The Fisher oral argument: Social science shouldn’t trump equal protection


As avid Liberty Blog readers know, PLF has been thoroughly covering the developments in Fisher, which will be argued before the Supreme Court in a matter of days. In light of that case, it is important to reflect on how social science and the law should interact. Social science research can appear iron-clad– often including case studies, numbers and charts that give the scholar’s work an air of authority.  But no such project should shake our nation’s commitment to equality under the law, enshrined within the Constitution’s Equal Protection Clause.  As PLF argues in its brief in Fisher, social science is hardly a consistent or reliable guide for policy making.

For example, top social scientists during the fifties argued that segregated education was the best thing for students. Though it sounds unbelievable today, those studies were considered highly trustworthy at the time.  In the years that followed, the Court was rightly reluctant to use the flexible discipline of social science as a basis for legal opinions. Perhaps Justice O’Connor said it best in Metro Broadcasting, when she said: “Social scientists may debate how peoples’ thoughts and behavior reflect their background, but the Constitution provides that the Government may not allocate benefits and burdens among individuals based on the assumption that race or ethnicity determines how they act or think.”

In Fisher, social science evidence is used to support the idea that race-based admission decisions at the University provide educational benefits to students through campus diversity. But those benefits are based solely on social science studies, that have been torn apart since the Supreme Court first found the interest of “diversity” compelling in Grutter. When the state engages in race-based discrimination, the Constitution requires more than the say-so of politically-interested social scientists.  As PLF friend Roger Clegg said, “There are few government functions that cannot be described as rooted in some interest that seems ‘compelling,’ and it will always be possible to find some social scientist who supports the notion that the consideration of race will improve that function.”

There is no social science exception to the Equal Protection Clause. Fisher presents the Court with the opportunity to do away with the one time it backtracked on that promise.