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Student Doe 1, By and Through His Parents/Guardians Does 1 and 2 v. Lower Merion School District

December 14, 2011

STUDENT DOE 1, BY AND THROUGH HIS PARENTS/GUARDIANS DOES 1 AND 2; STUDENT DOE 2, BY AND THROUGH HER PARENT/GUARDIAN DOE 3; STUDENT DOES 3 AND 4, BY AND THROUGH THEIR PARENT/GUARDIAN DOE 4; STUDENT DOE 5, BY AND THROUGH HIS PARENTS/GUARDIANS DOE 5; STUDENT DOE 6, BY AND THROUGH HIS PARENTS/GUARDIANS DOES 6 AND 7; STUDENT DOE 7, BY AND THROUGH HIS PARENT/GUARDIAN DOE 8; STUDENT DOES 8 AND 9, BY AND THROUGH THEIR PARENTS/GUARDIANS DOES 9 AND 10, APPELLANTS
v.
LOWER MERION SCHOOL DISTRICT



APPEAL FROM AN ORDER ENTERED BY THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civ. Action No. 2:09-cv-02095) District Judge: Honorable Michael M. Baylson

The opinion of the court was delivered by: Greenaway, Jr., Circuit Judge.

PRECEDENTIAL

Argued on April 28, 2011

Before: GREENAWAY, JR., ROTH, Circuit Judges, and HAYDEN,*fn1 District Judge

OPINION OF THE COURT

This case involves school redistricting in Lower Merion, Pennsylvania and allegations that the implemented redistricting plan violates the Equal Protection Clause. Here, the Lower Merion School District (―the District‖) used pristine, non-discriminatory goals as the focal points of its redistricting plan, Plan 3R. The District's goals included that:

1. ―The enrollment of the two high schools and two middle schools will be equalized;‖

2. ―Elementary students will be assigned so that the schools are at or under the school capacity;‖

3. ―The plan may not increase the number of buses required;‖

4. ―The class of 2010 will have the choice to either follow the redistricting plan or stay at the high school of their previous year;‖ (referred to as grandfathering?) and

5. ―Redistricting decisions will be based upon current and expected future needs and not based on past practices.‖

(App. at A16.)

The District Court concluded that the District's assignment plan employing these goals required strict scrutiny because race was a factor in the formation of the plan, but concluded that the plan is constitutional because it does not use race impermissibly. Upon review, we disagree with the District Court's determination that strict scrutiny is the appropriate level of review, but we affirm the conclusion that the District's school assignment plan is consonant with the Constitution.

The Supreme Court and this Court have yet to set forth any standard requiring the application of strict scrutiny when decisionmakers have discussed race, but the school assignment plan neither classifies on the basis of race nor has a discriminatory purpose. We hold that the plan here passes constitutional muster because it does not select students based on racial classifications, it does not use race to assign benefits or burdens in the school assignment process, it does not apply the plan in a discriminatory manner, and it does not have a racially discriminatory purpose. Strict scrutiny does not apply. The appropriate test to determine the constitutionality of the District's school assignment plan is rational basis. In our view, the District has met the rational basis test with its redistricting plan -- Plan 3R. We shall affirm the District Court's order.

I. BACKGROUND

The District operates six elementary schools (Belmont Hills, Cynwyd, Gladwyne, Merion, Penn Valley, and Penn Wynne); two middle schools (Bala Cynwyd and Welsh Valley); and two high schools (Harriton and Lower Merion High School (―LMHS‖)). The high schools are both ―ranked as being among the best in the state, if not the nation.‖ (App. at A6.) Nine elected School Directors (―Board members‖) comprise the Lower Merion Board of School Directors (―Board‖), which has the authority to assign Lower Merion students to schools within the District.*fn2 The District's Administration includes the District's Superintendent and several cabinet members.*fn3

In 1997, the District began a capital improvement program to modernize each District school. In May 2004, a forty-five member Community Advisory Committee (―CAC‖) of school officials and community members investigated a plan to modernize the two high schools. At the time, approximately 1600 students attended LMHS and 900 students attended Harriton. The CAC considered four proposals: (1) creating a separate school for grade nine only and another school for grades ten through twelve; (2) building one new high school that all high school students would attend; (3) building two new high schools to replace Harriton and LMHS with the same student populations as Harriton and LMHS; and (4) building two new high schools with 1,250 students enrolled at each school.

The CAC rejected the first three proposals due to academic and logistical shortcomings. The CAC voted in favor of the fourth proposal (building two high schools with equal student enrollment) because students would benefit from a stronger sense of community, better student-faculty interactions, and better educational outcomes. The CAC also determined that this option would give students at both high schools the most equitable access to programs and facilities while securing the best use of both school sites. This option would also alleviate traffic and parking problems near LMHS.

The Board accepted the CAC's recommendation to equalize the student populations at the two high schools and chose to keep the schools at their existing locations because the District did not have other possible sites. Equalizing student enrollment between the two schools would require redistricting because, under the prior plan, LMHS had 700 more students than Harriton. Harriton, which is located farther from the center of the student population than LMHS, has always had a substantially lower enrollment than LMHS despite Harriton's magnet programs aimed at attracting more students.

Students Doe 1 through 9 (―Students‖) are African-American students who live in an area referred to as South Ardmore or the Affected Area, which is within the District. Ardmore, which is comprised of North Ardmore and South Ardmore, is a neighborhood in Lower Merion. Six of the Parents Doe testified that they and their children live within a mile of LMHS and the District's Director of Transportation, Michael Andre, testified that at least three Students Doe live within a mile of LMHS. Of the neighborhoods in the District, the Affected Area and North Ardmore have the highest concentration of AfricanAmerican families.*fn4

Decades before this litigation, the District assigned students who lived in North Ardmore and the Affected Area to an elementary school in Ardmore. After that elementary school was torn down, the District assigned students in North Ardmore and the Affected Area to five of the District's other elementary schools and the District provided bus service to those schools. In the 1990s, the District reassigned students of North Ardmore and the Affected Area: North Ardmore students attended Penn Wynne Elementary School and Bala Cynwyd Middle School; Affected Area students attended Penn Valley Elementary School and Welsh Valley Middle School. During that time, students in both North Ardmore and the Affected Area could choose to attend either Harriton High School or LMHS.

Prior to the adoption of Plan 3R, the plan at issue here, students assigned to Belmont Hills, Gladwyne, and Penn Valley Elementary Schools would attend Welsh

Valley Middle School and then would attend Harriton for high school, with the exception that students who lived in the Narberth Borough area, Haverford, and the Affected Area were assigned to LMHS. Students assigned to Cynwyd, Merion, and Penn Wynne Elementary Schools would attend Bala Cynwyd Middle School and, then, were assigned to LMHS for high school. All students assigned to LMHS could, instead, choose to attend Harriton. Prior to redistricting, forty-six African-American students attended Harriton (5.7 percent of Harriton's total student population) and ten percent of the District's high school students were African-American. (App. at A13.) The District has always provided bus service to students except those students who live in the ―walk zones‖ of the school that they attend. Walk zones are the areas within a mile of District Schools.*fn5 Students who live within a walk zone for their assigned school walk to school instead of receiving bus service. The boundaries of the LMHS walk zone were selected in the late 1990s. Because the Pennsylvania Department of Transportation declared that the street on which Harriton is located is hazardous for student walking, Harriton is the only school without a walk zone.

A. Redistricting

The redistricting process began in the summer of 2008 and ended on January 12, 2009, when the Board adopted Proposed Plan 3R. Initially, the Board authorized the Administration to develop proposed redistricting plans and to choose plans for the Board's consideration. The Board also developed a list of ―Non-Negotiables‖ to guide the redistricting process.*fn6 On April 21, 2008, the Board adopted the following NonNegotiables:

1. ―The enrollment of the two high schools and two middle schools will be equalized;‖

2. ―Elementary students will be assigned so that the schools are at or under the school capacity;‖

3. ―The plan may not increase the number of buses required;‖

4. ―The class of 2010 will have the choice to either follow the redistricting plan or stay at the high school of their previous year;‖ (referred to as grandfathering?) and

5. ―Redistricting decisions will be based upon current and expected future needs and not based on past practices.‖

(Id. at A16.)

In May 2008, the District hired two outside consultants, Dr. Harris Sokolov and Ellen Petersen, to compile a list of Lower Merion residents' values for the purpose of informing the redistricting process. As a result of a series of public forums and a collection of online surveys from Lower Merion residents, information was gathered and all had an opportunity to participate.

The consultants issued a report identifying the following ―Community Values‖:

1. ―Social networks are at the heart of where people live, and those networks expand as people grow older;‖

2. ―Lower Merion public schools are known for their excellence: academic as well as extracurricular;‖

3. ―Those who walk should continue to walk while the travel time for non- walkers should be minimized;‖

4. ―Children learn best in environments when they are comfortable -- socially as well as physically;‖ and

5. ―[E]xplore and cultivate whatever diversity -- ethnic, social, economic, religious and racial -- there is in Lower Merion.‖

(Id. at A17, n.9.)*fn7

In June 2008, the Board hired Dr. Ross Haber to review and analyze District enrollment data and to create redistricting plans called ―Scenarios.‖ Dr. Haber prepared eight sets of Scenarios*fn8 that were considered by the Administration, in the first instance. Under the Scenarios, the projected enrollment for Harriton ranged from 1080 to 1195 and the projected enrollment for LMHS ranged from 1137 to 1270. Both the Affected Area and North Ardmore would be redistricted to Harriton in Scenarios 1, 2, and 5; the Affected Area, but not North Ardmore, would be redistricted to Harriton in Scenario 8; North Ardmore, but not the Affected Area, would be redistricted to Harriton in Scenarios 3, 4, and 7; and neither the Affected Area nor North Ardmore would be redistricted to Harriton in Scenario 4a. No Scenario redistricted only the Affected Area to Harriton. The percentage of students at each high school that would be African-American ranged from 4.4 percent to 14.5 percent under the Scenarios.

Most Scenarios would yield a percentage of African-American students between 7 and 10 percent.*fn9

Dr. Haber prepared informational handouts of the Scenarios for the

Administration. The handouts regarding Scenarios 1, 2, 3, 4, and 5 included the number of African-American students, but did not include any other racial/ethnic data or any data regarding socioeconomic status or disability.*fn10 Dr. Haber reported data on race, ethnicity, and socioeconomic disability for Scenarios 4a, 7, and 8. The summaries of the Scenarios on the District's website did not include the statements regarding the racial/ethnic numbers for each Scenario. Dr. Haber testified*fn11 that this information was probably reported because the Administration expressed concerns regarding African-American students and that he was never directed to create or change a Scenario based on diversity outcomes.*fn12 A chart dated August 26, 2008 lists the African-American and socioeconomically disadvantaged population estimates for the Scenarios.*fn13 The following day, the chart was updated to include additional, general diversity data.

The Administration considered Scenarios 1, 2, 3, 4, 4a, and 5 before eliminating Scenarios 1 and 4a. Drs. McGinley and Haber testified that Scenario 1 was ―eliminated due to inequitable racial balancing‖ -- this Scenario redistricted both the Affected Area and North Ardmore to Harriton. (Id. at A24.) Additionally, Scenario 1 was eliminated because it violated the Non-Negotiable to equalize the high school population and it would result in longer travel times. Scenario 4a was eliminated because it ―[d]oes not support the community value of diversity as does other scenarios.‖ (Id.) Scenario 4a is the only considered Scenario that redistricted neither North Ardmore nor the Affected Area to Harriton. Dr. McGinley crossed out his copy of the slide presenting diversity data under Scenario 4a and wrote, ―Don't present.‖ (Id. at A30.) He also wrote, ―Say don't post,‖ next to the slide listing reasons for not selecting Scenario 4a. (Id.)

B. Proposed Plans i. Proposed Plan 1

After considering Scenarios 1, 2, 3, 4, 4a, and 5, the Administration presented

Proposed Plan 1, which was based on the Scenario 3 series, to the Board at a public meeting on September 8, 2008. Under Proposed Plan 1, there was no redistricting at the elementary school level and high school districting was determined by where the student lived. Under this plan, students remained with the same group of students from kindergarten through grade eight. The projected student enrollment of Harriton was 1108 and that of LMHS was 1137. Under Proposed Plan 1, North Ardmore, along with all of Penn Wynne Elementary School and some areas of Penn Valley Elementary School, would be redistricted for Harriton while the Affected Area would be districted for LMHS. Proposed Plan 1 was projected to result in African-American students accounting for 9.9 percent of Harriton's student population. Any high school student could still choose to attend Harriton to enroll in the school's International Baccalaureate Program.*fn14 Under the plan's grandfathering provision, all current high school students could choose to remain at the high school they attended when the plan went into effect. The slide show presentation for Proposed Plan 1 included a slide with student population information on race/ethnicity, socioeconomic status, and disability. A press release regarding this plan initially included a sentence stating that enrollments would reflect ―balance with regard to students of various ethnic, socio-economic, and special needs backgrounds,‖ but that sentence was removed prior to publication. (Id. at A29.) After Proposed Plan 1 was presented at the public meeting, the District did not include the number of African-American students that would attend each high school when it posted Dr. Haber's summaries of the Scenarios on the District's website. Dr. McGinley had asked Doug Young, the Director of Public Relations, not to post that information.

On September 19, 2008, Board Member Diane DiBonaventuro sent an email to Dr. McGinley explaining that people might have ―the perception that Harriton is completely homogenous,‖ attended by ―filthy [rich] spoiled white kids.‖ (Id. at A31.) She also stated that the Board should emphasize that it is not merely trying to increase Harriton's racial diversity and the Board ―should be selling both our schools to the community.‖ (Id.)

Board Member David Ebby responded to an email from a concerned citizen by saying that ―diversity is looked at in total,‖ and that Dr. McGinley ―is not trying to use the diversity of the Penn Wynne elementary attendance area to benefit a homogenous group in the ...


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