Shaping Educational Policy Through the Courts: The Use of Social Science Research in Amicus Briefs in Fisher I

Abstract

Different from more traditional policy-making avenues, the courts provide an antipolitical arena that does not require broad agreement from various constituents for policy enactment. Seeking to guide court decisions on these policy issues, individuals and organizations have filed amicus briefs that increasingly include social science to support their arguments. The Fisher v. University of Texas at Austin Supreme Court case presents an ideal example to study the use of social science evidence in amicus briefs to shape educational policy. Findings from this study identify differences in the use of social science research that suggest many ways in which our current understanding of the efforts of actors to shape educational policy via the highest court in the nation is incomplete. This study also highlights why developing this understanding could be extremely useful to both the creation of educational policy and the use of antipolitical approaches to change such policy.

The language and rhetoric of affirmative action

“…Prior to Grutter and Gratz, no briefs were submitted on behalf of individual faculty or from groups representing collective faculty action. This finding builds on previous works that call for a higher degree of intentionality by higher educational stakeholders to build strategic advocacy capacity , and to better understand how social science research is being co-created alongside amicus briefs (Horn, Marin, Garces, Miksch and Yun, 2018). Findings such as these reinforce the value that both social science research and individual and collective action from social scientists can play in the legal arena.…”

“…While the scope of this study sets it apart from much of the work done on amicus curiae briefs and network analysis, it shares in common with previous work the fact that it examines multiple cases, not the network of a single court case (see Hansford, 2010;Farber, 2007;Mohan, 2010) or are more interested in judicial outcomes or characteristics of the amici themselves (as opposed to the content of the briefs in one area of jurisprudence; see Collins Jr., Corley, Hamner, 2015). Finally, recent works by Marin, Horn, Miksch, Garces and Yun (2018) and Horn, Marin, Garces, Miksch and Yun (2018) seek to explore how non-legal sources are used by amici and how this social science research influences education policy through the judiciary.…”

“…While it is unlikely that a non-education affirmative action case will reach the Supreme Court anytime soon, this lesson is easily transferrable to other legal questions relevant to colleges and universities-free speech, intellectual property, and citizenship questions are all highly contentious issues where higher education has a vested interest. With the inception and expansion of activism by higher education faculty and staff post-Grutter/Gratz and the increased focus on policymaking through the judiciary (Horn et al, 2018), it is my hope that higher education amici become central actors in the public debate on affirmative action.…”

A Call for Amicus Briefs as a Means to Influence Special Education Policy: Lessons Learned From Endrew F.

“…A growing body of work has identified amicus briefs as an avenue to use research to influence education policy (e.g., Horn et al, 2018; Superfine & Thompson, 2016). Although there is some debate as to their influence (e.g., Ryan, 2003), amicus briefs present an important opportunity for interested groups to provide context to help judges better understand the nuances of issues beyond their content expertise.…”

“…An amicus brief is a nonparty brief submitted by a person, group of people, or organization that provides insight and expertise on issues presented in a case. Recent work has illuminated how amicus briefs have been used in Supreme Court cases (e.g., Horn, Marin, Garces, Miksch, & Yun, 2018; Superfine & Thompson, 2016). Drawing from this body of work, our overarching research question was as follows: How do interest groups, through the amicus brief process, use research to influence special education policy?…”