This Article examines theories of fact finding and rules of evidence, as well as critiques of scientific citations in equal protection litigation, drawing on opinions starting with Brown v. Board of Education and its well-known citation of psychological and sociological studies documenting the harms of segregation-what the Brown Court labeled "modem authority." Second, this Article examines a range of equal protection cases and discusses how constitutional frameworks have shaped both core constitutional values and the gathering of relevant constitutional facts. Third, this Article examines in more detail the Parents Involved cases, as well as the underlying science and the citation of studies by advocates. This Article does not attempt to summarize the large body of scientific data available to the Justices in these cases, but I do compare differences in the presentation of the studies to help explain the inconsistent interpretations of the research. Finally, this Article proposes that the courts reframe their equal protection analyses to focus on key inquiries that can turn to evidence of appropriate costs and benefits, and that the courts employ explicit evidentiary standards to better inform their analyses of constitutional questions.
69 Ohio St. L. J. 1115 (2008)