New Haven Register (New Haven, CT)
Social science and law must come together
After 33 years, in and out of court, a final settlement has recently been reached in the landmark Sheff v. O'Neill school segregation case. Given that school finance and school segregation are two of the most enduring topics studied by social scientists of education, we were surprised to learn that the social sciences have played a less significant role in education equity lawsuits than we thought.
The problem, in part, is a disconnect between the training needed to understand these studies and what judges are trained, or rather untrained, to do.
According to Wesley Horton, who served as a plaintiff attorney in two important Connecticut education cases: the Horton v. Meskill case, a school funding lawsuit that bears his namesake, and the Sheff v. O'Neill case, “It's so much more difficult when you give (judges) a 3,000 page record, in which all these educational experts are talking about … their lingo … how (do) you determine whether somebody is doing a better job at something?”
He continued: “This isn't (judges') expertise, whereas it is their expertise to read words in a constitution. So, to the extent you can limit something to words in a constitution, you're much better off.”
When it came to the Sheff v. O'Neill case, the Connecticut state constitution's robust language around equal protection provided a strong rationale for leaning more on the constitution than social science literature. Yet Connecticut's constitution is rather unique in its elaboration of equal protection. Most other states that have litigated education equity cases do not have the benefit of relying on such strong constitutional language. In these contexts, social science findings play a larger role in determining legal decisions.
The social sciences have historically played, at best, an ambiguous role in court rulings. At worst, it has been derisively dismissed, like when Chief Justice John Roberts referred to social science findings that were presented in a gerrymandering case as “sociological gobbledygook.”
That impression comes from the unexpected findings that sometimes emerge in social science research. In Brown v. Board of Education, Kenneth and Mamie Clark's doll studies demonstrated that both Black and white children preferred to play with white dolls to prove that segregation caused psychological damage, and that “separate” was inherently unequal.
The defense countered this claim and cast doubt on the validity of the study by revealing that the plaintiff attorneys had left out the other half of the findings. The complete study included a sample of children from desegregated schools in the North. These children exhibited even greater psychological damage than the students who attended segregated schools in the South. This is understandably puzzling. Based on these findings, some may draw the erroneous conclusion that segregation was not harmful to Black children.
But those who have taken a social science course in educational equity would come to a different conclusion. They would understand that Black children in segregated schools may have exhibited less psychological harm because, although segregation was a pernicious way of devaluing Black children, Black educators in segregated schools recognized their students' full humanity and potential. They created a caring community that buffered students from the psychological damage of white supremacy.
This broader understanding of the social sciences — one that helps to interpret findings — is something that many judges and justices lack.
They are simply not trained to do that.
In order to make the social sciences more applicable to education equity cases, scholars can devote more time to conducting meta-analyses that provide a broad sense of a discipline's position on a given issue.
Informed by his analysis of the school finance literature, Kirabo Jackson has shown that the preponderance of studies conclude that “money matters” when it comes to student outcomes. This helps judges cut through the noise to understand where most social scientists stand in relation to an issue.
Professional associations can also play a role in lawsuits. For example, the American Anthropological Association, in 1998, issued a statement on its position that race is a social construct. The preface stated that though its position “does not reflect a consensus of all members of the AAA … it represents generally the contemporary thinking and scholarly positions of a majority of anthropologists.” Although a defense attorney may still be able to find an anthropologist to testify to the biological basis of race to serve as an “expert witness,” the AAA statement would provide a resounding refutation of that testimony.
Lawyers and judges can also learn how to better interpret social science research. Law schools can incorporate the teaching of social science research into their curricula — courses that are currently not offered in some of the top U.S. law schools. Students should be trained to analyze social science research so our next generation of leading lawyers and judges develop a more fine-grained understanding of the cases that will come before them.
Right now, social science and law tend to operate like oil and water, not mixing very well; but this doesn't have to be the case. These changes can ultimately move the needle toward advancing equity in some of the most important issues in society today.
These changes can ultimately move the needle toward advancing equity in some of the most important issues in society today.