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Case: 10-3824 Document: 003110407516 Page: 1 Date Filed: 01/12/2011

No. 10-3824

UNITED STATES COURT OF APPEALS


FOR THE THIRD CIRCUIT

STUDENT DOE 1 et al.,


Plaintiffs-Appellants,
v.
LOWER MERION SCHOOL DISTRICT,
Defendant-Appellee.
_________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
Civ. No. 09-2095
_________
BRIEF OF AMICI CURIAE
NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC.,
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW, AND
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
URGING AFFIRMANCE ON ALTERNATIVE GROUNDS
_________
JOHN PAYTON
Director-Counsel
DEBO P. ADEGBILE
JOSHUA CIVIN * DAMON T. HEWITT
NAACP LEGAL DEFENSE & KIMBERLY LIU
EDUCATIONAL FUND, INC. NAACP LEGAL DEFENSE &
1444 I Street, NW, 10th Floor EDUCATIONAL FUND, INC.
Washington, DC 20005 99 Hudson St., 16th Floor
(202) 682-1300 New York, NY 10013
(212) 965-2200
* Counsel of Record

January 12, 2011 Counsel for the Amici Curiae


Case: 10-3824 Document: 003110407516 Page: 2 Date Filed: 01/12/2011

Of Counsel:

DENNIS D. PARKER JON M. GREENBAUM


AMERICAN CIVIL LIBERTIES UNION BRENDA SHUM
FOUNDATION LAWYERS’ COMMITTEE FOR CIVIL
125 Broad Street RIGHTS UNDER LAW
New York, NY 10004 1401 NEW YORK AVENUE, NW,
(212) 549-2500 SUITE 400
WASHINGTON, DC 20005
WITOLD J. WALCZAK (202) 662-8600
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)
Case: 10-3824 Document: 003110407516 Page: 3 Date Filed: 01/12/2011

CORPORATE DISCLOSURE STATEMENT

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

of disclosure: Each amici is a non-profit 501(c)(3) corporation, is not a publically

held company that issues stock, and has no parent corporation.

s/ Kimberly Liu
Kimberly Liu
NAACP Legal Defense &
Educational Fund, Inc.
99 Hudson Street, 16th Floor
New York, New York 10013
(212) 965-2200

January 12, 2011 Counsel for Amici Curiae


Case: 10-3824 Document: 003110407516 Page: 4 Date Filed: 01/12/2011

TABLE OF CONTENTS

Table of Authorities ................................................................................................. ii

Interests of the Amici................................................................................................1

Introduction and Summary of the Argument............................................................2

Argument...................................................................................................................6

I. Justice Kennedy’s Parents Involved concurrence provides the


controlling standard of constitutional review for this case.............................6

A. Under Parents Involved, race-consciousness in the drawing of


school attendance zones is presumptively valid ..................................7

B. This presumption of validity furthers the equal educational


opportunity mandate of Brown v. Board of Education ..................... 14

II. Justice Kennedy’s controlling concurrence encompasses principles set


forth in prior authority of the Supreme Court and this Court...................... 18

A. Nothing in Parents Involved prevents application of strict


scrutiny where there is evidence of segregative intent ..................... 20

B. Arlington Heights does not require strict scrutiny simply


because a school district considers neighborhood racial
demographics..................................................................................... 22

III. The District Court’s findings provide no clear ground to disregard


Parents Involved’s presumption of validity, but a remand could be
prudent to allow the District Court to clarify the facts in light of the
proper legal standard.................................................................................... 26

Conclusion ............................................................................................................. 30

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TABLE OF AUTHORITIES

Cases

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)......................................21

American Civil Rights Foundation v. Berkeley Unified School District,


172 Cal. App. 4th 207 (Cal. Ct. App. 2009) .................................................. 16-17

Board of Education of Oklahoma City Public Schools v. Dowell, 498


U.S. 237 (1991) ....................................................................................................18

Brown v. Board of Education, 347 U.S. 483 (1954)........................................ passim

Bush v. Vera, 517 U.S. 952 (1996) .................................................................... 23-24

Citizens for Better Education v. Goose Creek Consolidated Independent


School District, 719 S.W.2d 350 (Tex. App. 1986) ....................................... 11-12

City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) ....................................14

Columbus Board of Education v. Penick, 443 U.S. 449 (1979) ..............................21

Doe 1 v. Lower Merion School District, 689 F. Supp. 2d 742 (E.D. Pa.
2010) .......................................................................................................................9

Easley v. Cromartie, 532 U.S. 234 (2001)...............................................................24

Gratz v. Bollinger, 539 U.S. 244 (2003)..................................................................21

Grutter v. Bollinger, 539 U.S. 306 (2003)....................................................... passim

Johnson v. California, 543 U.S. 499 (2005)............................................................14

Keyes v. School District No. 1, 413 U.S. 189 (1973) ..............................................22

Keyes v. School District No. 1, 313 F. Supp. 61 (D. Colo. 1970) ...........................22

Marks v. United States, 430 U.S. 188 (1977) ......................................................9, 10

Miller v. Johnson, 515 U.S. 900 (1995).............................................................23, 24

Panetti v. Quarterman, 551 U.S. 930 (2007).............................................................9

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Parents Involved in Community Schools v. Seattle School District No. 1,


551 U.S. 701 (2007) ..................................................................................... passim

Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979) ....25, 26

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833


(1992)....................................................................................................................10

Planned Parenthood of Southeastern Pennsylvania v. Casey, 947 F.2d 682


(3d Cir. 1991) .......................................................................................................10

Pryor v. NCAA, 288 F.3d 548 (3rd Cir. 2002).............................................19, 25, 26

Rappa v. New Castle County, 18 F.3d 1043 (3d Cir. 1994) ....................................10

Shaw v. Reno, 509 U.S. 630 (1993) .........................................................................23

Smith v. University of Washington, Law School, 233 F.3d 1188 (9th Cir.
2000) .....................................................................................................................10

Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971).............24

Tometz v. Board of Education, 237 N.E. 2d 498 (Ill. 1968).............................. 11-12

Village of Arlington Heights v. Metropolitan Housing Development Corp.,


429 U.S. 252 (1977) ..................................................................................... passim

Statutes and Constitutional Provisions

No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat.
1425 ......................................................................................................................14

Cal. Const., art. 1, § 31, subdiv. (a) ................................................................... 16-17

Other Authorities

Douglas S. Massey & Mary J. Fischer, The Effect of Childhood


Segregation on Minority Academic Performance in Selective
Colleges, 29 Ethnic & Racial Stud. 1 (2006) .......................................................17

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National Academy of Education, Race-Conscious Policies for


Assigning Students to Schools: Social Science Research and the
Supreme Court Cases (2007) ...............................................................................17

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

Elizabeth Stearns, Long-Term Correlates of High School Racial


Composition, 112 Teachers Coll. Rec. 1654 (2010) ............................................17

Transcript of Oral Argument, Ricci v. DeStefano, 129 S. Ct. 2658


(2009) (No. 07-1428)............................................................................................12

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 (Sheri
R. Levy & Melanie Killen eds., 2008) .................................................................17

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INTERESTS OF THE AMICI

Amici are the 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). Pursuant to Federal Rule of

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.

LDF is a non-profit legal organization that has litigated numerous landmark

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

(2007); Grutter v. Bollinger, 539 U.S. 306 (2003).

The Lawyers’ Committee is a tax-exempt, nonprofit civil rights organization

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
Case: 10-3824 Document: 003110407516 Page: 9 Date Filed: 01/12/2011

laws related to equal educational opportunity. The Lawyers’ Committee also

engages in litigation and public policy advocacy to ensure diversity in education.

The ACLU is a nationwide, nonprofit, nonpartisan organization with more

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

principles, the ACLU has appeared in numerous cases involving educational

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

more than 16,000 members.

INTRODUCTION AND SUMMARY OF THE ARGUMENT

There are two key facts in this case: First, the student assignment plan

adopted by Lower Merion School District (hereinafter “the School District”) is

facially race-neutral because it does not allocate benefits or burdens based on

explicit racial classifications of individual students. Rather, students are assigned

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

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demographics of affected neighborhoods, and the School Board approved the

resulting plan, including the rezoning of students from South Ardmore—a

neighborhood with a large but not exclusively African-American population—to

attend Harriton High School, which previously had low African-American

enrollment. Significantly, however, all students in each attendance zone receive

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

School District’s “mere consideration” of neighborhood racial demographics.

A67; accord A80. The District Court failed to appreciate that Justice Kennedy’s

pivotal concurrence in Parents Involved in Community Schools v. Seattle School

District No. 1, 551 U.S. 701 (2007), establishes the governing legal standard of

constitutional review. School authorities’ consideration of neighborhood racial

demographics at the aggregate level when drawing school attendance zones is

precisely the type of non-individualized, race-conscious decision-making that

Justice Kennedy expressly identified as presumptively valid and, thus, “unlikely

. . . [to] demand strict scrutiny to be found permissible.” Id. at 789 (Kennedy, J.,

concurring in part and concurring in the judgment). Because Justice Kennedy’s

1
Amici cite to the appendix to appellants’ brief as “A__.”

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Parents Involved concurrence is controlling on this point, it was inappropriate for

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

Parents Involved’s governing standard.

Regardless of the outcome of this case, amici’s overriding interest is to urge

this Court to give effect to Justice Kennedy’s controlling concurrence in Parents

Involved. To do otherwise would unnecessarily restrict school districts, parents,

and advocates from working to redeem the promise of high-quality, racially

inclusive schools for all students—a commitment unanimously embraced by the

Supreme Court in Brown v. Board of Education, 347 U.S. 483 (1954).

Justice Kennedy’s concurrence in Parents Involved draws heavily upon

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

communities, the “problem of de facto resegregation in schooling” makes it

challenging to fulfill this obligation. Id. at 788. As Justice Kennedy emphasized,

the Constitution does not tie the hands of school authorities who “are concerned

that the student-body compositions of certain schools interfere with [Brown’s]

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objective of offering an equal educational opportunity to all of their students.” Id.

at 788. Rather, school authorities “are free to devise race-conscious measures to

address the problem in a general way . . . [such as] drawing attendance zones with

general recognition of the demographics of neighborhoods.” Id. at 788-89.

As in this case, school attendance boundaries consistently are matters of

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

automatically trigger the most rigorous level of constitutional review. To the

contrary, under Parents Involved, strict scrutiny is not applicable unless a plaintiff

demonstrates distinctive circumstances—such as a segregative purpose—that

provide grounds for overcoming the presumptive validity of non-individualized

race-consciousness in drawing school attendance zones. It is this threshold legal

inquiry that the District Court overlooked.

The District Court’s judgment in favor of the School District could be

affirmed on this alternative basis: Parents Involved’s presumption of validity

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.

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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

inconsistencies in its factual findings under the proper legal standard.

ARGUMENT

I. Justice Kennedy’s Parents Involved concurrence provides the


controlling standard of constitutional review for this case.

Appellants contend that Parents Involved compels application of strict

scrutiny whenever there is any consideration of race in school authorities’

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

classifications,” A72 (emphasis added). The District Court failed to recognize,

however, that Justice Kennedy’s Parents Involved concurrence also provides a

different controlling standard of review for this case: It establishes a presumption

of validity where, as here, a court reviews the constitutionality of non-

individualized race-consciousness in the drawing of school attendance zones. This

approach provides school districts with a limited degree of latitude to pursue

Brown’s objective of racially inclusive, high-quality education.

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A. Under Parents Involved, race-consciousness in the drawing of


school attendance zones is presumptively valid.

In Parents Involved, the salient feature of the student assignment plans

adopted by the school districts of Seattle, Washington, and Jefferson County,

Kentucky, was consideration of individual students’ race as one factor in

determining whether to approve their requests for assignments to particular

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

individual student to a particular school based explicitly on his or her racial

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

rel[ied] upon that classification in making school assignments.” Id. at 711.

Applying this heightened standard of review, these five Justices further agreed that

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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).

Justice Kennedy, however, was unwilling to go so far as to require strict

scrutiny for all race-conscious decision-making by school districts. He expressly

distinguished the individualized racial classifications utilized in Seattle’s and

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

each student he or she is to be defined by race.” Id. at 789 (Kennedy, J.,

concurring in part and concurring in the judgment). Of particular relevance to this

case, in defining the latter category, Justice Kennedy listed several examples of

mechanisms routinely used by school districts seeking to promote racial

integration, including “drawing attendance zones with general recognition of the

demographics of neighborhoods.” Id.3

This distinction is significant because it determines the appropriate standard

of constitutional review for the student assignment plan now before this Court.

Justice Kennedy thought it “unlikely” that drawing attendance zones with general

recognition of neighborhood racial demographics, or any of the other race-

conscious mechanisms that he enumerated, “would demand strict scrutiny to be


3
The four other examples identified by Justice Kennedy were: (1) “strategic
site selection of new schools”; (2) “allocating resources for special programs”; (3)
“recruiting students and faculty in a targeted fashion”; and (4) “tracking
enrollments, performance, and other statistics by race.” Id.

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found permissible.” Id. at 789. Rather, these race-conscious mechanisms warrant

what amounts to a presumption of validity:

If school authorities are concerned that the student-body compositions


of certain schools interfere with the objective of offering an equal
educational opportunity to all of their students, they are free to devise
race-conscious measures to address the problem in a general way and
without treating each student in a different fashion solely on the basis
of a systematic, individual typing by race.

Id. at 788-89 (emphasis added). By contrast, “[a]ssigning to each student a

personal designation according to a crude system of individual racial

classifications is quite a different matter; and the legal analysis changes

accordingly.” Id. at 789. Because of the “presumptive invalidity of a State’s use

of racial classifications to differentiate its treatment of individuals,” strict scrutiny

automatically applies. Id. at 793.

2. The District Court in this case declined to analyze Justice Kennedy’s

concurrence under the prevailing approach for interpreting “fragmented” Supreme

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

recognize that Justice Kennedy’s presumption of validity is controlling because it

garnered the votes of the four dissenting Justices. A92; Doe 1 v. Lower Merion

Sch. Dist., 689 F. Supp. 2d 742, 751 (E.D. Pa. 2010).

Applying Marks, this Court has held that “[w]here a Justice or Justices

concurring in the judgment . . . articulates a legal standard which, when applied,

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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

then-existing Supreme Court would apply strict scrutiny review to abortion

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

race-conscious measures that do not utilize individual racial classifications are

presumptively valid. Parents Involved, 551 U.S. at 837 (Breyer, J., dissenting).

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Indeed, the dissenting Justices would have gone further and applied a more

permissive analysis to a much broader array of measures that seek racially

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

Parents Involved supported Justice Kennedy’s analysis of general race-conscious

policymaking by school authorities that does not allocate burdens or benefits based

on individualized racial classifications; accordingly, his opinion on that subject

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

individualized racial classifications utilized by Seattle and Jefferson County, on the

one hand, and “race-consciousness in drawing school attendance boundaries,” on

the other; the latter, in the Chief Justice’s view, presented “an issue well beyond

the scope of the question presented.” Id. at 738.

Moreover, the Chief Justice expressly distinguished two cases in which state

courts in Illinois and Texas, respectively, applied rational-basis review to uphold

“race-consciousness in drawing school attendance boundaries.” Id. at 738-39; see

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Tometz v. Bd. of Educ., 237 N.E.2d 498, 499, 502-503 (Ill. 1968) (upholding as

reasonable Illinois’s requirement that school boards “take into consideration”

reduction of de facto racial segregation when drawing school attendance

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

discretionary powers to formulate and implement educational policy and may

properly decide to ensure to their students the value of an integrated school

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

issue here. Parents Involved, 551 U.S. at 738 (plurality opinion).4

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

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A presumption of validity for non-individualized race consciousness is also

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-

faith consideration to facially race-neutral alternatives before adopting measures

that allocate benefits or burdens based on individualized racial classifications. See

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-

neutral alternatives. . . .”).

Under the Supreme Court’s jurisprudence, a student assignment mechanism

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).

If such facially race-neutral mechanisms triggered strict scrutiny simply because

they were adopted in pursuit of a race-conscious goal, the well-established narrow-

tailoring analysis would be internally inconsistent and impossible to satisfy. The

very act of giving good-faith consideration to facially race-neutral alternatives

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.

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requires school authorities to evaluate whether those alternatives are effective at

achieving the intended race-conscious goal. See Grutter, 539 U.S. at 339-40.5

B. This presumption of validity furthers the equal educational


opportunity mandate of Brown v. Board of Education.

Parents Involved’s controlling distinction between individualized racial

classifications and non-individualized race-consciousness is not “a distinction that

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).

Thus, Justice Kennedy deemed non-individualized race-consciousness a preferable

approach in pursuit of Brown’s objective of high-quality, racially inclusive

education for all students.

1. Individualized racial classifications trigger strict scrutiny because they

“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

classifications “command people to march in different directions based on racial


5
Moreover, if strict scrutiny applies to all facially race-neutral measures that
are designed in part to further race-conscious objectives, it could jeopardize
government action, for example, to address achievement gaps between African
Americans and other students. See No Child Left Behind Act of 2001, Pub. L. No.
107-110, 115 Stat. 1425 (codified as amended in scattered sections of 20 U.S.C.).
Even Justices who have largely rejected any use of race to confer or deny
individual benefits have not gone so far as to bar facially race-neutral measures to
dismantle structural barriers to equal opportunity. See, e.g., City of Richmond v.
J.A. Croson Co., 488 U.S. 469, 526 (1989) (Scalia, J., concurring in the judgment).

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

concurring in the judgment). By contrast, “[r]ace-conscious measures that do not

rely on differential treatment based on individual classifications” are less

problematic because “the same ends are achieved by more indirect means.” Id.

2. Equally significant, Parents Involved’s binding presumption of validity

for non-individualized race-consciousness provides school authorities a limited

degree of latitude to further the objectives of Brown. Justice Kennedy recognized

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

the increasing “problem of de facto resegregation,” and impede realization of

“Brown’s objective of equal educational opportunity.” Id. at 787, 788. Although

“[t]he enduring hope is that race should not matter; the reality is that too often it

does” in determining whether students have access to high-quality schools and

classrooms. Id. at 787.

Moreover, as Brown proclaimed and Parents Involved reaffirmed, one of the

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

the surrounding community.” Id.

The challenges are particularly salient in communities with strong patterns

of residential segregation. “Due to a variety of factors—some influenced by

government, some not—neighborhoods in our communities do not reflect the

diversity of our Nation as a whole.” Id. at 798; accord A53. Recognizing these

trends, school authorities have voluntarily employed a variety of integration

methods to help realize Brown’s promise of equal educational opportunity. To the

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

Future: Voluntary K-12 Integration, A Manual for Parents, Educators, &

Advocates (2008) (describing examples from across the country of facially race-

neutral student assignment plans intended to achieve integration).6

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

from efforts to produce integrated educational settings. See, e.g., National

Academy of Education, Race-Conscious Policies for Assigning Students to

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,

539 U.S. at 324 (internal quotations and citations omitted).

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

status quo of racial isolation in schools, it is, in my view, profoundly mistaken.”

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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in the judgment). As Justice Kennedy recognized, if strict scrutiny invariably

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

taking any voluntary action to redeem Brown’s promise:

Executive and legislative branches, which for generations now have


considered these types of policies and procedures, should be permitted
to employ them with candor and with confidence that a constitutional
violation does not occur whenever a decisionmaker considers the
impact a given approach might have on students of different races.

Id. at 789.

Thus, Parents Involved’s presumption of validity helps ensure that “[t]hose

entrusted with directing our public schools can bring to bear the creativity of

experts, parents, administrators, and other concerned citizens” to “continu[e] the

important work of bringing together students of different racial, ethnic, and

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

allows citizens to participate in decisionmaking, and allows innovation so that

school programs can fit local needs.”).

II. Justice Kennedy’s controlling concurrence encompasses principles set


forth in prior authority of the Supreme Court and this Court.

Instead of following the controlling framework set forth in Parents Involved,

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

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Court’s application of Arlington Heights five years before Parents Involved in

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

School District considered neighborhood racial demographics, among other

factors, when it rezoned students from South Ardmore to attend Harriton High

School. A92; see also A67, A79-A80.

The District Court not only misinterpreted Arlington Heights and its

progeny, but it also misunderstood the relationship between Parents Involved and

prior cases regarding race-conscious government decision-making. Sensitive to

concerns such as those raised by appellants in this case, Justice Kennedy’s

concurrence does not rule out strict scrutiny for all non-individualized race-

conscious decision-making by school authorities. But this rigorous review is

warranted only if a plaintiff demonstrates special circumstances—such as

segregative intent—that warrant overcoming the presumption of validity; mere

consciousness of neighborhood racial demographics is alone insufficient. Parents

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

motivated by segregative intent or an otherwise invidious discriminatory purpose.

A. Nothing in Parents Involved prevents application of strict scrutiny


where there is evidence of segregative intent.

Justice Kennedy’s controlling concurrence made clear that the presumption

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

if a plaintiff demonstrates that a school district intentionally took non-

individualized, race-conscious actions for the purpose of segregating students, or

otherwise discriminatorily denying them access to educational opportunity, based

on their race. This principle flows directly from Brown, where the Court held that

segregative intent per se is constitutionally suspect. 347 U.S. at 493, 495.

Following Brown, subsequent decisions leading up to and including Parents

Involved have reaffirmed that an intention to foster racial integration is not

similarly suspect under the Equal Protection Clause. Rather, as Justice Kennedy

made clear in Parents Involved, a school district’s race-conscious decision-making

with the intent to ensure that its “classrooms . . . reflect the racial makeup of the

surrounding community” can help further Brown’s objective of equal educational

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

consideration for the discriminatory purpose of segregating students or denying

educational opportunity based on their race are contrary to, and undermine,

Brown’s objective. See id. at 835 (Breyer, J. dissenting) (distinguishing between

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

benefits or burdens based on individualized racial classifications), those actions

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,

455, 461-63 (1979) (upholding a finding of unconstitutional segregation where a

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.

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school board racially gerrymandered attendance zones to create segregated

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

created or maintained segregated schools in violation of the Constitution). But

“[n]othing” in these cases “is meant to discourage school boards from . . .

promoting the values of an integrated school experience.” Keyes, 413 U.S. at 242

(Powell, J., concurring in part, dissenting in part).

B. Arlington Heights does not require strict scrutiny simply because


a school district considers neighborhood racial demographics.

The District Court incorrectly assumed that, under Arlington Heights and its

Third Circuit progeny, a school district triggers strict scrutiny by shifting a

neighborhood to a different school attendance zone, based in part on consideration

of the neighborhood’s racial demographics at the aggregate level—even where, as

here, there is no finding of segregative intent or any other invidious discriminatory

purpose. A79-A80.

1. In Arlington Heights, the Supreme Court provided guidance for how to

go about unearthing whether a facially race-neutral government action is, in fact,

motivated by segregative intent or an otherwise “invidious discriminatory purpose”

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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and direct evidence of intent as may be available,” including evidence of

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

decision to prohibit construction of low- and moderate-income housing was

motivated by an invidious discriminatory purpose. Id. at 270-71. Even though the

Village was aware that its decision had a clear disparate effect on racial minorities,

it was not “unexplainable on grounds other than race.” Id. at 266.

The Supreme Court elaborated on the “unexplainable on grounds other than

race” standard set forth in Arlington Heights in a line of cases reviewing the

constitutionality of state legislative efforts to expand political opportunities for

racial minorities through the creation of majority-minority electoral districts. In

these cases, the Supreme Court has consistently made clear that, under Arlington

Heights, not all race-conscious government decision-making is equivalent to

“impermissible racial discrimination” that triggers strict scrutiny. Shaw v. Reno,

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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consciousness of race.” Parents Involved, 551 U.S. at 789 (Kennedy, J.,

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

authorities, school authorities “will . . . almost always be aware of racial

demographics” in the communities they serve, especially in light of patterns of

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

(1971) (describing the reciprocal influence of school location and neighborhood

racial composition). But general consciousness of community racial

demographics, or even consideration of “racial balance,” is insufficient, standing

alone, to trigger strict scrutiny. Easley v. Cromartie, 532 U.S. 234, 253 (2001);

Miller, 515 U.S. at 916.

As clarified by the subsequent line of electoral redistricting cases, Arlington

Heights is fully consistent with the approach drawn from the Columbus and Keyes

line of cases, discussed supra at 21-22, for determining whether special

circumstances warrant overcoming the presumptive validity of non-individualized

24
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race-conscious decision-making by school authorities.10 Absent an individualized

racial classification, Arlington Heights counsels that the trigger for strict scrutiny is

evidence of segregative intent or an otherwise invidious discriminatory purpose—

rather than the impact of a government actor’s mere consciousness of race. 429

U.S. at 264-66.11 If the District Court’s contrary interpretation of Arlington

Heights were correct, Justice Kennedy’s binding presumption of validity for non-

individualized race-consciousness effectively would be nullified.

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

misunderstood Pryor as holding that if race-consciousness per se is a motivating

factor in a school district’s decision-making, strict scrutiny is triggered. A77, A80.

In fact, Pryor held, consistent with Arlington Heights, that only an “invidious

discriminatory purpose” triggers strict scrutiny. Pryor, 288 F.3d at 562-63

(quoting Arlington Heights, 429 U.S. at 266).

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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In Pryor, the plaintiffs survived a motion to dismiss because their complaint

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

disproportionate reduction in scholarships awarded to black athletes. Id. at 562

(citing Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979)); see also id. at

567. In contrast to the integrative goals of the types of non-individualized race-

conscious decision-making endorsed by Justice Kennedy in his Parents Involved

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.

III. The District Court’s findings provide no clear ground to disregard


Parents Involved’s presumption of validity, but a remand could be
prudent to allow the District Court to clarify the facts in light of the
proper legal standard.

Amici’s primary concern is to expose the District Court’s errors in

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

remand could be particularly helpful in light of certain inconsistencies in the

District Court’s findings.

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

narrowly tailored to serve a compelling interest.12

Under Parents Involved, the undisputed fact that the School District never

employed individualized racial classifications in its redistricting process is critical

in establishing a presumption that the process was constitutionally valid and

therefore strict scrutiny should not apply. A69, A72. As the District Court found,

students were not identified or accorded differential treatment on a racial basis.

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

whether the School District considered neighborhood racial demographics in

furtherance of Brown’s “objective of offering an equal educational opportunity to

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

burden to prove otherwise.

The District Court expressly “reject[ed] any allegations of invidious

discrimination or hostility toward African-American students” by School District

staff and the School Board. A53, A79. Moreover, the District Court found that the

factors motivating the District Administration included reducing racial isolation

and its “obvious desire for racial diversity in both high schools.” A53; see also

A91. Prior to redistricting, low numbers of African Americans attended Harriton

High School. A13. As a result of the challenged student assignment plan, African-

American enrollment has increased at Harriton and therefore reduced racial

isolation at that school—an outcome which should have beneficial educational

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

changes did not involve reassignment of African-American students to schools

regarded as ineffective or inferior in the community. A81. To the contrary, the

School District’s two high schools are “ranked as being among the best in the state,

if not the nation.” A6.

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

furthered by racially integrated educational environments. A3, A53-A54.

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

community” in order to achieve the benefits of integration is precisely the

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

Involved standard would be beneficial to support its judgment.

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CONCLUSION

For the reasons set forth above, the judgment of the District Court should be

affirmed on alternative grounds or remanded for further consideration under the

applicable legal standard set forth in Parents Involved.

Dated: January 12, 2011 Respectfully submitted,

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

Counsel for the Amici Curiae

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

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Case: 10-3824 Document: 003110407516 Page: 39 Date Filed: 01/12/2011

CERTIFICATE OF BAR MEMBERSHIP


PURSUANT TO L.A.R. 28.3(D)

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

Counsel for Amici Curiae


Case: 10-3824 Document: 003110407516 Page: 40 Date Filed: 01/12/2011

CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C) and Local Rule

31.1(c), I certify that the foregoing Brief of Amici Curiae complies with the type-

volume limitation of Federal Rule of Appellate Procedure 32(a)(7)(B) because it

contains 6,991 words, excluding the parts of the brief exempted by Federal Rule of

Appellate Procedure 32(a)(7)(B)(iii).

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

Appellate Procedure 32(a)(6) because this brief has been prepared in a

proportionally spaced typeface using Microsoft Office Word 2003 in 14-point

Times New Roman font.

Furthermore, this brief complies with the electronic filing requirements 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

Antivirus Endpoint Protection Version 11.06005.562, and no viruses have been

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

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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

served by the appellate CM/ECF system:

David G. C. Arnold Christopher M. Arfaa


Suite 106 Suite F-200
920 Matsonford Road 150 North Radnor Chester Road
West Conshohocken, PA 19428 Radnor, PA 19087
Attorney for Appellants Attorney for Amicus Appellant

Judith E. Harris Mark L. Gross


Morgan, Lewis & Bokius LLP Erin H. Flynn
1701 Market Street U.S. Department of Justice
Philadelphia, Pennsylvania 19103 Civil Rights Division
Attorney for Appellee (Appellate Section)
Ben Franklin Station
P.O. Box 144403
Washington, D.C. 20044-4403
Attorney for Amicus Appellee

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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

following non-CM/ECF participants:

Christina J.F. Grese, Esq.


Allison N. Suflas, Esq.
Morgan, Lewis & Bockius
1701 Market Street
Philadelphia, PA 19103-0000

Kenneth A. Roos, Esq.


Megan E. Shafer, Esq.
Wisler, Pearlstine, Talone, Craig,
Garrity & Potash
484 Norristown Road, Suite 100
Blue Bell, PA 19422-0000

Attorneys for Appellee

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