Why More Historians Are Embracing the Amicus Brief

In 2006, when a case challenging plans to diversify school districts in Seattle and in Jefferson County, Ky., reached the Supreme Court, Tomiko Brown-Nagin felt compelled to weigh in.

Ms. Brown-Nagin, a history professor at Harvard University, had been studying and teaching about school segregation for many years. She knew that the courts had taken a more restrained approach to desegregating schools in recent years. So she filed an amicus curiae — a "friend of the court" brief — on the side of the school districts, arguing that a race-conscious policy to diversify their student populations is consistent with the 14th Amendment.

But the court disagreed, siding with parents who objected to the districts’ use of race to determine where to enroll their children.

"The court has not taken the historical evidence very seriously in the context of school desegregation cases," Ms. Brown-Nagin said. She feels that the Supreme Court has viewed the history of segregation very generally — often concluding only that it is wrong, and therefore that race should not be considered in admissions decisions. A historian, she said, would apply a more nuanced interpretation.

So when the issue came up again in Fisher v. University of Texas at Austin, a case challenging the university’s race-conscious admissions policy in 2013, Ms. Brown-Nagin, also a law professor at Harvard Law School, tried a different tack. She blended her legal training with her background in history to argue in another amicus curiae that without affirmative action, the university would be perpetuating a long history of unequal opportunities for black and Latino Texans. ..