UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 31, No. 4SUMMER 2008
BROWN UNDONE?: THE FUTURE OF INTEGRATION IN SEATTLE AFTER PICS V. SEATTLE SCHOOL DISTRICT NO. 1
Judicial Decision-Making, Social Science Evidence, and Equal Educational Opportunity: Uneasy Relations and Uncertain Futures (fn*)
Michael Heise(fn*)
I. Introduction
The Supreme Court continues to struggle with complex and uncertain social science evidence in constitutional cases. Ambivalence about the proper role such evidence should play in judicial decision making contributes to this struggle. Recent education cases illustrate key aspects of this struggle and also show the Court's inconsistent treatment of social science evidence.
In Grutter v. Bollinger(fn1) and, more recently, Parents Involved in Community Schools v. Seattle School District No. 1,(fn2) the Supreme Court addressed challenges to public school programs that sought to enhance equal educational opportunity by increasing student racial and ethnic diversity.(fn3) The diversity programs in both cases shared the assumption that increased student diversity generates desirable educational outcomes, including enhanced student achievement.(fn4) Social science evidence was pressed into service to support this shared assumption and contributed to the University of Michigan Law School and the Seattle School District's efforts to establish diversity as a compelling governmental interest.
A comparison of the Grutter and Parents Involved opinions, however, reveals that the Court treated similar social science evidence quite differently in the two cases, which were separated by only five years. One critical difference was that the Court's opinion readily engaged with the social science evidence in Grutter, in contrast, the Court's Parents Involved decision conveyed a desire to disengage from the social science evidence. The Court's different treatment of the social science evidence in these two cases reflects long-standing yet persistently uneasy relations between constitutional law and social science. The lingering unease between law and social science descends partly from the Brown v. Board of Education opinion, specifically footnote 11.(fn5) The increasingly bitter contest over the rightful ownership of Brown's legacy, partly waged through the Grutter and Parents Involved litigation, stimulated sharp scholarly,(fn6) public,(fn7) and judicial(fn8) rhetoric. That the Brown legacy includes a substantial contribution to an increasingly empiricized equal educational opportunity doctrine(fn9) only deepens the irony surrounding the Court's current ambivalence about social science evidence in the education context.
The full extent of what the Court decided in Grutter and Parents Involved remains in some dispute.(fn10) What is far more certain is that both cases continue to stir deeply held passions that help frame public and legal debates about the Court and its role in affirmative action and school desegregation disputes.(fn11) Amid these increasingly raucous debates, this Article expressly side steps the many questions (and controversies) about what the Court decided in those cases and seeks to escape from the frequently politically charged and volatile context of governmental uses of race. This Article instead focuses on how the Court reached its decisions in Grutter and Parents Involved and how the two decisions differ. In assessing the "how" questions this Article dwells exclusively on the Court's treatment of the social science evidence brought before it and gives a particular emphasis to the quantitative social science. A better understanding of how the Court reached its decisions in Grutter and Parents Involved matters not only for legal scholars but also, and perhaps more importantly, for future litigants and those bound by the decisions.
Two distinct, though related, factors help account for the Court's different treatment of similar social science evidence in Grutter and Parents Involved. First, the relevant constitutional doctrine is far from clear on how and to what degree public schools may act on a student's race. Second, challenges flowing from uncertain law are compounded by social science uncertainty. Not only are many aspects of the education enterprise notoriously difficult to study, but empirical support for key assumptions relating to student diversity programs, such as those litigated in Grutter and Parents Involved, is not yet settled and will likely remain unsettled for the foreseeable future.
How the Court should handle the inherent social scientific complexity and uncertainty in constitutional cases as a normative matter is not obvious. What is obvious, however, is that such uncertainty places enormous stress on courts seeking to enlist social science evidence into the service of judicial decision-making. The persistently inconsistent relation between constitutional law and social science evidence poses especially nettlesome burdens on those charged with the responsibility to both pursue and deliver equal educational opportunity. Constitutional law and social science evidence co-exist awkwardly despite a relationship that benefits from an august pedigree, arcing back to the Court's seminal Brown decision. Enduring questions include whether and how the Court should treat social science evidence when assessing the equal educational opportunity doctrine as well as challenges to it.
The Court's past treatment of social science evidence when interpreting the equal educational opportunity doctrine helps frame today's questions, including those questions litigated in Grutter and Parents Involved. Part II of this Article briefly summarizes the historic context with a discussion of Brown and two other landmark cases that followed in its wake. Part III includes a brief description of how the Court digested the social science evidence pressed by litigants in Grutter and Parents Involved. Problems arising out of the contested social science evidence presented in Grutter and Parents Involved contribute to important challenges that await courts forced to confront similarly contested social science in the future. Part IV discusses the reasons behind the court's inconsistent treatment of the use of social science evidence in Grutter and Parents Involved. Finally, Part V concludes by considering how courts might proceed in the face of such challenges.
II. A History of Unease and Uncertainty
The problems and uncertainty that surround constitutional decision making and social science evidence pre-date the Grutter and Parents Involved decisions. Three seminal equal educational opportunity cases, Brown, San Antonio Independent School Dist. v. Rodriguez,(fn12) and Regents of University of California v Bakke,(fn13) illustrate that tensions between constitutional law and social science evidence arose decades before the Grutter and Parents Involved cases.
A. Brown and Footnote 11
In Brown, the Court endeavored to desegregate the nation's public schools by striking down state-sanctioned school segregation.(fn14) If the goal of desegregating (and, perhaps, integrating) America's public schools was not difficult and controversial enough, the Court's opinion in Brown inadvertently generated additional controversy. Anticipating (correctly) a hostile reaction to the Brown decision, Chief Justice Warren set out to write a brief (by legal opinion standards), uncomplicated legal opinion in a plain, non-accusatory tone.(fn15) Warren astutely surmised that a brief opinion increased the probability that it would be reprinted in its entirety by a larger number of the nation's newspapers, thereby reaching a wider audience.(fn16)
In an opinion noted for unusual brevity, a single sentence captured the Court's core argument in Brown that the Constitution prohibits school districts from assigning children to schools on the basis of race:To separate [schoolchildren] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.(fn17)
The Court advanced a psychological argument to buttress its conclusion of constitutional harm and referenced with favor a lower court finding that linked the practice of state-sanctioned segregation with psychological harms to non-white schoolchildren.(fn18) It was at this juncture that the Court sought to push its psychological argument even further by supporting it with social science research. To do so, the Court noted that "this finding [of psychological harm] is amply supported by modern authority."(fn19) It is here that Warren dropped a footnote-the much-maligned footnote 11-which references a list of social science sources purporting to support the Court's assertion of psychological harm suffered by non-white schoolchildren who were denied access to specific public schools.(fn20)
The Court's psychological harm finding referenced in Brown's footnote 11 featured research by Dr. Kenneth Clark. Not surprisingly, the reference to Dr. Clark's work in the Brown opinion directed considerable attention to his research. The particular study by Dr. Clark that the Brown opinion cited involved asking a small number of African-American school children to identify the dolls that looked "nicer" among an array of white and black...
