The opinion of the court was delivered by: Baylson, J.
MEMORANDUM ON CONCLUSIONS OF LAW
I. Introduction and Summary
Plaintiffs Students Doe 1 through 9 ("Students") are African--American students who live in Lower Merion School District ("District"), which is a government subdivision of a township located in Montgomery County, Pennsylvania. The Students, by and through Parents/Guardians Doe 1 through 10 (collectively with Students, "Plaintiffs"), allege that the District discriminated against them based on their race, by adopting a redistricting plan in January 2009, Plan 3R, that took away their ability to choose to attend either of the District's high schools, Harriton and Lower Merion, and required them to attend Harriton High School. In particular, Plaintiffs allege that the District violated the Equal Protection Clause of the Fourteenth Amendment (Count I), 42 U.S.C. § 1981 (Count II), and Title VI of the Civil Rights Act, 42 U.S.C. § 2000d et seq. (Count III), all pursuant to 42 U.S.C. § 1983, by discriminating against the Students based on their race. Plaintiffs live in what has been referred to throughout trial as the "Affected Area," a neighborhood that undisputedly contains one of the highest concentrations of African--American students in the District.*fn1
On May 13, 2010, following a nine--day bench trial (Docket Nos. 89--94, 97--104),*fn2 the Court made detailed findings of fact. Doe v. Lower Merion Sch. Dist., No. 09-2095, 2010 WL 1956585 (E.D. Pa. May 13, 2010) ("Doe II"). Subsequently, the parties submitted further briefing on the legal issues stemming from the findings of fact (Docket Nos. 117--118), and on June 9, 2010, the Court held a hearing respecting such briefing (Docket No. 119). Following the hearing, Plaintiffs submitted supplemental briefing. (Docket No. 120.) For the reasons that follow, the Court has concluded that the District did not violate the Equal Protection Clause, 42 U.S.C. § 1981, or Title VI of the Civil Rights Act, and thus, that judgment should be entered in favor of the District.
The task of running a populous township's school system composed of two high schools, two middle schools, and six elementary schools, is not one in which a federal district judge should interfere unless there is an overriding constitutional issue. Nevertheless, discrimination against any individual because of race or any other protected classification is illegal, and a judge has a high responsibility to act once proof of discrimination has been presented. This case requires the Court to balance these competing interests in deciding whether the redistricting of a geographic area due to its racial makeup violates the Equal Protection Clause and requires judicial action contrary to the school district's assignment plan.
Although Congress and the Supreme Court have unequivocally prohibited public officials from discriminating on the basis of individual racial classifications in distributing benefits or burdens, neither has determined that adverse impact alone is unconstitutional. This principle must be evaluated in the context of this Court's factual findings, particularly that the District did not invidiously discriminate against any individual student because of his or her race, but instead "targeted" the Plaintiffs' neighborhood for redistricting to Harriton High School, in part because that community has one of the highest concentrations of African--American students in the District.
Neither the parties' briefs nor this Court's substantial research disclose another school redistricting case in which such neighborhood "targeting" played a role in school assignments, and a court adjudicated the constitutionality of the overall redistricting scheme in light of such "targeting." In this sense, the current case is novel.
In a democracy, choices are necessarily limited, but the nature of the freedom in question affects the validity of a restriction on choice. For example, because we give paramount protection to freedom of speech, freedom of press, and freedom of religion under the First Amendment, courts will not generally tolerate denials of an individual's choice of what to say or print, or whether or how to pray. The same is not true of a student's choice of high school, which is not a fundamental right, but is protected by the Equal Protection Clause, which does not permit school districts to burden students by depriving them of such choice on the basis of impermissible classifications. However, common sense teaches that school assignments are and should be related to where students live, because proximity between home and school has many positive social and educational benefits.
A court must protect a member of a minority group from the denial of a right guaranteed by the Constitution. Our recent constitutional history clearly demonstrates that racial discrimination is not tolerated. Some Supreme Court decisions that have dealt with allegations of discrimination in the educational context have applied "strict scrutiny" to review decisions in which racial considerations have played a role, thereby requiring a school district to show that redistricting is "narrowly tailored" to "compelling" state interests. Other Supreme Court cases not involving any individual racial discrimination, however, have applied less exacting levels of scrutiny.
A basic principle underlying this case is that pure "racial balancing" at the high school level, standing alone, would be improper, but that considering racial demographics alongside numerous race--neutral, valid educational interests-similar to the goal of achieving general diversity in higher education admissions programs, with reference to multiple factors such as race, gender, economic background, religion, and other individual characteristics-has never been held unconstitutional.
If strict scrutiny applies to this case, the Court must determine whether the inclusion of a particular geographic area due to its racial makeup violates the Equal Protection Clause, or whether the District has shown that the same redistricting plan would have been adopted absent such a concentration of African--American students. This is not a case in which a particular student has been provided a lesser education than his or her peers due to race, nor does the case involve the busing of students as a necessary measure to remedy previously segregated schools, or the denial of access to a particular educational program, course of study, or other educational resource. Rather, the question presented by this case is whether the Students have been burdened in a manner that offends the Equal Protection Clause by being deprived of their choice to attend a particular high school, because they live in a neighborhood assigned to Harriton High School due to its high concentration of African--American students, when the evidence shows that both high schools are excellent and offer outstanding opportunities,*fn3 and that all students in Plaintiffs' neighborhood, a majority of whom are not African--American, are similarly burdened.
Applying strict scrutiny to these facts, the Court concludes that the District has satisfied its burden of showing that Plan 3R was narrowly tailored to meet numerous race--neutral compelling interests-namely, having two equally sized high schools, minimizing travel time and costs, maintaining educational continuity, and fostering students' ability to walk to school. The District's mere consideration of the racial demographics of Plaintiffs' neighborhood does not warrant an opposite conclusion under existing Supreme Court or Third Circuit precedent. Thus, Plaintiffs are not entitled to relief.
A. Appropriate Level of Scrutiny
Before determining whether the District's actions comport with the Equal Protection Clause, the Court must first determine the appropriate level of scrutiny for evaluating the constitutionality of the District's adoption of Plan 3R. As this Court has previously explained, the differences between the levels of scrutiny-strict scrutiny, intermediate scrutiny, and rational basis review-are not merely rhetorical. See Doe v. Lower Merion Sch. Dist., 689 F. Supp. 2d. 742, 747--48 (E.D. Pa. 2010) ("Doe I") (explaining the standards under, and the effects of, each level of scrutiny). In many cases, whether a given governmental action is found to be constitutional will hinge upon the operative level of scrutiny. That said, in cases applying strict scrutiny to educational policies involving race, the Supreme Court has repeatedly clarified that "'[s]trict scrutiny is not strict in theory, but fatal in fact. Although all governmental uses of race are subject to strict scrutiny, not all are invalidated by it.'" Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 833 (2007) ("Seattle") (quoting Grutter v. Bollinger, 539 U.S. 306 (2003) (internal quotation marks and alterations omitted)).
1. Supreme Court Cases Applying Strict Scrutiny
Turning first to the most stringent of the levels of scrutiny, strict scrutiny, Plaintiffs have asserted that Supreme Court precedent requires such searching scrutiny in the present case. As explained below, the Supreme Court cases relied upon by Plaintiffs are distinguishable, indicating that strict scrutiny may not be the operative standard to evaluate the constitutionality of the District's January 2009 redistricting.
Throughout this case, the parties have vigorously disputed whether this case is governed by Seattle, in which the Supreme Court concluded that school districts in Seattle and Louisville violated the Equal Protection Clause by using a student's race to determine what high school he or she would attend.*fn4 Seattle sheds significant light on what level of scrutiny the District must withstand, because it is the only Supreme Court case involving high school student placement that Plaintiffs have cited in support of their position that strict scrutiny applies, and the only recent Supreme Court case respecting the use of race in placing high school students.
The parties agree that in contrast to the student assignment plans at issue in Seattle, which assigned students to high schools based on individual racial classifications, the District assigned students to either Harriton High School or Lower Merion High School by neighborhood. (Pls.' Supp. Post--Trial Br. 2, Def.'s Post--Trial Br. 2); see also Doe II, 2010 WL 1956585, at *27. Plaintiffs, however, argue that this distinction "should not deter the Court from applying strict scrutiny" (Pls.' Supp. Post--Trial Br. 2), because Seattle "presents the exact same legal issue as this case," and numerous factual similarities between Seattle and this case remain (Pls.' Post--Trial Br. 2). The District disagrees, contending that the fact that Seattle, unlike the case at hand, does not involve individualized assignments, indicates that Seattle is "factually inapposite." (Def's Post--Trial Br. 2-4.) The District, moreover, avers that because the Seattle majority "did not rule out any and all consideration of race," Seattle neither prohibits the redistricting at issue in this case nor requires that strict scrutiny be applied. (Def.'s Post--Trial Br. 2--4.)
If the Seattle Court had not emphasized that the student placements at issue in the case used "individual racial classifications," Plaintiffs would have a stronger argument that the lack of individualized student assignments in this case does not preclude application of Seattle's strict scrutiny standard. Chief Justice Roberts's opinion for the majority of the Seattle Court, however, repeatedly focused upon the school districts' use of individual racial classifications in determining that the student placement plans at issue in Seattle were unconstitutional. Chief Justice Roberts emphasized that both the Seattle and Louisville plans individually assigned students on the basis of race in his initial description of the underlying student placement plans: "In each case, the school district relies upon an individual student's race in assigning that student to a particular school, so that the racial balance at the school falls within a predetermine range based on the racial composition of the school district as a whole." Seattle, 551 U.S. at 710 (emphasis added). Specifically, for the Seattle schools, "the racial composition of the particular school and the race of the individual student" constituted the second in a series of "tiebreakers" that determined who would fill the open slots at an oversubscribed school, while the Louisville schools evaluated whether to place a student at a nonmagnet schools based in part on whether the student's race would violate the school's compliance with the "racial guidelines" requiring such schools to maintain a black student enrollment of between fifteen and fifty percent. Id. at 710, 716.
In proceeding with its legal analysis, the Seattle majority continued to focus upon the school districts' use of individual racial classifications. Chief Justice Roberts began the constitutional analysis by observing that "[i]t is well established that when the government distributes burdens or benefits on the basis of individual racial classifications, that action is reviewed under strict scrutiny," and thus, "the school districts must demonstrate that the use of individual racial classifications in the assignment plans... is narrowly tailored." Id. at 720 (internal quotation marks omitted) (emphasis added). The Seattle majority then rejected the districts' assertion "that the way in which they have employed individual racial classifications is necessary to achieve their stated ends." Id. at 733 (emphasis added).
Notably, in contrast to the majority's continual focus upon individual racial classifications, the sole section of Chief Justice Roberts's opinion indicating that school districts cannot use race generally in order to obtain a racially diverse proportional student body, Part III.B, represented the views of only four Justices-Chief Justice Roberts, and Justices Scalia, Thomas, and Alito. Justice Kennedy, who joined in Parts I, II, III.A, and III.C of the majority opinion, wrote a separate concurrence emphasizing that he disagreed with Part III.B of Chief Justice Roberts's opinion, because "[d]iversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue." Id. at 783. Nonetheless, Justice Kennedy left no doubt that he agreed with the Seattle majority that the student assignment plans at issue in the case triggered strict scrutiny because they employed "individual racial classifications," which he defined as being "decisions based on an individual student's race." Id. at 784 (emphases added). He explained that in his view, although he believed that pursuing diversity is a compelling educational goal, the Seattle and Kentucky assignment plans were not narrowly tailored to meet that goal, because they used "the crude categories of 'white' and 'non-white' as the basis for its assignment decisions." Id. at 786.
The Seattle majority's consistent focus upon individual racial classifications, coupled with Justice Kennedy's affirmation of the individual racial classifications standard, and Chief Justice Roberts's inability to command a majority on disapproving of any use of race in assigning students, require this Court to apply strict scrutiny to student assignment plans only if they are based on individual racial classifications.
The extensive testimony and exhibits presented during trial establish that the present case does not involve assigning particular students to attend Harriton High School based on individual racial classifications; rather, the District assigned particular neighborhoods including the Affected Area to attend Harriton High School, and all students in those neighborhoods, both those who were African--American and those who were not, lost their choice of high school. See Doe II, 2010 WL 1956585, at *27. The Court's finding that in Plan 3R, the District Administration recommended to the Board that the Affected Area be redistricted to attend Harriton High School, in part because the Affected Area has one of the highest concentrations of African--American students in the District, see id., falls short of requiring particular students to ...