One of the most notable aspects of Justice Sandra Day O’Connor’s opinion for the Court in Grutter v. Bollinger (2003) was her declaration that the “substantial” benefits of student body diversity “are not theoretical, but real.” 539 U.S. at 330. This statement was grounded in the majority’s belief that the University of Michigan and its allies had generated a considerable body of evidence in support of its contention that diversity was a “compelling” educational interest. These “expert studies and reports,” the Court explained, “show that student body diversity promotes learning outcomes, and ‘better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.’” Id.
This reliance on the findings of social scientists stood in sharp contrast to the approach taken in prior litigation, where the case for diversity was in large measure advanced as an article of faith rather than a testable hypothesis. In the first case in which the Court discussed these matters in any meaningful fashion, for example, Justice Lewis F. Powell, Jr. relied in large measure on “the freedom of a university to make its own judgments as to education.” Bakke, 438 U.S. at 312. In particular, he characterized diversity as an aspect of “academic freedom,” stating that “the atmosphere of ‘speculation, experiment and creation — so essential to the quality of higher education — is widely believed to be promoted by a diverse student body.” Id.
He did note the considered opinion of Princeton University President William F. Bowen that “informal learning through diversity” was a “powerful source of improved understanding and personal growth.” Id. at 31 n. 48. And he attached the “Harvard College Admissions Program” statement as an Appendix to his opinion, a document expressing Harvard’s “belief that diversity adds an essential ingredient to the educational process [that] has long been a tenet of Harvard College admissions.” Id. at 322. Considering their sources, these statements were obviously worthy of respect. But they were judgments made by advocates in support of their beliefs, rather than the kinds of fact-based studies that documented actual educational outcomes, traceable to the policies that employed admissions preferences to fashion what the Grutter Court characterized as a “critical mass” of otherwise “underrepresented minority students.” 539 U.S. at 316.
The use of social science evidence by the Supreme Court has a long and sometimes controversial history. It arguably originated with the so-called Brandies Brief, a document submitted by future Justice Louis Brandeis in Muller v. Oregon (1908). It was not a “brief” in the usual sense, that is, an argument for a position supported by legal precedents. Rather, it was simply a long list of social science studies, offered in support of the then accepted notion that the inherent nature and characteristics of women, the so-called “weaker sex,” made it appropriate for the state to protect them from the harms that might be inflicted by allowing them to work long hours. These sorts of materials also played an role in the Court’s landmark decision ending the stain of “separate but equal” in K-12 public education. Brown v. Board of Education of Topeka, Kansas (1954). In an important footnote, the Court crediting studies conducted by Dr. Kenneth B. Clark, rejecting “the extent of psychological knowledge” of the effects of segregation on children at the time “separate but equal” was accepted in favor of the evidence provided by “modern authority.” 347 U.S. at 494 n. 11.
Social science studies and reports played no role in Bakke, nor in the other college and university admissions cases litigated prior to Grutter. Its emergence as a major factor in that and the companion case from Michigan, Gratz v. Bollinger (2003), was the result of a carefully considered decision to bring the knowledge gleaned from the social sciences to bear on the contentious debate about the use of admissions preferences to bolster minority enrollments.
So, for example, the Civil Rights Project, an advocacy group then located at Harvard University, convened a series of three “think tanks” in 1997 that brought together a broad collection of scholars, university administrators, and attorneys who worked together to collect the best possible knowledge about the actual educational effects of diversity in college, university, and professional education. The goal, as described by Harvard Law Professor Christopher Edley, Jr., was “to focus world-class research efforts on [a] pressing civil rights issue and take aggressive steps to disseminate or market the results so that they [could] help shape the public [and legal] debate.” Black Issues at 9.
The attorneys who would represent Michigan in the forthcoming Grutter and Gratz litigation were at these sessions. Scholars from Michigan both undertook and fostered numerous studies and secured the support of numerous social scientists and advocacy organizations in the form of expert reports and friend of the court briefs that provided the courts at each stage of the litigation with the materials cited and relied on by Justice O’Connor as she fashioned her opinion for the Court in Grutter. It was on this basis that she declared that the benefits of diversity “are not theoretical, but real,” and that strategy, and the Court’s reliance on it, have shaped the affirmative action debate ever since.
As the materials assembled by Professor Ann M. Killenbeck in her doctoral dissertation demonstrate, there was a considerable amount of “[s]ocial science theory and research” available in the 1990s that “provide a body of evidence suggesting that, under certain circumstances, a racially diverse learning environment may significantly influence the educational experience and outcomes of college students.” Killenbeck,. p. 59. However, focused studies on diversity and educational outcomes were the exception rather than the rule, and there was in particular a dearth of studies that measured the impact of diversity on specific outcomes for specific groups over time. That began to change as part of the protracted Michigan litigation and in its wake there has been a veritable explosion in the number and types of studies undertaken. The literature now available is rich and varied, albeit still plagued by a lack of longitudinal, institution-based studies that document the specific effects on educational outcomes at specific institutions that employ preferential admissions policies.
The realization that such data matters is consistent with a central assumption in Justice Anthony M. Kennedy’s opinion for the Court in Fisher II, in which he emphasized the need for institutions that use admissions preferences to have “goals [that are] sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them,” stressing the “heavy burden [of] showing that” such practices have “obtained the educational benefits of diversity.” 136 S. Ct. at 221. The net result is a fundamental change in the extent to which courts (and those interested in these matters) can reasonably expect colleges and universities to document their efforts and provide actual evidence of both the need for preferential admissions policies and their actual effects.
The Supreme Court has, accordingly, clearly recognized the importance of rigorous social science studies, both as a justification for undertaking preferential admissions and as a basis for necessary assessment of the actual “effects, both positive and negative, of the affirmative action measures [institutions[ deem necessary.” 136 S. Ct. at 215. This is, of course, consistent with the assumption that the case for diversity and preferences reflects sound educational practice. If, as those adopting such preferences seem to believe, their value lies in the results that follow from them diversity, the it is essential to know if that is indeed what actually happens.
List of Citations
Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483 (1954).
Fisher v. The University of Texas at Austin, 136 S. Ct. 198 (2016).
Gratz v. Bollinger, 539 U.S. 244 (2003).
Grutter v. Bollinger, 539 U.S. 306 (2003).
“Harvard Scholars Convene Civil Rights Think Tank.” 1997: Black Issues in Higher Education, Vol. 14.
Ann M. Killenbeck. Racial Diversity in Legal Education: Do Racially Diverse Educational Environments Affect Selected Attitudes of White First-ear Law Students? 2000: Unpublished Doctoral Dissertation, University of Michigan.
Muller v. Oregon, 208 U.S. 412 (1908).
Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
Suggested Readings (cited by Justice O’Connor in Grutter)
William G. Bowen & Derek Bok.The Shape of the River: Long_term Consequences of Considering race in College and University Admissions. 1998: Princeton University Press.
Mitchell J. Chang, Daria Witt, James Jones & Kenji Hakuta (Eds.). Compelling Interest: Examining the Evidence on Racial Dynamics in Colleges and Universities. 2003: Stanford University Press.
Gary Orfield, with Michael Kurlaender (Eds.). Diversity Challenged: Evidence on the Impact of Affirmative Action. 2001: Harvard Education Publishing Group.