-Palestinian position?

what criteria are used for the evaluation of work? Who
determines this criteria?

what, if any, policies are in place regarding diversity in the
purchase, acquisition and other decision-making processes?

what monitoring mechanism ensures that systemic bias is
removed or identified in the decision-making process?

what is the mechanism which enables artists to raise concerns
about the evaluation process? Is the reassessment process bias
free?

It is the responses to the above issues which would assist in or  reassure
the person inquiring that adequate attention had been paid to identifying,
addressing and ensuring that systemic biases did not inadvertently affect
the decision-making process. Diversity in representation on decision-making
bodies is a key factor in providing both the reality and appearance of a
non-discriminatory institution. Its absence, particularly over a significant
period of time, properly raises the question and places the onus on the
institution to identify what other factors should be given consideration.

M. Brisebois’ letter fails to address the issue of possible systemic bias in
any meaningful manner. In fact, his response has a defensive tone evidenced
in the mischaracterization of an enquiry regarding possible systemic bias
into a personal attack on the credibility of the decision-makers. It is
quite often the case that decision-makers have no intention to discriminate
but the accumulation of their predispositions, experience and failure to
consciously be inclusive results in the systematic exclusion of others.
Human rights jurisprudence has recognized this by focusing on the results of
the exercise of power rather than intention.

There is an error in the assumption that raising the issue of  possible
systemic bias is de facto an allegation of direct racism by the
decision-maker. It is disingenuous to characterize this as a racist attack.
Furthermore, the two parties are not in an equivalent position. Artistic
institutions are in a position to determine how the public views culture.
By its choices (acquisitions and purchases), it creates a persona which
shapes and reflects its understanding of the communities it serves. The
non-presence of diverse communities is a statement. While the motivation of
individuals will remain a mystery, the responsibility and accountability of
public institutions for the images they project is clear.

Any individual who questions and seeks confirmation that an institution’s
decisions are not subject to bias should be encouraged. Institutions
should always be ready to meet this challenge by a demonstration of the
concrete actions they have taken to ensure that this is not the case.

A further issue arises in the criteria identified by M. Brisebois
for the rejection of Mr. Samuel’s works. Artistic judgement is highly
subjective. Aesthetic judgements and evaluating artistic conceptual
frameworks are fraught with even more potential for masking bias than
the average tribunal or judicial decision. The greater the transparency of
the criteria used, the greater the confidence of the public in the decision.

I look forward to hearing further from you on this important
matter.

Yours truly,

Joanne St. Lewis
Assistant Professor

cc: Madame Agnès Maltais, Ministre de la Culture et des
Communications
Fo Niemi, Executive Director CRARR
The Honorable Hedy Fry, Secretary of State for
Multiculturalism & the Status of Women
The Honorable Sheila Copps, Minister for Canadian Heritage

21 July 1999

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