Doe Ex Rel. Doe v. Lower Merion School District , 665 F.3d 524 ( 2011 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-3824
_____________
STUDENT DOE 1, BY AND THROUGH HIS PARENTS/GUARDIANS DOES 1 AND
2; STUDENT DOE 2, BY AND THROUGH HER PARENT/GUARDIAN DOE 3;
STUDENT DOES 3 AND 4, BY AND THROUGH THEIR PARENT/GUARDIAN
DOE 4; STUDENT DOE 5, BY AND THROUGH HIS PARENTS/GUARDIANS DOE
5; STUDENT DOE 6, BY AND THROUGH HIS PARENTS/GUARDIANS DOES 6
AND 7; STUDENT DOE 7, BY AND THROUGH HIS PARENT/GUARDIAN DOE 8;
STUDENT DOES 8 AND 9, BY AND THROUGH THEIR PARENTS/GUARDIANS
DOES 9 AND 10,
Appellants
v.
LOWER MERION SCHOOL DISTRICT
______________
APPEAL FROM AN ORDER ENTERED BY THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civ. Action No. 2:09-cv-02095)
District Judge: Honorable Michael M. Baylson
______________
Argued on April 28, 2011
______________
Before: GREENAWAY, JR., ROTH, Circuit Judges, and HAYDEN,1 District Judge
(Opinion Filed: December 14, 2011)
1
The Honorable Katharine S. Hayden, United States District Judge for the District of
New Jersey, sitting by designation.
1
______________
David G. C. Arnold (argued)
920 Matsonford Road
West Conshohocken, PA 19428
Counsel for Appellants
Judith E. Harris (argued)
Morgan, Lewis & Bockius
1701 Market Street
Philadelphia, PA 19103
Counsel for Appellee
Christopher M. Arfaa
Littleton Joyce Ughetta Park & Kelly
150 North Radnor Chester Road Suite F-200
Radnor, PA 19087
Counsel for Amicus Curiae Earl M. Maltz
Joshua I. Civin
Kimberly A. Liu
NAACP Legal Defense & Educational Fund
1444 I Street, N.W. 10th Floor
Washington, DC 20005
Counsel for Amicus Curiae NAACP Legal Defense & Educational Fund, Lawyers
Committee for Civil Rights Under Law, ACLU Foundation
Erin H. Flynn (argued)
Mark L. Gross
United States Department of Justice Civil Rights Division, Appellate Section
P.O. Box 14403
Ben Franklin Station
Washington, DC 20044
Counsel for Amicus United States of America
2
______________
OPINION OF THE COURT
______________
GREENAWAY, JR., Circuit Judge.
This case involves school redistricting in Lower Merion, Pennsylvania and
allegations that the implemented redistricting plan violates the Equal Protection Clause.
Here, the Lower Merion School District (―the
District‖) used pristine, non-discriminatory
goals as the focal points of its redistricting plan, Plan 3R. The District‘s goals included
that:
1. ―The enroll ment of the two high schools and two middle schools will be
equalized;‖
2. ―Elementary students will be assigned so that the schools are at or under the
school capacity;‖
3. ―The plan may not increase the number of buses required;‖
4. ―The class 2010 will have the choice to either follow the redistricting
of
plan or stay at the high school of their previous year;‖ (referred to as
―grandf athering‖) and
5. ―Redistricti decisions will be based upon current and expected future
ng
needs and not based on past practices.‖
(App. at A16.)
The District Court concluded that the District‘s assignment plan employing these
goals required strict scrutiny because race was a factor in the formation of the plan, but
concluded that the plan is constitutional because it does not use race impermissibly.
Upon review, we disagree with the District Court‘s determination that strict scrutiny is
the appropriate level of review, but we affirm the conclusion that the District‘s school
3
assignment plan is consonant with the Constitution.
The Supreme Court and this Court have yet to set forth any standard requiring the
application of strict scrutiny when decisionmakers have discussed race, but the school
assignment plan neither classifies on the basis of race nor has a discriminatory purpose.
We hold that the plan here passes constitutional muster because it does not select students
based on racial classifications, it does not use race to assign benefits or burdens in the
school assignment process, it does not apply the plan in a discriminatory manner, and it
does not have a racially discriminatory purpose. Strict scrutiny does not apply. The
appropriate test to determine the constitutionality of the District‘s school assignment plan
is rational basis. In our view, the District has met the rational basis test with its
redistricting plan — Plan 3R. We shall affirm the District Court‘s order.
I. BACKGROUND
The District operates six elementary schools (Belmont Hills, Cynwyd, Gladwyne,
Merion, Penn Valley, and Penn Wynne); two middle schools (Bala Cynwyd and Welsh
Valley); and two high schools (Harriton and Lower Merion High School (―LMH
S‖)).
The high schools are both ―ranked being among the best in the state, if not the nation.‖
as
(App. at A6.) Nine elected School Directors (―Board
members‖) comprise the Lower
Merion Board of School Directors (―Board), which has the authority to assign Lower
‖
4
Merion students to schools within the District.2 The District‘s Administration includes
the District‘s Superintendent and several cabinet members.3
In 1997, the District began a capital improvement program to modernize each
District school. In May 2004, a forty-five member Community Advisory Committee
(―CAC‖) of school officials and community members investigated a plan to modernize
the two high schools. At the time, approximately 1600 students attended LMHS and 900
students attended Harriton. The CAC considered four proposals: (1) creating a separate
school for grade nine only and another school for grades ten through twelve; (2) building
one new high school that all high school students would attend; (3) building two new
high schools to replace Harriton and LMHS with the same student populations as
Harriton and LMHS; and (4) building two new high schools with 1,250 students enrolled
at each school.
The CAC rejected the first three proposals due to academic and logistical
shortcomings. The CAC voted in favor of the fourth proposal (building two high schools
with equal student enrollment) because students would benefit from a stronger sense of
2
During the January 2009 school redistricting process, the Board members were: Diane
DiBonaventuro; Linda Doucette-Ashman; David Ebby, the President; Gary J.
Friedlander; Susan Guthrie; H. Linda Kugel; Ted Lorenz; Gerald Gene Novick; and Lisa
Pliskin.
3
Dr. Christopher McGinley was the District‘s Superintendent, beginning in June 2008,
and Dr. Jamie P. Savedoff was his predecessor. During the school redistricting process,
Dr. McGinley‘s cabinet included Dr. Michael J. Kelly, Assistant Superintendent; Edward
Andre, Director of Transportation; Scott A. Schafer, Business Manager; Pat Guinnane,
Director of Human Resources; and Doug Young, Director of Public Relations.
5
community, better student-faculty interactions, and better educational outcomes. The
CAC also determined that this option would give students at both high schools the most
equitable access to programs and facilities while securing the best use of both school
sites. This option would also alleviate traffic and parking problems near LMHS.
The Board accepted the CAC‘s recommendation to equalize the student
populations at the two high schools and chose to keep the schools at their existing
locations because the District did not have other possible sites. Equalizing student
enrollment between the two schools would require redistricting because, under the prior
plan, LMHS had 700 more students than Harriton. Harriton, which is located farther
from the center of the student population than LMHS, has always had a substantially
lower enrollment than LMHS despite Harriton‘s magnet programs aimed at attracting
more students.
Students Doe 1 through 9 (―Stuents‖) are African-American students who live
d
in an area referred to as South Ardmore or the Affected Area, which is within the District.
Ardmore, which is comprised of North Ardmore and South Ardmore, is a neighborhood
in Lower Merion. Six of the Parents Doe testified that they and their children live within
a mile of LMHS and the District‘s Director of Transportation, Michael Andre, testified
that at least three Students Doe live within a mile of LMHS. Of the neighborhoods in the
6
District, the Affected Area and North Ardmore have the highest concentration of African-
American families.4
Decades before this litigation, the District assigned students who lived in North
Ardmore and the Affected Area to an elementary school in Ardmore. After that
elementary school was torn down, the District assigned students in North Ardmore and
the Affected Area to five of the District‘s other elementary schools and the District
provided bus service to those schools. In the 1990s, the District reassigned students of
North Ardmore and the Affected Area: North Ardmore students attended Penn Wynne
Elementary School and Bala Cynwyd Middle School; Affected Area students attended
Penn Valley Elementary School and Welsh Valley Middle School. During that time,
students in both North Ardmore and the Affected Area could choose to attend either
Harriton High School or LMHS.
Prior to the adoption of Plan 3R, the plan at issue here, students assigned to
Belmont Hills, Gladwyne, and Penn Valley Elementary Schools would attend Welsh
Valley Middle School and then would attend Harriton for high school, with the exception
that students who lived in the Narberth Borough area, Haverford, and the Affected Area
were assigned to LMHS. Students assigned to Cynwyd, Merion, and Penn Wynne
4
As of September 2008, the Affected Area had 308 students in kindergarten through
twelfth grade (140 were white, 140 were African-American, 9 were Asian, and 18 were
Hispanic) and North Ardmore had 167 students in kindergarten through twelfth grade (32
were white, 107 were African-American, 12 were Asian, and 16 were Hispanic). (App.
at A10 n.2 (citing Plaintiff‘s Exhibit 154, ¶¶ 13–14).)
7
Elementary Schools would attend Bala Cynwyd Middle School and, then, were assigned
to LMHS for high school. All students assigned to LMHS could, instead, choose to
attend Harriton. Prior to redistricting, forty-six African-American students attended
Harriton (5.7 percent of Harriton‘s total student population) and ten percent of the
District‘s high school students were African-American. (App. at A13.)
The District has always provided bus service to students except those students who
live in the ―
walk zones‖ of the school that they attend. Walk zones are the areas within a
mile of District Schools.5 Students who live within a walk zone for their assigned school
walk to school instead of receiving bus service. The boundaries of the LMHS walk zone
were selected in the late 1990s. Because the Pennsylvania Department of Transportation
declared that the street on which Harriton is located is hazardous for student walking,
Harriton is the only school without a walk zone.
A. Redistricting
The redistricting process began in the summer of 2008 and ended on January 12,
2009, when the Board adopted Proposed Plan 3R. Initially, the Board authorized the
Administration to develop proposed redistricting plans and to choose plans for the
Board‘s consideration. The Board also developed a list of ―Non
-Negotiables‖ to guide
5
The historic LMHS walk zone does not extend to all of the area within a mile of LMHS.
Appellants have not challenged the constitutionality of the historic LMHS walk zone
boundaries.
8
the redistricting process.6 On April 21, 2008, the Board adopted the following Non-
Negotiables:
1. ―The enroll ment of the two high schools and two middle schools will be
equalized;‖
2. ―Elementary students will be assigned so that the schools are at or under the
school capacity;‖
3. ―The plan may not increase the number of buses required;‖
4. ―The class 2010 will have the choice to either follow the redistricting
of
plan or stay at the high school of their previous year;‖ (referred to as
―grandf athering‖) and
5. ―Redistricti decisions will be based upon current and expected future
ng
needs and not based on past practices.‖
(Id. at A16.)
In May 2008, the District hired two outside consultants, Dr. Harris Sokolov and
Ellen Petersen, to compile a list of Lower Merion residents‘ values for the purpose of
informing the redistricting process. As a result of a series of public forums and a
collection of online surveys from Lower Merion residents, information was gathered and
all had an opportunity to participate.
The consultants issued a report identifying the following ―Co munity Values‖:
m
1. ―Social networks are at the heart of where people live, and those networks
expand as people grow older;‖
2. ―Lower Mer public schools are known for their excellence: academic as
ion
well as extracurricular;‖
3. ―Those wh walk should continue to walk while the travel time for non-
o
walkers should be minimized;‖
6
The Administration recommended several Non-Negotiables to the Board. One of the
Administration‘s suggestions was to address the ―distribut of minority students‖ and
ion
―racial bal
anc[ing].‖ (App. at A15.) The Board did not accept this suggestion.
9
4. ―Childrenearn best in environments when they are comfortable — socially
l
as well as physically;‖ and
5. ―[E]xplore and cultivate whatever diversity — ethnic, social, economic,
religious and racial — there is in Lower Merion.‖
(Id. at A17, n.9.)7
In June 2008, the Board hired Dr. Ross Haber to review and analyze District
enrollment data and to create redistricting plans called ―Sce
narios.‖
Dr. Haber prepared eight sets of Scenarios8 that were considered by the
Administration, in the first instance. Under the Scenarios, the projected enrollment for
Harriton ranged from 1080 to 1195 and the projected enrollment for LMHS ranged from
1137 to 1270. Both the Affected Area and North Ardmore would be redistricted to
Harriton in Scenarios 1, 2, and 5; the Affected Area, but not North Ardmore, would be
redistricted to Harriton in Scenario 8; North Ardmore, but not the Affected Area, would
be redistricted to Harriton in Scenarios 3, 4, and 7; and neither the Affected Area nor
North Ardmore would be redistricted to Harriton in Scenario 4a. No Scenario redistricted
only the Affected Area to Harriton. The percentage of students at each high school that
would be African-American ranged from 4.4 percent to 14.5 percent under the Scenarios.
7
Dr. Ross Haber, who developed the redistricting plans, testified that he was aware of
and used the Community Values in developing the plans.
8
The Scenarios are numbered 1, 2, 3, 4, 4a, 5, 7, and 8. No Scenario 6 was ever
presented to the Administration.
10
Most Scenarios would yield a percentage of African–American students between 7 and
10 percent.9
Dr. Haber prepared informational handouts of the Scenarios for the
Administration. The handouts regarding Scenarios 1, 2, 3, 4, and 5 included the number
of African-American students, but did not include any other racial/ethnic data or any data
regarding socioeconomic status or disability.10 Dr. Haber reported data on race, ethnicity,
and socioeconomic disability for Scenarios 4a, 7, and 8. The summaries of the Scenarios
on the District‘s website did not include the statements regarding the racial/ethnic
numbers for each Scenario. Dr. Haber testified11 that this information was probably
reported because the Administration expressed concerns regarding African-American
students and that he was never directed to create or change a Scenario based on diversity
outcomes.12 A chart dated August 26, 2008 lists the African-American and
9
The percentage of the Harriton student population that would be African-American is,
in ascending order: Scenario 4a, 4.4 percent; Scenario 7, 7.8 percent; Scenarios 4 and 5,
8.6 percent; Scenario 2, 9.3 percent; Scenario 8, 9.6 percent; Scenario 3, 9.9 percent; and
Scenario 1, 14.5 percent.
10
On his personal set of the handouts, Dr. McGinley wrote by hand the projected
African-American student populations for Scenarios 1, 2, and 3. For Scenarios 3, 3a, 4,
and 5, the African-American student projections appear under the heading ―racial
balance.‖
11
This refers to Dr. Haber‘s testimony on April 12, 2010 during the District Court bench
trial.
12
Dr. McGinley was aware of the Supreme Court‘s decision in Parents Involved in
Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007) (―
Seattle‖),
11
socioeconomically disadvantaged population estimates for the Scenarios.13 The
following day, the chart was updated to include additional, general diversity data.
The Administration considered Scenarios 1, 2, 3, 4, 4a, and 5 before eliminating
Scenarios 1 and 4a. Drs. McGinley and Haber testified that Scenario 1 was ―eli
minated
due to inequitable racial balancing‖ — this Scenario redistricted both the Affected Area
and North Ardmore to Harriton. (Id. at A24.) Additionally, Scenario 1 was eliminated
because it violated the Non-Negotiable to equalize the high school population and it
would result in longer travel times. Scenario 4a was eliminated because it ―[
d]oes not
support the community value of diversity as does other scenarios.‖ (Id.) Scenario 4a is
the only considered Scenario that redistricted neither North Ardmore nor the Affected
Area to Harriton. Dr. McGinley crossed out his copy of the slide presenting diversity
data under Scenario 4a and wrote, ―
Don‘t present.‖ (Id. at A30.) He also wrote, ―Sa
y
don‘t post,‖ next to the slide listing reasons for not selecting Scenario 4a. (Id.)
and asked Dr. Haber how the case affected a redistricting plan that sent a portion of
Ardmore students to Harriton.
13
Dr. McGinley wrote by hand on his personal copy of the chart the population for other
racial and ethnic groups and the number of special needs students under Scenario 3.
Additionally, on his copy of the chart, Dr. McGinley handwrote ― OK‖ next to the
numbers of African-American students and socioeconomically disadvantaged students for
Scenario 4b.
12
B. Proposed Plans
i. Proposed Plan 1
After considering Scenarios 1, 2, 3, 4, 4a, and 5, the Administration presented
Proposed Plan 1, which was based on the Scenario 3 series, to the Board at a public
meeting on September 8, 2008. Under Proposed Plan 1, there was no redistricting at the
elementary school level and high school districting was determined by where the student
lived. Under this plan, students remained with the same group of students from
kindergarten through grade eight. The projected student enrollment of Harriton was 1108
and that of LMHS was 1137. Under Proposed Plan 1, North Ardmore, along with all of
Penn Wynne Elementary School and some areas of Penn Valley Elementary School,
would be redistricted for Harriton while the Affected Area would be districted for LMHS.
Proposed Plan 1 was projected to result in African-American students accounting for 9.9
percent of Harriton‘s student population. Any high school student could still choose to
attend Harriton to enroll in the school‘s International Baccalaureate Program.14 Under
the plan‘s grandfathering provision, all current high school students could choose to
remain at the high school they attended when the plan went into effect.
The slide show presentation for Proposed Plan 1 included a slide with student
population information on race/ethnicity, socioeconomic status, and disability. A press
release regarding this plan initially included a sentence stating that enrollments would
14
This is a specialized academic program for a limited number of students.
13
reflect ―balance with egard to students of various ethnic, socio-economic, and special
r
needs backgrounds,‖ but that sentence was removed prior to publication. (Id. at A29.)
After Proposed Plan 1 was presented at the public meeting, the District did not include
the number of African-American students that would attend each high school when it
posted Dr. Haber‘s summaries of the Scenarios on the District‘s website. Dr. McGinley
had asked Doug Young, the Director of Public Relations, not to post that information.
On September 19, 2008, Board Member Diane DiBonaventuro sent an email to
Dr. McGinley explaining that people might have ―the perce
ption that Harriton is
completely homogenous,‖ attended by ―f
ilthy [rich] spoiled white kids.‖ (Id. at A31.)
She also stated that the Board should emphasize that it is not merely trying to increase
Harriton‘s racial diversity and the Board ―
should be selling both our schools to the
community.‖ (Id.)
Board Member David Ebby responded to an email from a concerned citizen by
saying that ―diversi is looked at in total,‖ and that Dr. McGinley ―i not trying to use
ty s
the diversity of the Penn Wynne elementary attendance area to benefit a homogenous
group in the western end of the Township by making their school more diverse.‖ (Id.)
After receiving comments regarding the plan, the Board rejected Proposed Plan 1
because it resulted in excessive travel times for students.
14
ii. Proposed Plan 2
After the Board rejected Proposed Plan 1, the Administration considered the
Scenario 7 series. Scenario 7C, which Dr. McGinley stated was ―
more consistent with
the non-negotiables and the community values,‖ was modified to become Proposed Plan
2. (Id. at 32.) Under the plan, the projected student enrollment of Harriton was 1135 and
that of LMHS was 1139. Proposed Plan 2 determined high school districting based on
where the student lived. The only students who could choose which high school to attend
were those districted for LMHS but who chose to attend Harriton to enroll in the school‘s
IB program. Under this plan, students remained with the same group of students from
kindergarten through grade eight, then they were separated for high school. Under
Proposed Plan 2, North Ardmore, along with all of Penn Wynne Elementary School,
some areas of Penn Valley Elementary School, Narberth Borough of Belmont Hills, and
some areas of Merion, would be redistricted for Harriton while the Affected Area would
be districted for LMHS. Proposed Plan 2 was projected to result in African-American
students accounting for 7.8 percent of Harriton‘s student population.
On October 28, 2008, Proposed Plan 2 was presented at a Board meeting open to
the public. Instead of adopting Proposed Plan 2, the Board asked Petersen and Dr.
Sokolov, who had compiled a report of the Community Values in May 2008, to reassess
the factors that were important to the community in a redistricting plan. During this
period of time, the Board thought that the community‘s primary concern was educational
15
continuity in terms of keeping students who attended the same kindergarten together at
the same elementary, middle, and high schools through grade twelve. The Board also
identified additional goals of distance, access, and walkability.
iii. Proposed Plan 3
Next, the Administration developed Scenario 8, which would later become
Proposed Plan 3.15 Before Proposed Plan 3 was selected and presented publicly, all of
the Board members saw Scenario 8 and some individual Board members discussed race
when speaking to others about potential proposals.16
15
At this point in the redistricting process, Dr. Haber‘s role was substantially diminished.
16
Dr. McGinley sent a memorandum to the Board stating that a proposal developed by
some parents ―creates racially isolated group of African American Students at
a
Harriton.‖ (App. at A35.) He noted that it ―ads travel distance to several areas.‖ (Id.)
d
On November 6, 2008, Board member Lisa Pliskin emailed Dr. McGinley, stating
that she might want to see more of the diversity data for the plan. Diane DiBonaventuro
prepared a document with a new proposal and indicated that her proposal would lead to a
problem of ―a larger population of minority students‖ at LMHS and that she would work
racial diversity into an adopted plan if she could.
On November 20, 2008, Dr. McGinley sent an email to Pliskin stating that he was
―concerned bout the Ardmore side of the map‖ and the ―
a achievement gap.‖ (Id. at A36.)
He continued that he ― wish[ed] there was a way to extend the option area into the
[Affected Area] but doing so would not only mean another hundred at [LMHS] but many
fewer A[frican]-A[merican] kids at [Harriton].‖ (Id.) Pliskin responded, ―You are not
alone in trying to solve Ardmore. I look at it every day and I know others would like to
resolve it as well . . . . Can we open 100 tuition paying spots and would folks take them in
this economy . . . and what happened to no racial isolation?‖ (Id.)
Board Member David Ebby sent Dr. McGinley an email stating that ―redistrictin g
is an opportunity . . . to end the stereotyping of Harriton as an inferior school populated
by elitists and racists.‖ (Id. at A37.)
DiBonaventuro sent Dr. McGinley an email about an alternative proposal she
developed, noting that her proposal had ―aarger population of minority students‖ at
l
16
On November 24, 2008, Proposed Plan 3 was presented at a public Board meeting.
Under the plan, the projected student enrollment of Harriton was 1089 and that of LMHS
was 1185. Proposed Plan 3 determined high school districting based on where the
student lived. The Affected Area, along with Narberth Borough of Belmont Hills and all
areas of Penn Valley Elementary School except an abbreviated LMHS walk zone, would
be redistricted for Harriton while North Ardmore would be districted for LMHS. The
students who lived in the abbreviated LMHS walk zone could choose to attend either
high school. The only other students who could choose their high school were those who
were districted for LMHS, but who chose to attend Harriton to enroll in the school‘s IB
program. Proposed Plan 3 was projected to result in African-American students
accounting for 9.6 percent of Harriton‘s student population.
Proposed Plan 3 was a ―3 Feeder Pattern,‖ which sends the students districted
-1-1
for three elementary schools to attend a single middle school and a single high school.
Under Proposed Plan 3, students districted for Cynwyd, Merion, and Penn Wynne
Elementary Schools were districted to Bala Cynwyd Middle School and Lower Merion
High School. Students districted for Belmont Hills, Gladwyne, and Penn Valley
Elementary Schools were districted to Welsh Valley Middle School and Harriton High
LMHS, but that ―e xpanding the choice to include the [Affected Area] may help a little.‖
(Id.) DiBonaventuro also sent an email to Dr. McGinley entitled ― African American
students,‖ which stated that she was ―strugling with the issue of where to place the
g
[Affected Area] kids‖ because there were compelling arguments for districting them to
LMHS, but she ― worr[ied] about the kids that would become somewhat isolated at
Harriton without a higher population.‖ (Id. at A37–38.)
17
School. Under this plan, students remained with the same group of students from
kindergarten through grade twelve.
Students in the Affected Area would travel eighteen to nineteen minutes by bus to
attend Harriton. That ride is half the distance and half the time of the longest bus ride in
the District. The slideshow for the presentation of Plan 3 included diversity data.
The Board‘s understanding of community members‘ concerns regarding Proposed
Plan 3 was that there was a walkability issue due to the abbreviated LMHS walk zone. In
response, the Board decided to revise the proposal to become Proposed Plan 3R, which
restored the LMHS walk zone to the non-abbreviated LMHS walk zone area.
iv. Proposed Plan 3R
The main difference between Proposed Plan 3R and Proposed Plan 3 is that Plan
3R expanded Plan 3‘s abbreviated LMHS walk zone to the LMHS walk zone‘s historical
boundaries. The historic LMHS walk zone did not include the Affected Area and it did
not have a high concentration of African-American students. Under Proposed Plan 3R,
all students assigned to LMHS and all students in the historic walk zone can choose to
attend either high school. Students assigned to Harriton who do not live within the
LMHS walk zone do not have the option of attending LMHS. Plan 3R still followed the
3-1-1 Feeder Pattern with students in the Affected Area, along with Narberth Borough of
Belmont Hills and all areas of Penn Valley Elementary School except the historic LMHS
18
walk zone, redistricted for Harriton and North Ardmore districted for LMHS.17 Plan 3R
also included a grandfathering provision that allowed students who had already begun
attending high school to choose to stay at that high school, even if they were assigned to
the other high school under Plan 3R.
On December 15, 2008, Proposed Plan 3R was presented at a public Board
meeting. Dr. McGinley testified that it was impossible to know the diversity data for
Plan 3R because the grandfathering provision allowed so many students to choose to
attend either high school.18 Drs. McGinley and Haber exchanged emails regarding how
to discuss the role of race in the redistricting process.19 The presentation for Plan 3R did
17
Plan 3R‘s 3-1-1 Feeder Pattern was the same as Plan 3‘s: students districted for
Cynwyd, Merion, and Penn Wynne Elementary Schools were districted to Bala Cynwyd
Middle School and LMHS. Students districted for Belmont Hills, Gladwyne, and Penn
Valley Elementary Schools were districted to Welsh Valley Middle School and Harriton.
18
If students attend the schools to which they are assigned under Plan 3R, one would
expect the student populations of the school to be similar to those of Proposed Plan 3,
where the projected student enrollment of Harriton was 1089, the projected enrollment of
LMHS was 1185, and Harriton was projected to have a student enrollment that was
approximately 9.6 percent African-American.
19
Dr. Haber emailed Dr. McGinley, stating that
[t]he issue of race is still out front. I think it is important to
emphasize that you hired a consultant who had no horse in
this race and the charge was simply to balance the
enrollments at the high school. . . . We not only considered
race when considering diversity but also socio-economic
status as well as special needs considerations.
(App. at A44.) Dr. Haber testified that discussion of diversity focused on African-
American students because the African-American students were ― more concentrated‖
geographically. (Id.)
19
not include any diversity data. Hours before the Board‘s vote on Plan 3R, Dr. McGinley
emailed to the Board projected Plan 3R enrollment data for race and ethnicity,
socioeconomic status, and disability. Dr. McGinley testified that he sent these
projections in response to a flyer that alleged the plan was ―artif
icially designed to create
token diversity at Harriton.‖ (Id. at A45.) Dr. McGinley explained in the email that he
did not agree with the flyer and stated that ―[ community value of diversity is what
t]he
caused us to look at this issue in the process. This was clearly misinterpreted in the
public and the press.‖ (Id. at A46.) Dr. McGinley continued that, of the 214 students
who would be redistricted to Harriton, the 45 African-American students made up 21
percent of those students who would be redistricted under Plan 3R.20 (Id.)
On January 12, 2009, the Board voted to adopt Plan 3R. Six Board members
voted in favor of the plan, David Ebby and Diane DiBonaventuro voted against the plan,
and then-Board President Lisa Pliskin indicated that she supported the plan, but could not
vote because she was hospitalized. All of the Board members testified that they did not
cast their vote or give their support based on race. Four of the Board members who
supported the plan stated they did so primarily because they believed that the educational
continuity of the 3-1-1 Feeder Pattern provided substantial benefits. Six of the Board
20
Dr. McGinley testified at trial that he no longer believed that there was a way to
estimate enrollment at Harriton and he no longer believed the projections in the email
were accurate.
20
members who supported the plan indicated they did so due to the plan‘s educational
benefits and the Administration‘s support for the plan.21
Diane DiBonaventuro, who voted against Plan 3R, sent Dr. McGinley an email
stating that Proposed Plan 3R created an ―aditional stressor‖ for African-American
d
students by ―askin Ardmore kids to take one for the team,‖ when there ―just are a lot
g n‘t
of A[frican]-A[merican] families.‖ (Id. at A48.) DiBonaventuro stated that she did not
think it was ―wort it‖ to redistrict Ardmore in order to ―
h marginally increase diversity.‖
(Id.) She testified that she wanted students in the Affected Area to be able to choose
which high school to attend because they live within walking distance from LMHS.
David Ebby, who voted against Plan 3R, testified that he did so because he
considered the Affected Area and North Ardmore to be one community and he believed
that the 3-1-1 Feeder Pattern and educational continuity allows ―
stagnation‖ by not
mixing students from different areas in the District. (Id. at A49.) Ebby testified that he
did not believe race was ―at all rele
vant‖ in the redistricting process. (Id.)
21
Board member Susan Guthrie, who voted in favor of the plan, made a chart of her
opinions on each of the Proposed Plans. Under the chart headings ―keps Community
e
together,‖ Guthrie noted that Plans 1, 2, and 3 split Ardmore, ―
minimize[] [b]us time and
―preserve[ [w]alkers,‖ and provide for educational continuity. (App. at A47–48.) Under
]
a ―Diversi Ardmore‖ heading, she wrote ― Divides‖ for Proposed Plans 1 and 2,
ty Yes
wrote ―Depe Divides, but with choice?‖ for Proposed Plan 3, and wrote ―Yes
nds Yes‖ for
Proposed Plan 3R. (Id. at A47.)
21
C. Developments After Redistricting
Plan 3R was implemented beginning with the 2009–2010 school year. During that
year, the impact of redistricting was unclear because grandfathering was allowed. For
2009–2010, Harriton had a student enrollment of 897 students: according to the District‘s
records, 740 are white, 74 are African-American, 55 are Asian-American, 23 are
Hispanic-American, 5 are American Indian, and 5 are more than one race. Twenty-one
students from the Affected Area were redistricted to Harriton, fourteen of whom were
African-American. Twenty-three students from areas districted for Penn Valley
Elementary School were also redistricted to Harriton, none of whom were African-
American. Less than one-third of the students redistricted were African-Americans from
the Affected Area.
D. Students Doe Bring Lawsuit
On May 14, 2009, Students Doe 1 through 9, by and through their
Parents/Guardians Doe 1 through 20, filed a complaint alleging that the District
discriminated against them based on their race by adopting Plan 3R, which assigned
Students Doe to Harriton. For the 2009–2010 academic year, Student Doe 4 chose to
attend Harriton and all other Students Doe attended Penn Valley Elementary School or
Welsh Valley Middle School.
Appellants allege that the District violated the Equal Protection Clause of the
Fourteenth Amendment, 42 U.S.C. § 1981, and Title VI of the Civil Rights Act, 42
22
U.S.C. § 2000d, all pursuant to 42 U.S.C. § 1983, by discriminating against the Students
Doe based on their race.
The District Court denied the District‘s Motion to Dismiss or, in the Alternative,
for a More Definite Statement. Appellants moved for preliminary injunctive relief,
seeking to restore their ability to choose to attend either high school, but they
subsequently withdrew the request. After oral argument, on February 24, 2010, the
District Court denied the District‘s Motion for Summary Judgment.
Appellants and the District filed numerous Motions in Limine, including the
Appellants‘ Motion in Limine to Preclude the Trial Testimony of Drs. Claudia Lyles and
Robert Lee Jarvis because the District had not identified these witnesses during the
course of discovery. 22 The District Court granted the Appellants‘ Motion to Proceed
22
Before the District Court, Appellants filed a brief supporting the motion and Appellees
filed a brief opposing the motion. Appellants objected to the testimony of Drs. Lyles and
Jarvis, who did not participate in the redistricting process, but who had worked with Dr.
McGinley and had personal knowledge of his work. Appellants objected to the testimony
of Drs. Lyles and Jarvis because: (1) the District did not identify the witnesses to the
plaintiff in advance of discovery, thereby allegedly violating Federal Rule of Civil
Procedure 26(a), and (2) the District failed to timely supplement its disclosure upon
discovery of additional information, thereby allegedly violating Federal Rule of Civil
Procedure 26(e). Appellants also argued that the District sought to depose these
witnesses in order to introduce a new defense that the District had waived by asserting
other ― mutually exclusive‖ defenses. Appellants argued that allowing the District to,
thus, ―cha the focus of its case‖ constituted a ―triaby ambush.‖ Appellants offer no
nge l
case law to support their argument.
Appellants also sought to exclude the testimony of Anthony Stevenson and Wanda
Anderson, but the objection to these witnesses is not at issue on appeal. The District
intended to solicit testimony from Stevenson and Anderson regarding their knowledge of
Dr. McGinley‘s work regarding the achievement gap and diversity issues.
23
Pseudonymously,23 but denied the Motions in Limine without prejudice. During trial, the
District Court denied the renewed motion to preclude testimony of Drs. Claudia Lyles
and Robert Lee. The District Court held a nine-day bench trial.
E. District Court Findings of Fact and Conclusions of Law
i. District Court Findings of Fact
After the close of testimony on May 3, 2010, the District Court held oral argument
on the parties‘ proposed findings of fact and, on May 13, 2010, the District Court issued a
Memorandum on Factual Findings. In addition to the findings of fact indicated above,
the District Court found that the District had a ―race
-neutral goal of equalizing the student
enrollment at the two high schools‖ and that legitimate factors24 motivated the
Administration‘s action. The District Court noted that ―ra considerations were one of
cial
several motivating factors that resulted in the Administration‘s development of various
plans,‖ including the recommendation to adopt Plan 3R.25 (Id. at A54.) This
23
Thereafter, Appellants were referred to as Students Doe 1–9 and Parents Doe 1–10
instead of being referred to by their actual names.
24
Legitimate factors that the District Court referenced include: ―helpi students attain
ng
educational excellence, attaining equal student populations at the two high schools,
minimizing travel time, developing the 3-1-1 Feeder Pattern, and also closing the
achievement gap that the Administration perceived to exist between African–American
and white students.‖ (App. at A51.) Additionally, the District Court concluded that the
Non-Negotiables are all valid, educational purposes that are legitimate and non-
discriminatory.
25
The District Court determined that the Scenarios are of minor importance to this
litigation because the four Board members who attended the Administration meeting
24
consideration of race ―
went above and beyond collecting or reporting general diversity
data‖ and the evidence reflected a specific concern about the African-American student
population throughout the redistricting process. (Id.) The District Court found that ―the
Administration plainly allowed racial consideration to influence what neighborhoods
would be assigned to attend Harriton High School, without the choice to attend Lower
Merion High School.‖ (Id. at A52.) The District Court continued, opining that the
Affected Area was ―ta
rgeted‖ for redistricting to Harriton, in part, because it has a high
concentration of African-American students. According to the District Court, the
Administration‘s ―
intent was to achieve not only overall numeric equality, but also racial
parity, between the two schools.‖ (Id. at A53.)
The District Court rejected any allegation of invidious discrimination toward
African-American students by the Administration or the Board. Moreover, the District
Court noted that there were valid educational reasons for recommending and adopting
Plan 3R, but that there was also a desire for racial diversity in both high schools. The
District Court found that providing information at the public Board meetings for the
Proposed Plans regarding race/ethnicity, socioeconomic status, and disability was not
objectionable. The District Court found that some of the Board members considered
diversity among other factors when considering Proposed Plans, but the Court also found
where the Scenarios were presented do not recall the Scenarios and the Scenarios were
never presented to, nor voted upon by, the whole Board.
25
credible the Board members‘ testimony that race was not the basis of their votes on Plan
3R.26
ii. District Court Conclusions of Law
On June 24, 2010, the District Court issued a Memorandum on Conclusions of
Law. The Court stated that the central issue in this case is whether the District‘s
―targetin‖27 of the Affected Area for redistricting to Harriton, ―in
g part because that
community has one of the highest concentrations of African-American students in the
District,‖ violates the Equal Protection Clause or Title VI of the Civil Rights Act. (App.
at A65.)
In determining the appropriate level of scrutiny to apply to this equal protection
challenge, the District Court concluded that Parents Involved in Community Schools v.
Seattle School District No. 1, 551 U.S. 701 (2007) (―
Seattle‖); Grutter v. Bollinger, 539
U.S. 306 (2003); Gratz v. Bollinger, 539 U.S. 244 (2003); Adarand Constructors v. Pena,
515 U.S. 200 (1995); City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1988)
(―
Croson‖); and Johnson v. California, 543 U.S. 499 (2005) are not controlling here. The
District Court held that the level of scrutiny applied in Seattle, Grutter, Gratz, Adarand,
Croson, and Johnson is inapposite here. Specifically, strict scrutiny as applied in Seattle,
26
The District Court concluded that Susan Guthrie and Diane DiBonaventuro considered
race or diversity as a factor.
27
The District Court describes this as including ―a particular
geographic area [to be
redistricted] due to its racial makeup.‖ (App. at A67.)
26
Grutter, Gratz, Adarand, Croson, and Johnson is not required here because each of those
cases involves a policy that employs express, individual racial classifications, whereas
Plan 3R does not. Plan 3R assigns students based on the neighborhood in which they
reside without using individual racial classifications. The District Court noted that Plan
3R is a facially neutral redistricting plan with facially neutral guidelines, so, unlike the
cases above, the action brought by Appellants does not ―i
nvolve the ‗additional
difficulties posed by policies that, although facially race neutral, [may] result in racially
disproportionate impact and [may be] motivated by a racially discriminatory purpose.‘‖
(App. at A76 (quoting Adarand, 515 U.S. at 213).)
The District Court found, however, that the reasoning of Village of Arlington
Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252 (1977), and
Pryor v. National Collegiate Athletic Association, 288 F.3d 548 (3d Cir. 2002),
nonetheless require Plan 3R to be reviewed under strict scrutiny. The District Court
interpreted the Pryor holding that, ― discriminatory purpose based on race‖ requires
a
strict scrutiny analysis, Pryor, 288 F.3d at 562 (emphasis added), to mean that, ―one race
c
has been shown to be a motivating factor in decisionmaking, all racial classifications
must survive strict scrutiny.‖ (App. at A76 (emphasis added)). The District Court noted
that it is unclear whether Pryor requires the application of strict scrutiny to student
assignment plans that do not involve individual racial classifications.
27
In its analysis of Arlington Heights, the District Court interpreted the Supreme
Court‘s holding that, ―[
w]hen there is a proof that a discriminatory purpose has been a
motivating factor in the decision, . . . judicial deference is no longer justified,‖ Arlington
Heights, 429 U.S. at 265–66 (emphasis added), to mean that such deference is no longer
justified when ― was a motivating factor.‖ (App. at A78 (emphasis added).) The
race
District Court noted that, under Arlington Heights, a court must ―conuct a sensitive
d
inquiry into such circumstantial and direct evidence of intent as may be available‖ to
determine whether ―
invidious discriminatory purpose was a motivating factor.‖ (App. at
A78 (quoting Arlington Heights, 429 U.S. at 266) (emphasis added).)
The District Court referenced its own rejection of ―an allegation[] of invidious
y
discrimination . . . by the Administration or the Board.‖ (App. at A79 (quoting Doe II,
2010 WL 1956585, at *28).) However, the District Court held that ― Affected Area‘s
the
high concentration of African-American students factored into the District‘s adoption of
Plan 3R‖ and, thus, ―ra demographics . . . factored into the District‘s recommendation
cial
that the Board adopt the Plan.‖ (App. at A80.) The District Court held that, because
―race was a
motivating factor during redistricting,‖ it must determine ―whether pla 3R
n
would have been adopted regardless of the racial composition of the Affected Area.‖ (Id.
at A80.) The District Court also noted that ― congressional statute or Supreme Court
no
precedent expressly provides that mere consideration of a neighborhood‘s racial
28
demographics in assigning students to schools constitutes decisionmaking in which race
has been a motivating factor.‖ (Id. at A80 n.8.)
Before embarking on a strict scrutiny review of Plan 3R, the District Court noted
that, if the plan survived strict scrutiny, it would necessarily survive intermediate scrutiny
or rational basis review. Because Plan 3R is the only plan that meets the District‘s
―co pelling educational interests‖ of ―(a) equlizing the populations at the two high
m a
schools, (b) minimizing travel time and transportation costs, (c) fostering educational
continuity, and (d) fostering walkability,‖ the District Court held that Plan 3R is narrowly
tailored and survives strict scrutiny. (Id. at A83.) The District Court held that ―t mere
he
fact that the District considered racial demographics . . . does not render the District‘s
adoption of Plan 3R unconstitutional‖; ―Plan 3R would still have been adopted even had
racial demographics not been considered.‖ (Id. at A92–93.) The District Court held that
the adoption of Plan 3R comports with the Equal Protection Clause. Because the
prohibitions of Title VI and 42 U.S.C. § 1981 against discrimination are coextensive with
the Equal Protection Clause, the District Court held that the Appellants‘ remaining claims
must also fail. On June 25, 2010, the District Court entered judgment in favor of the
District.
Students Doe filed a timely Motion for a New Trial, pursuant to Federal Rule of
Civil Procedure 59, but the District Court ruled against the Motion on August 19, 2010.
Students Doe filed a timely appeal.
29
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction over this case, pursuant to 28 U.S.C. § 1331.
This Court has jurisdiction to review final decisions of the District Court, pursuant to 28
U.S.C. § 1291.
We review the District Court‘s conclusions of law de novo and we review its
findings of fact for clear error. Lozano v. City of Hazleton, 620 F.3d 170, 181 (3d Cir.
2010) (citing McCutcheon v. Am.‘s Servicing Co., 560 F.3d 143, 147 (3d Cir. 2009)).
A district court‘s evidentiary rulings are reviewed for abuse of discretion. United
States v. Kemp, 500 F.3d 257, 295 (3d Cir. 2007). The District Court‘s interpretation of
the Federal Rules of Evidence is, however, subject to plenary review. United States v.
Brown, 254 F.3d 454, 458 (3d Cir. 2001).
III. ANALYSIS
―Article IIof the Constitution restricts the ‗judicial power‘ of the United States to
I
the resolution of cases and controversies.‖ Valley Forge Christian Coll. v. Ams. United
for Separation of Church & State, 454 U.S. 464, 471 (1982). To satisfy the Article III
case or controversy requirement, a plaintiff must establish that he or she has suffered an
―injur in fact‖ that is both ―concre and particularized‖ and ―actual imminent, not
y te or
conjectural or hypothetical.‖ Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)
(internal quotation marks omitted). In the equal protection context, an injury resulting
from governmental racial discrimination ―ac
cords a basis for standing only to those
30
persons who are personally denied equal treatment by the challenged discriminatory
conduct.‖ United States v. Hays, 515 U.S. 737, 744–45 (1995) (quoting Allen v. Wright,
468 U.S. 737, 755 (1984)) (internal quotation marks omitted).28
―[
O]ne form of injury under the Equal Protection Clause is being forced to
compete in a race-based system that may prejudice the plaintiff.‖ Seattle, 551 U.S. at
719. Appellants have asserted an injury by alleging that Plan 3R is such a system. (See
App. at A137 (Appellants allege in their complaint that Plan 3R ―
discriminates against
Students Doe on the basis of race by mandating that said students attend Harriton High
School because they are minorities‖ and ―it imposes an undue burden on minority
students‖).) That Students Doe have not alleged that, when they attend high school, they
will want to attend LMHS instead of Harriton is irrelevant for purposes of standing. In
Seattle, the Supreme Court held that the possibility of a child being assigned to that
child‘s preferred school under the race-based plan at issue did ―nt eliminate the injury
o
claimed.‖ Seattle, 551 U.S. at 718–19. Because the children in Seattle lived in the
28
In Allen, the Supreme Court held that the plaintiffs did not have standing in a suit
against the Internal Revenue Service for its grant of tax exempt status to racially
exclusive private schools, because, in part, the plaintiffs did not allege ―that their hildren
c
had ever applied or would ever apply for admission to any private school.‖ Allen, 468
U.S. at 746. Plaintiffs maintained that they had ―no intere whatever in enrolling their
st
children in a private school.‖ Wright v. Regan, 656 F.2d 820, 827 (D.C. Cir. 1981).
Student Doe would be analogous to Allen if Students Doe had alleged that they did not
intend to enroll in either public high school in the District. Students Doe, however, live
within the District and attend the District‘s elementary, middle, or high schools. Thus,
Allen is not controlling even though Students Doe have not alleged that they will attend
LMHS if given the choice. Students Doe allege an injury in fact because they claim that
they are being forced to compete in a race-based system.
31
district and attended elementary, middle, and high schools in the district, they asserted an
imminent injury that was not speculative by claiming that they were ―
being forced to
compete in a race-based system that may prejudice‖ them. Id. Similar to the children in
Seattle, Students Doe live within the District, attend District schools, and assert that the
District is discriminating against them by assigning them to a school on the basis of race.
Students Doe have asserted an injury that is not conjectural or hypothetical.29
A. Equal Protection Clause
i. Level of Scrutiny
The Equal Protection Clause of the Fourteenth Amendment provides that no State
shall ―den to any person within its jurisdiction the equal protection of the laws.‖ U.S.
y
Const. amend. XIV, § 2. The central purpose of the Clause ― to prevent the States from
is
purposely discriminating between individuals on the basis of race.‖ Shaw v. Reno, 509
U.S. 630, 642 (1993) (citing Washington v. Davis, 426 U.S. 229, 239 (1976)). A
government action does not necessarily purposely discriminate merely because it is race-
related. Crawford v. Bd. of Educ., 458 U.S. 527, 538 (1982) (― distinction may exist
a
between state action that discriminates on the basis of race and state action that addresses,
in neutral fashion, race-related matters. . . . the Equal Protection Clause is not violated by
the mere repeal of race-related legislation or policies that were not required by the
29
That Student Doe 4 chose to attend Harriton does not render his claim moot because
Student Doe 4 alleges the same injury as the other students — being assigned to a school
under a discriminatory race-based system.
32
Federal Constitution‖). Thus, ―[
p]roof of racially discriminatory intent or purpose is
required to show a violation of the Equal Protection Clause.‖ Antonelli v. New Jersey,
419 F.3d 267, 274 (3d Cir. 2005) (quoting City of Cuyahoga Falls v. Buckeye Cmty.
Hope Found., 538 U.S. 188, 194 (2003)) (internal citations and quotation marks omitted
in Antonelli).
Precedent in this Court and the Supreme Court has established that
Intentional discrimination can be shown when: (1) a law or
policy explicitly classifies citizens on the basis of race, see
Hunt v. Cromartie, 526 U.S. 541 (1999); (2) a facially neutral
law or policy is applied differently on the basis of race, see
Yick Wo v. Hopkins, 118 U.S. 356 (1886); or (3) a facially
neutral law or policy that is applied evenhandedly is
motivated by discriminatory intent and has a racially
discriminatory impact, see Vill. of Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252 (1977).
Antonelli, 419 F.3d at 274. Similarly, in Equal Protection Clause cases, we apply strict
scrutiny to actions with racially discriminatory purpose: (1) ―all rac classifications
ial
imposed by government,‖ Grutter, 539 U.S. at 32730; (2) policies or laws that are applied
30
See also Seattle, 551 U.S. at 720 (K-12 education) (― is well established that when the
It
government distributes burdens or benefits on the basis of individual racial
classifications, that action is reviewed under strict scrutiny.‖ (citing Johnson v.
California, 543 U.S. 499, 505–06 (2005); Grutter, 539 U.S. at 326; Adarand, 515 U.S. at
224))); Gratz, 539 U.S. at 271 (university admissions) (―Iis by now well established that
t
‗all racial classifications reviewable under the Equal Protection Clause must be strictly
scrutinized.‘‖ (quoting Adarand, 515 U.S. at 224)); Johnson, 543 U.S. at 506 (― haveWe
held that ―alracial classifications [imposed by government] . . . must be analyzed by a
l
reviewing court under strict scrutiny.‖ (quoting Adarand, 515 U.S. at 227) (alteration in
original)); Adarand, 515 U.S. at 228 (holding that ―all racial classifications, imposed by
whatever federal, state, or local governmental actor, must be analyzed by a reviewing
33
differently on the basis of race, see Yick Wo, 118 U.S. 356; or (3) policies or laws for
which ―a pla
intiff establishes a discriminatory purpose based on race,‖ Pryor, 288 F.3d at
562.31 However, ―abent a racially discriminatory purpose, explicit or inferable, on the
s
part of the [decisionmaker], the statutory distinction is subject only to rational basis
review.‖ United States v. Frazier, 981 F.2d 92, 95 (3d Cir. 1992) (citing Feeney, 442
U.S. 256; Davis, 426 U.S. 229).32
court under strict scrutiny‖); Pers. Adm‘r of Mass. v. Feeney, 442 U.S. 256, 272 (1979)
(―A racial cla ssification, regardless of purported motivation, is presumptively invalid and
can be upheld only upon an extraordinary justification.‖ (citing Brown v. Board of Educ.,
347 U.S. 483 (1954); McLaughlin v. Florida, 379 U.S. 184 (1964))); Bakke, 438 U.S. at
291 (university admissions) (―Raciaand ethnic classifications . . . are subject to stringent
l
examination without regard to [the discreteness and insularity of the persons being
classified].‖).
31
See also Arlington Heights, 429 U.S. at 265–66 (―when thre is proof that a
e
discriminatory purpose has been a motivating factor in the decision, . . . judicial
deference is no longer justified‖).
32
―Ifstate action does not burden a fundamental Constitutional right or target a suspect
class, the ‗challenged classification must be upheld if there is any reasonably conceivable
state of facts that could provide a rational basis for the classification.‘‖ Doe v.
Pennsylvania Bd. of Probation and Parole, 513 F.3d 95, 107 (3d Cir. 2008) (quoting
Donatelli v. Mitchell, 2 F.3d 508, 513 (3d Cir. 1993)).
In its Memorandum on Conclusions of Law, the District Court referenced Justice
Kennedy‘s concurrence in Seattle, in which Justice Kennedy notes that strict scrutiny is
unlikely to apply to race conscious measures that do employ racial classifications. The
District Court, however, did not determine whether that concurrence is binding under
Marks v. United States, 430 U.S. 188 (1977), and Planned Parenthood v. Casey, 947 F.2d
682 (3d Cir. 1991). In their amicus brief, the NAACP Legal Defense & Educational
Fund, Inc., the Lawyers Committee for Civil Rights Under Law, and the American Civil
Liberties Union Foundation, amicus curiae, urge this Court to treat Justice Kennedy‘s
concurrence in Seattle as binding.
34
1. Scrutiny Inquiry
a. Intentional Discrimination Shown by Racial
Classification
The first alternative, a classification based explicitly on race, ― presumptively
is
invalid and can be upheld only upon an extraordinary justification.‖ Crawford, 458 U.S.
In Marks, the Supreme Court held that, ―[ w]hen a fragmented Court decides a case
and no single rationale explaining the result enjoys the assent of five Justices, ‗the
holding of the Court may be viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds.‘‖ 430 U.S. at 193 (quoting Gregg
v. Georgia, 428 U.S. 153, 169 n.15); see also Casey, 947 F.2d at 693 (noting that Marks
stands for the proposition that ―the controlling opinion in a splintered decision is that of
the Justice or Justices who concur on the ― narrowest grounds‖), overruled in part on other
grounds by Planned Parenthood v. Casey, 505 U.S. 833 (1992).
In Seattle, the Chief Justice and four other Justices, including Justice Kennedy,
agreed that racial classifications in the assignment plans at issue in that case required the
application of strict scrutiny and that the plans did not survive strict scrutiny. Seattle, 551
U.S. at 720, 733–35. These portions of Chief Justice Roberts‘s opinion constitute the
opinion of the Court and, thus, there is a ―s ingle rationale explaining the result [that]
enjoys the assent of five Justices.‖ Neither Marks nor Casey governs the level of
deference required by Justice Kennedy‘s concurring opinion in Seattle. Justice
Kennedy‘s proposition that strict scrutiny is ―ulikely‖ to apply to race conscious
n
measures that do not lead to treatment based on classification does not ―explain[ the ]
result‖ of Seattle. The result of Seattle was the holding that the two assignment plans at
issue employed race-based classifications and failed strict scrutiny, but Justice Kennedy‘s
proposition pertains to assignment plans that do not require strict scrutiny because they
do not employ race-based classifications. The portion of Justice Kennedy‘s concurrence
discussing race-conscious measures is not binding because it is dicta; it refers to
hypothetical facts and is not material to the result of Seattle.
As has occurred on other occasions with some other non-binding rationales, a
future plurality or majority of the Court could adopt Justice Kennedy‘s rationale for race-
conscious, non-discriminatory school assignments to give it precedential effect. See
Grutter v. Bollinger, 539 U.S. 306, 325 (2003) (―toda we endorse Justice Powell‘s view
y
[from his Bakke concurrence] that student body diversity is a compelling state interest
that can justify the use of race in university admissions‖). Because the Supreme Court
has not yet given its imprimatur to the propositions in Justice Kennedy‘s Seattle
concurrence, it is not yet the law of the Supreme Court or binding on this Court.
35
at 536–37 (1982) (citing Pers. Adm‘r of Mass. v. Feeney, 442 U.S. 256, 272 (1979)); see
also Adarand, 515 U.S. at 213. Thus, ―whn the government distributes burdens or
e
benefits on the basis of individual racial classifications, that action is reviewed under
strict scrutiny.‖33 Seattle, 551 U.S. at 720 (citing Johnson v. California, 543 U.S. 499,
505–06 (2005); Grutter, 539 U.S. at 326; Adarand, 515 U.S. at 224). ―The ter racial
m
classification ‗normally refers to a governmental standard, preferentially favorable to one
race or another, for the distribution of benefits.‘‖ Anderson ex rel. Dowd v. City of
Boston, 375 F.3d 71, 77 (1st Cir. 2004) (quoting Raso v. Lago, 135 F.3d 11, 16 (1st Cir.
1998), cert. denied, 525 U.S. 811, 1 (1998)). ―A statu or policy utilizes a ‗racial
te
classification‘ when, on its face, it explicitly distinguishes between people on the basis of
some protected category.‖ Hayden v. Cnty. of Nassau, 180 F.3d 42, 48 (2d Cir. 1999).
Plan 3R is facially race neutral, assigning students to schools based only on the
geographical areas in which they live. The Plan, on its face, neither uses racial
classification as a factor in student assignment nor distributes any burdens or benefits on
the basis of racial classification. The lack of racial classification in Plan 3R distinguishes
Plan 3R from the policies in every Supreme Court equal protection education case upon
33
The standard of review ―is not ependent on the race of those burdened or benefited by
d
a particular classification.‖ Croson, 488 U.S. at 494 (citing Wygant v. Jackson Bd. of
Educ., 476 U.S. 267, 279–80 (plurality opinion); id. at 285–86 (O‘Connor, J., concurring
in part and concurring in the judgment)).
36
which Appellants rely in their brief34 — in this manner, Plan 3R starkly differs from the
policies at issue in Seattle, Gratz, Grutter, Bakke, Brown, McLaurin v. Oklahoma State
Regents, 339 U.S. 637 (1950), and Sweatt v. Painter, 339 U.S. 629 (1950).35 In each of
34
The District Court frequently distinguished Plan 3R from other equal protection cases
because it does not make individual racial classifications. For equal protection purposes,
however, the key difference between Plan 3R and the policies at issue in other equal
protection cases is not whether Plan 3R makes individual racial classifications as opposed
to group or neighborhood racial classifications; it is whether Plan 3R makes racial
classifications or does not. Our holding addresses whether Plan 3R contains any racial
classification or does not. There is no precedent in this Court or the Supreme Court for
holding that whether strict scrutiny is applied in equal protection challenges alleging
racial discrimination in education admissions or assignments turns on whether a policy‘s
racial classification is applied by group or by individual.
35
Seattle, 551 U.S. at 711–12, 716 (the Supreme Court analyzed the policies of two
different school districts, one in Seattle, Washington and the other in Jefferson County,
Kentucky: Seattle School District No. 1‘s assignment policy considered race as one of the
multiple tiebreaking factors to determine whether to assign a student to an
―oversubs cribed‖ school; Jefferson County Public Schools‘ plan required certain schools
to maintain black student enrollment between fifteen and fifty percent of the student
population); Gratz, 539 U.S. at 253–57 (the policy made university admission decisions
based on points given to applicants for multiple factors, including points awarded to
applicants in underrepresented ethnic or racial groups, and the policy reserved ―pr otected
seats‖ for applicants from ―protecte categories,‖ including underrepresented minorities);
d
Grutter, 539 U.S. 306 (the policy admitted students based on an evaluation of all the
information in each student‘s file, which included an essay on how the applicant would
contribute to the school‘s diversity; reaffirmed the school‘s commitment to diversity with
special reference to the inclusion of certain racial and ethnic groups; and stated that the
school wanted to enroll a ―critical mass‖ of underrepresented minority students); Bakke,
438 U.S. 265 (policy included a special admissions program that considered applicants
who self-identified as minority group members and admitted a prescribed number of self-
identified minority students each year); Brown, 347 U.S. 483 (policies permitted separate
schools for black children and white children); McLaurin, 339 U.S. at 638 (policy denied
admission on the basis of race because state statute criminalized operating, teaching, or
attending an integrated school); and Sweatt v. Painter, 339 U.S. 629 (policy restricted
37
those cases, the school district or university policy at issue used racial classifications as
the sole factor, or as one factor among many, to make determinations regarding student
school assignments or admission to a higher education institution.
In Bakke, the Court even noted that the policy ―involves a
purposeful,
acknowledged use of racial criteria. This is not a situation in which the classification on
its face is racially neutral, but has a disproportionate racial impact. In that situation,
plaintiff must establish an intent to discriminate.‖ Bakke, 438 U.S. at 289 n.27 (citing
Arlington Heights, 429 U.S. 252; Davis, 426 U.S. 229).
The facial neutrality of Plan 3R also distinguishes it from the policies in many of
the Supreme Court race-based equal protection cases upon which Appellants rely in their
brief — Adarand, Croson, and Plessy.36 Moreover, in Adarand, the Court emphasized
that the ― concerns only classifications based explicitly on race, and presents none of
case
the additional difficulties posed by laws that, although facially race neutral, result in
enrollment to white students, in accordance with state law, and rejected an application
solely because of the applicant‘s race).
36
Adarand, 515 U.S. at 213 (policy employed a race-based rebuttable presumption in
some certification decisions); Croson, 488 U.S. at 477 (policy required certain contractors
to whom the city awarded construction contracts to subcontract at least thirty percent of
the dollar amount of the contract to a minority business); Plessy, 163 U.S. at 540 (statute
required that railway companies provide separate accommodations for passengers based
on race); see also Ricci v. DeStefano, -- U.S. ----, 129 S. Ct. 2658, 2664–65 (2009)
(relied upon by Appellants, but Ricci is inapposite because the Supreme Court did ―not
reach the question whether respondents‘ actions may have violated the Equal Protection
Clause‖). Shaw v. Hunt, 517 U.S. 899 (1996), and Arlington Heights are the only cases
upon which Appellants rely in their brief that involve facially race neutral policies or
laws.
38
racially disproportionate impact and are motivated by a racially discriminatory purpose.‖
515 U.S. at 213.
Appellants repeatedly frame the central question in this case as whether ―race was
a factor,‖ or whether race was considered. (Appellant‘s Br. at 28, 30, 34, 35, 36, 38.)
Although Appellants argue that, if race is a factor in a decision, we must apply strict
scrutiny, counsel for Appellants admitted at oral argument that being aware of or
considering race when making some decisions can be proper within certain
circumstances, including doing so to achieve a better racial composition within a school.
In any event, these arguments are irrelevant to our inquiry. Appellants and the District
Court conflate the consideration or awareness of race with (1) racial classifications and
(2) racially discriminatory purpose. Equal protection law does not make the same
conflation. As a result, both the District Court and Appellants improvidently believed
that the appropriate level of scrutiny to apply was strict scrutiny.
The District Court conflated discriminatory purpose with the consideration or
awareness of race and in doing so stated an incorrect standard for determining the
appropriate level of scrutiny. The District Court cited the Pryor holding that an action
adopted because of ―a
discriminatory purpose based on race‖ requires strict scrutiny
analysis. Pryor, 288 F.3d at 562 (emphasis added). In restating that holding, however,
the District Court substituted ―ra for ―disc
ce‖ riminatory purpose,‖ and incorrectly
characterized Pryor to hold that, ―
once race has been shown to be a motivating factor in
39
decisionmaking, all racial classifications must survive strict scrutiny.‖ (App. at A76
(emphasis added)).
A racial classification occurs only when an action ―distri
butes burdens or benefits
on the basis of‖ race. Seattle, 551 U.S. at 720. In United States v. Hays, 515 U.S. 737(1995), the Court noted that the record contained ―evidence
tending to show that the
legislature was aware of the racial composition of [the districts in which the plaintiffs
lived],‖ but the Court also noted that ―theegislature always is aware of race when it
l
draws district lines.‖ Id. at 744 (emphases added) (quoting Shaw v. Reno, 509 U.S. 630,
646 (1993) (Shaw I)) (internal quotation marks omitted). ―That ort of race
s
consciousness does not lead inevitably to impermissible race discrimination‖ and proof of
that race consciousness ―in theedistricting process is inadequate to establish injury in
r
fact.‖ Id. at 745–46. Moreover, the Court noted that the justices had ―never held the
that
racial composition of a particular voting district, without more, can violate the
Constitution.‖ Id. at 746.
Similarly, the District Court misstated the legal standard for determining the
appropriate level of scrutiny as described in Arlington Heights because the District Court
conflated race as a factor with discriminatory purpose. In Arlington Heights, the
Supreme Court noted that, ―[
w]hen there is a proof that a discriminatory purpose has
been a motivating factor in the decision, . . . judicial deference is no longer justified.‖
429 U.S. at 265–66 (emphasis added). The District Court incorrectly stated that
40
Arlington Heights held that such deference is no longer justified when ― was a
race
motivating factor.‖ (App. at A78 (emphasis added).) Neither Pryor nor Arlington
Heights stands for the proposition that strict scrutiny must be applied when race, but not a
discriminatory purpose, was a motivating factor.
Racially discriminatory purpose means that the decisionmaker adopted the
challenged action at least partially because the action would benefit or burden an
identifiable group. Feeney, 442 U.S. at 279 (―
discriminatory purpose‖ ―implies that the
decisionmaker . . . selected or reaffirmed a particular course of action at least in part
‗because of,‘ not merely ‗in spite of,‘‖ the action‘s beneficial or adverse effects ―upon an
identifiable group‖). Thus, the mere awareness or consideration of race should not be
mistaken for racially discriminatory intent or for proof of an equal protection violation.
Pryor, 288 F.3d at 562 (―Amere awareness of the consequences of an otherwise neutral
policy will not suffice.‖ (citing Feeney, 442 U.S. at 277–78)).37
Appellants also conflate a school assignment policy that explicitly classifies based
on race with the consideration or awareness of neighborhood racial demographics during
37
It is also error to treat ―‗racial
motive‘ as a synonym for a constitutional violation‖ or
―racial clas sification.‖ Raso, 135 F.3d at 16 (holding that an action that is adopted
because of a ―racial motive‖ or purpose is not ―auto atically ‗suspect‘ under the Equal
m
Protection Clause‖). This holds true even for a decisionmaker‘s racially discriminatory
purpose. Racially discriminatory purpose, alone, is not a racial classification because
racial classification is more than a mere thought. Compare Seattle, 551 U.S. at 720(racial classification occurs when an action ―di stributes burdens or benefits on the basis
of‖ race), with discussion of racially discriminatory purpose, infra Part III.A.i.3.b, noting
that racially discriminatory purpose refers to the purpose or intent in selecting an action
and not to whether the selected action resulted in actual discrimination or classifications.
41
the development and selection of a policy. The former is a facially racial policy, such as
the policies in Seattle, Gratz, Grutter, Bakke, Brown, McLaurin, and Sweatt. The
consideration or awareness of race while developing or selecting a policy, however, is not
in and of itself a racial classification. Thus, a decisionmaker‘s awareness or
consideration of race is not racial classification. Designing a policy ―with raci factors
al
in mind‖ does not constitute a racial classification if the policy is facially neutral and is
administered in a race-neutral fashion. Hayden, 180 F.3d at 48 (holding that designing a
policy with a racially discriminatory purpose should not be construed as a facial
classification when the policy does not explicitly, or in its application, distinguish
between people on the basis of a protected category).
When the Supreme Court, in Seattle, Grutter, and Bakke, has referenced applying
strict scrutiny to a ― that uses race as one of many factors,‖ it has meant just that —
plan
strict scrutiny should be applied to a school admissions or student assignment policy or
plan that uses race as a factor to determine whether a student is admitted or assigned to a
school. Grutter, 539 U.S. at 339; see also Seattle, 551 U.S. at 793; Bakke, 438 U.S. at
318-19 (Opinion of Powell, J.). The Court has never held that strict scrutiny should be
applied to a school plan in which race is not a factor merely because the decisionmakers
were aware of or considered race when adopting the policy. When there is no racial
classification in the plan, strict scrutiny is only applied if plaintiffs show discriminatory
intent.
42
The first alternative by which intentional discrimination can be shown — racial
classification — is inapposite to Plan 3R and the facts of this case. Strict scrutiny
analysis is not appropriate on this basis.
b. Intentional Discrimination Shown by Discriminatory
Application of a Facially Neutral Policy
The second alternative to show intentional discrimination — that a facially neutral
policy is applied differently on the basis of race — is also inapplicable to Plan 3R. There
is no record evidence that the District has applied Plan 3R in a discriminatory manner.
The Supreme Court first established the standard for this method of proving an Equal
Protection violation in Yick Wo. In that case, the city and county of San Francisco
denied every Chinese laundry owner a permit to operate a laundry business, but denied
permits for only one of approximately eighty non-Chinese laundry owners. With that
example of discriminatory application of a law in mind, to demonstrate that Plan 3R is
applied differently on a discriminatory basis, Appellants would have needed to show
below that the District enforces Plan 3R within some areas or regarding some students,
on the basis of race, while not enforcing Plan 3R within other areas or regarding other
students. Appellants have not alleged that Plan 3R is enforced in a disproportionate
manner.
c. Intentional Discrimination Shown by Discriminatory
Purpose for a Facially Neutral Policy
43
To establish government action within the third alternative, a plaintiff is ―required
to prove that the actions of . . . officials (1) had a discriminatory effect and (2) were
motivated by a discriminatory purpose.‖38 Bradley v. United States, 299 F.3d 197, 205
(3d Cir. 2002) (citing Arlington Heights, 429 U.S. at 264–66 (race discrimination);
Davis, 426 U.S. at 239–42 (race discrimination); Chavez v. Ill. State Police, 251 F.3d
612, 635–36 (7th Cir. 2001) (race discrimination)).
i. Discriminatory Impact
Although disproportionate impact, alone, is not dispositive, a plaintiff must show
discriminatory impact in order to prove an equal protection violation under this third
alternative. ―[ case in [the Supreme] Court has held that a legislative act may violate
N]o
equal protection solely because of the motivations of the men who voted for it.‖ Palmer
v. Thompson, 403 U.S. 217, 224 (1971). In Palmer, the Supreme Court noted that ―there
is an element of futility in a judicial attempt to invalidate a law [solely] because of the
bad motives of its supporters. If the law is struck down for this reason, rather than
38
See also Antonelli, 419 F.3d at 274 (holding that, to show an equal protection violation
when the policy is facially neutral, ―the Apellants would have to show that the
p
Appellees acted with discriminatory intent and the [policy] had a discriminatory
impact‖); cf. Adarand, 515 U.S. at 213 (noting that ―this ase concerns only
c
classifications based explicitly on race, and presents none of the additional difficulties
posed by laws that, although facially race neutral, result in racially disproportionate
impact and are motivated by a racially discriminatory purpose‖) (citing Arlington
Heights, 429 U.S. 252; Davis, 426 U.S. 229); Bakke, 438 U.S. at 289 n.27 (noting that
the policy at issue ―involves a purposeful, acknowledged use of racial criteria. This is not
a situation in which the classification on its face is racially neutral, but has a
disproportionate racial impact. In that situation, plaintiff must establish an intent to
discriminate.‖) (citing Arlington Heights, 429 U.S. 252; Davis, 426 U.S. 229).
44
because of its facial content or effect, it would presumably be valid as soon as the
legislature or relevant governing body repassed it for different reasons.‖ Id. at 225.
Moreover, discriminatory impact must be shown to establish an equal protection violation
because ―plai
ntiffs must show that they have been injured as a result‖ of the
governmental action to ensure that courts ― impose a meaningful remedy.‖ Garza v.
can
County of Los Angeles, 918 F.2d 763, 771 (9th Cir. 1990).
To establish discriminatory impact in a racial discrimination case, Appellants must
show that similarly situated individuals of a different race were treated differently. The
Appellants do not meet this burden.
Despite Appellants‘ numerous references to the alleged consideration of race by
Board members and Administrators during discussions of Scenarios and Proposed Plans,
Appellants have not provided any evidence that Plan 3R treats similarly situated
individuals of a different race in a different manner. Along with Students Doe, all white
students in the Affected Area are also assigned to attend Harriton without the choice to
attend LMHS unless they live within the LMHS walk zone. Appellants have not
provided any evidence that Plan 3R treats black individuals outside of the Affected Area
in the same way in which it treats Students Doe or other black individuals who live in the
Affected Area. North Ardmore, like the Affected Area, has a high percentage of African-
American residents in comparison to other areas. However, all of the students in North
Ardmore, both black and white, are assigned to attend LMHS, not Harriton, where
45
Students Doe and Affected Area students are assigned. Two-thirds of the students
redistricted to Harriton were students who were not African-Americans and who lived in
the Affected Area or other areas redistricted to Harriton under plan 3R.39 Plan 3R does
not treat black students in the Affected Area and North Ardmore similarly, nor does it
treat white students in either area similarly to other white students or differently from the
black students in the same area.40 No evidence has been provided indicating assignments
based on racial classification here.
To show a discriminatory impact in the form of a stigma, Appellants would still
need to demonstrate that they ―are ersonally denied equal treatment by the challenged
p
discriminatory conduct.‖41 Allen, 468 U.S. at 756 (quoting Heckler v. Mathews, 465
39
See discussion supra Part I.C, noting that, in 2009–2010 under Plan 3R, twenty-one
students from the Affected Area were redistricted to Harriton, fourteen of whom were
African-American. Twenty-three students from areas districted for Penn Valley
Elementary School were also redistricted to Harriton, none of whom were African-
American. Less than one-third of the students redistricted were African-Americans from
the Affected Area.
40
Cf., Brown v. Philip Morris, Inc., 250 F.3d 789, 797–98 (3d Cir. 2001) (discussing
civil rights claims under 42 U.S.C. §§ 1981, 1982). In Brown, we held that Plaintiff
African-American smokers ―at no place in their submissions . . . argue any disparities . . .
on the basis of race‖ where Plaintiffs conceded that Philip Morris ―[ sold] menthol
cigarettes to African-Americans at the same price and on the same terms as such products
are offered to whites‖ and Plaintiffs ―do not all that the mentholated tobacco products
ege
sold to African-Americans differ from those sold to whites.‖ Id.41
See also Allen, 468 U.S. at 756 (holding that plaintiffs had no standing to challenge
allegedly racially discriminatory tax exemptions to racially discriminatory schools
because plaintiffs did not allege that their children had ever applied or would ever apply
to the discriminatory schools); O‘Shea v. Littleton, 414 U.S. 488 (1974) (holding that
46
U.S. 738, 739–40 (1984)) (internal quotation marks omitted). Furthermore, the Court‘s
discussion of stigma has been in the context of racial classifications. See generally,
Johnson v. California, 543 U.S. 499, 507 (2005) (―[ we have recognized in the past,
a]s
racial classifications threaten to stigmatize individuals by reason of their membership in a
racial group‖ (quoting Shaw v. Reno, 509 U.S. at 643) (internal quotation marks
omitted)). Because Plan 3R includes no racial classifications, arguments regarding
stigma are of no avail.
Appellants can also show discriminatory impact by demonstrating that there are
racial classifications in the school assignment system. Such classifications force students
―to co pete in a race-based system that may prejudice‖ them. Seattle, 551 U.S. at 718–
m
19 (internal quotation marks omitted). In such circumstances, the discriminatory impact
― the denial of equal treatment resulting from the imposition of the barrier. . . . And in
is
the context of a challenge to a set-aside program, the ‗injury in fact‘ is the inability to
compete on an equal footing in the bidding process.‖ Gratz, 539 U.S. at 262 (quoting Ne.
Fla. Chapter, Associated Gen. Contractors of Am. v. Jacksonville, 508 U.S. 656, 666
(1993)). Unlike the systems at issue in Seattle, Plan 3R is not a race-based system and,
under Plan 3R, there is no possibility that any of the Students Doe will be denied a school
plaintiffs had no standing to challenge racial discrimination in a city‘s criminal justice
system because plaintiffs had not alleged that they had been or would likely be subject to
the challenged practices); Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972) (holding
that a plaintiff had no standing to challenge a club‘s racially discriminatory membership
policies because plaintiff had not applied for membership).
47
assignment because of his or her race. Appellants cannot rely on Seattle, Grutter, Gratz,
or Bakke to demonstrate discriminatory impact because Plan 3R imposes no racial barrier
and assigns students on an equal basis — geography.
ii. Discriminatory Purpose
Even if we were to conclude that Appellants have shown discriminatory impact,
―the Fourtee Amendment guarantees equal laws, not equal results.‖ Feeney, 442 U.S.
nth
at 273. The Supreme Court held in Washington v. Davis, 426 U.S. 229 (1976), that
―[
p]roof of racially discriminatory intent or purpose is required to show a violation of the
Equal Protection Clause.‖ Arlington Heights, 429 U.S. at 266. ―
When there is a proof
that a discriminatory purpose has been a motivating factor in the decision, . . . judicial
deference is no longer justified‖ and courts should apply strict scrutiny.42 Id. at 266–67.
However, ―a
bsent a racially discriminatory purpose, explicit or inferable, on the part of
the [decisionmaker], the statutory distinction is subject only to rational basis review.‖
Frazier, 981 F.2d at 95 (citing Feeney, 442 U.S. 256; Davis, 426 U.S. 229).
The term ―d
iscriminatory purpose‖ ―i
mplies that the decisionmaker . . . selected or
reaffirmed a particular course of action at least in part ‗because of,‘ not merely ‗in spite
of,‖ the action‘s beneficial or adverse effects ―upo an identifiable group.‖43 Feeney, 442
n
42
The racially discriminatory purpose need not be the sole or primary factor motivating
the decision to adopt the challenged action. Arlington Heights, 429 U.S. at 266.
43
See also Antonelli, 419 F.3d at 274 (―the government‘s ‗benign‘ use of racial
considerations in decision-making . . . is no less subject to strict scrutiny than ‗invidious‘
48
U.S. at 279. Racially discriminatory purpose means that the decisionmaker adopted the
challenged action at least partially because the action would benefit or burden an
identifiable group. ―Evn conscious awareness on the part of the [decisionmaker] that the
e
[policy] will have a racially disparate impact does not invalidate an otherwise valid law,
so long as that awareness played no causal role‖ in the adoption of the policy. Frazier,
981 F.2d at 95 (citing Feeney, 442 U.S. at 279).
In Arlington Heights, the Supreme Court outlined how courts should determine
whether a discriminatory purpose was a motivating factor. The determination requires a
―sensiti inquiry‖ into the available ―circu stantial and direct evidence of intent,‖
ve m
including: (1) whether the official action has a racially disproportionate impact; (2) the
historical background of the decision; and (3) the legislative or administrative history of
the decision. Arlington Heights, 429 U.S. at 266–68. Proof put forth to demonstrate
discriminatory intent ―
must necessarily usually rely on objective factors.‖ Feeney, 442
U.S. at 278 n.24.
If discriminatory impact cannot be ―
plausibly explained on a neutral ground,
impact itself would signal that the real classification made by the law was in fact not
neutral.‖ Id. at 275. However, ―[ as there are cases in which impact alone can
j]ust
unmask an invidious classification, there are others, in which — notwithstanding impact
— the legitimate noninvidious purposes of a law cannot be missed.‖ Id. As stated above,
use of racial considerations in decision-making‖) (citing Croson, 488 U.S. at 493–94;
Adarand, 515 U.S. at 226–27).
49
Plan 3R does not have a discriminatory impact. Even if we were to find that Plan 3R has
a discriminatory impact, the District has plausibly explained any such impact on a neutral
ground. The Board‘s goals in redistricting included the Non-Negotiables of equalizing
the enrollments of Harriton and LMHS and not increasing the number of buses required.
The Community Values during redistricting included allowing students who walked to
school to continue walking to school, minimizing travel-time for bused students, and to
ensure that children were in comfortable learning environments.
In addition to these neutral bases for the selection of Plan 3R, the District Court
noted other race-neutral explanations for the adoption of Plan 3R, including helping
students attain educational excellence, developing a 3-1-1 Feeder Pattern, and closing the
achievement gap between students. Moreover, there is no evidence establishing that the
District Court clearly erred when it found credible the Board members‘ testimony that
race was not the basis of their votes for Plan 3R.
In Feeney, the Supreme Court held that the neutral purposes of a statute, aimed to
benefit veterans ―proide[d] the surest explanation for its impact‖ benefitting more men
v
than women. Id. The Court continued, stating that the law could not rationally be
explained as a pretext for preferring men over women because significant numbers of
those placed at a disadvantage by the law were men. Comparably, Plan 3R redistricts to
Harriton a significant number of students who are not African-American. Even while
grandfathering was still in effect, forty-four students were redistricted to Harriton for the
50
2009–2010 school year and thirty of those students, nearly two-thirds, are not African-
American.
When inquiring into the historical background of the decision to redistrict and
adopt Plan 3R, there is nothing that sparks suspicion of discriminatory intent and
Appellants have not alleged otherwise. The decision to redistrict was born of a capital
improvement program intended to modernize every school in the district. Under the plan
in effect prior to Plan 3R, the enrollment of the District‘s two high schools was very
uneven (LMHS had roughly twice the number of students that Harriton had) and the
District was committed to equalizing the two high schools. The process to select a new
student assignment plan was carried out over a number of months with the involvement
of the public.
To ascertain whether there was discriminatory intent in the development and
selection of Plan 3R, Appellants and the District Court appear focused on the
administrative history, especially on statements made by Board members and the
information included in reports and presentations. Appellants pay particular attention to
when racial demographics only or racial demographics in addition to other
socioeconomic demographics were or were not included in report estimates, slide
presentations, personal notes, and on the District‘s website. Awareness of such data or
omitting such data, however, does not constitute discriminatory intent. ―[
C]onscious
awareness‖ of a racially disparate impact of a facially neutral policy is irrelevant to equal
51
protection analysis. See Frazier, 981 F.2d at 95 (citing Feeney, 442 U.S. at 279).
Additionally, the mere awareness of data regarding racial demographics under various
Scenarios and Proposed Plans is not necessarily awareness of racially disparate impact.
The racial data showed, under some Scenarios and Proposed Plans, that there would not
be a racially disparate impact. For a facially neutral policy, awareness of a racially
discriminatory impact is only relevant if the policy is adopted at least in part because of a
racially discriminatory impact. Id.While the statements upon which Appellants rely may indicate awareness or
consciousness of race, the statements do not constitute discriminatory intent, i.e., that
Plan 3R was developed or selected because it would assign benefits or burdens on the
basis of race. Instead of being adopted for the purpose of discrimination, the statements
indicate, if anything, that Board members and Administrators adopted Plan 3R in an
attempt not to discriminate on the basis of race. Testimony that Scenario 1 was
eliminated ― to inequitable racial balancing‖ could indicate that the Administration
due
did not want to propose a plan that seemed to treat students differently on the basis of
race, by having a disproportionate percentage of students of a certain race redistricted.
(App. at A24.) Notably, the Administration decided not to formulate any proposed plans
based on Scenarios 1, 2, or 5. Scenarios 1 and 2 would redistrict both areas with higher
African-American populations, the Affected Area and North Ardmore, to attend Harriton
and Scenario 5 would keep students in both of those areas assigned to LMHS. Thus, the
52
only Scenarios selected to develop into proposed plans were those that did not treat the
two areas with the highest African-American populations in the same manner. Because
all of the Scenarios assigned students geographically, no Scenario or Proposed Plan
treated similarly situated African-American students differently from other students.
Moreover, the District eliminated the Scenarios that arguably treated differently situated
African-American students similarly, by assigning both areas with higher African-
American populations to the same school.
Given these circumstances, it is nearly inconceivable that the District intended to
discriminate on the basis of race. DiBonaventuro‘s September 2008 email reaffirms the
anti-discriminatory goals of the redistricting process. In her email, she stated that the
Board should emphasize that it is not trying to increase Harriton‘s diversity, but that it,
instead, is trying to ensure numerically equal total student enrollments at both high
schools.
Board and Administrator references to ―diver
sity‖ do not imply a discriminatory
purpose. On the contrary, references to diversity in the context of this facially neutral
policy implied that decisionmakers did not want the selected plan to have a racially
disproportionate impact. Avoiding discriminatory impact seemed to be one of the
District‘s goals in developing and adopting a plan. Because the African-American
students were ―
more concentrated‖ geographically, assigning students based on
53
geography could easily lend itself to disproportionate impact unless the Board members
were aware of the demographics of the areas during the redistricting process.
In Arlington Heights and Feeney, the Supreme Court found that, despite
awareness of disparate impact on a group, there was no showing of discriminatory intent
in the formulation or adoption of the actions at issue. The Court in Arlington Heights
held that a zoning decision that bore more heavily on racial minorities was nonetheless
not adopted due to discriminatory intent because the majority of the statements by the
decisionmakers focused on neutral factors and the zoning policy had been applied
consistently. 429 U.S. at 270.
Similarly, Plan 3R has been applied consistently, regardless of race, and the
majority of Board members‘ discussions regarding Lower Merion redistricting focused
on neutral factors: (a) equalizing the populations at the two high schools, (b) minimizing
travel time and transportation costs, (c) fostering educational continuity, and (d) fostering
walkability. Additionally, Plan 3R did not bear more heavily on racial minorities.44
In Feeney, the Court held that there was no discriminatory purpose in the adoption
of a statute that benefited an overwhelmingly male class — veterans — because the
benefit was consistently offered to any person who was a veteran, including women.
Similarly, Plan 3R consistently assigns students, including students who are not African-
American, based on the location of their residence.
44
Less than one-third of the students redistricted were African-Americans from the
Affected Area.
54
In Pryor, the Court held that the plaintiffs had sufficiently alleged discriminatory
intent because the complaint and exhibits alleged that the NCAA stated that it adopted a
policy because ―it be
lieved the adoption of this policy would increase the graduation rates
of black athletes relative to white athletes.‖ 288 F.3d at 564. The Court noted that the
complaint did not merely allege that the NCAA was aware of the likely racially
disproportionate impact; plaintiffs alleged that this discriminatory impact was the
NCAA‘s ―
purpose,‖ ―stated goal,‖ and ―pret for adopting the policy. Id. at 564–65.
ext‖
In contrast, Appellants have not demonstrated that the District formulated or adopted
Plan 3R at least partially to benefit or burden African-American students.
Significantly, the District Court found credible the Board members‘ testimony that
race was not the basis of their votes for Plan 3R. We see no evidence of clear error in
that finding. If race was not the basis of the Board members‘ votes for Plan 3R, it
follows logically that they did not vote to adopt Plan 3R for racially discriminatory
reasons.
Thus, none of the three alternatives necessary to show intentional discrimination
and to trigger strict scrutiny is applicable to Plan 3R.
2. Racially Discriminatory Intent in Electoral Redistricting
The District Court held that strict scrutiny was appropriate because it opined that
the Affected Area was ―targeted‖ for redistricting to Harriton, in part, because it has a
high concentration of African-American students. Similarly, our colleague, in her
55
concurrence, concludes that we are required to apply strict scrutiny because, as she notes,
the racial composition of neighborhoods was considered in determining school
assignments. The concurrence suggests a paradigm not present or contemplated in our
law – be aware of or talk about race and strict scrutiny is triggered. This theory is
untenable. There is no precedent in this Court or the Supreme Court holding that we
apply strict scrutiny in equal protection challenges alleging racial discrimination in
education admissions or assignments because decisionmakers were cognizant of the
racial demographics of neighborhoods when they selected the assignment plan.
At oral argument, counsel for Appellants compared Plan 3R to electoral
redistricting, an area for which the Supreme Court has set out tests for determining
whether strict scrutiny should be applied to redistricting that involves the consideration of
racial demographics. It is not clear that the electoral redistricting precedent controls in
the educational context, but, even if we were to apply that precedent to the facts in Doe,
we would still hold that Plan 3R was not developed or adopted for a discriminatory
purpose and, thus, should not be subjected to strict scrutiny.
In equal protection challenges to electoral redistricting, the Supreme Court has
held that strict scrutiny does not apply to facially race neutral legislation merely because
(a) ―redistrict is performed with consciousness of race‖ or (b) because there was an
ing
―intenti creation of majority-minority districts.‖ Bush v. Vera, 517 U.S. 952, 958
onal
(1996). The Court has held, instead, that, for strict scrutiny to apply to facially race
56
neutral electoral redistricting legislation, the plaintiff must prove that (1) the statutes,
―althoug race neutral, are, on their face, ‗unexplainable on grounds other than race,‘‖
h
Shaw I, 509 U.S. at 643 (quoting Arlington, 429 U.S. at 266) or that (2) ―legiti
mate
districting principles were ‗subordinated‘ to race‖ such that ―race
must be ‗the
predominant factor motivating the legislature‘s [redistricting] decision,‖ Vera, 517 U.S.
at 958–59, or the statute.
Because Plan 3R is facially race neutral, ―conciousness of race,‖ alone, will not
s
require the application of strict scrutiny. Cf. Vera, 517 U.S at 958 (noting that strict
scrutiny does not apply ―merel because [electoral] redistricting is performed with
y
consciousness of race‖). Although the Affected Area has the highest concentration of
African-American students in Lower Merion, that fact does not require strict scrutiny.
Cf. id. at 958 (noting that strict scrutiny does not ―appl to all cases of intentional
y
creation of majority-minority [electoral] districts‖).
For strict scrutiny to apply to Plan 3R, the plan would have to be ―
unexplainable
on grounds other than race‖ or it must be shown that other legitimate redistricting
principles were subordinated to race such that race was the predominant factor motivating
the District‘s redistricting decision. Shaw I, 509 U.S. at 643. Appellants have not cast
doubt on the proposition that equalizing the student enrollments at the two high schools
was the primary factor motivating redistricting and the adoption of Plan 3R. The other
primary factors motivating the decision included: minimizing travel time and
57
transportation costs, increasing educational continuity such that students who attended
the same elementary school would stay together through middle school and high school,
and fostering walkability.
As the District Court noted, the decision to adopt Plan 3R is explainable on
grounds other than race. Moreover, race was not the predominant factor motivating the
decision to adopt Plan 3R. If race had been the predominant factor, the District likely
would have adopted a plan that: assigned students based on race; moved white students or
predominantly white neighborhoods to LMHS, while moving African-American students
or high concentration African-American areas to Harriton without increasing the student
population at Harriton or decreasing the student population at LMHS; or draw new
district lines that were not quadrilateral, following major streets and natural boundaries.
Additionally, race does not explain why the District would adopt Plan 3R instead of
adopting Plan 1, which would have resulted in African-American students being 9.9% of
the Harriton student population, or Plan 3, which would have resulted in African-
American students being the same percentage of the Harriton student population as in
Plan 3R. Thus, strict scrutiny would not be applied to Plan 3R under the Supreme
Court‘s electoral redistricting precedent.
Regarding Plan 3R, there has not been ―prof that a discriminatory purpose has
o
been a motivating factor in the decision.‖ Arlington Heights, 429 U.S. at 265–66.
Because Plan 3R is ―abent a racially discriminatory purpose, explicit or inferable, on the
s
58
part of the [decisionmakers], [it] is subject only to rational basis review.‖ Frazier, 981
F.2d at 95 (citing Feeney, 442 U.S. 256; Davis, 426 U.S. 229).45
ii. Constitutional Analysis
Under rational basis review, the challenged classification must be upheld if it is
―rational related to a legitimate state interest.‖ City of New Orleans v. Dukes, 427 U.S.
ly
297, 303 (1976) (per curiam). Plan 3R is rationally related to a legitimate interest ―if
there is any reasonably conceivable state of facts that could provide a rational basis for
the classification.‖ Donatelli v. Mitchell, 2 F.3d 508, 513 (3d Cir. 1993) (quoting FCC v.
Beach Commc‘n, Inc., 508 U.S. 307, 313 (1993)) (internal quotation marks omitted).
In determining whether Plan 3R is reasonably related to legitimate state interests,
our review is highly deferential. ―[
J]udges are not well suited to act as school
administrators. Indeed, in the context of school desegregation, this Court has repeatedly
stressed the importance of acknowledging that local school boards better understand their
own communities and have a better knowledge of what in practice will best meet the
educational needs of their pupils.‖ Seattle, 551 U.S. at 848–49 (citing Milliken v.
Bradley, 418 U.S. 717, 741–42 (1974)).
45
See also Doe v. Pennsylvania Bd. of Probation and Parole, 513 F.3d 95, 107 (3d Cir.
2008) (―If state action does not burden a fundamental Constitutional right or target a
suspect class, the ‗challenged classification must be upheld if there is any reasonably
conceivable state of facts that could provide a rational basis for the classification.‘‖
(quoting Donatelli v. Mitchell, 2 F.3d 508, 513 (3d Cir. 1993))).
59
Applying this deferential standard of review, we conclude that Plan 3R is
rationally related to legitimate government interests. As noted by the District Court, the
District presented evidence that Plan 3R is aimed at addressing the following goals: (a)
equalizing the populations at the two high schools, (b) minimizing travel time and
transportation costs, (c) fostering educational continuity, and (d) fostering walkability.
Plan 3R is reasonably related to these four goals. Equalizing the populations at Harriton
and LMHS was the impetus for redistricting. The CAC supported this capital
improvement proposal because committee members thought that, with equalized high
school populations, students would benefit from a stronger sense of community, better
interactions with faculty, and better educational outcomes. Equalizing student enrollment
between the two schools required redistricting because, under the prior plan, LMHS had
700 more students than Harriton. Under Plan 3R, student enrollment at the two high
schools is projected, under some estimates, to equalize to a difference of only a handful
of students.
The creation of a 3-1-1 Feeder Pattern under Plan 3R is rationally related to the
Board‘s legitimate goal of ensuring educational continuity. Administrators and Board
members testified that aiming to keep students in the same schools as their classmates
from kindergarten through high school has pedagogical and psychological benefits. Plan
3R‘s goal of fostering walkability by restoring the historic LMHS walk zone, which is
larger than the limited walk zone proposed prior to Plan 3R‘s adoption, is rationally
60
related to a legitimate state interest because it saves the District money that would
otherwise be needed to cover the cost of buses. The District has a legitimate interest in
not increasing its number of buses because doing so would increase costs. Plan 3R is
rationally related to this goal because Plan 3R does not increase the number of buses
required and it also takes into account minimizing travel times. Additionally, the
Affected Area is one of the areas closer to Harriton in travel time. Accordingly, the
District Court‘s selection of Plan 3R has a rational basis and does not violate the Equal
Protection Clause.
B. Title VI and 42 U.S.C. § 1981Title VI and 42 U.S.C. § 1981 prohibitions against discrimination are coextensive
with those of the Equal Protection Clause. See Grutter, 539 U.S. at 343; Bakke, 438 U.S.
at 287 (opinion of Powell, J.) (―Tit VI must be held to proscribe only those racial
le
classifications that would violate the Equal Protection Clause‖); Gen. Bldg. Contractors
Ass‘n., Inc. v. Pennsylvania, 458 U.S. 375, 389–91 (1982) (―§ 191, like the Equal
8
Protection Clause, can be violated only by purposeful discrimination‖). As stated above,
Plan 3R does not violate the Equal Protection Clause. Therefore, Appellants‘ remaining
claims, pursuant to Title VI and 42 U.S.C. § 1981, must also fail. See Grutter, 539 U.S.
at 343 (holding that, because ―the
Equal Protection Clause does not prohibit the Law
School‘s narrowly tailored use of race in admissions decisions[,] . . . petitioner's statutory
claims based on Title VI and 42 U.S.C. § 1981 also fail‖).
61
C. Testimony of Drs. Lyles and Jarvis
On appeal, Appellants continue to argue that the testimony of Drs. Lyles and
Jarvis should have been precluded; however, Appellants make no new arguments
regarding this testimony.
Federal Rule of Civil Procedure 26(a)(1) requires a party, at initial disclosure, to
provide information for ―each indiv
idual likely to have discoverable information — along
with the subjects of that information — that the disclosing party may use to support its
claims or defenses, unless the use would be solely for impeachment.‖ FED. R. CIV. P.
26(a)(1). Drs. Lyles and Jarvis did not participate in the redistricting process and, thus,
they did not have discoverable knowledge regarding the litigation. Instead, the District
questioned Drs. Lyles and Jarvis regarding Dr. McGinley and his work on the
achievement gap. The District sought to admit this testimony because the doctors had
worked with Dr. McGinley and had personal knowledge about ― work concerning
his
issues such as the achievement gap, his advocacy for children of color and children with
disabilities, and his commitment to ensuring greater access to challenging coursework for
minority students and students with disabilities.‖ (Appellee‘s Br. at 64.)
The District asserts that it learned about Drs. Lyles and Jarvis on March 11, 2010,
one day before the deadline for its Pretrial Memorandum. The District, then, listed the
two new witnesses in its Pretrial Memorandum. As the District noted in its reply brief to
the Appellants‘ Motion in Limine, District Courts have ―al
lowed parties to call witnesses
62
in rebuttal even when they were not disclosed in a pretrial memorandum or order, as long
as the witness and his testimony are within the scope of proper rebuttal.‖ (App. at A302
(citing Upshur v. Shepherd, 538 F. Supp. 1176, 1180 (E.D. Pa. 1982)).) The District
argued that the testimony sought from these witnesses was within the proper scope of a
rebuttal to the Appellants‘ allegation that the District violated federal law.
Appellants have not claimed that the District Court abused its discretion in
denying the motion to preclude testimony, nor does it appear that they could support such
a claim. Neither precedent nor any Federal Rule of Civil Procedure requires the
testimony‘s preclusion. The District Court did not abuse its discretion in denying the
motion and we will affirm the denial of Appellants‘ motion.
IV. CONCLUSION
For the reasons set forth above, we will affirm the judgment of the District Court.
63
STUDENT DOE v. LOWER MERION SCHOOL
No. 10-3824
ROTH, Circuit Judge, Concurring:
I concur with the result reached by the majority. I
would, however, arrive there by a more arduous route. For
reasons that I will explain below, I believe that strict scrutiny
is the test to be applied here. In addition, I conclude that the
assignment plan here meets the strict scrutiny test.
First, I agree with the holding of the District Court:
Applying strict scrutiny to [the facts of
this case], the Court concludes that the District
has satisfied its burden of showing that Plan 3R
was narrowly tailored to meet numerous race-
neutral compelling interests – namely, having
two equally sized high schools, minimizing
travel time and costs, maintaining educational
continuity, and fostering students’ ability to
walk to school. The District’s mere
consideration of the racial demographics of
Plaintiffs’ neighborhood does not warrant an
opposite conclusion under existing Supreme
Court or Third Circuit precedent.
Because Plan 3R is narrowly tailored to meet the
school district’s compelling interests, it survives strict
scrutiny. In my view, however, there is a problem with my
conclusion. I am not happy that the test for reviewing a plan
1
to create diversity in a student body should be strict scrutiny.
I believe that diversity is a worthy goal for student
assignments in a school district. My concern is that Supreme
Court precedent, and in particular the decision in Parents
Involved in Community Schools v. Seattle School District No.
1, 551 U.S. 701 (2007), does not permit a school district to
institute a plan to diversify student populations of a school
district on the basis of race.
In Part III.B of Seattle, Chief Justice Roberts, in his
plurality opinion, concluded that school attendance plans
“directed only to racial balance, pure and simple,” are
illegitimate. Id. at 726. The plurality goes on to ask how we
differentiate between the benefits that flow from racial
diversity and racial balance pure and simple. Id. My concern
is that we will be unable to do so. For that reason, any plan
for student diversity is faced with the threat of being held
unconstitutional because we cannot compute the difference
between racial diversity and racial balance.
Justice Kennedy, in his concurrence, endorses
diversity as a compelling educational goal. Id. at 783. He
joins in the judgment, however, because the school district
plans for diversity in Seattle were directed at individual
students, not at neighborhoods as is the case here. Id. at 782.
My concern is that the consideration of the racial
composition of individual neighborhoods to determine school
assignments may be just as problematic as the consideration
of the race of individual students. Plan 3R does involve race:
not the race of individuals but the racial balance of
neighborhoods. An awareness of the racial make-up of the
neighborhoods is a factor in the assignment plan. This
2
consideration of the racial composition of neighborhoods is,
in my opinion, a parallel to the consideration of the race of
the individual. It in effect brings consideration of race back
into the formula.
Moreover, the plaintiffs contend that Plan 3R
discriminated against them because it mandated their
attendance at a particular high school on the basis of their
race. Although they were not individually assigned to a
school, the court did find that plaintiffs’ race, through the
racial composition of their neighborhoods, was a factor that
was considered in determining their assignments.
Furthermore, in making the Plan 3R assignments, the School
District was attempting to improve on the racial diversity of
its schools through its choice of the areas to be assigned to the
high schools.
Nevertheless, I am convinced that, although racial
diversity was an object of Plan 3R, it was not the racial
composition of the neighborhoods that was the primary
motive for the new assignment plan. I agree with the
conclusion of the District Court, quoted above, that Plan 3R is
narrowly tailored to meet race-neutral compelling interests
and that it would have passed without a consideration of the
racial make-up of the neighborhoods. All the same, race was
a factor in the mix and diversity was a goal of Plan 3R. The
conclusion I draw is that, when dealing with race-neutral
compelling interests, the concurrent consideration of racial
diversity (which of course must be race-based) does not
invalidate a plan – but we need further guidance from the
Supreme Court on this issue.
3
Finally, I believe that our decision in Pryor v. National
Collegiate Athletic Association, 288 F.3d 548 (3d Cir. 2002),
holding that “a law or policy that purposefully discriminates
on account of race is presumptively invalid and can survive
only if it withstands strict scrutiny review,” id. at 566,
supports my conclusion that strict scrutiny review is required
here. Indeed, I believe that this panel should be bound by
Pryor.
For the above reasons, I agree that we should affirm
the judgment of the District Court but I conclude that we
should do so using strict scrutiny review.
4