The Influence of Amicus Briefs and Statistics in Students for Fair Admissions
When the Supreme Court decided Students for Fair Admissions (the Harvard affirmative action case) last week, the decision encompassed 237 pages of analysis in the various opinions. A couple of things stand out. One is that amicus briefs played an important role in the decision. Several were quoted at length by the justices. Justice Gorsuch perhaps made the best use of the briefs, citing David Bernstein’s work on racial classifications (in a recent book he notes the apparent random and inconsistent nature of government racial classifications) to devastating effect in his concurrence. In his amicus brief, Bernstein had chronicled that the racial classifications used by Harvard in making its admissions decisions were arbitrary and irrational. Interestingly, the majority of the briefs filed in the case were filed on behalf of the defendant colleges in favor of affirmative action, a position that is at odds with the views of most Americans. In a recent Pew Research survey, about 50% of people nationally disfavor using affirmative action in college admissions while only 33% favor it.
Another facet of amicus briefs that the decision revealed is how little judges tend to fact-check what is in them. They seemingly pick a position they agree with that is in agreement with the position espoused in an amicus brief and use the statistics and other information contained in them as if they are unassailable. No better example of that can be found than in Justice Ketanji Brown-Jackson’s dissent. She cited a statistic in support of her position that there are wide disparities in health care between Blacks and Whites. She stated that for high-risk Black newborns, having a Black physician “more than doubles” the likelihood that the baby will live, and not die. This of course is completely nonsensical. Since the survival rate of Black newborns is over 99%, it is mathematically impossible to “double” the survival rate. In fact, the study cited by Brown-Jackson showed only a .13 to .2% better survival rate for Black women’s babies when they visited Black pediatricians and that those doctors actually had a lower overall survival rate for all babies than in comparison to White doctors. As it turns out, the source of the erroneous stat was an amicus brief cited by Brown-Jackson. Had she applied even the most basic analysis to this stat, she would have realized its logical impossibility.
Statistics cited in amicus briefs can be deceiving even when they are accurately quoted. In the most recent issue of City Journal, George Borjas and Robert VerBruggen analyze the battle of the economists hired by the plaintiffs and defendants in Students for Fair Admissions. The economists in the case were tasked with determining whether Harvard’s admissions policies actually discriminated against certain groups (Asians) and favored others (African Americans). Of course the economists came to vastly different conclusions as to whether admissions guided in part by affirmative action were a zero-sum game or in fact were discriminatory. The answer comes down to variables. In determining probability of admission for each racial group, both economists controlled for variables such as academic qualifications, SAT scores, gender, and socioeconomic background. The plaintiff’s economist excluded legacy admissions from his calculations since he considered them to be a separate admission pool. The defense expert included them. He also controlled for parental occupation. As the article points out, this may have been a questionable decision since those numbers seemed to widely vary from year to year. In any event, the different variables led to huge differences in outcomes. The plaintiff’s expert concluded Asians were discriminated against in a significant manner while the defense expert concluded the amount was almost zero. Hence, the reason why the Justices came to such widely divergent opinions on the what seems a fairly straightforward topic.
One last note. Many groups have rightly called out Justice Thomas for arguing in his concurrence that the Freedmen’s Bureau was a “race-neutral” statutory action under the 14th Amendment. Instead of arguing that the Freedmen’s Bureau was a temporary race-conscious measure that was needed to repatriate millions of freed slaves after the Civil War (it of course is no longer around), Thomas tried to rigidly assert that the 14th Amendment does not permit race-conscious remedies in any cases. It seems the better argument would have been to argue that affirmative action was intended to be temporary just as the Freedmen’s Bureau was intended to be and that the clock had struck zero on its continued existence.
