Feature Articles

Social Science and the Courts: Challenges
and Strategies for Bridging Gaps Between
Law and Research
Julie Margetta Morgan and Diana Pullin
Social scientists collect vital information that bears on issues of education
policy. When the courts are faced with an opportunity to
make a decision that shapes education, judges need access to highquality
research, but they must also be convinced that it can be useful
in their decision making. This article approaches the question of how
social science can be made more effective in judicial decision making.
The authors examine the use of social science evidence by the courts
and the theories of jurisprudence that bear on its effectiveness. As
an example of the difficulty of influencing the outcome of a case, they
review the U.S. Supreme Court’s decision involving the use of race in
school assignments in Parents Involved in Community Schools v. Seattle
School District No. 1 (2007).
Keywords: diversity; educational policy; law/legal; research use/
utilization
More than 50 years ago, Brown v. Board of Education
(1954) showed that courts can play a role in articulating
our public policy goals in education. The case also
indicated the potential of social science evidence as a tool for
leveraging public policy and educational change. Brown showed
that the Supreme Court was willing to use empirical social science
evidence to justify its finding that de jure racial separation
does not afford equal educational opportunity. This raised the
possibility that other similarly important legal decisions—in educational
and other arenas—could be grounded in evidence based
on social science research. In turn, Brown revealed a potential role
for social science researchers as the suppliers of evidence and even
as advocates for particular legal positions.
Today, social science researchers collect more information
than ever that could be used to shape education policy. Yet when
it comes to influencing the outcomes of court cases, researchers
are often uncertain about the effectiveness of their efforts.
Reflecting back on the social science research supplied in Brown,
this uncertainty should not be surprising. The now infamous
“Footnote 11” pointing to the social science evidence of the psychological
harm of racial separation has been heavily criticized
Educational Researcher, Vol. 39, No. 7, pp. 515–524
DOI: 10.3102/0013189X10383334
© 2010 AERA. http://er.aera.net
Feature
Articles
(Heise, 2005). If Brown raised the possibility that judges might
use social science in decision making, it also gave rise to enduring
questions of how and why particular research was selected.
In this article we seek to remove some of the uncertainty by
identifying (a) the kinds of social science that may be relevant to
legal disputes involving broad issues of social policy and (b) the
ways in which social scientific evidence may be introduced to the
courts. We explore the possibility that conscientious decisions
about the presentation of evidence to the courts may yield better
results. However, we also present some of the pitfalls and difficulties
of integrating social science into legal decision making. An
illustration of such difficulties can be found in a recent Supreme
Court decision concerning race-conscious school assignment
policies in the K–12 realm, Parents Involved in Community Schools
v. Seattle School District No. 1 (hereinafter, PICS; 2007).
In PICS, a sharply divided Supreme Court found unconstitutional
the race-conscious school assignment policies used in
efforts to diversify schools in Louisville, Kentucky, and Seattle,
Washington. Although the Court had ample social science evidence
both supporting and condemning the use of race in school
assignment, that evidence ultimately did not affect the outcome
of the case. Among the many court cases illustrating the use of
social science evidence, PICS is particularly relevant for two reasons.
First, at its heart, it was a case about equal educational
opportunity, the very issue explored in Brown v. Board of
Education when the Supreme Court famously justified its finding
of unconstitutionality of segregated schools with an argument
that relied on social science evidence. Second, PICS represented
a longstanding legal controversy about which ample social science
data had been collected; therefore, the social science community
weighed in heavily with amicus curiae briefs. 1 However,
the investment of resources and knowledge from scholars and
professional associations yielded very little in the way of results.
The Many Uses of Social Science Data by the Courts
In the post-Brown era, skepticism was cast on the capability of
courts to play a role in deciding such disputes, as well as the
capacity of the judicial system to use social science evidence effectively
to interpret constitutional and statutory requirements
(Horowitz, 1977). Both social scientists (Dunn & West, 2008;
Moses & Marin, 2006; Welner, 2006) and lawyers (Heise, 2005;
Ryan, 2003, 2009) have assessed the reliance on social science
OctOber 2010 515

data in court cases after Brown, but systematic study of this trend
is obstructed by the wide variety of legal claims that might involve
such data and the wide variety of ways that research can find its
way into court. At the trial court level, parties present social science
evidence to judges and juries through expert witnesses. On
appeal, parties and amici curiae may present social science in
written briefs. In addition, social science research may enter the
court through a judge’s own volition; judges may seek out
research on a particular legal issue, or a research conclusion may
enter their consideration because it has been so widely discussed
and accepted that it is considered by the judges to be “true”
(Ellsworth & Getman, 1987; Monahan & Walker, 2007; Roesch,
Golding, Hans, & Reppucci, 1991).
The crucial differences among these routes to court are in the
ways in which judges are bound to evaluate the research presented,
but more subtle differences should be considered as well.
When research is presented by expert witnesses at trial, it is
selected and presented in a partisan manner. The benefits of
expert testimony are that it is delivered directly to the jury and
judge and that the experts and attorneys have an opportunity to
refute opposing views. The downside, however, is significant:
When research is cast in such a partisan light and is challenged by
an opposing point of view, experts may cancel each other out in
the minds of judges or juries and therefore be ignored (Roesch
et al., 1991). Amicus briefs may also be partisan, but they allow
for the inclusion of more points of view and sources of evidence.
In addition, when a professional organization or other official
group submits a brief, it can convey a consensus in the research
community with regard to a particular issue and may be taken
more seriously by judges (Melton, 1990; Melton, Monahan, &
Saks, 1987).
The Rules of Courts Concerning the
Use of Social Science Research
Judges are required to serve as gatekeepers in admitting or excluding
evidence, including the evidence presented by expert witnesses
at trial. Under decision rules set out for judges and the
standards set forth by the U.S. Supreme Court, expert opinion
must be based on principles sufficiently established that they
have gained some measure of acceptance in the field. The general
or widespread acceptance of an approach in a relevant scientific
or disciplinary community can be one factor considered. Judges
might also consider such factors as whether a theory or technique
has been tested according to a scientific method or whether the
theory or technique has gone through peer review and been published
(Daubert v. Merrell Dow Pharmaceuticals, Inc., 1993;
General Electric v. Joiner, 1997; Kumho Tire Co., Ltd. v. Carmichael,
1999). The U.S. Supreme Court has said that judges are allowed
flexibility and broad latitude in applying the requirements, but
they must establish that scientific evidence is relevant and reliable.
No explicit standards privilege any particular methodological
or epistemological approach.
One implication of these standards is that some potential
sources of expert opinion are never considered at trial because
they are considered marginal within their fields or because judges
are skeptical of the methods employed in the research. Although
this may weed out weak research, it may also obstruct the use of
research that is very recent or on the cutting edge and not yet
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widely accepted. Another implication is that attorneys may not
thoroughly challenge the use of expert testimony because they
lack the resources to meaningfully critique it (Welner &
Kupermintz, 2004).
Unlike expert trial court evidence, appellate court briefs by
parties or amici curiae may present research without explanation
of its validity, merit, or even relevance. Opposing parties may
refute such research, but ultimately it is up to judges to determine
its value and importance. 2 There is little comprehensive research
to show how judges fare in evaluating the quality of social science
evidence. Welner and Kupermintz (2004) studied the use of statistical
data in a case on race and ability grouping practices and
found significant misinterpretation of expert data. The final
court decision, in their opinion, was not grounded on any valid
research evidence.
The various ways of introducing social science research into a
court and the various ways that a judge or jury may apply it indicate
that the effective use of social science to influence the outcome
of a legal case is by no means simple.
Various Uses of Social Science Research in Legal Disputes
The efficacy of social science research in legal disputes may
depend on the kind of question it aims to answer. Scholars have
long asserted that in legal disputes, courts seek to resolve two different
sets of questions; these are termed adjudicative questions
and legislative questions. Adjudicative questions involve disputes
over the circumstances that gave rise to the case in question.
Legislative questions pertain to the underlying law or policy
involved in the dispute (Davis, 1942; Walker & Monahan, 1987;
Monahan & Walker, 2007). In PICS, data on the racial composition
of the relevant school districts was used to address adjudicative
questions, although there was little dispute on those matters.
The empirical studies presented in the amicus briefs provided the
bulk of the legislative facts before the Court. These briefs ranged
across a variety of statistical, case study, and other methodological
approaches and drew from a variety of theoretical perspectives
(National Academy of Education [NAEd], 2007).
Social science data can be used to answer legislative questions
by providing an evaluation of the empirical assumptions that
underlie a legal concept or a public policy approach. After Brown,
courts became increasingly likely to use social science evidence in
their decision making, and they have relied on many of the education
sciences, particularly psychology and sociology, in a wide
variety of cases involving issues such as special education services,
high school graduation testing, school finance, and the education
of English language learners. Although a judge may seek out
research to determine legislative fact, there is a strong tendency
to settle rules of law simply by referring to past legal precedent
(Hafemeister & Melton, 1987; Monahan & Walker, 2007;
Roesch et al., 1991; Tremper, 1987).
When issues of broad social policy are involved, the particular
facts of a case may be less important than the broad legal conclusions
that will affect similar cases in the future. For example, in
Brown, although the parties were concerned with segregation in
the particular school districts at issue, the lawyers, policy makers,
and social scientists who supported its litigation were more interested
in getting the Court to reach a conclusion about the effects
of segregation in the broadest sense. The determination in Brown

that segregation has a detrimental effect on the hearts and minds
of all children (a legislative question) was used over and over by
courts, becoming part of a broadly accepted “social framework”
for judicial decision making (Walker & Monahan, 1987, 2007).
Judicial decision making on social policy issues such as segregation,
school assignment, and equal educational opportunity have
a far-reaching effect when a court concludes that there is broad
enough agreement among social scientists that evidence can be
used by the courts across cases in the same way that case law
precedent guides judges’ decision making. Social science researchers
who wish to effect change on questions of educational policy
should consider whether their research can be used to address
legislative questions and whether there is sufficient consensus on
an issue to constitute a reliable social framework.
Differences Among Social Science Resources
Another central quandary faced by legal strategists and social scientists
is how to determine which types of data are most appropriate
for consideration in a legal dispute. Qualitative and
quantitative studies each pose unique issues for use in litigation,
as do the various epistemological perspectives represented in the
social sciences. The PICS amicus briefs cited research representing
a range of contrasting disciplinary perspectives, from social
psychology and sociology to economics and political science. For
example, in-depth case studies that were cited in PICS in support
of race-based policies (Wells et al., 2006, as cited in NAEd, 2007,
pp. 31–32) provided detailed accounts of the experiences of students
who attended desegregated schools. This qualitative
research was related to the issue of the schools’ interests in promoting
diversity. It is similar to the type of evidence cited in
Footnote 11 in Brown, drawn from the work of Gordon Allport
and others (Allport et al., 1953).
Quantitative data, on the other hand, tend to have predictive
value and a more “scientific” feel, but quantitative studies can be
misleading in ways not readily apparent. One study of the social
science presented to the Supreme Court in PICS observed that, of
all the studies on the cognitive outcomes of racial diversity cited
in the amicus briefs, only 10% appeared in briefs for both sides
(NAEd, 2007, p. 13). The opposing sides employed studies of
different time periods; so their conclusions might be valid in one
sense, but perhaps not equally relevant to the question at hand.
The briefs in opposition to race-based policies tended to cite older
studies that included data from periods of desegregation, whereas
the briefs in support of race-based school assignment tended to
cite more recent studies that focused on the impact of racial concentration,
not desegregation (NAEd, 2007). Understanding the
impact of these distinctions might be extremely important to a
court attempting to analyze this body of research, if judges were
inclined to probe deeply into the evidence.
Another apparent difficulty is determining the implications of
research. In PICS, opposing briefs cite the same research but draw
different conclusions from it. For example, briefs discussing
research on the relationship between racial diversity in a school
and improved academic achievement reach different conclusions
about effect size (NAEd, 2007). One brief in opposition to racebased
school assignment (Brief for Dr. David J. Armor, Abigail
Thernstrom, and Stephan Thernstrom, 2007, p. 15) characterizes
an effect size of 0.1 as fairly small, whereas a brief submitted
by a large group of social scientists in support of race-based
school assignment assesses the effect size in light of the fact that
most school reforms have little or no effect on student outcomes.
The latter concludes that the “modest impact that desegregation
has had on student achievement relative to these other reforms is
substantial” (Brief for 553 Social Scientists, 2006, Appendix,
pp. 13–14, cited in NAEd, 2007, p. 19).
The Challenges of Persuading
Judges With Social Science Evidence
One clear challenge for researchers who wish to have an influence
is implicit in the previous section: Together with lawyers,
researchers need to determine how and when social science
research should be presented to the courts. Another challenge is
convincing judges to consider the evidence and incorporate it
into their decision making.
Scholars have long pointed out the many potential influences
on judicial decision making, some related to the role of the courts
in our society and the tradition of deference to other branches of
government. In addition, as far back as Justice Oliver Wendell
Holmes in the late 1800s, it has been argued that court outcomes
are determined, at least in part, by judges’ public policy views
(Horowitz, 1977; Wahlbeck, 1997). A considerable body of legal
and social science literature has attempted to provide political,
ideological, psychological, and other explanations for judicial
decision making (Cross & Nelson, 2001; Wrightsman, 1999).
Many have asserted that the outcomes of cases reflect the political
and ideological perspectives of judges (Melnick, 1994, 2009;
Ryan, 2009; Segal & Cover, 1989; Wahlbeck, 1997); others have
noted the possible, but limited, influence of judges’ backgrounds
(Ashenfelter, Eisenberg, & Schwab, 1995) and the complex
interaction of many factors that determine court decisions
(Baum, 1997; Wahlbeck, 1997). Clearly, as Cross and Nelson
(2001) found, court decisions reflect a complex set of influential
factors for each judge or justice.
Whether or not judges’ decisions are influenced by factors
outside the courtroom, “the judge must decide the case and justify
his decision by reference to evidence and reasoning” (Horowitz,
1977, p. 22). As scholars have suggested, social science evidence
may drive a judge’s decision making, or it may merely be proffered
to justify a particular conclusion. It is nearly impossible to
distinguish between these two possibilities (although certainly
one may be tempted to reach a conclusion).
Analysis
Taking all of these issues into consideration, we would like to
offer some suggestions for how best to influence the courts with
social science evidence. Quantitative evidence, ideally drawn
from a sample similar to the people at issue in a given legal dispute,
has thus far been used more widely than other methodologies.
Evidence that reflects a consensus in the social science
community will be most effective. But even when there is strong
quantitative evidence, the application of the evidence will depend
on a number of factors that are somewhat out of the control of
those offering it. The efficacy of social science evidence may
depend on whether a judge casts a question as legislative or adjudicative.
If the latter, the judge’s use of the evidence will depend
on whether he or she sees it as relevant to answering the legislative
OctOber 2010 517

question. The outcome will also depend on whether the judge
has a preconceived notion regarding the answer to a question or
can be swayed by the social science evidence presented. Finally,
the outcome may depend on whether the evidence is commonly
regarded as part of an accepted social framework to guide judges’
decision making.
If the application of social science evidence to a dispute
depends on how the judge or judges cast the questions posed in
the dispute, then one strategy that social scientists or lawyers
might use to make better predictions about the potential applicability
of social science is to examine prior cases that address the
same core legal questions. The PICS case and its predecessors in
race-based school assignment law provide an illustrative case
study.
PICS: An Illustration of the Use
of Social Science Evidence
The 2007 PICS case provides an example of efforts to use social
science to influence the outcome of an important education policy
question. Not only was there ample social science evidence
available, but much of it was integrated into the legal arguments
set forth by parties on both sides of the debate. Still, as the subsequent
sections illustrate, social science did not play a leading
role in the Court’s opinion on the matter.
The Seattle and Louisville School Assignment Cases
The PICS decision addresses policies followed in the Seattle and
Louisville (Jefferson County) public school districts. Both districts
used race as one of the criteria in assigning students to public
schools to create more diversity in the classroom, and in each
district White parents filed court challenges when their children
were not assigned to their desired schools. In both cases, lower
courts upheld the school district policies. The U.S. Supreme
Court overturned the lower courts’ decisions after a clearly contentious
debate among the justices over the meaning of the U.S.
Constitution, the role of race in our society, the power of local
schools to set policies, and the use of social science evidence in
the resolution of disputes under the Constitution.
Legal Issues in PICS and Its Predecessors
To understand the role of social science evidence, it is important
to understand the legal analysis applicable in a dispute before a
court. At the heart of the dispute in PICS was the interpretation
and application of the Equal Protection Clause of the U.S.
Constitution: “No State shall . . . deny to any person within its
jurisdiction the equal protection of the laws” (U.S. Constitution,
Amendment XIV, Section 1). The application of this simple
phrase to the politically charged and increasingly nuanced issue
of racial discrimination requires the Supreme Court to apply
legal principles flexible enough to allow the government to discriminate
among groups of people for legitimate reasons, but
stringent enough to ensure that invidious discrimination is not
tolerated. When a government uses race to subject people to
different treatment, it must show that its use of the racial classification
is “narrowly tailored to achieve a compelling government
interest” (PICS, 2007, p. 2752). This standard breaks
down into two separate considerations: First, was the government’s
interest compelling? Second, were the means by which
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this interest was pursued narrowly tailored to limit racial classifications
as much as possible?
The evolution of cases that evaluate the validity of race as a
criterion in admission to a public institution began with Brown
v. Board of Education (1954), when the Supreme Court struck
down race-based school segregation on the grounds that de jure
separation of children in public schools on the basis of race is an
inherent denial of equal educational opportunities. The court
based this conclusion on its observation, backed by social science
evidence referenced in a footnote, that segregation has a detrimental
effect on minority children by creating a sense of inferiority
that affects their ability to learn.
A more recent major development in race-based admissions
law came in Grutter v. Bollinger (2003), in which a group of students
challenged the University of Michigan’s law school admissions
policy. In that case, the Supreme Court applied the Equal
Protection analysis described above, inquiring as to whether the
university had a compelling interest in using race as a factor in
law school admissions, and then whether its use of race was narrowly
tailored to achieve that interest. The Court concluded that
the university had a compelling interest in achieving diversity in
its student body; although the Court deferred to the law school’s
judgment on this point, it stated that the university’s claim was
bolstered by expert witnesses and reports that demonstrated the
educational benefits of diversity. In turning to the question of
whether the law school’s plan was narrowly tailored to promote
diversity, the Court did not consider social science evidence but
rather made its judgment on the basis of facts pertaining to the
administration of the law school’s admissions policy.
Both Brown and Grutter suggest that in controversies about
race-based admissions policies, the Supreme Court is willing to
consider social science evidence. However, Grutter indicates that
perhaps the Court will be most receptive to this evidence on the
issue of whether a public school or university has a compelling
interest in using race in admissions. Indeed, in PICS, much of the
social science evidence presented by parties and amici pertained
to this issue.
PICS: The Parties’ Claims
The Seattle School District claimed compelling interests in the
educational benefits of a diverse student body, “alleviating the
potential harms of racial isolation,” and ensuring equal access to
popular schools (Brief for Respondents Seattle School District
No. 1, 2007, p. 11). The Jefferson County Board of Education
argued that its compelling interests were in providing an attractive
public school system, maintaining community support, and
“preparing students for life in a democratic and racially diverse
society” (Brief for Respondents Jefferson County Board of
Education, 2007, p. 12). Both districts argued that their plans
were narrowly tailored, asserting that no race-neutral alternatives
could achieve the same goals. Both districts based their arguments
for the constitutionality of their policies on the Court’s
previous decision upholding the consideration of race in law
school admissions (Grutter v. Bollinger, 2003).
In the Seattle and Jefferson County cases, the parents challenging
the policies argued that the benefits to students were not
sufficiently compelling and that the harm to individual students
inflicted by the policies was too great to justify the use of racial

criteria in determining school assignments. The parents argued
that race-neutral alternatives such as magnet programs achieved
the same racial balances and that therefore the districts’ plans
were not narrowly tailored. They also argued that the districts’
policies amounted to unconstitutional, race-based quotas.
In defending their positions on the issue of race-based school
assignment, the parties and amici on either side of the issue chose
to bolster their arguments by incorporating relevant social science
data. The quality and type of social science evidence varied,
as did its persuasiveness.
The Social Science Evidence Presented
to the Supreme Court by the Parties
The brief by the Louisville Public Schools relied on the testimony
of expert witnesses in the District Court case (Brief for Respondents
Jefferson County Board of Education, 2006, pp. 16–17) and
focused on social science evidence collected within the district,
such as surveys of Jefferson County graduates on how their ability
to function in a diverse workplace was affected by the plan. The
Seattle, Washington, School District used even less evidence; its
brief contained a blanket reference to social science evidence supporting
the existence of a compelling interest:
[The record] makes clear that racial diversity in public schools
can enhance students’ civic values by bringing them together,
from an early age, in ways that can reduce racial fears and stereotypes;
teach students how to interact comfortably and respectfully
with people who are different from them; and prepare them
to be good neighbors, colleagues, and citizens in our increasingly
pluralistic democracy. (Brief for Respondents Seattle School
District No. 1, 2006, p. 16)
It also referenced lower courts’ statements that social science evidence
establishes that racial diversity provides educational benefits
for all students.
In comparison, the Louisville parents employed detailed social
science evidence, citing six different social science sources and
referring to social science data presented in the amicus briefs. This
brief stated a general agreement with the data presented in the
amicus brief from some social scientists arguing that there were
not sufficient consistent data to suggest that there are educational
benefits to racial balancing that amount to a compelling interest
(Petitioner’s Reply Brief, Crystal D. Meredith, 2007, p. 8). The
brief presented detailed objections to the data presented in an
amicus brief from the American Educational Research Association
(AERA). The Seattle parents’ reply brief also referred (in a footnote)
to amicus briefs stating that the social science evidence was
too inconsistent to support the idea that there are educational
benefits to racial diversity. Other than that, the Seattle parents
used very little in the way of social science evidence.
The Social Science Evidence in the Amicus Briefs
The most significant social science evidence presented to the
Court came not from the parties but from the amicus briefs,
although only some of them used such evidence. The 64 amicus
curiae briefs included one from the American Educational
Research Association, one from the American Psychological
Association, another from a separate nonaffiliated group of 553
social scientists, and another from a small group of social scientists
well known to disfavor many school desegregation programs.
In June of 2007, after the Court decision in PICS, an impartial,
interdisciplinary committee convened by the National
Academy of Education (NAEd) reported on its review of the
social science data in the amicus briefs in order to assess the quality
of the research. The NAEd report (2007) compiled and summarized
the research used in 5 amicus briefs filed in support of
the White parents (plus 1 brief from the Louisville parents themselves)
and the 27 briefs filed on behalf of the school districts in
PICS. On some occasions, opposing briefs cited the same research
but drew different conclusions from it.
The report (NAEd, 2007) identified five key questions
addressed by the research in the amicus briefs:
1. Is racial diversity in a school environment associated with
improved academic achievement?
2. Is racial diversity in a school environment associated with
improved intergroup relations?
3. Is racial diversity in a school environment associated with
improved long-term effects?
4. Is there a “critical mass” of racial diversity associated with
any benefits of racial diversity?
5. Are there race-neutral alternatives that can yield benefits
that are comparable to benefits that we know to be associated
with race-conscious policies? (p. 1)
The social science evidence that responds to the first three questions
was used in the amicus briefs to argue the issue of whether
the schools had a compelling interest in their school assignment
policies. The amicus briefs used the evidence pertinent to the last
two questions to address the issue of whether the school districts’
policies were narrowly tailored to achieve their goals.
The report presented the conclusions that were supported by
the social science research, the type and age of each study cited,
the methodology used in the research, and the availability of
rich and reliable databases (more were available in recent years
than earlier). The committee also made particular note of the
nature of the research contexts and questions. Research on
efforts to implement school desegregation, which was relied on
heavily by some amicus briefs for the White parents, is not
regarded by NAEd as fully relevant to more contemporary
issues related to the school assignment policies in Louisville and
Seattle. Unlike desegregation, the report concludes, the pursuit
of diversity relates to the ultimate goal of racial integration in
which members of all groups are treated equally—afforded
equal opportunity—in the pursuit of learning. This became a
particular focus of the committee’s concern about many of the
studies cited in the briefs submitted in support of the parents
challenging the school policies.
The NAEd (2007) carefully assessed both the strengths and
weaknesses of the social science research used in the various
briefs. Its final conclusion was as follows:
The research evidence supports the conclusion that the overall
academic and social effects of increased diversity are likely to be
positive. Racial diversity per se does not guarantee such positive
outcomes, but it provides the necessary conditions under which
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520
other educational policies can facilitate improved academic
achievement, improved intergroup relations, and positive longterm
outcomes. Because race-neutral alternatives—such as school
choice and assignments based on socioeconomic status—are
quite limited in their ability to increase racial diversity, it is reasonable
to conclude that race-conscious policies for assigning
students to schools are the most effective means of achieving
racial diversity and its attendant positive outcomes. (p. 3)
It is clear that the parties to the PICS case and the amici conceived
of social science evidence as an important component of
the arguments to be made in that case. Given that the NAEd
committee found the social science evidence useful in arriving at
conclusions as to the merits of the case, one might reasonably
have expected that social science would play a significant role in
the Court’s decision making. Yet at least for the majority of the
justices, this was not the case.
The PICS Opinion
The Court struck down the school assignment policies on the
basis of the vote of five justices, but only four of the five (Justices
John Roberts, Antonin Scalia, Clarence Thomas, and Samuel
Alito) agreed completely on the analysis of the case. Justice
Anthony Kennedy, the “swing vote,” agreed that the districts’
policies were unconstitutional, but he disagreed with the other
justices’ reasoning in reaching this result. Four dissenting justices
viewed the case very differently (Justices Stephen Breyer, John
Paul Stevens, David Souter, and Ruth Bader Ginsburg), filing
two separate opinions (one by Stevens and one by Breyer) outlining
their disagreements with the plurality of the Court. The disagreement
on the meaning and application of constitutional
principles bears directly on the potential for social science to
influence the outcome of this case.
Compelling interests: The goals of school assignment policies. In
PICS, the question whether the districts had compelling interests
in using race as a factor in school assignment was the most divisive
point in the Court’s deliberations.
Justice Roberts listed two kinds of situations for which racebased
classifications in education have been defended as being
justified by a compelling interest. First was the interest in remedying
the effects of past legally mandated (de jure) discrimination,
such as occurred in the Brown case. Roberts stated that
neither the Seattle nor the Louisville school district fell into this
category. Second was the interest in creating a diverse student
body in higher education (Grutter v. Bollinger, 2003, as cited in
PICS, pp. 2752–2753). Justice Roberts stated that the PICS case
did not fall into this category either, taking special pains to distinguish
between elementary and secondary schools and the
higher education context. 3 According to Roberts, K–12 schools
do not require the expansive environment of free speech and
thought called for in colleges and universities (p. 2754). He did
not really resolve whether there might be educational and societal
benefits of diversity in K–12 education, focusing instead on the
schools’ failure to meet the “narrow tailoring” rule.
Justice Kennedy agreed with most of the Roberts analysis, but
argued that the United States still had a distance to go to achieve
an integrated society. He saw race as an issue that still mattered,
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even if the country had hoped to move beyond it by then; thus
he wrote that the promotion of “diversity, depending on its
meaning and definition, is a compelling educational goal a school
district may pursue” (PICS, p. 2789). School districts, in his view,
had the power to try to eliminate racial isolation by creating
diverse student enrollments in their schools (pp. 2791–2792).
The dissenting justices (Breyer, Stevens, Souter, and Ginsburg)
echoed Kennedy’s contention that the school districts had a compelling
interest in promoting diversity. Justice Breyer, writing the
main opinion for the dissenters, argued that a school district’s
interests in a race-based classification could be compelling if
based on an effort to address prior segregation, to overcome the
adverse educational effects of segregated schools, to provide better
educational opportunities, or to address “civic effects” (PICS,
p. 2822) by producing an educational environment that “reflects
the ‘pluralistic society’ in which our children will live” (p. 2821)
and “create[s] citizens better prepared to know, to understand,
and to work with people of all races and backgrounds, thereby
furthering the kind of democratic government our Constitution
foresees” (p. 2823).
The Roberts opinion left open the possibility that the four
justices who signed it (Roberts, Alito, Scalia, and Thomas) might
never find compelling reasons for K–12 public schools to engage
in race-based assignment policies beyond efforts to dismantle de
jure segregation. Justices Scalia and Thomas both declined to
accept diversity as a compelling interest in the elementary, secondary,
or higher education environments. The other five justices
(Kennedy, Breyer, Stevens, Ginsburg, and Souter) remained open
to the idea that a school district may have a compelling interest
in using race-conscious policies to avoid racial isolation or promote
the educational and social benefits of a diverse student
population. In PICS, it is hard to discern whether any amount of
social science evidence would have swayed Roberts, Alito, Scalia,
or Thomas on this issue.
Narrow tailoring: The mechanisms for policy implementation. The
crux of the Court’s plurality opinion hinged on the “narrow tailoring”
consideration under the Equal Protection Clause, the
requirement that race-based classifications be used only to the
minimum extent necessary to achieve the schools’ goals and only
if no other less discriminatory means of achieving those goals can
be found. Here, five justices in the plurality (the Roberts group,
plus Kennedy) agreed that the school districts had failed to meet
this constitutional requirement.
Justice Roberts found the school assignment plans not narrowly
tailored because they were not tied to “any pedagogic concept
of the level of diversity needed to obtain the asserted
educational benefits” (PICS, p. 2755). He also found that the
schools’ binary categorizations of racial identity (Black/other or
White/non-White) were designed to further what he characterized
as the goal of “racial balancing” in schools. Finally, he was
concerned that the percentage of diversity required in each school
district was tied to the overall demographics of the districts rather
than to evidence of a “critical mass” of diversity necessary to
accrue educational benefits.
Justice Kennedy also found that the districts failed to meet the
narrow tailoring test, characterizing as “crude” the simplistic
racial classifications used (PICS, p. 2792). He offered potential

alternatives that he thought would meet the narrow tailoring
requirement, including site selection, drawing attendance zones
on the basis of neighborhood demographics, funding special programs,
targeting recruitment of faculty and students, and using
statistical procedures to track education. In his opinion, these
would offer a richer, more flexible decision-making approach and
one not based on race alone.
In his dissent, Justice Breyer found that there were no “reasonably
evident alternatives” by which the districts could reach their
goals for diversity (PICS, p. 2830). More than the other justices,
he was willing to defer to the local school boards’ “knowledge,
expertise, and concerns in these particular matters . . . since
judges are not well suited to act as school administrators . . . [and]
local school boards better understand their own communities
and have a better knowledge of what in practice will best meet the
educational needs of their pupils” (p. 2826).
Clearly, the interpretation of the constitutional principles at
stake in the case could have ended the Court’s inquiry as far as
four of the justices were concerned, without consideration of the
social science evidence. Justice Roberts, for example, seems to
have rejected almost any use of race-based classifications in
schools, eliminating the potential usefulness of social science evidence.
Both concurring and dissenting justices did consider
social science, however. Their discussions reveal not only their
views on this case but also their opinions on the broader questions
on the role of social science in legal decision making and
evaluation of the validity and persuasiveness of social science.
The Supreme Court’s Use of the Social Science Evidence
Each of the opinions in the PICS case mentions social science
evidence, but each uses it in a slightly different way, and only the
dissent seems to rely on such evidence as a basis for its legal conclusions.
None of the justices offered explicit consideration of the
extent to which the evidence met the standards addressed earlier
in this article, but the opinions clearly represented some judgments
on its usefulness.
Justice Roberts made little reference to the social science evidence;
this is not surprising, given his constitutional theories. To
Roberts, “the way to stop discrimination on the basis of race is to
stop discriminating on the basis race” (PICS, p. 2768). Hence, in
his view, research evidence has little utility in cases concerning
racial classifications in education. Roberts referred to the copious
social science evidence in the amicus briefs only in the section
considering whether the school districts had a compelling interest
in their policies apart from those interests recognized in prior
cases. He noted that the parties and amici in the case disagreed
on whether there were objective indicators, such as test scores, or
intangible social benefits for racial integration that would signal
a compelling interest in diversity. But he went on to conclude
that it was not necessary to consider this evidence because the
policies were fatally flawed under the narrow tailoring test.
Justice Roberts did allude to the type of evidence he would
seek concerning the narrow tailoring requirement. He pointed
out what he found to be a lack of a “pedagogic concept” behind
the school policies, and he focused on what was, in his perspective,
the schools’ quest for “racial balance” based on the overall
demographic composition of the district (PICS, p. 2755). He
quoted the testimony of one of Seattle’s experts, who argued that
there should be “sufficient numbers so as to avoid students feeling
any kind of specter of exceptionality” (p. 2756); but Roberts
then faulted the district’s failure to demonstrate a basis, associated
with this expert opinion or any other evidence, for choosing the
policy it implemented. He also drew attention to the testimony
of one of Louisville’s expert witnesses that at least a 20% minority
presence is required in a school to make a positive difference. He
contrasted the expert’s statement about a critical mass at a level of
20% with the district’s policy, which appeared not to take that
expertise into account, relying instead on a demographic formula
seeking to make each school population represent the same overall
demographic diversity as existed in the entire district.
Justice Roberts’s view of the relationship between school policy
and evidence was that educational policy makers should be
“working forward from some demonstration of the level of diversity
that provides the purported benefits” rather than “working
backward to achieve a particular type of racial balance” (p. 2757).
He also called for “evaluation of the actual impact of the plans”
(PICS, p. 2766).
Justice Thomas, in his concurring opinion, made more extensive
use of social science evidence than Justice Roberts did, primarily
to attack the dissenting justices’ analyses. Thomas relied
heavily on the very evidence that the NAEd report found to be
the weakest. Like Justice Roberts, Thomas rejected the use of
race-based decision making. But Thomas also had a strict view of
the appropriate use of social science evidence. He found the evidence
offered in support of the school district policies insufficient
and contradictory; he noted a troubling reliance on what he saw
as the use of a “handful” of scholars with “evanescent views”
(PICS, p. 2779) and “differing opinions” (p. 2776), engaged in
“fervent debate” (p. 2773), “hot disputes” (p. 2776), and “reflexive
acceptance of conventional wisdom” (p. 2773). Justice
Thomas implied that social science evidence was useful to courts
only when based on unanimity among researchers on the outcomes
of the research; social science evidence should be used in
determining the outcome of cases only when it is conclusive.
In contrast, Justice Breyer’s dissent extensively integrated the
social science evidence with legal analysis. To determine whether
the schools’ interests were compelling, he drew broadly from the
amicus briefs as well as from government reports not included in
the briefs, citing individual and synthesis studies, all of which
concluded that the educational goals of improving academic
achievement and enhancing lifetime employment are advanced
through integration. Breyer also delved into the social science
evidence when applying the narrow tailoring test, concluding
that in the more than 50 years since Brown every approach to
integration had relied on race-conscious methods. Breyer concluded
on the basis of his review that the plurality’s requirements
for narrow tailoring never could be met.
In each instance in which he addressed social science, Breyer
cited multiple studies that he found to be persuasive. Each time,
he acknowledged the evidence relied on by Thomas but concluded
that not all of Thomas’s preferred evidence fully substantiated
Thomas’s perspective. Finally, with regard to the role of
social science evidence in the strict scrutiny review required
under the Constitution, Breyer concluded: “If we were to insist
on unanimity in the social science literature before finding a
compelling interest, we might never find one” (PICS, p. 2824).
OctOber 2010 521

The contrasting opinions of Justices Thomas and Breyer vividly
illuminate clashing perspectives. Breyer engaged in a detailed
and expansive discussion of the social science evidence, including
some consideration of evidence that was not consistent with his
own conclusions in the case. Thomas focused on the evidence
that most clearly fit within his perspective. The most telling distinction
between Justices Thomas and Breyer is in the stances
they adopted toward social science evidence. To Justice Breyer,
school districts should be held to a strict scrutiny standard requiring
them to show that they pursue a compelling interest through
a narrowly tailored approach. But in the application of this legal
standard, Breyer calls on courts to show some deference to locally
elected education officials when their approaches are based on
reasonable social science evidence. To Thomas, unless there is
unanimity among researchers, social science is not useful.
Of course, Breyer and Thomas’s opinions on the use of social
science evidence may not be static. The two justices may have
adopted these stances to suit the arguments they wished to further
in this case.
Lessons From the PICS Case
PICS provides a case study of the complicated reality of presenting
social science evidence to the courts. The advocates in this case
presented ample social science evidence, more evidence than would
usually be mustered in education litigation. Among the sources of
evidence were amicus briefs from AERA and a large group of independent
social scientists. Yet very little, if any, social science evidence
entered into the ultimate judgment. One wonders if any of
the justices might have been influenced by the NAEd report had it
been published well before they had to enter their decision.
The NAEd report shows us that the social science evidence set
forth in PICS does not live up to Justice Thomas’s guidelines for
optimum social science evidence, as it does not present a consensus
in the research community on issues such as the benefits of
racial diversity in education. More important, however, perhaps
even the best presentation of social science evidence could not
have overcome the fundamental issues important to Justice
Roberts: that the use of race in the assignment plans lacked any
tie to pedagogy or other compelling interest presented by the
school districts, and that the plans did not meet the narrow tailoring
requirement. Had the evidence on the issue of narrow tailoring
not been so deficient, PICS might have had a completely
different outcome, and social science might have played a completely
different role. Justice Kennedy seemed open to the idea
that there can be a compelling interest in the use of race in K–12
assignment; had the evidence been different, he might have
joined with the dissenting justices in giving greater weight to the
social science evidence for the educational benefits of diversity.
PICS also illustrates that some judges are inclined to believe
that certain matters may be decided merely by applying logic to
settled legal principles, which is largely how they approach the
issues. In Roberts’s opinion, there was no compelling interest in
using diversity as a criterion in K–12 school assignment except in
response to de jure segregation. Therefore, social science evidence
was not relevant to his decision. Both Roberts and Thomas had
such strongly held views against the use of race considerations in
education that perhaps no amount of evidence could have
changed their minds.
522
educatiOnal researcher
Of course, it is also possible that justices, like other policy
makers, use social science only to the extent that it agrees with,
or legitimizes, their existing policy preferences (Baum, 1997;
Floden, 2006; Kingdon, 1984; Spaeth, 1979). It is important to
note that in another case, the use of social science could have
been completely different; we might have seen Justice Roberts
citing psychological evidence and Justice Breyer insisting that the
dispute could be resolved on purely legal grounds. The use of
social science evidence is intimately tied to the issues presented in
a given case. Therefore, the strategy for presenting social science
should be as well.
Conclusion
One prominent 20th-century federal judge noted, “The road is
not smooth for the use of social science evidence in the courts”
(Wisdom, 1975, p. 139). More recently, one pair of researchers
reached a more dismal conclusion: “The courtroom has not
proven to be an effective venue for aligning education policy with
the findings of high quality research” (Dunn & West, 2008, p.
157). In many respects, the lesson from this case study of the use
of research in PICS is that social science will persuade only those
who are open to persuasion. The case, standing alone, does not
resolve the conflicting theories of legal scholars, political scientists,
social psychologists, or other social science researchers on
why judges decide as they do.
The example provided in the PICS case does afford the opportunity
to evaluate both the way social science has been presented
to the courts and the relationship between lawyers and researchers.
For some researchers, the opportunity to influence education
policy in a positive way is a major inspiration and driving force
in their careers. Since Brown, court cases have become an important
forum for resolving disputes over education policy. Therefore,
researchers should continue to study how their voices can be
heard in this particular policy-making process. Clearly, strategizing
about the form of research, including methodology and the
mode of presentation to the court, can increase the likelihood
that courts will take notice. In addition, researchers should consider
the benefits that might flow from collaborating with lawyers
and school officials before a court case is even filed, even at the
stage when policies are set (Heubert, 1999; Ryan, 2000).
PICS illustrates how important the integration of social science
research with legal strategy can be. Under any circumstances,
PICS might not have been decided differently; but part of what
seems to have been lacking in both Louisville and Seattle was
a clear, thorough, evidence-based statement of a compelling
interest—of the benefits of racial diversity at the time that the
school districts instituted their race-based assignment policies. It
is possible that this deficiency influenced Justice Roberts or others
on the issue of compelling interest. If a school district does not
articulate a sound basis for its actions, social scientists and lawyers
may be forced to work backward to justify them. By taking a
proactive stance toward the formation of education policy (as
some researchers admittedly do), social scientists can work with
school officials and perhaps with lawyers to create a more reasoned
approach to changing policy. In turn, researchers can document
the effects of new policy implementations, creating
evidence that can be presented in subsequent court cases. In fact,
in a subsequent Supreme Court case (Horne v. Flores, 2009)

involving a dispute over whether Arizona was meeting its obligation
under federal statutes to take appropriate action to provide
for the education of English language learners, Justice Breyer
cited cases calling for schools to take approaches informed by
educational theory (p. 2610) and Justice Alito recognized the
utility of “new policy insights” that might warrant reopening a
previously decided court case (p. 2593). 4
The political scientist John Kingdon (1984) describes
researchers as “hidden participants” in the process of creating
public policy. Although their influence and expertise are important,
researchers must convince the more visible participants,
such as legislators and judges and school officials, of the utility of
their work. To influence education reform, social scientists must
cultivate a better understanding of how their research might be
used by educators, policy makers, and judges. This admonition
applies whether disputes involve constitutional protections or
statutory provisions. It applies to a wide range of educational
issues, extending beyond diversity to include access and opportunity
to learn.
In helping school officials to clarify their goals, researchers
may also strengthen the likelihood that their findings will influence
court cases because their data bear directly on the controversies
at hand. In PICS, both the lower courts and the Roberts
opinion cited data from the actual school districts, even though
they were less inclined to use generalized data about the effect of
race on educational outcomes. By working in conjunction with
school officials, researchers can collect information that may be
more persuasive because it reflects the circumstances of a particular
case and serves to substantiate the original policy choice.
Finally, our analysis of PICS suggests a broader role for social
scientists in courts or other public policy forums. As Floden
(2006) notes, social science research can make a critical contribution
to general enlightenment about important education issues,
assisting the public and public policy makers in understanding
what makes schools better at serving students and society. When
there is a reasonable degree of consensus on the evidence supporting
certain approaches to enhancing opportunity to learn for all
students, social scientists should forge the consensus, clarify
when empirical data become sufficiently strong to be embraced
as a social framework for policy making, and make the evidence
known and accessible for educators and policy makers. When
there is no such evidence, it is incumbent on social scientists to
redouble their efforts to seek it. Forums such as the National
Academy of Education or the National Research Council of the
National Academy of Sciences, functioning through panels of
diverse experts to achieve consensus on social science issues, are
particularly useful in this type of work.
NoTES
The authors gratefully acknowledge funding from the Spencer
Foundation in support of this research.
1 Amici curiae are “friends of the court”: individuals or organizations
not parties to a lawsuit who seek to advise the court on their perspectives
on a case. Ordinarily, an amicus aligns itself specifically with one party
or the other; the federal government can also participate in a case as an
amicus, either at the request of the court or on its own initiative. Also,
groups of individuals or organizations such as the American Educational
Research Association may submit briefs as amici curiae to present the
relevant social science evidence on a legal issue rather than to argue for
one particular result.
2 Judges have regular continuing education available to help them
evaluate data; federal judges are provided with their own reference manuals
on the use of scientific evidence (Federal Judicial Center, 2000,
2004).
3 Before Justice Roberts joined the Court (in a decision he signals he
might not have supported had he participated), the Court upheld the
use of race in law school admissions at the University of Michigan on
grounds that there was a compelling interest in diversity on campus
(Grutter v. Bollinger, 2003).
4 It is also worth noting here that in Horne v. Flores (2009), Justices
Alito and Breyer embraced conflicting social science literature on
whether money matters in educational outcomes.
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AUTHoRS
JULIE MARGETTA MORGAN is a policy analyst for postsecondary
education at the Center for American Progress, 1333 H Street NW,
Washington, DC 20005; jmorgan@americanprogress.org. Her research
focuses on the role of law in increasing equity and access in education.
DIANA PULLIN is a professor in the Department of Educational
Leadership and Higher Education at Boston College, Lynch School of
Education, Department of Higher Education and Educational
Administration, Campion Hall, Room 205B, 140 Commonwealth
Avenue, Chestnut Hill, MA 02467; pullin@bc.edu. Her research focuses
on the role of law in promoting opportunity to learn.
Manuscript received October 30, 2009
Revisions received May 13, 2010
Accepted July 19, 2010