Abstract
It was critical that the U.S. Supreme Court have the best empirical evidence available to help inform its decisions in Fisher. The amicus brief filed by 444 researchers from 172 institutions in 42 states was the result of a collaborative effort among members of the social science, educational, and legal communities. 1 In my role as counsel of record on the brief, I relied on my training as a lawyer and educational researcher, including having served as counsel of record in a prior amicus brief filed by 553 social science researchers in the K–12 voluntary desegregation cases: Parents Involved in Community Schools v. Seattle School District No. 1 (2007) and Meredith v. Jefferson County Board of Education (2007). In this process, other social scientists and I found it important to consider how researchers can communicate findings to inform legal developments in future cases. I argue here that scholars may do so by increasing their understanding of the applicable legal standards in a case, presenting their findings in language that can be understood by a legal audience, and familiarizing themselves with the outcome of cases or ongoing litigation to help frame new research studies that can directly address future legal action.
Before I address this argument, it is important to recognize that the question of whether social science research should inform legal decision making is open to debate. After all, evidence can be selectively introduced, or relied upon, to support ideological positions; judges are not necessarily trained to assess the methodological strengths or weaknesses of a study; and social science research can, depending on the development of new methodologies, call into question prior accepted findings (e.g., Ancheta, 2006). Yet, the Court has used social science research to inform its conclusions in prior cases. It did so most famously in its landmark opinion in Brown v. Board of Education (1954), and more recently in Grutter v. Bollinger (2003) and Parents Involved. 2 In those cases, the Court made determinations about the type of policies educators can use to further educational interests—decisions that should be grounded on social realities and findings that reflect the general consensus of researchers and educational institutions and organizations.
One initial step during our work on the amicus brief in Fisher required a basic understanding of how the Court’s legal standard in the case—strict scrutiny—guided the type of evidence that would be important to include, as well as how to organize it within the confines of a 9,000 word limit. The legal standard in a case sets forth the parameters for the legal questions that judges need to decide a case. By understanding the applicable standard, researchers can identify questions or studies that can inform the legal questions in a case. Similar to when researchers apply a conceptual or theoretical framework to guide the interpretation of findings, the legal framework, or standard, in a case guides the type of evidence that is relevant to consider. Many briefs, including the one filed by the American Educational Research Association et al., primarily addressed the first prong of the strict scrutiny test: whether the University of Texas (UT) at Austin’s policy furthered a “compelling interest.” Others, including the one filed by 444 social scientists, primarily summarized evidence that addressed the second prong of the strict scrutiny test: whether UT Austin’s policy was “narrowly tailored” to achieve its end. 3
In identifying studies that addressed the two prongs of the strict scrutiny inquiry, researchers found it easier to identify findings that addressed the first prong (compelling interest) than the second (narrow tailoring). The issue of narrow tailoring remains an underexplored area in research. This may be due, in part, to the fact that the Court has not articulated a “fixed test” for the narrow tailoring determination, but has instead outlined a number of relevant factors, which are ultimately context-specific. A greater understanding of how the Court applies these factors in a narrow tailoring analysis of UT Austin’s policy, and more familiarity with this part of the legal test, should guide efforts to identify research that can address the determination in future litigation.
In communicating findings, our brief needed to present information in a manner that a legally trained audience would understand. Judges are more inclined to consider research evidence if they unambiguously understand the findings, the strength of the research, and how the findings relate to the issue under consideration. Thus, we had to simplify language and minimize nuance, or qualifications of research findings. These are particularly difficult steps since, as researchers, we are socialized to use technical language and to emphasize the nuance of findings when communicating to peers within academia. But to a legal audience, emphasis on nuance can be interpreted as equivocal and thereby unpersuasive. Technical terms that social scientists routinely use to convey a methodological technique, moreover, require translation.
Expressly stating how the findings relate to each legal question in the case further helps a legal audience understand how findings bear on the legal determination. In addressing the narrow tailoring prong of the strict scrutiny standard, for example, we summarized a body of work that documented the impact of statewide bans on affirmative action. These findings demonstrated that after the implementation of these bans, racial and ethnic student body diversity declined across various educational sectors, including selective undergraduate institutions as well as the professional fields of law, business, medicine, and other graduate disciplines. We further contextualized these studies in light of myriad “race-neutral” efforts institutions implemented to achieve racial diversity. In this way, we connected research findings to the legal question of whether “race-neutral” policies can be effective alternatives to race-conscious ones in attaining racial diversity.
Though some researchers were involved in the early stages of litigation in Fisher, the collaboration between the legal and social science communities intensified after the Court agreed to hear the case. However, given the strict time limits for the submission of briefs, it was not feasible to begin new research studies that could help inform the ruling. In future cases, being informed of legal issues and applicable legal standards at the early stages would provide researchers more time to identify research questions and design studies that can help inform timely legal questions. These efforts can also take place after the outcome of a decision. Researchers, for example, can use the Court’s decision in Fisher to guide the design of studies that may inform future litigation. These studies could be focused on institutional efforts that are needed to attain the educational benefits of diversity (compelling interest), or they could be focused on the narrow tailoring prong of the strict scrutiny inquiry. Studies that document the effectiveness (or lack thereof) of race-neutral policies that may be implemented in response to Fisher would also provide evidence relevant to the issue of narrow tailoring in future litigation.
Ultimately, efforts to use social science and educational research to inform legal developments will require ongoing collaboration between the academic and legal communities. Social science research, however, can take a long time to complete, and even longer to publish. For these reasons, early, active, and sustained relationships between legal advocates and researchers are critical. We should learn from past efforts, including collaborations around cases such as Grutter v. Bollinger, Parents Involved, and Fisher, and apply the lessons in ongoing and future cases that provide the opportunity for research to inform legal developments.