195 F.3d 698 (4th Cir. 1999), 98-1604, Tuttle v. Arlington Cnty School Bd.

Docket Nº:98-1604 (CA-98-418-A).
Citation:195 F.3d 698
Party Name:GRACE TUTTLE, a minor by Her Next Friend, Steven Tuttle; RACHEL SECHLER, a minor by Her Next Friend, Charlotte Sechler, Plaintiffs-Appellees, v. ARLINGTON COUNTY SCHOOL BOARD; MARY H. HYNES, individually and in her official capacity as Member, Arlington County School Board; DARLENE MICKEY, individually and in her capacity as Member, Arlington Count
Case Date:September 24, 1999
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 698

195 F.3d 698 (4th Cir. 1999)

GRACE TUTTLE, a minor by Her Next Friend, Steven Tuttle; RACHEL SECHLER, a minor by Her Next Friend, Charlotte Sechler, Plaintiffs-Appellees,

v.

ARLINGTON COUNTY SCHOOL BOARD; MARY H. HYNES, individually and in her official capacity as Member, Arlington County School Board; DARLENE MICKEY, individually and in her capacity as Member, Arlington County School Board; ELIZABETH GARVEY, individually and in her official capacity as Member, Arlington County School Board; ELAINE FURLOW, individually and in her official capacity as Member, Arlington County School Board; FRANK WILSON, individually and in his capacity as Member, Arlington County School Board; ROBERT SMITH, individually and in his capacity as Superintendent of Schools, Arlington County, Defendants-Appellants,

and

DOUGLAS HUFF, Movant.

AMERICAN ASSOCIATION OF SCHOOL ADMINISTRATORS; COUNCIL OF THE GREAT CITY SCHOOLS; MAGNET SCHOOLS OF AMERICA; NATIONAL SCHOOL BOARDS ASSOCIATION; UNITED STATES OF AMERICA; NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE; THE ARLINGTON COUNTY CHAPTER OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE; THE LEAGUE OF UNITED LATIN AMERICAN CITIZENS, Amici Curiae.

No. 98-1604 (CA-98-418-A).

United States Court of Appeals, Fourth Circuit

September 24, 1999

Argued: January 27, 1999.

Corrected opinion filed: November 1, 1999.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

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[Copyrighted Material Omitted]

Page 700

COUNSEL ARGUED: Steven John Routh, HOGAN & HARTSON, L.L.P., Washington, D.C., for Appellants. Linda Frances Thome, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus Curiae United States. Philip Andrew Sechler, WILLIAMS & CONNOLLY, Washington, D.C., for Appellees. ON BRIEF: Audrey J. Anderson, HOGAN & HARTSON, L.L.P., Washington, D.C.; Carol W. McCoskrie, Assistant County Attorney, ARLINGTON COUNTY ATTORNEY'S OFFICE, Arlington, Virginia, for Appellants. Bill Lann Lee, Acting Assistant Attorney General, Mark L. Gross, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus Curiae United States. Bethany E. Matz, WILLIAMS & CONNOLLY, Washington, D.C.; Steven M. Levine, LAW OFFICE OF STEVEN M. LEVINE, Washington, D.C., for Appellees. Naomi E. Gittins, Staff Attorney, Julie Underwood, NSBA General Counsel, NATIONAL SCHOOL BOARDS ASSOCIATION, Alexandria, Virginia; AMERICAN ASSOCIATION OF SCHOOL ADMINISTRATORS, Arlington, Virginia; COUNSEL OF THE GREAT CITY SCHOOLS, Washington, D.C.; MAGNET SCHOOLS OF AMERICA, The Woodlands, Texas, for Amici Curiae Association of School Administrators, et al. Barbara R. Arnwine, Thomas J. Henderson, Robin A. Lenhardt, LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW, Washington, D.C.; Jeh C. Johnson, PAUL, WEISS, RIFKIND, WHARTON & GARRISON, New York, New York, for Amici Curiae NAACP, et al.

Before ERVIN, LUTTIG, and KING, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published per curiam opinion.

OPINION

PER CURIAM:1

The question before this Court is whether an oversubscribed public school may use a weighted lottery in admissions to promote racial and ethnic diversity in its student body. The current appeal is the latest chapter in the history of this Court's involvement in the Arlington County, Virginia public school system.

Our earlier involvement concerned the desegregation of the Arlington County school system.2 This preceding chapter was brought to a close in Hart v. County School Bd. of Arlington County, Virginia, where we affirmed the remedial policy of the Arlington County School Board ("School Board") to achieve a unitary school district. 459 F.2d 981, 982 (4th Cir. 1972). The current chapter brings us full circle. In the present case, we examine the admissions policy ("Policy") of the Arlington Traditional School ("ATS"), whose goal was not to remedy past discrimination, but rather to promote racial, ethnic, and socioeconomic diversity.

Two ATS applicants, Grace Tuttle ("Tuttle") and Rachel Sechler ("Sechler"), filed suit under 28 U.S.C.A.§§ 2201, 2202 (West 1994) and 42 U.S.C.A. §§ 1981, 1983 (West 1994) to enjoin the School Board permanently from implementing its Policy. The district court granted the injunction

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and ordered the School Board to conduct a double-blind random lottery for future ATS admissions. The School Board appealed the decision.

Today, we hold that the School Board's Policy violated the Equal Protection Clause of the Fourteenth Amendment. Since the Supreme Court has not resolved the question of whether diversity is a compelling governmental interest, we assume without deciding that diversity may be a compelling interest and find that the Policy was not sufficiently narrowly tailored to pass constitutional muster.

Although we affirm the district court's holding that the Policy was unconstitutional, we find that the district court abused its discretion when it ordered the School Board to adopt a specific admissions policy. We therefore vacate the permanent injunction and remand to allow an evidentiary hearing in which the School Board may present alternative admissions policies for the district court's review.

I.

ATS is an alternative kindergarten, one of three alternative schools operated by the School Board that claims to teach students in a "traditional" format. Admission is not based upon merit but rather solely upon availability.

The currently challenged Policy was created in response to prior litigation. In the earlier case of Tito v. Arlington County School Bd., the district court permanently enjoined ATS from implementing its former admissions policy and ordered the School Board to make "invitations for admissions to the alternative schools[like ATS] in strict order of the lottery selections, for all grade levels, as long as a random lottery procedure continues to be employed." In so doing, the district court concluded that diversity could never constitute a compelling governmental interest and, in the alternative, even if it could, that the earlier program was not sufficiently narrowly tailored to further diversity.

The plaintiff in Tito submitted a proposed Order Granting Declaratory Relief and Permanent Injunction containing a provision that "permanently restrained and enjoined [the School Board] from using race, color or ethnicity as a factor in offering invitations for admission" to ATS. The district court found this provision "overbroad" because "[t]his proposal would go beyond what is necessary to decide the case at hand." The district court added, "[t]he court has ruled that the alternative schools' admissions policy `as implemented' . . . is unconstitutional. The court declines to anticipate and foreclose any attempt by the [S]chool [B]oard to achieve by other means the goals expressed in its admissions policy."

Instead of appealing the Tito decision, the School Board adopted a new Policy in February 1998. This Policy had two goals: (1) "to prepare and educate students to live in a diverse, global society" by "reflect[ing] the diversity of the community" and (2) to help the School Board "serve the diverse groups of students in the district, including those from backgrounds that suggest they may come to school with educational needs that are different from or greater than others."

The Policy defined diversity using three equally weighted factors: (1) whether the applicant was from a low-income or special family background, (2) whether English was the applicant's first or second language, and (3) the racial or ethnic group to which the applicant belonged. Through this Policy, ATS sought to obtain a student body "in proportions that approximate the distribution of students from those groups in the district's overall student population." Under the Policy that ATS implemented in 1998-99 and that is challenged here, ATS accepted applications from the general public without restriction. Because the applicant pool was larger than the number of available positions, ATS offered admission to applicants based on a lottery. In 1998, ATS had 185 applicants for only 69 available positions.

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First, ATS offered admission to applicants who were the siblings of older students already attending ATS.3 In 1998, there were 23 ATS sibling-applicants, leaving 46 positions available for admission to ATS. Next, because the total ATS applicant pool, including siblings, was not within 15% of the county-wide student population percentages for all three factors, a sequential, weighted random lottery among the 162 non-sibling applicants determined the remaining 46 offers for admission to ATS.4 The probabilities associated with each applicant's lottery number were weighted, so that applicants from under-represented groups, as defined by the Policy, had an increased probability of selection.5

Tuttle and Sechler (the "Applicants") did not have siblings attending ATS. Moreover, they had no increased probability of selection in the lottery based on their diversity factor classifications, and they were not selected for admission in the lottery process. As a result, they did not receive admission offers. The Applicants, by and through their Next Friends, parents Steven Tuttle and Charlotte Sechler, filed a Complaint and a Motion for Preliminary Injunction against the School Board to stop ATS' weighted admission process.

During the preliminary injunction motion hearing, the Applicants moved to consolidate the hearing with a trial on the merits pursuant to Fed. R. Civ. P. 65(a)(2). The School Board objected, arguing that unless the district court accepted as a matter of law that diversity was a compelling state interest, the School Board should be given an opportunity to present evidence on that point. The district court refused to grant the School Board an evidentiary hearing.

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