DESEGREGATION, LAW AND SOCIAL SCIENCE

In: Commentary, Volume 23, Issue 5, p. 471-477

Abstract

The introduction of soc sci evidence in judicial proceedings goes back to 1908 & the 'Brandeis brief'. The constitutionality of Oregon's law limiting women to an 8-hour work day in factories was being challenged on the ground that it restricted freedom of contract unreasonably & hence violated the `due process' provisions of the 14th Amendment. The Court learned from the Brandeis brief just how widespread was the belief, both from medical experts & the general community, about women's physical capacity upon which it rested its decision upholding the Oregon law. In the May, 1954 desegregation decision the Justices chose to take account of soc sci res findings in exactly the same way that their predecessors took account of the data in Brandeis's brief : to buttress their 'judicial notice' of the effects of the soc situation at the moment of decision. To outlaw segregation the court relied on a series of precedents for interpreting the 14th Amendment, not on sociol or soc psychol. It is fortunate that the Supreme Court, though it seems to have been influenced to some degree by the soc sci'ts, did not rest its protection of the rights of minorities on the largely irrelevant books & articles cited, or on the need to establish as a fact that segregation has a harmful personality effect. Nevertheless, soc sci is the courts' best means of acquiring accurate knowledge of human behavior. J. A. Fishman.