Applied demography, affirmative action and rapidly evolving case law: A comment on Siegel and Morrison

Abstract

The papers preceding this comment are excellent articles by noted demographers working at the intersection of public policy and demography. Morrison's article describes a method for determining whether a court ordered desegregation program of magnet schools succeeded in attracting students from suburban areas outside of the district or merely drew students from other schools within the district. Siegel's article discusses the need for statistical guidelines for the evaluation of the geographic compactness of redistricting plans. Both articles stem from litigation in which the authors were serving as expert witnesses and both relate to the current national debate over federally enforced affirmative action programs. As the national debate on affirmative action has intensified, an increasingly conservative Supreme Court has sought ways to curb or eliminate such programs. During its 1994-1995 term the Court issued three rulings in this area each decided by the same 5 to 4 split (Rehnquist, O'Connor, Kennedy, Scalia and Thomas in the majority and Blackmun, Ginsburg, Souter and Stephens in the minority). The first of these rulings Adarand Constructors Inc. v. Pena held that race-based affirmative action programs involving minority set asides must be narrowly tailored to further compelling governmental interests. Interestingly, this requirement for the application of a strict scrutiny standard for racially-based preferences was not applied to gender-based affirmative action programs. The other two cases, Missouri v. Jenkins and Miller v. Johnson are directly connected to the two articles being discussed. Each is basically saying that affirmative action programs that are racially or ethnically-based are only constitutional if, under the standard of strict scrutiny, they can be shown to serve a compelling state interest. Demographers serving as expert witnesses must choose between two alternative roles. The first is an advocacy role described by Smith (1993) as, 'professionally competent demographic analysis that will help advance the client's interests'. Smith described the other role as that of educator in which the expert behaves as an impartial observer whose conclusions may or may not be helpful to the client. These articles showcase the involvement of two prominent demographers in high profile cases of national importance.1 They also illustrate these two approaches to serving as an expert witness, with Morrison appearing to be more of an advocate and Siegel more of an educator.