CONTENTS INTRODUCTION I. VOICES BRIEFS: AN INTRODUCTION A. Voices Briefs: A History B. Voices Briefs: A Potential Future II. VOICES BRIEFS IN EDUCATION-RELATED SUPREME COURT CASES A. Safford Unified School District No. 1 v. Redding B. Endrew F. v. Douglas County School District C. G.G. v. Gloucester County School Board and Mahanoy Area School District v. B.L III. VOICES BRIEFS IN STATE EDUCATION CASES CONCLUSION
"[T]he law is awash in storytelling."
--Anthony G. Amsterdam & Jerome Bruner (1)
INTRODUCTION
In recent years, there has been an uptick in the number of amicus curiae briefs that tell nonparty stories in cases before the Supreme Court. These briefs, commonly called "voices briefs," tell "stories drawn from the lives of individuals who are strangers to the case ... [and] introduce the Court to some of the individuals who have lived the issues firsthand." (2) Voices briefs "humanize[] the amici curiae" (3) and the legal issues involved in the case by telling different kinds of stories. (4) The stories appear in different forms: in first- and third-person narratives, in stories previously told, and in stories gathered for the specific purpose of being amici, woven into the brief's argument and included in the appendices.
To date, voices briefs have been used primarily in abortion rights and marriage equality cases. (5) Perhaps the most famous of these briefs appeared in abortion cases beginning in the mid-1980s. (6) These briefs are credited with "creat[ing] a new form of argument using stories." (7) Of late, a large number of voices briefs were filed in significant cases such as Obergefell v. Hodges (8) and Whole Woman's Health v. Hellerstedt. (9) The amici in these cases appeared on behalf of the petitioners and respondents in almost equal measure. (10)
Voices briefs are a mechanism through which nonparty stakeholders can use the power of personal narrative to bring to life the issues under consideration in a particular case. Consider, for example, the sixteen voices briefs filed by amici in Obergefell. Nine of the amicus briefs were pro-marriage equality and seven were anti-marriage equality. Seven were filed on behalf of individuals, eight on behalf of organizations, and one on behalf of an Ohio county. (11) The briefs seek to tell the Court about the amici's personal experiences with the issues at stake. These personal narratives include the experiences of children of LGBTQ parents, (12) of survivors of sexual orientation change therapies, (13) and of same-sex attracted men and their wives. (14)
Despite this recent explosion in voices briefs, there has been little analysis of the phenomenon and almost no consideration of their potential use in other contexts. (15) This Article is an initial examination into the potential that voices briefs might have in other contexts: here, a specific subset of cases involving education. As such, this is a unique, cross-disciplinary look at the advocacy potential of voices briefs beyond their original purpose.
To date, voices briefs have been used in cases that involve deeply personal issues and that involve experiences that are different from those of the Justices or judges hearing the case. They may also be useful in cases where the decision will affect non-parties whose situation differs from that of the parties and of other amici. This Article asserts that certain education-related cases share these characteristics and that, consequently, voices briefs can serve a useful purpose in these cases. However, to date, such briefs have appeared infrequently in education-related cases.
Part I provides essential background on what voices briefs are and their traditional uses. It also contemplates the circumstances under which voices briefs might be useful in other contexts. Part II notes the minimal role nonparty personal narratives have played in education law cases before the Supreme Court and argues that some education law cases are well-suited for this type of advocacy. Part II also looks specifically at how voices briefs might have been useful in two modern-era Supreme Court cases involving student privacy and special education, and how voices briefs function in two more recent Supreme Court cases. Part III looks at state school funding litigation. It argues that voices briefs might be especially useful in cases where the "adequacy" of state-provided education is at issue. Part IV offers some conclusions.
I. VOICES BRIEFS: AN INTRODUCTION
Traditional amicus briefs allow non-parties to introduce their own legal arguments and sources, as well as to offer social science research, policy concerns, and other implications of the Court's decision. (16) They represent a wider swath of affected persons or entities than the parties, including marginalized groups that might not otherwise be heard. The policy function of amicus briefs has existed since the "Brandeis brief" that first presented social science research to the Court in 1908. (17)
Voices briefs use personal narrative as policy argument. (18) For purposes of this Article, "personal narrative" is defined as "somebody telling somebody else on some occasion and for some purpose(s) that something happened." (19) I use the terms "personal narrative" and "story" interchangeably. (20) The personal narratives and stories in voices briefs are "drawn from the lives of individuals who are strangers to the case" but "who have lived the issues firsthand."21 These personal narratives in voices briefs tell the story of how the issue in the case has affected the storyteller(s), the effect a change in the law will have, or both. (22) A classic voices brief centers on personal narratives; briefs with passing references to a single personal experience are not voices briefs. (23) Voices briefs present these stories as legislative (not adjudicative) facts. Legislative facts are broad or general facts about the world that "assist in the creation of law or the determination of policy." (24) Ideally, voices briefs should introduce personal narratives that are reliable and relevant. (25) As others have noted, their stories should not be used to "prompt a generalized emotional reaction for or against a topic or practice." (26)
Practically speaking, voices briefs use nonparty stories to expand the Justices' or judges' understanding of the issue. (27) Some amici may have very different experiences than those of the parties. (28) While so humanizing the issues before the Court, personal narratives also disrupt the schema and stock stories that unconsciously influence the judges' ultimate decisions. (29) Cognitive science studies have shown that the personal narratives communicated in voices briefs may actually be more effective at countering negative preexisting bias than the logical arguments in merits briefs. (30) Voices briefs might also affect the scope or tone of an opinion or support one step in a long-term evolution of the law. (31)
More abstractly, voices briefs allow nonparty "voices" who will be affected by the Court's decision to be heard. This right to be heard is particularly important in cases where the decision will affect the intimate lives of people living very different lives than the judicial decision-makers. (32)
This Part sets forth the history and traditional uses of voices briefs. It then summarizes the historical purpose and function of voices briefs and contemplates their use in other contexts.
A. Voices Briefs: A History
To date, voices briefs have appeared almost exclusively in abortion and marriage equality cases. (33) The first voices brief was an amicus brief filed in Thornburgh v. American College of Obstetricians & Gynecologists.. (34) At issue in Thornburgh was Pennsylvania's Abortion Control Act, which placed a variety of restrictions on abortion procedures. (35) Thornburgh was the first case to call for Roe v. Wade (36) to be overturned outright.
The lead architect of the first voices brief was Lynn M. Paltrow, who was counsel for the National Abortion Rights Action League (NARAL). (37) Paltrow's brief "place[d] before the Court the realities of women's situations when confronting such a profound and personal choice." (38) Nancy Levit has described the original voices brief as follows:
This brief was primarily a collection of stories of women from all walks of life who had abortions both legally and illegally. These were teenagers, women who were raped when they sought abortion services, women who were prosecuted when they had illegal abortions, those who had abortions in unsafe conditions when abortions were illegal, those who had abortions after Roe v. Wade in safe, clean, and supportive environments, women who had health problems that made childbirth dangerous, those who did not have financial resources to raise children, some who had cancer while pregnant, divorced professional women, married women with physically abusive spouses, some who suffered failed birth control methods, women who were pregnant as a result of rape (including a former nun raped by a priest), those afflicted with severe illnesses that necessitated abortion to save their lives, some who were addicted to drugs or alcohol, and some who carried fetuses with genetic diseases such as Tay-Sachs. These were not paradigm plaintiffs; they were Everywoman. (39)
The brief was signed by sixteen organizations representing many different women, including professors, laborers, women of color, students and political activists, and women in health. (40) It stated that it sought to "place the realities of abortion in women's lives before this Court" and asked that Roe v. Wade be affirmed. (41) The brief "concretely locat[ed] freedom of choice 'in the context of women's lives.'" (42) It "paint [ed] a picture that gives the women not only bodies but jobs, families, schoolwork, health problems, youth, poverty, race/ethnic identity and dreams of a better life." (43)
The brief was organized around two main arguments and...
