United States District Judges Edmond E. Chang, Sara L. Ellis, and Virginia M. Kendall comprised the fourth and final panel of the Northwestern University Law Review’s October 20, 2017 symposium, “‘A Fear of Too Much Justice’?: Equal Protection and the Social Sciences 30 Years after McCleskey v. Kemp,“ engaging questions of evidence, epistemology, and expertise on the contemporary bench. Professor Destiny Peery (Northwestern Law) facilitated the panel.
In McCleskey v. Kemp (1987), the Supreme Court was presented with an extensive and rigorous statistical study demonstrating that in Georgia courts, black defendants who had killed white victims were sentenced to death at far higher rates than any other race of defendant who had killed any other race of victim. The Court ultimately held that this evidence was insufficient to support an inference that decisionmakers who had sentenced Warren McCleskey, a black defendant who had killed a white victim, to death had acted with discriminatory purpose. In the years since McCleskey, scholars and courts have grappled with the role of social science in equal protection cases. Advocates seeking to establish equal protection violations in the wake of McCleskey have often been frustrated by the seeming impossibility of bringing any type of social science evidence—by nature aggregate and probabilistic—to bear on specific and particularized fact patterns.
Thirty years after this landmark case, Judges Chang, Ellis, and Kendall expressed a new, if cautious, openness of the bench to social science evidence. All three judges emphasized the importance of applying best practices of fact record development to the use of social science evidence. That is, advocates must show how the evidence is relevant to a particular element or claim, and must introduce it under the appropriate Federal Rule of Evidence. Judge Chang emphasized that lawyers should not cherry-pick quotes from studies that seem to support their argument without having a holistic understanding of the studies and confirming that their methods and conclusions truly support the point they are trying to make. Judge Chang drew a laugh from the audience when he expressed suspicion of briefs that, when using social science evidence, quote only from the first few pages of a study.
The judges also compared social science expertise to other kinds of expert information that are used in litigation. For example, they apply the Daubert standard to social science evidence coming into a case under Federal Rule of Evidence 702, evaluating such evidence with scrutiny comparable to any other expert or technical evidence that parties may seek to introduce. “Hard” social science may be easier for attorneys to introduce than “soft” social science, in part because the Daubert standard itself has been defined with reference to scientific methods more analogous to quantitative than qualitative methodologies. Additionally, judges often have a higher “comfort level,” as Judge Kendall put it, with quantitative methods. Judge Ellis, however, stated that she does not differentiate among social science disciplines in evaluating methodology, and expressed openness to various methodologies so long as they are rigorous and clear enough that she can have confidence in the results.
Evidence of all types is scrutinized more closely when the stakes are higher, Judge Chang noted. The judge hypothesized that this may account for courts’ historical reluctance to engage with social science evidence in, for example, civil cases with high dollar amounts at stake. Judge Kendall pointed out, however, that social science evidence has routinely been used for many years in sentencing hearings, which are among the highest-stakes proceedings in our legal system. In the end, the bench’s willingness to rely on social science evidence is context-dependent. However, advocates can take advantage of the contexts in which it is welcome, and, perhaps create new contexts by meticulously making social science evidence legible to the courts through established practices of developing the fact record.
Following a discussion about the use of social science evidence in the criminal justice system at the Northwestern University Law Review Symposium, Professor Laura Beth Nielsen (Northwestern, Sociology) moderated a panel that explored the varying degrees of success social science has had and the challenges faced by advocates in civil rights litigation.
Professors Russell K. Robinson (Berkeley) and David M. Frost (Columbia) examined the use of social science research in Obergefell v. Hodges (2015), where the American Psychological Association presented two types of social science research in their amicus brief in support of petitioners. Robinson and Frost termed these “sameness studies” and “minority-stress studies.” Sameness studies demonstrate that there are no differences between heterosexual and homosexual couples in intimate relationships, while minority-stress studies focus on the psychological effects of being stigmatized by society, such as depression and anxiety. Each of the two types of studies was cited and played a role in the Supreme Court’s decision. The Court emphasized sameness, for example, when it noted that “many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted.” It then noted that without marriage, children of same-sex parents “suffer the stigma of knowing their families are somehow lesser.” The authors noted that the Obergefell opinion is inconsistent in that it acknowledges the stigma same-sex couples and their families face while simultaneously declaring that the exclusion of such couples from the institution of marriage is a view held in “good faith by reasonable and sincere people here and throughout the world.”
Professor Bernadette Atuahene (IIT Chicago-Kent) described the use of social science research in ongoing litigation challenging tax foreclosures in Wayne County, Michigan. The plaintiffs in that lawsuit argue that the county failed to reassess property taxes after the Great Recession, resulting in high tax assessments that violated the Michigan Constitution. Homeowners were then subject to tax foreclosure for their inability to pay the property taxes. Atuahene’s research showed that the tax foreclosures disproportionately affected predominantly black neighborhoods, with rates 10 to 15 times higher than in predominantly non-black neighborhoods. The plaintiffs’ advocates argue that this constitutes illegal housing discrimination in violation of the Fair Housing Act. Although the social science research does not establish discriminatory intent, Atuahene noted that the plaintiffs could prevail because the Fair Housing Act prohibits neutral practices with a disparate impact on a protected class––not just intentional discrimination.
Professor Victoria Plaut (Berkeley) and Ph.D student Kyneshawau Hurd (Berkeley) explored how the focus of higher education affirmative action policies has shifted from remedying past discrimination to promoting diversity. In Regents of the University of California v. Bakke (1978) and Grutter v. Bollinger (2003), the Supreme Court concluded that (1) reducing the deficit of traditionally disfavored minorities, (2) remedying past discrimination, and (3) increasing the number of practitioners in underserved communities were all impermissible justifications for race-conscious admission policies. Instead, the Court approved the diversity rationale, concluding that promoting diversity in higher education was a compelling interest. Plaut and Hurd cautioned that the diversity rationale appears to benefit students in the majority, portraying students of color as subjects to enrich the experiences of other students. Their study showed that white students who considered themselves egalitarian but scored high on social dominance tests were more likely to support race-conscious admission policies for their diversity benefits than to remedy past discrimination. Plaut and Hurd argued that this focus on diversity fosters a sense of entitlement in white students that undermines inclusion.
Professor Michele Goodwin (UC-Irvine) discussed the different “rhetorical traps” used to deprive women––particularly women of color––of their reproductive rights. False information about the safety of abortion is widespread, and states rely on this misinformation to enact laws that restrict women’s access to reproductive services. Under the guise of protecting the health of women and unborn fetuses, these laws require women to wait for a period of time before they are permitted to receive an abortion, and employers can limit benefits to services they believe to involve abortion. In some states, a woman with a substance-abuse problem can be arrested for “endangering her pregnancy.” Goodwin’s scrutinized the rhetoric underlying such policies and demonstrated the absence of any empirical basis to support it. She mentioned, for example, that a woman is fourteen times more likely to die from complications of live childbirth than she is to die from complications of abortion. Goodwin noted the importance of challenging such rhetorical traps because they endanger the lives of women, especially women of color.
The panel emphasized that social science research still has a long way to go to be accepted as evidence of discrimination. In Obergefell, the Supreme Court cited minority-stress studies but stopped short of labeling the majority view as discriminatory. The plaintiffs in the Wayne County tax foreclosure litigation only have a valid claim because the Fair Housing Act does not require proving discriminatory intent. And in the area of race-conscious admission policies, the Supreme Court has shifted its focus from remedying past discrimination to promoting diversity. The Court today is not any more receptive to the use of social science than it was in McClesky v. Kemp (1987).
On October 12, 2017, OUTLaw, Northwestern Pritzker School of Law’s LGBT affinity group, hosted a panel discussing Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, an upcoming Supreme Court case. The case centers on whether businesses can refuse service to LGBTQ customers based on their First Amendment rights to free speech and free exercise of religion. The petitioner in Masterpiece Cakeshop refused to make a rainbow cake for a same-sex marriage ceremony.
Professor Andrew Koppelman, a Northwestern constitutional law professor and scholar, opined that the petitioner’s free speech argument was stronger than the argument based on the free exercise of religion. Professor Koppelman noted three previous Supreme Court cases relevant to Masterpiece Cakeshop: West Virginia State Board of Education v. Barnette (1943), Wooley v. Maynard (1977), and Boy Scouts of America et al. v. Dale (2000).
In Barnette, the Court held that the free speech clause prohibited public schools from requiring students to recite the pledge of allegiance. Based on this case, Professor Koppelman stated, the government cannot compel people to say words with which they disagree. The Court extended prohibition against forced speech in Wooley, where it held that New Hampshire could not require citizens to display the state motto on their license plates.
In Dale, the Court held that the Boy Scouts were not required to admit a gay member because it would “affect in a significant way the group’s ability to advocate public or private viewpoints.” The First Amendment’s free speech clause, the Court reasoned, superseded New Jersey’s public accommodation laws. According to Professor Koppelman, Dale extended Barnette’s prohibition against forced speech to the form of a person: admitting a gay member was seen as a message imposed on the Boy Scouts.
Masterpiece Cakeshop argues that to compel a business to bake a cake for a gay wedding would be to compel speech in support of same-sex marriage. According to Professor Koppelman, the question is whether the government is forcing Masterpiece Cakeshop to send a message in support of same-sex marriage in the form of a rainbow cake. In other words: is a cake a message, and do Wooley and Dale apply?
Professor Koppelman suggested that the current case presents a broad political question about religious people who do not want to facilitate same-sex relationships. He believes that compromise is the solution, but that the courts are not the best equipped institution to provide the answer. Rather, Professor Koppelman opined, this is an issue better suited for the legislature.
Jamie Gliksberg, a staff attorney at LGBTQ legal advocacy organization Lambda Legal, noted that the Supreme Court has said that any conduct can be considered to include some form of speech. However, according to Ms. Gliksberg, this does not necessarily mean that all conduct is protected by the First Amendment. Ms. Gliksberg noted that the focus is not on free speech, but rather on the requirement to abide by anti-discrimination laws. She also voiced concerns that providing religious exceptions to public accommodation laws would promote some religious beliefs over others, thus creating establishment clause issues.
When asked to predict the outcome of the case, the panelists remained undecided as to which party the believed would win and whether the Court’s holding would be narrow or broad. Specifically, Professor Koppelman noted that Justice Kennedy has historically been supportive of gay rights and has also had an expansive view of free speech, which are two ideals at issue in this case.
Finally, Mike Ziri, the Director of Public Policy at Equality Illinois, an Illinois civil rights organization, commented on societal attitudes toward same-sex relationships. He noted that after the Court’s decision Obergefell v. Hodges (2015), which legalized same-sex marriage, many believed the LGBTQ community had “won” and there was nothing left to fight for. However, Mr. Ziri argued that opponents of same-sex rights have found “creative ways to fight back.” He cautioned that despite what may be considered “great laws,” the LGBTQ community is not immune to discrimination.