APA has weighed in on public policy issues being debated in the U.S. Supreme Court this year by submitting four amicus curiae briefs--an unprecedented number for the association to file in one court docket period.

The briefs span the areas of affirmative action, forced medication for trial competency, sexual contact in same-sex couples and the prosecution of child sexual abuse. As with all APA amicus briefs, the briefs draw on the body of psychological research and come out of a collaborative process. APA's Office of General Counsel works closely with the APA directorates, relevant governance bodies and psychological experts to prepare a brief that presents the scientific research and psychological literature in a way that will be useful to the court.

Requests for amicus briefs are subject to a three-tier review process by senior APA staff, the Committee on Legal Issues and APA's Board of Directors before the work of drafting the brief begins.

"In part because of the rigorous nature of our process, over the years we have developed a good reputation with the court as an amicus who is not always in an advocacy role and who can be trusted to give balanced opinions based on science," says Nathalie Gilfoyle, APA's general counsel. Certainly science was featured prominently in APA's four most recent briefs.

Race-based admissions

The Grutter v. Bollinger and Gratz v. Bollinger cases--which are being considered together--question whether the U.S. Constitution allows consideration of race and ethnicity in undergraduate and law school admissions. The two class-action cases were brought by prospective students who were denied admission with test scores and grades they say would have been good enough to admit them had they been minority students.

The Michigan judge who made the first decision in the Gratz case--regarding undergraduate admissions--said that diversity was a compelling government interest and that the admissions policy was constitutional based on standards set by the U.S. Supreme Court in 1978. The judge ruling in the Grutter case against the law school admissions policy found that the law did not allow race to be used as a factor in admissions, and even if it did, the law school weighed race too heavily in its evaluation process.

The U.S. Court of Appeals for the Sixth Circuit overturned the law school ruling and found the admissions policy constitutional. The Sixth Circuit Court has not ruled on the undergraduate case yet, but the Supreme Court agreed to review both the law school and undergraduate cases together.

In informing this review, APA's brief provided a wealth of scientific research regarding the pervasiveness and underpinnings of prejudice and discrimination, including recent studies showing that even people who consider themselves unbiased still demonstrate unconscious racial and ethnic stereotyping. The brief also addresses the impact of diversity on reducing these biases and rebutted criticisms of the Gurin Report, a research study Michigan relied on to demonstrate the need for a diverse student population.

Finally, the brief advises the court on the importance of diversity in the profession of psychology and the link between diversity in higher education and diversity in the profession of psychology. APA's brief in support of the University of Michigan reflected the work of a broad-based working group of experts and the leadership of Div. 9 (Society for the Psychological Study of Social Issues) and Div. 45 (Society for the Study of Ethnic Minority Issues). The brief's arguments are also in keeping with the APA Council of Representatives' Resolution on Affirmative Action and Equal Opportunity.

"I am proud that APA was able to use our science and our council's resolution on affirmative action to provide psychology's unique perspective on this case," says APA CEO Norman B. Anderson, PhD. "It's an example of APA's involvement in real-world issues."

Forced medication for trial competency

The Sell v. U.S. case asks if it is constitutional to involuntarily medicate a criminal defendant to restore the defendant to competency to stand trial. Sell, a dentist with a delusional disorder, was convicted of multiple counts of health-care insurance fraud. The trial court found that Sell was not a danger to himself or others, but that, absent antipsychotic medication, he was not competent to stand trial.

The case asks the courts to decide how to balance personal liberties--freedom from unwarranted intrusions on bodily integrity, freedom to control one's own thought processes and the right to a fair trial--against the government's interest in prosecuting a case involving a nonviolent criminal.

The U.S. Court of Appeals for the Eighth Circuit in North Dakota upheld an order to medicate Sell, and the case was subsequently appealed to the U.S. Supreme Court. APA's amicus brief advances a balancing test that says antipsychotic drugs should not be forcibly administered unless a court finds that less intrusive nondrug alternatives would be ineffective in accomplishing the same objective, that there is a substantial likelihood that the drug will be effective in making the defendant competent for trial and that the benefits of the medication soundly outweigh the side-effects for the particular defendant. APA's brief was filed as a neutral amicus supporting neither party in the case.

APA's opinion on these issues was initially developed in response to an unusual request from the U.S. Court of Appeals for the Second Circuit in Gomes v. U.S. for information on how to establish criteria for involuntary medication in a similar case. APA submitted recommendations and scientific information in that case, which were cited by the court in its decision, and decided to file a brief in Sell to assist the Supreme Court in evaluating similar questions.

"Because we had developed a carefully thought-out approach to the complex public policy issue regarding the use of drugs to achieve competency for trial, which the Second Circuit had apparently found helpful, APA concluded that it made sense to provide the Supreme Court with that thinking," Gilfoyle says. "APA's proposed approach was cited by two justices in the course of oral argument in the case."

Same-sex sexual contact

The Lawrence v. Texas case challenges the constitutionality of a Texas law that makes sodomy between same-sex couples a crime (see page 61). The plaintiffs in the case were arrested when a police officer saw them engaged in consensual sexual activity in one of their homes. They were convicted of violating the state's Homosexual Conduct Statute, which says it is illegal to engage in "deviate sexual intercourse with another individual of the same sex."

The case was appealed, and a panel of a Texas appellate court at first ruled that the convictions violated the Equal Rights Amendment of the Texas Constitution. Later, however, it reheard the case and upheld the Texas statute. The Texas Court of Criminal Appeals refused to hear the case, so it was appealed to the U.S. Supreme Court, which agreed to consider whether the statute violates a privacy right of gay men, lesbians and bisexuals or any equal protection principles.

In opposition to the Texas statute, APA's brief argues that the sexual contact proscribed by the statute is a normal part of many Americans' intimate relations. The brief underscores scientific evidence that homosexuality is not a disorder and that same-sex couples are frequently in committed, long-term relationships. The brief goes on to argue that suppressing sexual intimacy would deprive gay men and lesbians of the full human experience and that antisodomy laws reinforce prejudice, discrimination and violence against gay men and lesbians.

"The APA brief in Lawrence is so important because we are uniquely qualified to assist the court in using science to sort through factual questions," says Gregory Herek, PhD, a psychology professor at the University of California, Davis, and a primary contributor to the brief. "In the process, we inevitably challenge many long-held assumptions and unfounded stereotypes about lesbians and gay men, and about sexuality in general."

Child sexual-abuse reporting

The Stogner v. California case looks at a California statute that allows child sexual abusers to be prosecuted regardless of the amount of time elapsed since they committed the crime. Many children delay reporting sexual abuse until they are adults, and often, by the time they do report it, the traditional time period in which a person can be prosecuted for a crime--the statute of limitations--has run out. The California statute allows charges to be brought within one year of the victim reporting the crime to the police, so long as there is corroborative evidence, instead of the arbitrary time-window created by a strict statute of limitations.

Stogner, the petitioner in this case, has two sons who were both charged with molestation. During the investigation into his sons, authorities discovered that Stogner molested his daughters for years when they were younger than 14 years old. Stogner is not asking the court to find him innocent, but rather he argues that the statute illegally changes the law after a crime is committed and violates due process because there was a time when his prosecution would have been disallowed by the statute of limitations.

APA's brief in this case supports the reasons underlying the adoption of the California statute by pointing to research findings that most child sexual-abuse victims don't disclose their abuse to anyone until they are adults, that child sexual abuse has serious long-term consequences and that child molesters remain a threat to children through most of their lives.

Several members of APA's Div. 37 (Child, Youth and Family Services), and specifically the Section on Child Maltreatment, helped draft the part of the brief that deals with social science research on sexual abuse, says psychologist Tom Lyon, PhD, JD.

"The APA brief provides a scientific basis for understanding the magnitude of the problems addressed by the statute," says Lyon, a professor at the University of Southern California Law School. "If the Supreme Court strikes down the law, hundreds of child sexual-abuse prosecutions in California will be dismissed. Moreover, other states will be deterred from revising their statute of limitation to allow victims to come forward."

Further Reading

For more information on APA's amicus briefs, visit www.psyclaw.org/amicus.html.