14 Mich. J. Race & L. 61 (2008-2009)
From Pedagogical Sociology to Constitutional Adjudication: The Meaning of Desegregation in Social Science Research and Law

handle is hein.journals/mjrl14 and id is 63 raw text is: FROM PEDAGOGICAL SOCIOLOGY TO
CONSTITUTIONAL ADJUDICATION: THE MEANING
OF DESEGREGATION IN SOCIAL SCIENCE
RESEARCH AND LAW
Anne Richardson Oakes*
In the United States following the case of Brown v. Board of Education
(1954) federal judges with responsibility for public school desegregation but no
expertise in education or schools management appointed experts fron the social
sciences to act as court advisors. In Boston, MA, educational sociologists helped
Judge W. Arthur Garrity design a plan with educational enhancement at its
heart, but the educational outcomes were marginalized by a desegregation
jurisprudence conceptualized in terms of race rather than education.
This Article explores the frustration of outcomes in Boston by reference to the
differing conceptualizations of desegregation in law and social science. It argues that
whereas social scientists see desegregation in terms of social change requiring
integration, for lawyers desegregation is a remedy the content of which is shaped by
the nature of the litigation. The imperatives of law and social science have in the
past coincided in a jurisprudence of afirmative action but the recent school
assignment cases demonstrate the extent to which they have now diverged. This
divergence underlies the indeterminacy of the desegregation mandate and provides an
analytical framework for a theory of the role of the court expert in schools
desegregation.
INTRODUCTION:THE PARADOX OF
DESEGREGATION JURISPRUDENCE ....................... 62
I. LAW    AND SOCIAL SCIENCE IN SCHOOLS DESEGREGATION ........... 69
A.     The Differing Imperatives of Social Science and Law ............ 71
B.    Resegregation and Race-Conscious Policies ..................... 75
II.  LOBBYING THE SUPREME COURT: THE HARM-BENEFIT
THESIS AS LITIGATION STRATEGY ............................................. 76
A.     The Topeka Brief and the Harm of Segregation ................ 77
B.    Social Science and Desegregating the North:
The Columbus Brief and The Web of
Institutional Discriminations .................................... 82
C.     The Harm-Benefit Thesis and Unitary Status:
The Freeman and Jenkins Briefs ................................. 85
D.    Does the Court Take Note? The Harm-Benefit Thesis
and a Public Law Remedial Model .............................. 87
E.    Pedagogical Sociology and Judicial Activism:
The Search for Legitimacy ......................................... 91
*     Senior Lecturer, School of Law, Birmingham City University.

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