Social Science Research and the Courts

Whether the Legal Determination Involves a Finding of Fact or Finding of Law

Most studies that explore the role of social science research in legal developments agree that social science evidence has come to play an influential, if limited, role in judicial decision making. Although studies outline numerous factors that influence the consideration of social science evidence in legal cases, the main distinction drawn in the literature concerns whether the legal question at hand requires a “finding of fact” (e.g., the racial composition of the student body) or a “finding of law” (e.g., whether institutions have a “compelling interest” in student body diversity). In their recent analysis of social science research and the courts, Morgan and Pullin (2010, citing Monahan & Walker, 2007) refer to this distinction as an “adjudicate” (fact-finding) versus a “legislative” (constitutional interpretation) question. Most studies agree that social science research can influence the former more than the latter (Dunn & West, 2008; Ryan, 2003).

A related line of analysis draws a similar distinction, which shows that social science research has also influenced questions of constitutional interpretation. Ancheta (2006), for example, provides a thorough overview of constitutional cases that involve the equal protection clause of the 14th Amendment, such as those regarding desegregation, reproductive rights, and sexual orientation, in which social science research has been deemed relevant. He argues, however, that this influence remains “checkered and value-driven” (p. 94). The Court’s use of social science evidence in Parents Involved, the most recent desegregation decision, is one such example. In their analysis of how the justices used the social science research presented in the case, Frankenberg and Garces (2006) conclude that a value-driven determination—that is, the justices’ understanding of the role schools play in addressing harms caused by racial segregation in our society—ultimately influenced the way they considered social science evidence. Morgan and Pullin (2010) reach a related conclusion about how the ideological positions of the justices influenced the consideration of social science evidence in the case.

Does the Evidence Speak to the Legal Standards in the Case?

Studies have begun to explore the connection between social science evidence and legal opinions and whether this evidence is presented in a manner that addresses the legal issues in a case (Ancheta, 2006; Morgan & Pullin, 2010). Recent examples of how the social science community communicated research evidence in a manner that spoke to the legal standards and ultimately helped inform the decisions include Grutter and Gratz, the Court’s most recent affirmative action case, and Parents Involved, the most recent voluntary desegregation case.

To understand how social science research helped inform the outcome in Grutter, one must consider its predecessor case, Regents of the University of California v. Bakke (1978), which involved a challenge to an affirmative action admissions policy at the University of California at Davis School of Medicine. In Bakke, to assess the constitutionality of the policy, the Court applied strict scrutiny, its highest standard of review, which requires demonstration of a compelling interest and of means that are narrowly tailored to further that interest. (I discuss the strict scrutiny standard in more detail below.) In his opinion, which provided the Court’s controlling rationale, Justice Powell found that the medical school had a compelling interest to further its educational mission by providing a diverse student body, although he found that the way the policy was implemented was not narrowly tailored to that interest. Bakke thus set the precedent for the legal test that would apply in future cases. When the case was first litigated, little social science research had been presented to support the Court’s determinations. More important, Justice Powell’s opinion sent signals to the social science community regarding the type of research that could influence future cases.

As legal challenges to the race-conscious admissions policies at the University of Michigan and the University of Michigan Law School made their way through the lower courts, the social science community responded to Powell’s signals by documenting the benefits of a racially and ethnically diverse student body, including improved critical thinking skills and cross-racial understanding (Ancheta, 2006). ⁴ By the time the cases were heard by the Court in 2003, there was ample social science evidence documenting the benefits of diversity that could be cited in legal briefs. This evidence spoke primarily to the benefits of a racially diverse student body, which the Court’s majority opinion subsequently cited (see Grutter, 539 U.S. at 330). Justice O’Connor’s majority opinion also cited studies that examined the effectiveness of percent plans for achieving a racially diverse student body (see Horn & Flores, 2003; Marin & Lee, 2003) to support the Court’s finding that the policies were narrowly tailored because “race-neutral” alternatives (such as percent plans) had not proven as effective.

After the Court agreed in 2006 to determine the constitutionality of voluntary K-12 desegregation plans cases (Parents Involved), the social science community mobilized to present social science evidence relevant to the Court’s determinations, including studies documenting the educational benefits of racial and ethnic diversity in K-12 schools and the harm caused by racial isolation (National Academy of Education [NAE], 2007). This evidence helped inform the Court’s analysis (Frankenberg & Garces, 2006). Morgan and Pullin (2010), however, assert that “very little, if any, social science evidence entered into the ultimate judgment [in Parents Involved]” (p. 522). This proposition is debatable, as it is now widely understood that Justice Kennedy’s separate concurring opinion was the controlling opinion in the case (Department of Justice, 2011). In his opinion, Justice Kennedy disagreed with the plurality’s opinion that there were no compelling interests to justify the use of voluntary, race-conscious desegregation policies. He instead outlined the school’s interest in achieving a diverse student body and avoiding racial isolation. His discussion of the compelling interests in the case reflects the themes and conclusions of most of the social science research evidence presented in the case (Frankenberg & Garces, 2006; NAE, 2007). Moreover, had Justice Kennedy not said otherwise, the Court’s holding would have been that the desegregation plans did not further any compelling interests. For these reasons, it is reasonable to conclude that social science research influenced the Court’s holding, although admittedly not to the extent many researchers had hoped. Although researchers presented evidence to support the conclusion that the voluntary desegregation policies were narrowly tailored, Justice Kennedy found otherwise, thereby striking down the policies as unconstitutional.

I will now consider the lessons researchers can draw from these cases to help inform future legal developments. ⁵ More specifically, I will focus on what thus far seems to be an underexplored consideration in determining whether social science research will be relevant in future judicial decision-making: the extent to which the evidence can speak to the legal standard in a case. Regardless of whether the Court’s inquiry involves questions of fact or law or whether a case hinges on a determination that may be value driven, a broader consideration is whether social science researchers are asking questions that can help provide answers to the legal questions at hand. With this in mind, I discuss the legal tests in the next round of litigation before the Supreme Court (Schuette) and outline areas of research that could inform these questions. My goal is to consider an initial and important step for helping increase the relevance of social science research to legal decisions, that is, to facilitate the design of studies and communication of findings that are relevant to the legal determinations at hand by explaining the legal questions that have emerged in this area of litigation.

Traditional or Conventional Analysis

Under a traditional or conventional analysis for determining whether a law or policy violates the equal protection clause of the 14th Amendment, a court examines the type of classification the law makes (i.e., a facial classification) to determine which legal test to apply. ⁶ When the law or policy classifies on the basis of race, such as the race-conscious policies at issue in Bakke, Grutter, and Gratz, the courts have applied a legal test called strict scrutiny. The strict scrutiny test requires demonstration of a “compelling” interest and of means that are “narrowly tailored” to meet that objective; it is the Court’s highest level of review and the hardest one to meet. The Court applies the strict scrutiny test to “smoke out” illegitimate uses of race by ensuring that the institution “is pursuing a goal important enough to warrant use of a highly suspect tool” (Johnson v. California, 2005). These requirements apply to any institution that receives federal funding, which includes the majority, if not all, of the nation’s private postsecondary institutions. This test applies irrespective of whether the classification is made to help or hurt racial minorities. ⁷ As noted, this traditional or conventional analysis to determine whether a law satisfies the requirements of the equal protection clause is the type of inquiry the Court conducted in Grutter. Laws or policy that draw other facial classifications, like gender, implicate a different legal test called intermediate scrutiny, and most other classifications trigger the legal test known as rational basis. ⁸

The Political Restructuring Doctrine

Another line of analysis used to determine whether a law violates the equal protection clause of the 14th Amendment involves the political restructuring doctrine, which focuses on how the law or policy affects the political or decision-making process. This doctrine emerges from two U.S. Supreme Court cases, Hunter v. Erickson (1969) and Washington v. Seattle School District No. 1 (1982), which have interpreted the equal protection clause as ensuring a fair political process by providing assurances that the majority does not manipulate the political process in a manner that places unique burdens on issues important to racial minorities. Under this doctrine, the Court examines whether the law at issue (a) has a racial focus that targets a goal or program that “inures primarily to the benefit of the minority” and (b) reallocates political power or reorders the decision-making process in a way that places “special burdens” on a minority group’s ability to achieve its goals through that process. If both parts of the test are met, then the law is considered in violation of the equal protection clause unless the law or policy passes heightened constitutional review (strict scrutiny). In essence, the political restructuring doctrine is a mechanism through which the court uncovers a classification made by the law that is subject to strict scrutiny from the fact that the law places a special burden on a racial minority.

Because the Hunter and Seattle cases established the parameters for the political restructuring doctrine, understanding the facts of these cases can help illuminate the legal issues and arguments in Cantrell and Wilson/Brown (and, accordingly, in Schuette). In both cases, the Court overturned referendums that addressed racial issues. Hunter involved a challenge to the constitutionality of a referendum that repealed a fair housing ordinance in Akron, Ohio, and amended the city charter to require approval by a majority of the electorate before any ordinance regulating real estate “on the basis of race, color, religion, national origin, or ancestry” could become effective. In other words, the referendum amended the city charter so that only ordinances that regulated real estate for the specified reasons required majority approval by the electorate. The U.S. Supreme Court held that the referendum violated the equal protection clause because it “placed special burden[s] on racial minorities within the governmental process” by making it “more difficult to secure enactment” of fair housing legislation than any other type of housing ordinance. Hunter thereby set a precedent for applying a political restructuring doctrine in cases that challenge, on equal protection grounds, a law that altered the political decision-making process in ways that selectively placed comparative structural burdens on advocates for issues that are directly and distinctively race conscious.

About 13 years later, the Court applied the political restructuring doctrine in another case, Seattle. The case involved a challenge to the constitutionality of a state ballot initiative that Washington residents implemented in response to a desegregation plan the school district adopted that required the mandatory reassignment (busing) of students to desegregated schools. The initiative prohibited school boards from “directly or indirectly requir[ing] any student to attend a school other than the school which is geographically nearest or next nearest the student’s place of residence.” The initiative included various exceptions that meant the real effect of the ban was to eliminate school reassignment for racial purposes only. The Court concluded that, by removing authority over student assignment decisions for the purpose of desegregating schools from the school board (e.g., busing for racial purposes) and placing the authority at a more remote level of government (the state legislature or statewide electorate), the initiative required “those championing school integration to surmount a considerably higher hurdle than persons seeking comparable legislative action.” The Court thus held that, like the Akron city charter amendment at issue in Hunter, the Washington initiative violated the equal protection clause under the political structure doctrine.

Relying on the precedents set by these two cases, individuals and organizations have challenged bans on affirmative action, such as Proposition 209 in California and Proposal 2 in Michigan, as unconstitutional under the political restructuring doctrine. They argue that the amendments to the respective state constitutions restructured the political process in a manner similar to the restructuring that took place in Hunter and Seattle; that is, the amendments were not race neutral, as they placed a special burden on racial minorities to secure legislation that was in their interest. In its review of a challenge to Proposal 2, the Sixth Circuit agreed with these arguments (Cantrell), whereas the Ninth Circuit disagreed in its review of Proposition 209 (Wilson/Brown).

Coalition to Defend Affirmative Action by Any Means Necessary v. Regents of the University of Michigan (2012), & Chase Cantrell v. Regents of the University of Michigan (2012)

The debate over race-conscious policies at Michigan’s public colleges and universities dates back to the 1960s and 1970s, when individuals first lobbied the universities to consider race in admissions. Subsequent challenges to the implementation of these policies in the 1990s culminated in the Grutter and Gratz cases in 2003. Three years later, in 2006, Michigan voters passed Proposal 2 by a 58% to 42% margin. The proposal amended the state’s constitution to prohibit public universities and colleges in the state from considering race in admissions. ⁹ Thereafter, the Coalition to Defend Affirmative Action by Any Means Necessary (known as BAMN) and a group of students, faculty, and prospective applicants to Michigan’s public universities (Cantrell plaintiffs) filed two separate cases that sought to prevent enforcement of the law on the grounds that it violated the equal protection clause of the 14th Amendment to the U.S. Constitution.

In their challenges, which were considered together by the district court, the plaintiffs asserted that Proposal 2 restructured the political process in a manner that placed special burdens on diversity advocates. In this case, the political process involved the channels through which individual citizens could advocate for affirmative action policies in college admissions. In general, the process through which citizens can advocate for affirmative action policies depends on the governance structure of higher education, which varies by state. Under Michigan’s constitution, universities are controlled by independent boards. Board members, who at the state’s three flagship schools (including the University of Michigan) are elected by citizens of the state, have autonomy over admissions policies and practices and have largely delegated this responsibility to units within the institutions, including central admissions offices, schools, and colleges. Individuals can lobby the board or admissions committees to adopt, or not adopt, particular admissions policies. It was after such lobbying efforts that the University of Michigan decided to include the consideration of race as a “plus factor” in admissions, a change that led to the litigation in Grutter and Gratz.

The passage of Proposal 2 changed this process. The university can no longer consider race in admissions, and individuals can no longer lobby the board or admissions committees directly to enact such policies. To regain the right to do so, they must repeal or modify the changes enacted by Proposal 2 with an amendment to the state’s constitution. The plaintiffs in the case argued that this change violates the equal protection clause because it restructured the political process in a manner that is not race neutral. That is, the law made it more difficult for minorities to advocate for race-based admissions policies, whereas it left earlier, less cumbersome channels in place for individuals who advocate for other, non–race-based policies.

In the district/trial court, the judge disagreed with these arguments; on appeal, however, a three-judge panel of the Sixth Circuit reversed the decision, holding that Proposal 2 violated the equal protection clause under the political restructuring doctrine. That three-judge panel’s decision was upheld after a review by the full Sixth Circuit in a split 8-7 en banc decision. ¹⁰ The court found that Proposal 2 had a racial focus because holistic race-conscious policies at public colleges and universities “at bottom inures primarily to the benefit of the minority, and is designed primarily for that purpose.” The court further clarified that this was the case even if the policy was not intended to solely benefit minorities, as white students also benefit from diversity. The court also addressed arguments that affirmative action policies actually “harm” racial minorities because it stigmatizes them, noting that that question was one to be resolved through the political process. The court compared the issue to the one in the Seattle case, which involved busing to achieve integration and a similar controversy concerning the desirability and efficacy of the policy. The court noted that “it is enough that minorities may consider [the repealed policy] to be ‘legislation that is in their interests’.”

After concluding that race-conscious admissions policies at colleges and universities are adopted primarily to benefit the minority, the court proceeded to determine whether Proposal 2 affected a political process. In examining the administrative structure of Michigan’s public universities and their admissions processes, the court found that, while the board—whose members are popularly elected—delegated their authority to set admissions policies to other non-elected university administrators, as a body, they retained the ultimate decision-making authority in this area. Because board members are popularly elected, decision-making power over admissions policies is part of the political process. Before Proposal 2 took that authority away, publicly elected board members had the authority to put race-conscious admissions policies in place—and they used it.

Having found that the implementation of undergraduate admissions policies involved the political process, the court then turned to whether Proposal 2 restructured that process in a manner that placed special burdens on the ability of racial minorities to advocate for their interests. The court outlined the various ways actors could effect change in admissions policies: by lobbying admissions committees, administrators, or board members directly or by campaigning for an amendment to the Michigan constitution. It noted that anyone else who wanted to influence admissions policies, such as an individual seeking a guarantee of admission based on “legacy” status, could seek to do so by convincing officials directly. But because an individual seeking to advocate for a change in an admissions policy involving race must first work to amend the state constitution—“an extraordinarily expensive process and the most arduous of all the possible channels for change”—their burden is substantially higher than the steps that must be taken by individuals who seek to advocate for non–race-based policies.

After striking down the law under the political restructuring doctrine, the Sixth Circuit then declined to address whether Proposal 2 would also violate the equal protection clause under a traditional or conventional analysis. The Ninth Circuit’s decisions in Wilson and Brown, however, reached a different conclusion with respect to Proposition 209.

Coalition for Economic Equity et al. v. Wilson (1997) & Coalition to Defend Affirmative Action v. Brown (2012)

The legal challenge to Proposition 209 has had a long and complicated history in the courts. Approved in November 1996, California’s Proposition 209 was the first voter-approved initiative in the country to restrict government action based on race, ethnicity, and gender. The provision amended California’s constitution to prohibit the consideration of race or ethnicity in public education. A legal challenge to the law started on November 6, 1996, the day after the proposition passed, when several individuals and organizations sought a court order prohibiting implementation of the law (i.e., a preliminary injunction) on the grounds that it was unconstitutional under the equal protection clause of the 14th Amendment (Wilson). As in Cantrell, plaintiffs argued that the law was unconstitutional under the political restructuring doctrine and a traditional/conventional analysis. After considering the arguments in the briefs, the district court issued an order preventing enforcement of the law, finding that the petitioners had met the legal test for a preliminary injunction. ¹¹

On appeal in 1997, about a year later, a three-judge panel of the Ninth Circuit reversed the district court’s order, disagreeing with its legal determinations and finding that Proposition 209 did not violate the equal protection clause under either the political restructuring doctrine or the traditional/conventional analysis. In its decision, the court characterized affirmative action as a policy that grants preferential treatment on the basis of race. On this ground, the court distinguished Proposition 209, which banned such preferential treatment, from the laws at issues in Hunter and Seattle, which according to the panel, denied equal protection, rather than banning preferential treatment. ¹²

The three-judge panel also conducted a traditional/conventional analysis, which, as noted previously, looks to whether the law makes a “facial” classification or has a discriminatory impact. In this case, the court interpreted the amendment not as one that classifies on the basis of race but as one that prevents preferential treatment on the basis of race or that addresses race-related manners in a neutral fashion. This characterization thus rendered the law presumptively valid under the traditional/conventional analysis. Following the three-judge panel’s decision, the full Ninth Circuit Court denied full court (en banc) review, with four judges dissenting on the grounds that the legal issues were governed by the Hunter and Seattle line of precedent.

The challenge to Proposition 209 was recently reignited when, in 2012, a new set of individuals and organizations filed a related challenge (Coalition to Defend Affirmative Action v. Brown). During this round of litigation, the State of California declined to defend the constitutionality of Proposition 209. The court, however, dismissed the challenge on the grounds that the court’s prior ruling in Wilson was binding precedent. Given their different outcomes, the Cantrell and Wilson/Brown cases created a circuit split that the nation’s high court agreed to resolve when it granted the Michigan attorney general’s petition for a writ of certiorari in Schuette on March 25, 2013.

Implications of the Court’s Ruling in Schuette

The Court’s ruling in Schuette could affect the constitutional viability of bans in other states, though the determination will be context-specific, as it will depend on how the bans restructured the political process in these other states. In addition to California and Michigan, six states presently ban affirmative action at public postsecondary institutions. Of the eight states that have banned affirmative action, six (Arizona, California, Michigan, Nebraska, Oklahoma, and Washington) implemented the bans through voter-approved initiatives or referendums; two others (Florida and New Hampshire) banned the practice by executive decision and legislative vote, respectively. The voter-approved initiatives share nearly, though not completely, identical language and structure. Table 2 outlines the various policies and their origins.

OPEN IN VIEWER

Table 2.

Overview of States with Laws Prohibiting Consideration of Race, Ethnicity, and Sex in Higher Education.

State	Year enacted	Action that led to ban	Manner in which ban was implemented
California	1996	Voter ballot initiative	State constitution
Washington	1998	Voter ballot initiative	State statute
Florida	1999	Executive order	Administrative regulation
Michigan	2006	Voter ballot initiative	State constitution
Nebraska	2008	Voter ballot initiative	State constitution
Arizona	2010	Voter ballot initiative	State constitution
New Hampshire	2012	State statute	State statute
Oklahoma	2012	Voter ballot measure	State constitution

These bans are in place despite the Court’s endorsement of race-based affirmative action policies in higher education admissions in Grutter because states can amend their constitutions—through state ballot measures, initiatives, or legislation—to prohibit practices that the federal constitution may otherwise allow, unless, of course, the laws themselves violate provisions of the U.S. Constitution—the question that is at issue in Schuette with respect to the ban in Michigan. The analysis, and outcome, for the bans in other states will, as noted, depend on the specifics of how the laws restructured the political process in these other states.

The Court’s forthcoming ruling in Fisher may inform the deliberations in Schuette. ¹³ A challenge to Proposal 2 would be moot if, in Fisher, the Court strikes down all race-conscious admissions policies as unconstitutional, an unlikely outcome, as it would require reversing prior cases. Short of such an outcome, the challenge to Proposal 2 remains viable; the Court could then send the case back to the Sixth Circuit for reconsideration in light of Fisher, or allow briefing on the substance of the legal questions (i.e., briefing on the merits) to proceed.

Social Science Evidence Submitted in Cantrell and Wilson/Brown

A review of the records in these cases reveals that some social science evidence was introduced at the lower court level in Cantrell, although less than was presented at the courts of appeals in prior cases like Grutter, Gratz, Parents Involved, and Fisher. At the court of appeals in Cantrell, the most extensive discussion of social science research can be found in three amicus briefs filed before the en banc court in support of the plaintiffs. One, filed by political science professors, outlines how statewide ballot initiatives have frequently been used in the U.S. history to disfavor racial minorities but have been used rarely, if ever, to promote the interests of racial minorities. The evidence was submitted to support the conclusion that Proposal 2 placed a higher burden on racial minorities than others to advocate for policies in their interests. The brief summarized findings from empirical research in the political science field on statewide ballot initiatives. These studies examined the subject matter of statewide initiatives and the interest groups supporting the initiatives. The findings show that the majority of initiatives targeted minority groups and were placed on the ballot by those opposed to minority interests. The brief also cited studies of the racial voting patterns in statewide initiatives and of the costs associated with passing such initiatives.

Another brief, filed by law professors and constitutional historians, places Proposal 2 in the broader historical context of civil rights movements in terms of the efforts of minority groups to advance their interests through normal political channels and responses by the majority that make it more difficult for them to do so through such channels. For instance, the brief cites historical accounts published in books and law review and journal articles of times during the Civil Rights movement when whites passed laws that deprived African Americans of the right to vote, or other policies and practices that undermined racial integration efforts.

A separate amicus brief, submitted by California social science researchers and admissions experts in support of the plaintiffs, presented empirical data documenting the effects of Proposition 209 in California. Amici argued that the evidence was relevant in helping the court determine whether laws that ban affirmative action target a law or program that benefits minorities. They cited studies published in education journals that describe the racial and ethnic inequities that continue to plague K-12 schools, the unequal schooling conditions that prevent many African American and Latino/a students from accessing selective colleges, and the limits of traditional indicators of “merit,” such as standardized test scores, in identifying potential for success and academic ability. The brief also included data from university reports documenting a significant drop in the admission of students of color at selective University of California (UC) colleges after Proposition 209 was implemented, and the chilling effect the law had on administrators’ ability to experiment with alternative admissions schemes that otherwise might have helped increase racial and ethnic diversity on UC campuses.

Other evidence considered part of the case record was introduced at the district court. This information was presented via expert reports and testimony and involved a range of topics, ¹⁴ including the historical patterns of racial exclusion and discrimination against underrepresented minority students at the University of Michigan (Anderson, 2008) and the history of race relations in U.S. society, including a historical overview of the role affirmative action policies played in halting the unequal treatment of African Americans since slavery (Foner, 2008). Reports also provided evidence related to California’s experience with Proposition 209, which resulted in a sharp drop in the number of underrepresented minorities at selective colleges and universities in the state, and of the expected similar effects of Proposal 2 in Michigan. Laird (2008), for example, presented testimony related to his experience as interim director of undergraduate education at UC Berkeley from 1994 to 1999 and the university’s efforts to maintain pre–Proposition 209 levels of racial/ethnic diversity after the ban, which were unsuccessful due to educational inequities in the K-12 system and inherent bias in the traditional standards used to evaluate applicants, such as grade point averages and test scores. He also discussed the “chill” the ban placed over admission officer’s decisions to admit any student of color who was not among the few with relatively high test scores. Because the pattern of unequal education and unequal test results is common among underrepresented students of color in Michigan, Laird anticipated that institutions there would face similar challenges after the passage of Proposal 2.

Other reports addressed how framing affirmative action policies as “preferences” overlooks inequalities and entrenched racial hierarchy in society (Bonilla-Silva, 2008) as well as information about the factors that help determine a minority student’s success in college, which include myriad considerations not measured by standardized tests (Schaeffer, 2008). More important, reports also addressed the complex nature of the voter-initiative process and statewide ballot initiative campaigns, and the “extraordinarily onerous, expensive and burdensome” steps that would be involved in overturning Proposal 2 in Michigan (Wilfore, 2007).

In sharp contrast to Cantrell, little social science evidence was introduced in the briefs filed at the court of appeals in Wilson/Brown or at the district court. This may be due to the fact that the case was first decided on a motion for a preliminary injunction, which involves a review of the documents submitted in the case without necessarily involving testimony by the parties or supplemental briefing. It is also possible that social science evidence was not subsequently introduced at the court of appeals because of the general view that the case raises “questions of law” that are answered more directly by prior cases and precedent than by social science findings. Given the little collaboration that appears to have taken place between the legal community and social scientists in these cases, social scientists may have been relatively unaware of the legal issues raised by the case and relevant social science findings. As challenges to bans on affirmative action proceed in the courts, empirical evidence can be submitted on topics similar to those addressed in the amicus curiae briefs and expert reports considered in Cantrell.

Open Areas of Investigation

Areas of investigation that can inform the legal determinations in these cases remain open. For example, information documenting the effects of Proposal 2 on the representation of racial minorities at postsecondary institutions in Michigan can be introduced, as were the empirical studies documenting the impact of California’s Proposition 209. Descriptive reports have documented the decline in the proportion of racial minorities at the University of Michigan following the implementation of Proposal 2 (Yun, Moses, & Marin, 2012), and additional studies could be conducted to isolate the causal impact of the law on the representation of students of color. Similar studies have been conducted on the impact bans in other states (Washington, Florida, and California) have had on the representation of students of color in undergraduate and graduate education (see Backes, 2012; Garces, 2012, 2013; Hinrichs, 2012; Tienda, Leicht, Sullivan, Maltese, & Lloyd, 2003). New studies also could begin to examine the impact of affirmative action bans on the higher education access of students of color in Arizona, Nebraska, New Hampshire, and, most recently, Oklahoma. Qualitative accounts could also provide a better understanding of how the bans influenced the decision-making processes of admissions officers. For instance, did admissions officers experience a “chilling” effect on the admission of students of color?

It also would be relevant to document whether the bans imposed restrictions on a range of institutional policies intended to further racial and ethnic diversity. For example, studies might document the extent to which any scholarships, outreach and recruitment practices, or academic support programs for students of color were eliminated or changed after the bans. This evidence may be deemed relevant in determining whether the prohibition on affirmative action in the state made it more difficult for racial minorities to advocate for other admission-related policies that may be in their interest.

Researchers in the fields of political science and higher education policy might study the various processes and political channels available to individuals for enacting changes to higher education admissions policies, like the evidence introduced in Cantrell on the nature of the voter-initiative process and statewide ballot initiatives. These studies might document the past successes and failures of state initiatives, including the strategies and expense involved in these efforts and incorporate any lessons learned from prior campaigns that have successfully passed, or defeated, initiatives (see Moses et al., 2010). This evidence would inform an understanding of the burden imposed on racial minorities to overturn Proposal 2.

The issues in Schuette also raise broader questions regarding the nature of a democracy and the use of direct democracy efforts, such as ballot measures or state initiatives, to enact higher education policy. As outlined in the political scientists’ amicus brief filed in Cantrell studies, for example, could continue to provide a better understanding of the organizations or individuals who support ballot measures that ban affirmative action to clarify who is (and is not) represented in these efforts, Analyses also could document the use of the ballot measure throughout the U.S. history to support or deny civil rights. These studies could provide a better understanding of the ways in which ballot measures, as a method for governance, amplify the voices of a few or can be disproportionately used to undo efforts toward greater racial equity. Theoretical pieces might explore whether these direct democracy efforts may in fact undermine the democratic process.

Another important area related to the courts’ analyses in these cases is whether affirmative action policies harm racial minorities, a topic that has been the subject of substantial media attention since the Court agreed to hear the Fisher case (see Sander & Taylor, 2012), and a conclusion that is highly contested by social science researchers (see Brief of Empirical Scholars as Amici Curiae in Support of Respondents). This question was addressed in various amicus briefs filed in Fisher—including those that called into question the methodology of studies that suggest affirmative action harms racial minorities and those that present summaries of analyses that support different conclusions—and it may be relevant again in Schuette, as the attorney general and amici in support of his petition raised the argument in their briefs. As noted above, the en banc court in Cantrell found that the question of whether affirmative action harms racial minorities was not relevant to the legal determinations in the case but that it was a topic best addressed through the political process. That is, the court noted that the question before it was whether the process for considering affirmative action policies, as changed by Proposal 2, violated the equal protection clause, not whether the objective of affirmative action was desirable. The Court (or judges in other cases), however, may consider the question of whether affirmative action policies are desirable relevant to the political restructuring doctrine analysis.

Finally, one important difference that, in practice, determined the different outcomes in Cantrell and Wilson/Brown relates to how the judges framed the policy of affirmative action. The policy can be framed as (a) granting preferential treatment on the basis of race, or (b) ensuring equal treatment on the basis of race. The Ninth Circuit in Wilson/Brown followed the first approach, finding that the political restructuring doctrine did not apply. The Sixth Circuit in Cantrell, on the other hand, adopted the second approach, framing the policy as seeking to ensure equal treatment by helping level the playing field. Within this framing, the court then proceeded with the political restructuring analysis. Given the political nature of these policies, it is possible that the judges’ opinions already fall into one category or the other. Empirical evidence, however, could help inform these determinations. Studies, for example, can outline the broader historical and educational context within which affirmative action policies are implemented.

Of course, one remaining question is whether any of the evidence outlined here will, in the end, influence the Court’s determinations. A related question is whether the Court will give more weight to one type of study over another (i.e., qualitative, quantitative, historical, causal, descriptive, etc.). Though I do not directly address these important questions in this analysis, they are worthy of further consideration, and the Court’s decision in Schuette could clarify the type of evidence the Court finds persuasive. For now, this analysis serves as an initial step to explain legal questions that have emerged in this area of litigation to facilitate the relevance of social science research to legal determinations.

Ultimately, the social science community, including scholars across the political science and higher education policy fields, will need to partner more closely with members of the legal community involved in the litigation in Schuette so they can communicate research findings in a manner that shows how the evidence bears on the legal determination. These are important efforts, given that the decisions in these cases could ultimately shape the everyday practices of educators.