Doe 1 v. Lower Merion Sch. Dist., No. 10–3824.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtGREENAWAY
Citation665 F.3d 524,275 Ed. Law Rep. 526
PartiesStudent 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.
Decision Date14 December 2011
Docket NumberNo. 10–3824.

275 Ed. Law Rep. 526
665 F.3d 524

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.

No. 10–3824.

United States Court of Appeals, Third Circuit.

Argued April 28, 2011.Opinion Filed: Dec. 14, 2011.


[665 F.3d 529]

David G.C. Arnold (argued), West Conshohocken, PA, for Appellants.

Judith E. Harris (argued), Morgan, Lewis & Bockius, Philadelphia, PA, for Appellee.

Christopher M. Arfaa, Arfaa Law, P.C., Radnor, PA, for Amicus Curiae Earl M. Maltz.Joshua I. Civin, Kimberly A. Liu, NAACP Legal Defense & Educational Fund, Washington, DC, for Amicus Curiae NAACP Legal Defense & Educational Fund, Lawyers Committee for Civil Rights Under Law, ACLU Foundation.Erin H. Flynn (argued), Mark L. Gross, United States Department of Justice Civil Rights Division, Appellate Section, Washington, DC, for Amicus United States of America.Before: GREENAWAY, JR., ROTH, Circuit Judges, and HAYDEN,1 District Judge.
OPINION OF THE COURT
GREENAWAY, JR., Circuit Judge.

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

[665 F.3d 530]

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.2 The District's Administration includes the District's Superintendent and several cabinet members.3

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

[665 F.3d 531]

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 African–American families. 4

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.5 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,

[665 F.3d 532]

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.6 On April 21, 2008, the Board adopted the following Non–Negotiables:

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...

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81 practice notes
  • United States v. Johnson, No. 1:12cv1349.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • August 7, 2015
    ...inflicts the injury that the government as an entity is responsible under § 1983."). But see Doe ex rel. Doe v. Lower Merion Sch. Dist., 665 F.3d 524, 545 (3d Cir.2011) ("A statute or policy utilizes a 'racial classification' when, on its face, it explicitly distinguishes between people on ......
  • St. Joan Antida High Sch. Inc. v. Milwaukee Pub. Sch. Dist., No. 18-1673
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 25, 2019
    ..., 806 F.3d 344, 363 (5th Cir. 2015) ; Spurlock v. Fox , 716 F.3d 383, 403 (6th Cir. 2013) ; Doe ex rel. Doe v. Lower Merion Sch. Dist. , 665 F.3d 524, 557 (3d Cir. 2011). Either goal requires the same feat—to put more kids in citywide and nonattendance-area classrooms. To that end, exemptin......
  • Evancho v. Pine-Richland Sch. Dist., Civil No. 2:16–01537
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • February 27, 2017
    ...a course of action at least in part because of its effects on an identifiable group. Doe ex rel Doe v. Lower' Merion Sch. Dist., 665 F.3d 524, 543–45 (3d Cir. 2011). Here, there is a clearly identifiable small group adversely impacted by the application of Resolution 2 to them, coupled with......
  • Nichols v. Harris, Case No. CV 11–9916 SJO (SS).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • May 1, 2014
    ...Allen v. Wright, 468 U.S. 737, 755, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)); see also Doe ex rel. Doe v. Lower Merion School Dist., 665 F.3d 524, 542 n. 28 (3d Cir.2011) ( “In the equal protection context, an injury resulting from governmental racial discrimination ‘accords a basis for stand......
  • Request a trial to view additional results
81 cases
  • United States v. Johnson, No. 1:12cv1349.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • August 7, 2015
    ...inflicts the injury that the government as an entity is responsible under § 1983."). But see Doe ex rel. Doe v. Lower Merion Sch. Dist., 665 F.3d 524, 545 (3d Cir.2011) ("A statute or policy utilizes a 'racial classification' when, on its face, it explicitly distinguishes between people on ......
  • St. Joan Antida High Sch. Inc. v. Milwaukee Pub. Sch. Dist., No. 18-1673
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 25, 2019
    ..., 806 F.3d 344, 363 (5th Cir. 2015) ; Spurlock v. Fox , 716 F.3d 383, 403 (6th Cir. 2013) ; Doe ex rel. Doe v. Lower Merion Sch. Dist. , 665 F.3d 524, 557 (3d Cir. 2011). Either goal requires the same feat—to put more kids in citywide and nonattendance-area classrooms. To that end, exemptin......
  • Evancho v. Pine-Richland Sch. Dist., Civil No. 2:16–01537
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • February 27, 2017
    ...a course of action at least in part because of its effects on an identifiable group. Doe ex rel Doe v. Lower' Merion Sch. Dist., 665 F.3d 524, 543–45 (3d Cir. 2011). Here, there is a clearly identifiable small group adversely impacted by the application of Resolution 2 to them, coupled with......
  • Nichols v. Harris, Case No. CV 11–9916 SJO (SS).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • May 1, 2014
    ...Allen v. Wright, 468 U.S. 737, 755, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)); see also Doe ex rel. Doe v. Lower Merion School Dist., 665 F.3d 524, 542 n. 28 (3d Cir.2011) ( “In the equal protection context, an injury resulting from governmental racial discrimination ‘accords a basis for stand......
  • Request a trial to view additional results

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