Beruflich Dokumente
Kultur Dokumente
No. 10-3824
Of Counsel:
JOHN C. BRITTAIN
Professor of Law
DAVID A. CLARKE SCHOOL OF LAW
UNIVERSITY OF THE DISTRICT OF
COLUMBIA
4200 Connecticut Avenue, NW
Washington, DC 20008
(832) 687-3007
(institutional affiliation listed for
identification purposes only)
DEREK W. BLACK
Associate Professor of Law
HOWARD UNIVERSITY SCHOOL OF
LAW
2900 Van Ness St., NW
Washington, D.C. 20008
(202) 806-8163
(institutional affiliation listed for
identification purposes only)
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Pursuant to Federal Rule of Appellate Procedure 26.1 and Local Rule 26.1.1,
Amici Curiae NAACP Legal Defense & Educational Fund, Inc. (LDF), the
Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee), and the
American Civil Liberties Union Foundation (ACLU), file the following statement
s/ Kimberly Liu
Kimberly Liu
NAACP Legal Defense &
Educational Fund, Inc.
99 Hudson Street, 16th Floor
New York, New York 10013
(212) 965-2200
TABLE OF CONTENTS
Argument...................................................................................................................6
Conclusion ............................................................................................................. 30
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TABLE OF AUTHORITIES
Cases
City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) ....................................14
Doe 1 v. Lower Merion School District, 689 F. Supp. 2d 742 (E.D. Pa.
2010) .......................................................................................................................9
Keyes v. School District No. 1, 313 F. Supp. 61 (D. Colo. 1970) ...........................22
ii
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Rappa v. New Castle County, 18 F.3d 1043 (3d Cir. 1994) ....................................10
Smith v. University of Washington, Law School, 233 F.3d 1188 (9th Cir.
2000) .....................................................................................................................10
No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat.
1425 ......................................................................................................................14
Other Authorities
iii
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NAACP Legal Defense & Educational Fund, Inc. & The Civil Rights
Project, Still Looking to the Future: Voluntary K-12 Integration, A
Manual for Parents, Educators, & Advocates (2008)..........................................16
iv
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Amici are the NAACP Legal Defense & Educational Fund, Inc. (LDF), the
Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee), and the
Appellate Procedure 29(a), all parties have consented to the filing of this amicus
brief. No counsel for any party had a role in authoring this brief.
cases over the past six decades to dismantle racial segregation and ensure equal
educational opportunity for all students, including the cases leading up to and
including Brown v. Board of Education, 347 U.S. 483 (1954). In addition, LDF
has played and continues to play a critical role in litigation and advocacy to ensure
diversity and reduce racial isolation in primary, secondary, and higher education.
See, e.g., Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701
that was founded in 1963 by the leaders of the American bar at the request of
President John F. Kennedy to help defend the civil rights of minorities and the
poor. Throughout its history, the Lawyers’ Committee has been involved in cases
examining the proper scope of coverage afforded to civil rights laws, including
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than 550,000 members dedicated to the principles of liberty and equality embodied
in the Constitution and this nation’s civil rights laws. In support of these
diversity and the reduction of racial and ethnic isolation both as direct counsel and
amicus curiae including Parents Involved, 551 U.S. 701, and Grutter, 539 U.S.
306. The ACLU of Pennsylvania is a state affiliate of the national ACLU, with
There are two key facts in this case: First, the student assignment plan
to the School District’s two high schools—both ranked among the best in the
nation—based on the geographic attendance zone in which they live. Second, this
student assignment plan resulted from a process that was race-conscious. School
District staff drew attendance zones based in part on consideration of the racial
2
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the same high school assignment, regardless of their individual racial background.
Amici accept that the District Court’s factual findings on each of these issues
were correct. A50-A55, A69-A72.1 But its opinion was marred by a fundamental
legal error: its assumption that strict scrutiny was automatically triggered by the
A67; accord A80. The District Court failed to appreciate that Justice Kennedy’s
District No. 1, 551 U.S. 701 (2007), establishes the governing legal standard of
. . . [to] demand strict scrutiny to be found permissible.” Id. at 789 (Kennedy, J.,
1
Amici cite to the appendix to appellants’ brief as “A__.”
3
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the District Court to apply a separate legal analysis based on Village of Arlington
Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), and its
progeny. In fact, the principles set forth in Arlington Heights are incorporated into
Brown. He recognized that “[t]his Nation has a moral and ethical obligation to
fulfill its historic commitment to creating an integrated society that ensures equal
opportunity for all of its children.” Parents Involved, 551 U.S. at 797 (Kennedy,
J., concurring in part and concurring in the judgment). Yet, in many American
the Constitution does not tie the hands of school authorities who “are concerned
4
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address the problem in a general way . . . [such as] drawing attendance zones with
intense debate because they have very practical effects on the lives of families and
their children. Appellants have raised serious educational and civic concerns that
merited close attention by the School District, its decision-makers, and the
community at large.2 But the contested nature of the public debate does not
contrary, under Parents Involved, strict scrutiny is not applicable unless a plaintiff
applies, so there is no need for this Court to reach the question of whether the
District Court correctly upheld the constitutionality of the School District’s plan on
2
Amici file this brief to clarify the legal principles at issue and take no
position regarding the School District’s actions in matters unrelated to this case.
5
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the ground that it satisfied strict scrutiny. Nevertheless, this Court, in the interest
of prudence, may wish to remand for the District Court to clarify certain
ARGUMENT
decision-making, see Appellants’ Br. 36-39, 40-41, but the District Court properly
concluded that the Supreme Court’s decision “require[s] this Court to apply strict
scrutiny to student assignment plans only if they are based on individual racial
6
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schools. 551 U.S. at 711-13, 715-17 (plurality opinion). The threshold question
was whether voluntary integration plans that utilized such individualized racial
classifications trigger strict scrutiny. The Justices sharply disagreed over the
answer to this question under the circumstances at issue in Parents Involved. But a
majority supported the view that strict scrutiny is unlikely to be triggered where, as
here, a school district draws attendance zones with general recognition of the racial
demographics of its neighborhoods at the aggregate level, but does not assign any
background.
1. In Parents Involved, the Chief Justice and the four Justices who joined
the material portion of his plurality opinion agreed that strict scrutiny had to be
applied because Seattle and Jefferson County “classif[ied] students by race and
Applying this heightened standard of review, these five Justices further agreed that
7
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the school districts’ plans were not sufficiently narrowly tailored. Id. at 726; see
also id. at 783-84 (Kennedy, J., concurring in part and concurring in the judgment).
Jefferson County’s student assignment plans from “mechanisms [that] are race
conscious but do not lead to different treatment based on a classification that tells
case, in defining the latter category, Justice Kennedy listed several examples of
of constitutional review for the student assignment plan now before this Court.
Justice Kennedy thought it “unlikely” that drawing attendance zones with general
8
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Court decisions. Marks v. United States, 430 U.S. 188, 193 (1977); accord Panetti
v. Quarterman, 551 U.S. 930, 949 (2007). The District Court therefore failed to
garnered the votes of the four dissenting Justices. A92; Doe 1 v. Lower Merion
Applying Marks, this Court has held that “[w]here a Justice or Justices
9
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will necessarily produce results with which a majority of the Court from that case
would agree, that standard is the law of the land.” Planned Parenthood of
Southeastern Pa. v. Casey, 947 F.2d 682, 693 (3d Cir. 1991), rev’d in part on other
grounds, 505 U.S. 833 (1992); see also Smith v. Univ. of Wash., Law Sch., 233
F.3d 1188, 1199-1200 (9th Cir. 2000) (concluding that the opinion of a single
Justice, which would have been joined by four other Justices, results in a
controlling legal standard). In Casey, this Court noted that four Justices of the
restrictions, and four would apply a less restrictive standard of review. 947 F.2d at
694-96. The controlling legal standard was therefore Justice O’Connor’s middle
position—that strict scrutiny was warranted when the restriction placed an “undue
burden” on a woman’s right to an abortion. Id. at 697; see also Rappa v. New
Castle County, 18 F.3d 1043, 1057 (3d Cir. 1994) (explaining this Court’s decision
in Casey).
A similar split occurred in Parents Involved, but with Justice Kennedy as the
determinative vote. Whereas the Chief Justice and the three other Justices who
joined this portion of his plurality opinion took a restrictive approach to voluntary
integration plans, the four dissenting Justices agreed with Justice Kennedy that
presumptively valid. Parents Involved, 551 U.S. at 837 (Breyer, J., dissenting).
10
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Indeed, the dissenting Justices would have gone further and applied a more
inclusive educational goals, including the Seattle and Jefferson County plans at
issue in Parents Involved. Id. at 834, 837. Thus, a majority of the Court in
policymaking by school authorities that does not allocate burdens or benefits based
controls.
3. Not only did Justice Kennedy’s presumption of validity win the votes of
the four dissenters, but the Chief Justice’s plurality opinion did not rule out this
approach to the circumstances at issue here. See id. at 738-39 (plurality opinion).
Responding to the dissenters’ arguments against applying strict scrutiny, the Chief
Justice highlighted the same distinction that Justice Kennedy drew between the
the other; the latter, in the Chief Justice’s view, presented “an issue well beyond
Moreover, the Chief Justice expressly distinguished two cases in which state
11
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Tometz v. Bd. of Educ., 237 N.E.2d 498, 499, 502-503 (Ill. 1968) (upholding as
boundaries); Citizens for Better Educ. v. Goose Creek Consol. Indep. Sch. Dist.,
719 S.W.2d 350, 352 (Tex. App. 1986) (upholding a school district’s attendance
zone plan, designed in part “to achieve ethnic balance” between its two high
schools, on the ground that “[s]chool authorities are traditionally given broad
experience”). The Chief Justice concluded that Tometz and Citizens for Better
Education provided “an improper standard for evaluating [the] express racial
classifications” utilized by Jefferson County and Seattle, but he did not suggest that
a more relaxed standard of review was inappropriate for the type of non-
individualized race-consciousness that was upheld in those two cases and that is at
4
The Chief Justice subsequently suggested his support for Justice
Kennedy’s approach even more clearly. During oral argument in Ricci v.
DeStefano, the Chief Justice stated his view that “both the plurality and the
concurrence in Parents Involved accepted the fact that race conscious action such
as school siting or drawing district lines . . . is okay, but discriminating in
particular assignments is not.” Transcript of Oral Argument at 54, Ricci v.
DeStefano, 129 S. Ct. 2658 (2009) (No. 07-1428). To be clear, while Parents
Involved requires strict scrutiny review of student assignment plans that utilize
individualized racial classifications, Justice Kennedy refused to rule out this
12
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the only legal principle consistent with the Supreme Court’s repeated insistence in
Parents Involved and other cases that government actors must give serious, good-
id. at 744 (plurality opinion); id. at 783-84, 789-90 (Kennedy, J., concurring in part
and concurring in the judgment); see also Grutter, 539 U.S. at 339 (“Narrow
tailoring does, however, require serious, good faith consideration of workable race-
or any other measure that does not rely on individualized racial classifications is at
least facially race-neutral. Parents Involved, 551 U.S. at 735 (plurality opinion).
approach in all circumstances. In his view, such classifications could satisfy strict
scrutiny with “more nuanced, individual evaluation of school needs and student
characteristics” than was utilized by Seattle or Jefferson County. Parents Involved,
551 U.S. at 790 (Kennedy, J., concurring in part and concurring in the judgment).
In any event, no such individualized racial classifications are at issue here.
13
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achieving the intended race-conscious goal. See Grutter, 539 U.S. at 339-40.5
simply makes no difference.” Cf. Appellants’ Br. 39. In Justice Kennedy’s view,
the “dangers” presented by the latter “are not as pressing.” Parents Involved, 551
U.S. at 797 (Kennedy, J., concurring in part and concurring in the judgment).
“raise special fears that they are motivated by an invidious purpose.” Johnson v.
California, 543 U.S. 499, 505 (2005). As Justice Kennedy explained, such
14
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typologies” and “can lead to corrosive discourse, where race serves not as an
element of our diverse heritage but instead as a bargaining chip in the political
process.” Parents Involved, 551 U.S. at 797 (Kennedy, J., concurring in part and
problematic because “the same ends are achieved by more indirect means.” Id.
that our nation has made great progress in the fifty-plus years since the Supreme
Court’s landmark decision. Even so, “flaws and injustices . . . remain,” including
“[t]he enduring hope is that race should not matter; the reality is that too often it
most important lessons that “[t]he Nation’s schools strive to teach [is] that our
strength comes from people of different races, creeds, and cultures uniting in
commitment to the freedom of all.” Id. at 782. But “teach[ing] that principle” is
15
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more difficult if schools do not have “classrooms that reflect the racial makeup of
diversity of our Nation as a whole.” Id. at 798; accord A53. Recognizing these
extent that the School District adopted a student assignment plan that took
neighborhood racial demographics into account, it is not alone. See NAACP Legal
Defense & Educational Fund, Inc. & The Civil Rights Project, Still Looking to the
Advocates (2008) (describing examples from across the country of facially race-
6
For instance, the Berkeley, California Unified School District aims to
reduce racial isolation by considering, when making student assignments, a
diversity index of the attendance zone in which the student resides—determined by
the zone’s average household income, average educational attainment, and racial
demographics. See Am. Civil Rights Found. v. Berkeley Unified Sch. Dist., 172
Cal. App. 4th 207, 212-15 (Cal. Ct. App. 2009). In the face of a state
constitutional challenge, that plan was upheld precisely because it did not use
individualized racial classifications. See id. at 211 (“We find that educators who
include a general recognition of the demographics of neighborhoods in student
assignments, without classifying a student by his or her race, do not ‘discriminate
16
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Recent research confirms that students from all racial backgrounds benefit
Schools: Social Science Research and the Supreme Court Cases (2007).7 Indeed,
“the nation’s future depends upon leaders trained through wide exposure to the
ideas and mores of students as diverse as this Nation of many peoples.” Grutter,
3. It is precisely for these reasons that Justice Kennedy declined to join fully
the Chief Justice’s plurality opinion: “To the extent the plurality opinion suggests
the Constitution mandates that state and local school authorities must accept the
Parents Involved, 551 U.S. at 788 (Kennedy, J., concurring in part and concurring
against, nor grant preferential treatment to, any individual or group on the basis of
race.’” (quoting Cal. Const., art. 1, § 31, subdiv. (a))).
7
For instance, when compared to their more segregated peers, students who
attend integrated schools have higher comfort levels with members of other racial
groups, an increased sense of civic engagement, reduced prejudices, and a greater
desire and ability to live and work in multiracial settings. See, e.g., Elizabeth
Stearns, Long-Term Correlates of High School Racial Composition, Teachers Coll.
Rec. 1654, 1669-71 (2010); Linda R. Tropp & Mary A. Prenovost, The Role of
Intergroup Contact in Predicting Children’s Interethnic Attitudes, in Intergroup
Attitudes and Relations in Childhood Through Adulthood 236, 245 (Sheri R. Levy
& Melanie Killen eds., 2008). An integrated learning environment also better
prepares students to attend and succeed in college. See, e.g., Douglas S. Massey &
Mary J. Fischer, The Effect of Childhood Segregation on Minority Academic
Performance at Selective Colleges, 29 Ethnic & Racial Stud. 1, 3-4, 20-22 (2006).
17
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applies even to mechanisms that are race-conscious in the aggregate but do not
classify individual students by race, many school districts would be deterred from
Id. at 789.
entrusted with directing our public schools can bring to bear the creativity of
economic backgrounds.” Id. at 798; cf. Bd. of Educ. of Okla. City Pub. Schs. v.
Dowell, 498 U.S. 237, 248 (1991) (“Local control over the education of children
the District Court assumed that strict scrutiny is compelled by the Supreme Court’s
holding thirty years earlier in Arlington Heights, 429 U.S. 252, as well as this
18
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Pryor v. NCAA, 288 F.3d 548 (3rd Cir. 2002). A76-A80. Although the District
Court expressed doubts about how to apply Arlington Heights and Pryor to this
case, A78 n.7, A80 n.8, it ultimately determined that they warranted an analysis
separate from that in Parents Involved. A76-A80. After conducting this analysis,
the District Court decided to apply strict scrutiny based on the “mere fact” that the
factors, when it rezoned students from South Ardmore to attend Harriton High
The District Court not only misinterpreted Arlington Heights and its
progeny, but it also misunderstood the relationship between Parents Involved and
concurrence does not rule out strict scrutiny for all non-individualized race-
Involved, 551 U.S. at 789 (Kennedy, J., concurring in part and concurring in
judgment). This approach fully encompasses the principles that the Supreme Court
19
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set forth in Arlington Heights for ferreting out when government actions are
of validity applies only when school districts pursue “the objective of offering an
equal educational opportunity to all of their students.” Id. at 788. Thus, Parents
Involved does not disturb the well-established principle that strict scrutiny applies
on their race. This principle flows directly from Brown, where the Court held that
similarly suspect under the Equal Protection Clause. Rather, as Justice Kennedy
with the intent to ensure that its “classrooms . . . reflect the racial makeup of the
opportunity. 551 U.S. at 782, 788 (Kennedy, J., concurring in part and concurring
20
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in the judgment).8 By contrast, school authorities’ actions that take race into
educational opportunity based on their race are contrary to, and undermine,
school district actions that “keep the races apart” and those that “bring them
together”).9
Thus, even when school authorities draw attendance zones or take other
actions that are facially race-neutral (in that no government decision allocates
should be subject to strict scrutiny if they are shown to have been motivated by a
segregative purpose. See, e.g., Columbus Bd. of Educ. v. Penick, 443 U.S. 449,
8
Indeed, Justice Kennedy departed from the Chief Justice’s plurality opinion
and joined the four dissenters to provide majority support for the view that, to the
extent that strict scrutiny is triggered by a school district’s actions, it has a
“compelling interest” in “avoiding racial isolation” and “achiev[ing] a diverse
student population.” Id. at 797-98; see also id. at 865 (Breyer, J., dissenting).
9
Appellants invoke cases, such as Gratz v. Bollinger, 539 U.S. 244 (2003),
and Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). Cf. Appellants’ Br.
40-41, 43-44. These cases are inapposite. As in Parents Involved, the reason why
the Supreme Court applied strict scrutiny in those cases was that they involved the
allocation of benefits or burdens based on an individualized racial classification.
See Gratz, 539 U.S. at 270; Adarand, 515 U.S. at 224. The Court did not suggest
that strict scrutiny was warranted simply because a governmental entity acted in
furtherance of the goal of promoting equal opportunity in education, employment,
or other contexts. A72-A80.
21
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schools); Keyes v. Sch. Dist. No. 1, 413 U.S. 189, 191-92, 201-02, 204-05 (1973),
aff’g in relevant part Keyes v. Sch. Dist. No. 1, 313 F. Supp. 61, 64-65 (D. Colo.
1970) (finding that the manipulation of student attendance zones and school sites
promoting the values of an integrated school experience.” Keyes, 413 U.S. at 242
The District Court incorrectly assumed that, under Arlington Heights and its
purpose. A79-A80.
and, thus, triggers strict scrutiny. 429 U.S. at 265-68. As the Court explained, a
“sensitive inquiry” is required, which may take into account “such circumstantial
22
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unjustified disparate impact. Id. at 266. Under that standard, however, the Court
concluded that the plaintiffs in Arlington Heights failed to prove that the Village’s
Village was aware that its decision had a clear disparate effect on racial minorities,
race” standard set forth in Arlington Heights in a line of cases reviewing the
these cases, the Supreme Court has consistently made clear that, under Arlington
509 U.S. 630, 646 (1993); see also id. at 643-44 (citing Arlington Heights, 429
U.S. at 266); Miller v. Johnson, 515 U.S. 900, 913-14 (1995) (citing Arlington
Heights, 429 U.S. at 266); see also id. at 916. Justice Kennedy’s concurrence in
Parents Involved expressly invoked this line of cases by quoting the plurality
opinion in Bush v. Vera, 517 U.S. 952 (1996), for the proposition that strict
scrutiny does not reflexively apply “merely because redistricting is performed with
23
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concurring in part and concurring in the judgment) (quoting Vera, 517 U.S. at 958
(plurality opinion)).
Justice Kennedy’s reliance on Vera confirms that Arlington Heights does not
mandate a framework for determining whether strict scrutiny applies that is distinct
from that articulated in Parents Involved. Like state legislatures or local zoning
housing segregation that persist in many parts of this nation. See Miller, 515 U.S.
at 916; see also Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 20-21
alone, to trigger strict scrutiny. Easley v. Cromartie, 532 U.S. 234, 253 (2001);
Heights is fully consistent with the approach drawn from the Columbus and Keyes
24
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racial classification, Arlington Heights counsels that the trigger for strict scrutiny is
rather than the impact of a government actor’s mere consciousness of race. 429
Heights were correct, Justice Kennedy’s binding presumption of validity for non-
2. For the same reason that the District Court erred in interpreting Arlington
Heights, it also misapplied Pryor, 288 F.3d 548. Pryor is the only Third Circuit
precedent cited by the District Court and appellants to support application of strict
scrutiny in this case. A76-A78, A80; Appellants’ Br. 41-43. The District Court
In fact, Pryor held, consistent with Arlington Heights, that only an “invidious
10
Of course, “[c]ontext matters when reviewing race-based governmental
action under the Equal Protection Clause,” Grutter, 539 U.S. at 327, and principles
drawn from zoning and electoral redistricting cases cannot be directly translated to
address challenges to school attendance zones.
11
Notably, however, facially race-neutral measures do trigger strict scrutiny
where they are “an obvious pretext for racial discrimination.” Pers. Adm’r of
Mass. v. Feeney, 442 U.S. 256, 272 (1979).
25
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alleged that the NCAA adopted facially race-neutral eligibility standards at least in
part for the discriminatory purpose of reducing the number of black athletes who
could qualify for scholarships, and not merely in spite of the resulting
(citing Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979)); see also id. at
concurrence, the purpose alleged by the plaintiffs in Pryor was segregative insofar
as it limited eligibility for aspiring college athletes based on their individual racial
backgrounds.
interpreting Parents Involved. In light of these errors, it could be prudent for this
Court to remand so the parties may argue and the District Court may consider, in
the first instance, whether its factual and legal determinations warrant clarification
under the proper constitutional standard of review set forth in Parents Involved. A
26
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Nevertheless, the District Court’s existing findings provide no clear basis for
rejecting the presumption of validity that, under Parents Involved, applies to the
School District’s plan for redrawing school attendance zones. This presumption
provides an alternative basis to affirm the judgment below. If the Court takes this
approach, it need not reach the question of whether the District Court correctly
concluded that the School District’s plan satisfied strict scrutiny because it was
Under Parents Involved, the undisputed fact that the School District never
therefore strict scrutiny should not apply. A69, A72. As the District Court found,
Any racial considerations were made on a general, aggregate level, and students
12
It should be noted, however, that in its application of strict scrutiny, the
District Court clearly erred in cursorily treating the School District’s reliance on
criteria, such as equal-sized student populations and walkability, as “compelling
interests.” A67, A80-A91. These criteria are not among the limited number of
compelling interests, including promoting diversity and reducing racial isolation in
primary and secondary education, that the Supreme Court has recognized. See
Parents Involved, 551 U.S. at 797-98 (Kennedy, J., concurring in part and
concurring in the judgment); see also id. at 865 (Breyer, J., dissenting). Nor
should they be so recognized. If they were elevated to the same level as judicially
recognized interests rooted in the Fourteenth Amendment’s antidiscrimination
mandate, it would be far easier for school districts to justify—and therefore thwart
efforts by amici and others to challenge—intentional segregation and other
invidious discrimination.
27
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were assigned on the basis of their geographic residence rather than their race.13
The findings below are less clear, however, with respect to the question of
all of their students.” Parents Involved, 551 U.S. at 788 (Kennedy, J., concurring
in part and concurring in the judgment). As plaintiffs below, appellants had the
staff and the School Board. A53, A79. Moreover, the District Court found that the
and its “obvious desire for racial diversity in both high schools.” A53; see also
High School. A13. As a result of the challenged student assignment plan, African-
consequences for all students. A50; see Parents Involved, 551 U.S. at 787-88
(Kennedy, J., concurring in part and concurring in the judgment); Grutter, 539
13
The District Court found that African Americans comprised, as of
September 2008, only 140 of the 308 students in kindergarten through grade 12
who lived in South Ardmore, the neighborhood whose rezoning to Harriton High
School precipitated this litigation. A10 n.2.
28
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U.S. at 330-33; supra at 17. Moreover, the School District’s attendance zone
School District’s two high schools are “ranked as being among the best in the state,
The District Court’s suggestion that the School District embraced “racial
parity” might raise concerns, if it were interpreted to mean that the District Court
was unsure whether the School District acted in pursuit of the educational interests
Although seeking racial parity “for its own sake” likely would not trigger the
presumption of validity, see Grutter, 539 U.S. at 330 (citation and quotation marks
omitted), seeking “classrooms that reflect the racial makeup of the surrounding
approach that Parents Involved embraces. 551 U.S. at 782 (Kennedy, J.,
concurring in part and concurring in the judgment). This Court may conclude that
clarification of this issue by the District Court in light of the proper Parents
29
Case: 10-3824 Document: 003110407516 Page: 37 Date Filed: 01/12/2011
CONCLUSION
For the reasons set forth above, the judgment of the District Court should be
s/ Joshua Civin
JOHN PAYTON
DEBO P. ADEGBILE
DAMON T. HEWITT
KIMBERLY LIU
NAACP LEGAL DEFENSE &
EDUCATIONAL FUND, INC.
99 Hudson St., 16th Floor
New York, NY 10013
(212) 965-2200
JOSHUA CIVIN
NAACP LEGAL DEFENSE &
EDUCATIONAL FUND, INC.
1444 I Street, NW, 10th Floor
Washington, DC 20005
(202) 682-1300
Of Counsel:
DENNIS D. PARKER
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street
New York, NY 10004
(212) 549-2500
30
Case: 10-3824 Document: 003110407516 Page: 38 Date Filed: 01/12/2011
WITOLD J. WALCZAK
ACLU OF PENNSYLVANIA
(PA I.D. No. 62976)
313 Atwood Street
Pittsburgh, PA 15213
(412) 681-7864
JOHN C. BRITTAIN
Professor of Law
DAVID A. CLARKE SCHOOL OF LAW
UNIVERSITY OF THE DISTRICT OF
COLUMBIA
4200 Connecticut Avenue, NW
Washington, DC 20008
(832) 687-3007
(institutional affiliation listed for
identification purposes only)
DEREK W. BLACK
Associate Professor of Law
HOWARD UNIVERSITY SCHOOL OF
LAW
2900 Van Ness St., NW
Washington, D.C. 20008
(202) 806-8163
(institutional affiliation listed for
identification purposes only)
JON M. GREENBAUM
BRENDA SHUM
LAWYERS’ COMMITTEE FOR CIVIL
RIGHTS UNDER LAW
1401 New York Avenue, NW
Suite 400
Washington, DC 20005
(202) 662-8600
31
Case: 10-3824 Document: 003110407516 Page: 39 Date Filed: 01/12/2011
Pursuant to Local Rule 28.3(d), I hereby certify that the following attorneys
are members in good standing of the bar of United States Court of Appeals for the
Third Circuit:
Debo P. Adegbile
Kimberly Liu
NAACP Legal Defense &
Educational Fund, Inc.
99 Hudson St., 16th Floor
New York, NY 10013
(212) 965-2200
Joshua Civin
NAACP Legal Defense &
Educational Fund, Inc.
1444 I Street, NW, 10th Floor
Washington, DC 20005
(202) 682-1300
s/ Kimberly Liu
Kimberly Liu
NAACP Legal Defense &
Educational Fund, Inc.
99 Hudson Street, 16th Floor
New York, New York 10013
(212) 965-2200
CERTIFICATE OF COMPLIANCE
31.1(c), I certify that the foregoing Brief of Amici Curiae complies with the type-
contains 6,991 words, excluding the parts of the brief exempted by Federal Rule of
This brief also complies with the typeface requirements of Federal Rule of
Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of
Local Rule 31.1(c) because the text of this electronic brief is identical to the text of
the paper copies. I have also scanned the electronic brief using Symantec
detected.
s/ Kimberly Liu
Kimberly Liu
NAACP Legal Defense &
Educational Fund, Inc.
99 Hudson Street, 16th Floor
New York, New York 10013
(212) 965-2200
Counsel for Amici Curiae
2
Case: 10-3824 Document: 003110407516 Page: 41 Date Filed: 01/12/2011
CERTIFICATE OF SERVICE
I hereby certify that I filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Third Circuit by using the appellate
CM/ECF system on January 12, 2011. I further certify that ten (10) paper copies,
identical to the brief filed electronically, was sent to the Clerk’s Office by Federal
Express.
The following attorneys of record who are registered CM/ECF users were
3
Case: 10-3824 Document: 003110407516 Page: 42 Date Filed: 01/12/2011
I also certify that some of the participants in the case are not registered
CM/ECF users. I have served the foregoing document by Federal Express to the
s/ Kimberly Liu
Kimberly Liu
NAACP Legal Defense &
Educational Fund, Inc.
99 Hudson Street, 16th Floor
New York, New York 10013
(212) 965-2200