an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Should social science influence how we construe equality protections under the Constitution, statutes and regulations Social science?
Social science studies of single-sex schools point in competing directions. The attitudes and cultural presuppositions of the researchers permeate their questions and interpretations. Gender gaps in achievement do not begin to approach the gap in school performance between economically advantaged and economically disadvantaged students. Social science studies of race and schools has a longer history. Ralph Ellison wrote in 1944, "Since its inception, American social science has been closely bound with American Negro destiny. Even before the Civil War the Southern ruling class had inspired a pseudoscientific literature attempting to prove the Negro inhuman and this beyond any moral objections to human slavery." It was 1944 when Swedish economist and lawyer Gunnar Myrdal published "An American Dilemma," commissioned by the Carnegie Corporation and condemning racial segregation, racial prejudice, and the subordination of African Americans.
Lawyers working for the NAACP drew on social science to try to prove the injuries from segregation. Footnote 11 in Brown v. Board of Education listed 7 works of social science intended to show harms from segregation but inadvertantly triggering objections --about both the quality of the studies and the use of social science in law. Ever since, social scientists have studied the effects of separating people from different backgrounds and the effects of mixing them, and ever since, academics and politicians have criticized such studies as biased, politically animated, contaminated by too many complex factors, indeterminant, and unreliable.
Sobered by these continuing critiques, I nonetheless read the results of research in search of something better than uninformed opinion. Seeing the political projects at work in social science and its limitations is the start, not the end, of the inquiry about what it contributes to understanding and to struggles over meaning and interpretation of social life and law.
Recent research suggests that social integration works best when it engages people of different backgrounds in shared projects. Research also indicates that successful social integration permits teams to devise creative solutions that homogeneous groups are less likely to devise (see, e.g., work by Scott Page) and enhances social networking across different groups (see, e.g., work by Robert Putnam).
The record of schools run by the U.S. Department of Defense--in the U.S. And abroad--is especially striking. About 40 percent of the students are students of color. In 2007, the fourth-grade math achievement gap between black and white students in these schools was 19 points compared with a national average of 26 points--and in terms of absolute results, only the public school systems of Connecticut and Maine rank ahead of the achievement in Department of Defense schools. That this occurs despite the high mobility rate and low level of so many parents' education is also telling. The successful level of racial integration among the adults in the military probably has something to with these results, as do the high expectations for all students, the close-knit military communities in which the schools operate, and the fact that military parents must report their attendance in parent-teacher conferences and participation in their children's schools.
Equal opportunity and true integration seem to require shared goals and rewards and a surrounding context of leaders and communities embracing co-existence. Should this evidence have any influence in how schools mix and do not mix students? In a time when the law and politics of student assignment have moved against any assignment based on students' racial classifications, should social science guide assignments based on socio-economic class, geography, parental choices?