Pacific Legal Foundation Brief

8/2/2019 Pacific Legal Foundation Brief

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No. 11-1135In the

Ql:ourt of tbe WnftebSTUDENT DOE 1, et al.,

Petitioners,v.LOWER MERIONSCHOOL DISTRICT,

Respondent.

On Petition for Writ of Certiorarito the United States Court of Appealsfor the Third Circuit

BRIEF AMICUS CURIAE OFPACIFIC LEGAL FOUNDATIONIN SUPPORT OF PETITIONERS

MERIEM L. HUBBARD**Counsel ofRecordRALPH W. KASARDA

Of CounselJOSHUA P. THOMPSONPacific Legal Foundation930 GStreetSacramento, California 95814Telephone: (916) 419-7111Facsimile: (916) 419-7747E-mail: [email protected]: [email protected]: [email protected]

Counsel for Amicus Curiae Pacific Legal Foundation


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QUESTION PRESENTEDWhether a school district may classify localneighborhoods on the basis of race to redistrict

attendance zones in an effort to achieve raciallybalanced high schools.


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TABLE OF CONTENTS PageQUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . iTABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . ivINTEREST OF AMICUS CURIAE . . . . . . . . . . . . . 1INTRODUCTION ANDSUMMARY OF ARGUMENT . . . . . . . . . . . . . 2REASONS FORGRANTING THE PETITION . . . . . . . . . . . . . 5I. THIS COURT SHOULD DECIDETHAT STRICT SCRUTINYAPPLIES TO FACIALLYRACE-NEUTRAL REDISTRICTINGPLANS IMPLEMENTED

TO ACHIEVE RACIALBALANCING AND DIVERSITY . . . . .. . .. .. 5A. The District Court's FindingsEstablish That the District Is RaciallyBalancing Its Two High SchoolsBased Upon the Racial Classificationof Petitioners' Neighborhood . . . . . . . . . . . 7B. The Distric t Has No

Compelling Interest to Justify It sRace-Conscious Attendance Zones . . . . . . 81. The Constitution ProhibitsDiscrimination AgainstGroups, as Well as Individuals . . . . . 102. Racial Balancing for Its OwnSake Is Not a Compelling Interes t,

But Patently Unconstitutional . . . . . 11

ii iTABLE OF CONTENTs-Continued

C. The Race-Conscious RedistrictingMust Be Examined Under the Narrow

Page

Tailoring Prong of Strict Scrutiny . . . . . . 12II. REVIEW IS NECESSARYTO RESOLVE THE CONFLICTBETWEEN THE DECISION OF THE

COURT BELOW AND THE FIFTHCIRCUIT'S DECISION IN LEWISV. ASCENSIONPARISH SCH. BD . . .. . .. 13

III. THE ISSUES PRESENTED BY THEDISTRICT'S RACE-CONSCIOUSATTENDANCE ZONES AREDIFFERENT THAN THE ISSUESPRESENTED IN PARENTSINVOLVED AND FISHER V.UNN. OF TEX. ATAUSTIN,AND THUS SEPARATEREVIEW IS WARRANTED . . . . . . . . . . . . . . 17A. This Court's Decision in Parents

Involved Does Not Resolve theDistrict's Use of NeighborhoodRacial Classifications to AchieveRacially Balanced High Schools . . . . . . . 17B. Fisher Concerns Diversityin Higher Education, NotHigh School Attend ance Zones . . . . . . . . 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21


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ivTABLE OF AUTHORITIES

CasesAdarand Constructors, Inc. v. Pena,

Page

515 U.S. 200 (1995) . . . . . . . . . . . 1-2, 5-6, 8, 13-14Bush v. Vera, 517 U.S. 952 (1996) . . . .. . . . . . . . . 16City of Richmond v. J.A. Croson Co.,

488 U.S. 469 (1989) . . . . . . . . . . . . . 1, 6, 11-12, 14Fisher v. Univ. of Tex. at Austin,631 F.3d 213 (5th Cir. 2011), cert. granted,No. 11-345, 2012 U.S. LEXIS 1652(U.S. Feb. 21, 2012) . . . . . . . . . . . 4-5, 9, 17, 19-20

Freeman v. Pitts, 503 U.S. 467 (1992) . . . . . . . . . . . 9Fullilove v. Klutznick,448 U.S. 448 (19SO) . . . . . . . . . . . . . . . . . . . 6, 8, 12Gratz v. Bollinger, 539 U.S. 244 (2003) . . . . . . . . 1, 8Grutter v. Bollinger,539 u.s. 30 6 (2003) . . . . . . . . . . . . . 1, 9-11, 14, 19Hirabayashi v. United States,

320 U.S . 81 (1943) . . . . . . . . . . . . . .. . . . . . . . . 3, 5Hunt v. Cromartie, 526 U.S. 541 (1999) . . . . . . . . . 16Johnson v. California, 543 U.S. 499 (2005) . . . . . . . 1Keyes v. Sch. Dist. No.1,413 U.S. 189 (1973) . . . . . . . . . . . . . . . . . . . . . . . 11Lewis v. Ascension Parish Sch. Ed.,

662 F.3d 343 (5th Cir. 2011) . . . . . . 2, 4, 13-16, 18

v

TABLE OF AUTHORITIES--ContinuedPage

Metro Broad., Inc. v. FCC,497 u.s. 547 (1990) . . . . . . . . . . . . .. . . . . . . . . . . 6

Milliken v. Bradley, 418 U.S. 717 (1974) . . . . . . . . 10Milliken v. Bradley, 433 U.S. 267 (1977) ....... . . 9Parents Involved in Cmty. Schs.

v. Seattle Sch. Dist. No. 1,551 U.S. 701 (2007) . . . . . . . . . . . ........ passimPers. Adm'r of Mass. v. Feeney,

442 U.S. 256 (1979) . . . . . ...... . . . . . . . . . . . . . 6Regents of the Univ. of Cal. v. Bakke,

438 U.S. 265 (1978) . . . . . . . ...... . . . . . . 1, 6, 10Rothe Dev. Corp. v. U.S. Dep't ofDef,

545 F.3d 1023 (Fed. Cir. 2008) . . . . . . . . . . . . . . 13Shaw v. Reno, 509 U.S. 630 (1993) ........... 6, 13Student Doe v. Lower Merion Sch . Dist.,665 F.3d 524 (3d Cir . 2011) . . . . . . . . . . .. passimWygant v. Jackson Ed. of Educ.,

476 u.s. 267 (1986) . . . ........ . ....... . . 1, 12United States ConstitutionU.S. Const. amend. XIV . . . . ...... . . . . . . . . . 3, 14

amend. XIV, 1 . . . . . . . . . . . ....... . . ....... 5United States Statutes

42 u.s.c. 1981 . . . . . . . . . . . ....... . . . . . . . . . . 3 1983 . . . . . . .......... . . . . . . . . . . . . . . . . . . 3 2000d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3


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viTABLE OF AUTHORITIEs-ContinuedPage

Rules of CourtU.S. Sup. Ct . R. 37.2 . . . . . . ......... . . . . . . . . . . 1

37.2(a) . . . . . . . . . ......................... 137.6 ............... . . .......... . . . . . . . . . 1

1Pursuant to Supreme Court Rule 37.2, PacificLegal Foundation (PLF) respectfully submits thisamicus curiae brief, onbehalfof tselfan d it s members,in support of Petitioners.'

INTEREST OF AMICUS CURIAEPLFis a nonprofit, public-interestlegalf oundationorganized under the laws of the State of California.Since 1973, PLF has litigated in support of the rights

of individuals to be free of racial discrimination an dpreferences. PLF has participated as amicus curiae innearly every major racial discrimination case heard bythis Court in the past three decades, inclu ding ParentsInvolved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551U.S. 701 (2007); Johnson v. California, 543 U _S. 499(2005); Gratz v. Bollinger, 539 U.S. 244 (2003); Grutterv. Bollinger, 539 U.S. 306 (2003); AdarandConstructors, Inc. v. Pena, 515 U.S. 200 (1995); City ofRichmond v. J.A. Croson Co ., 488 U.S. 469 (1989);Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986);and Regents of the Univ. of Cal. v. Bakke, 438 U _S. 265(1978).

This case raises important issues ofconstitutionallaw . PLF considers this case to be of special1 Pursuant to this Court's Rule 37.2(a), all parties have consentedto the filing of this brief. Counsel of record for all parties receivednotice at leas t 10 days prior to th e due date of the Amicus Curiae'sintention to file this brief. Letters evidencing such consent havebeen filed with the Clerk of the Court.

Pursuant to Rule 37 6, Amicus Curiae affirms that no counselfor any party authored this brief in whole or in part, and nocounsel or party made a monetary contribution intended to fundthe preparation or submission of this brief. No person other thanAmicus Curiae, its members, or its counsel made a monetarycontribution to its preparation or submission.


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2significance in that it concerns the critical issue ofwhether a school district may classify and targetneighborhoods by r ace in order to create attendancezones for the purpose of racially balancing it s schools.The Third Circuit said yes, an d upheld a schooldistrict's use of race under a rational basis standard ofreview. In doing so, the court noted that this Courthas yet to provide any standard requiring theapplication of strict scrutiny when a school districtadmittedly considers race, bu t then employs faciallyrace-neutral methods to achieve racially balancedschools. Student Doe v. Lower Merion Sch. Dist., 665F.3d 524, 529 (3d Cir. 2011).

PLF believes it s public policy perspectives an dlitigation experience provide an additional viewpointto assist th e Court by examining whether th e courtbelow impermissibly abandoned strict scrutiny. PL Fwill demonstrate that a school district's use of racialclassifications to assign students to schools shouldalways be examined under" trict scrutiny, and that theThird Circuit's decision is in conflict with the FifthCircuit's decision in Lewis v. Ascension Parish Sch.Bd ., 662 F.3d 343 (5th Cir. 2011).

INTRODUCTION ANDSUMMARY OF ARGUMENT

This case involves the level of judicial scrutiny acourt should apply when reviewing a school district'sattempt to racially balance it s schools, an issue ofextraordinary, fundamental importance in this nation.Distinctions between persons based solely upon theirancestry "'are by their very nature odious to a freepeople whose institutions are founded upon thedoctrine of equality."' Adarand, 515 U.S. at 214

3(quotingHirabayashi v. United States, 320 U.S. 81, 100(1943)).

Petitioners are nine African American studentswhose neighborhood was targeted by the Lower MerionSchool District (District) for attendance zoneredistricting because of it s large concentration ofAfrican American residents. Student Doe, 665 F.3dat 539. The District's plan involved selecting anddividing th e neighborhood with th e highestconcentration of African American students, andbusing those students to the high school farther away.Petitioners, who reside within walking distance of thenearer high school, must be bused to the more distantschool.

Petitioners contend that the District's redistrictingplan discriminates against them by mandating theirbusing an d attendance at the far away high school dueto their race. Students from neighborhoods without ahigh concentration of African American families, an dwho are also within walking distance to th e samenearby high school as Petitioners, are not forced toattend the more distant high school. Petitioners suedthe District alleging violations of the Equal ProtectionClause of the Fourteenth Amendment, 42 U.S.C. 1981, and Title VI of the Civil Rights Act, 42 U.S.C. 2000d, all pursuant to 42 U.S.C. 1983.

After a nine day bench trial, the district courtagreed with th e Petitioners' factual allegations. Inorder a?hieve "racial parity" an d "racial diversity,"the D1stnct considered the racial composition ofneighborhoods in approving a redistricting plan toequalize student attendance at it s two high schools.Student Doe, 665 F.3d at 539. But the district courtheld the District's use of race was constitutional under


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4strict scrutiny: "the mere fact that th e Districtconsidered racial demographics . .. does not render theDistrict's adoption of [the plan) unconstitutiona l." Id.at 541 (citation omitted). The court of appealsaffirmed, but held the District's classification ofneighborhoods by race warranted only rational basisreview. Id. at 530.

This Court should grant review of the ThirdCircuit's decision holding that the District's use ofracial classifications to achieve racial balance comportswith equal protection. Racial balancing for it s ownsake is clearly unconstitutional. Parents Involved, 551U.S. at 730. However, the purportedly race-neutralmanner in which the District assigns students to it shigh schools to achieve racial balance has not beenaddressed by this Court. StudentDoe , 665 F.3d at 529.Moreover, review is needed to resolve the conflictbetween the Third Circuit's decision here, and theFifth Circuit's decision in Lewis. There, the courtreversed a district court's 'grant of summary judgmentin favor of a school district, which just like the schooldistrict in this case, redistricted attendance zones inconsideration of race without justification. Lewis, 662F.3d at 349-50. The Fifth Circuit said that given thefactual questions as to whether the chosen redistrictingplan had both a racially discriminatory motive an ddisparate impact, the lower court should not haveawarded summary judgment under a rational basisstandard, id. at 352, as the Third Circuit did here.

The issue presented by this case is fundamentallydifferent from that presented by Fisher v. Univ. of Tex.at Austin, 631 F.3d 213 (5th Cir. 2011), cert. granted,No. 11-345, 2012 U.S. LEXIS 1652 (U.S. Feb. 21,2012). The issue presented in Fisher is "[w)hether this

5Court's decisions interpreting the Equal ProtectionClause of the Fourteenth Amendment, includingGrutter v. Bollinger [],permit the University of Texasat Austin's use of race in undergraduate admissionsdecisions."2 Fisher involves race-conscious collegeadmissions policies, while this case concerns th edrawing of high school attendance zones. HoweverFisher is decided, th e decision is unlikely to addressth e extent to which a school district may consider raceduring the redistricting process to change the racialcomposition of it s high schools.

REASONS FORGRANTING THE PETITION

ITHIS COURT SHOULD DECIDE

THAT STRICT SCRUTINYAPPLIES TO FACIALLY

RACE-NEUTRAL REDISTRICTINGPLANS IMPLEMENTED TO ACHIEVERACIAL BALANCING AND DIVERSITYThe Equal Protection Clause mandates that "[n)o

State shall . . . deny to any person within it sjurisdiction the equal protection of the laws." U.S.Const. amend. XIV, 1. Decisions ofthe United StatesSupreme Court have made clear that distinctionsbetween persons based solely upon their ancestry '"areby their very nature odious to a free people whoseinstitutions are founded upon the doctrine ofequality."'Adarand, 515 U.S. at 214 (quoting Hirabayashi, 320U.S. at 100). The core purpose of the Equal Protection2 Question Presented, available at http://www supremecourt.gov/qp/ll-00345qp .pd f (last visited Apr. 10, 2012).


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6Clause is to eliminate governmentally sanctionedracial distinctions. Croson, 488 U.S. at 495. Whereth e government proposes to ensure participation of"some specified percentage of a particulargroup merelybecause of it s race," such a preferential purpose mustbe rejected as facially invalid. Bakke, 438 U.S. at 307(plurality opinion). Accordingly, al l racialclassificationsby government are "inherently suspect,"Adarand, 515 U.S. at 223 (citation omitted), an d"presumptively invalid." Shaw v. Reno, 50 9 U.S. 630,643-44 (1993) (citation omitted). "A racialclassification, regardless of purported motivation, ispresumptively invalid an d can be upheld only upon anextraordinary justification." Pers. Adm'r of Mass. v.Feeney, 442 U.S. 256, 272 (1979).

Furthermore , "[c]lassifications based on race carrya danger of stigmatic harm." Croson, 488 U.S. at 493.And such racial classifications "may in fact promotenotions of racial inferiority and lead to a politics ofracial hostility." Id. Thus, a racial classification

'inevitably is perceivedby many as resting onan assumption that those who ar e grantedthis special preference are less qualified insome respect that is identified purely by theirrace . Because that perception . . . ca n onlyexacerbate rather than reduce racialprejudice, it will delay the time when racewill become [ ) truly irrelevant.'

Adarand, 515 U.S. at 229 (quoting Fullilove v.Klutznick, 448 U.S. 448, 545 (1980) (Stevens, J.,dissenting)); see also Metro Broad., Inc. v. FCC, 497U.S. 547, 603 (1990) (O'Connor, J., dissenting) ("Thedangers of such classifications are clear [ - ) [t]hey

7endorse race-based reasoning and the conception of anation divided into racial blocs, thus contributing to anescalation of racial hostility an d conflict.").

The District's classification of neighborhoods byrace to racially balance it s high schools in the name ofdiversity violates equal protection.A. The District Court's Findings

Establish That the District Is RaciallyBalancing Its Two High SchoolsBased Upon th e Racial Classificationof Petitioners' NeighborhoodTh e District ha s two high schools: Lower Merion

High School an d Harriton High School. Student Doe,665 F.3d a t 530. Harriton is located th e furthest awayfrom th e center of th e student population, an d fewerstudents choose to attend. Id. at 530-31. As part of it scapital improvement program, th e District decided toreplace th e two high schools by building two newschools at th e old schools' existing locations. Id.at 530. The plan called for an equalized enrollment of1,250 students at each school through forced busing.I d.

The redistricting plan that th e District finallyapproved mandated the busing of students fromPetitioners' neighborhood. Petitioners' neighborhood,known as Ardmore, ha s th e highest concentration ofAfrican American families within th e District . Id.at 531. Prior to redistricting, all students fromArdmore had the choice of attending either of th eDistrict's high schools. Id . That choice was removedin th e plan approved by th e District. New high schoolstudents residing in South Ardmore-wherePetitioners reside-are to be bused to Harriton High


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8School, although many live within walking distance ofLower Merion High School.

The district courtfound that "racia l considerationswere one ofseveral motivating factors" that resulted inthe development of various redistricting plans,including th e recommendation to th e final plan. Id.at 539. This consideration of race "went above an dbeyond collecting or reporting general diversity data."Id . The evidence reflected the District's specific focuson "the Mrican-American student populationthroughout th e redistricting process." Id. In fact, thecourt found that Petitioners' neighborhood was"targeted" for redistricting to Harriton, in part,because of it s high concentration of African Americanstudents. The District's "intent was to achieve not onlyoverall numeric equality, bu t also racial parity ,between th e two schools." Id.B. Th e District Has No

Compelling Interest to Justify It sRace-Conscious Attendance Zones'"Racial classificationsare simply too pernicious to

permit any bu t th e most exact connection betweenjustificationan d classification."' Gratz, 539 U.S . at 270(quoting Fullilove, 448 U.S. at 537 (Stevens, J. ,dissenting)). In order to satisfy this searchingstandard of review, schooldistricts must demonstratethat their use of racial classifications are "narrowlytailored" to achieve a "compelling" governmentinterest." Adarand, 515 U.S. at 227.

In evaluating the use of racial classifications inthe school context, this Court has recognized twointerests that qualify as compelling. The first is thecompelling interest of remedying th e effects of past

ll

,,

9intentional discrimination. Parents Involved, 551 U.S.at 720 (citing Freeman v. Pitts, 503 U.S. 467, 494(1992)). There is no suggestion from th e decisions ofthe courts below that the District is racially balancingits high schools to remedy de jure segregation. SeeParents Involved, 551 U.S. at 721 ("Tr]he Constitutionis not violated by racial imbalance in the schools,without more."') (quoting Milliken v. Bradley, 433 U.S.267, 280 n. l4 (1977)).

The second government interest this Court hasrecognized as compelling for purposes of strict scrutinyis the interest in diversity in higher education upheldin Grutter, 539 U.S. at 328.3 The specific interestfound compelling in Grutter was studentbody diversity"in the context of higher education," not in elementaryor secondary education. Id . Moreover, th e diversityinterest was not focused on race, or "simple ethnicdiversity" alone, id. at 324-25, bu t encompassed "allfactors that ma y contribute to student body diversity."Id. at 337. Such factors included whether prospectivestudents lived or traveled widely abroad , were fluent inseveral languages, ha d overcome personal adversityan d family hardship, ha d exceptional records ofextensive community service, and had successfulcareers in other fields. Id. at 338.

Thus, what wa s upheld in Grutter was th e lawschool's consideration of "'a fa r broader array ofqualifications an d characteristics of which racial orethnic origin is bu t a single though important

3 Although after grant ing certiorari in Fisher v. Univ. of Tex. atAustin, this Court appears poised to reconsider whether, a nd towhat extent, diversity can justify race-based college admissionspolicies.


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10element."' Id . at 325 (quoting Bakke, 438 U.S. at 315(opinion of Powell, J.)).

Here, the district court found that the District'sinterest in diversity focused solely on race, specificallythe numbers of African American students enrolled inthe District's elementary an d secondary schools.Stud ent Doe, 665 F.3d at 539. Thus, when the Districtselected Petitioner s' neighborhood for redistricting, itdid not use race as just one factor in a multivariableformula as "part of a broadereffort to achieve exposureto widely diverse people, cultures, ideas, an dviewpoints."' Parents Involved, 551 U.S. at 723(quoting Grutter, 539 U.S. at 330). Rather, the Districtsingledout Petitioners' neighborhood precisely beca useof ts high concentration of African American students.This race-conscious redistricting discriminatedagainstPetitioners because the plan mandated theirattendance at a particular high school on the basis oftheir race.

1. The Constitution ProhibitsDiscrimination AgainstGroups, as Well as Individuals

Although Petitioners were not individuallyassi gned to a school, the district court found that theirrace, through the racial composition of theirneighborhoods, was a factor in determining theirassignments. Student Doe , 665 F.3d at 559 (Roth, J .,concurring). This Court has found that th e EqualProtection Clause can be violated without taking thecharacter istics of specific individuals into account. SeeMilliken v. Bradley, 418 U.S. 717, 753 (1974) (Stewar t,J., concurring, clarifying that the Court found aviolation of the Equal Protection Clause in a schooldistrict's improper use of zoning and attendance

11patterns); Keyes v. Sch. Dist. No. 1, 413 U.S. 189, 191,201 (1973) (the manipulation of student attendancezones, school site selection, an d a neighborhood schoolpolicy in order to manipulate the racial composition ofschools can violate the Constitution).

District officials in this case considered the racialcomposition of neighborhoods when they approved theredistricting plan . Student Doe, 665 F.3d at 539. TheDistrict's consideration of the racial composition ofindividual neighborhoods to determine schoolassignments is "just as problematic as theconsideration of the race of individual students."Student Doe, 665 F.3d at 559 (Roth, J., concurring).

2. Racial Balancing fo r It s Ow nSake Is No t a Compelling Interest,But Patently UnconstitutionalThis Court ha s repeatedly held that racial

balancing is plainly unconstitutional. In Croson, 488U.S. 469, this Court criticized the City of Richmond'srace-conscious public contracting program, stating thatit "cannot be said to be narrowly tailored to any goal,except perhaps outright racial balancing." 488 U.S .at 507. In Grutter, 539 U.S. at 330, this Court heldthat racial balancing is "patently unconstitutional."More recently, in Parents Involved, this Court held:Allowing racial balancing as a compelling

end in itself would "effectively assur[e] thatrace will always be relevant in American life,an d that th e 'ultimate goal' of 'elimi natingentirely from governmental decisionmakingsuch irrelevant factors as a human being'srace' will never be achieved."


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12551 U.S. at 730 (quoting Croson, 488 U.S. at 495)(plura lity opinion of O'Connor, J. , quoting Wygant,4 76U.S. at 320 (Stevens, J , dissenting), in turn quotingFullilove, 448 U.S. at 547 (Stevens, J. , dissenting);(brackets an d citation omitted)).

The district court noted that "[b]y includ ing onlyAfrican-American student data in the first fiveScenarios ... th e District ... employed a 'limitednotion of diversity' similar to the plans criticized andultimately held to be unconstitutional in [ParentsInvolved]." Petition, Appendix 104a (FactualFindings). The District's "consistent intent was toachieve not only overall numeric equality, bu t alsoracial parity, between the two schools." Petition,Appendix 140a (Factual Findings). The District'sefforts to achieve "racial proportionality in it s ownright" cannot justify it s use of race. Parents Involved,551 U.S. at 725 n.12.C. The Race-Conscious Redistricting

Must Be Examined Under th e NarrowTailoring Prong of Strict ScrutinyNarrow tailoring requires courts to determine

whether "lawful alternative an d less restrictive meanscould have been used." Wygant, 476 U.S. at 280 n.6(opinion of Powell, J.) (plurality opinion); see alsoParents Involved, 551 U.S. at 796 (Kennedy, J. ,concurring) ("The State must seek alternatives to theclassification an d differential treatment of ndividualsby race, at least absent some extraordinary showingnot present here."); Croson, 488 U.S. at 507 ("Indetermining whether race-conscious remedies areappropriate, we look to several factors, including theefficacy of alternative remedies.") (citation omitted);

13Rothe Dev. Corp. v. U.S. Dep't ofDef, 545 F.3d 1023,1036 (Fed. Cir. 2008) ("[E]ven where there is acompelling interest supported by a strong basis inevidence, [the court must consider] th e efficacy ofalternative ,race-neutral remedies .") (citation omitted).In Adarand, this Court specifically remanded the casebecause th e lower court ha d failed to consider theavailability of race-neutral alternatives. 515 U.S. at237-38.

The requirement to exhaust race-neutralmeasures before resorting to race-conscious onesextends to public school admissi on policies. This Courtrejected race-conscious school assignment plans inParents Involved, because "several alternativeassignmentplans-manyof which would not have usedexpress racial classifications-were rejected with littleor no consideration." Parents Involved, 551 U.S.at 735. As Justice Kennedy recognized, "measuresother than differential treatment based on racialtyping of individuals first must be exhausted." Id.at 798 (Kennedy, J. , concurring).

I IREVIEW IS NECESSARY TO RESO LVE

TH E CONFLICT BETWEEN TH EDECISION OF THE COURT BELOW AND

THE FIFTH CIRCUIT'S DECISION INLEWIS V. ASCENSION PARISH SCH. BD.The decision in this case by the Third Circuitconflicts with the Fifth Circuit's decision in Lewis, 662F.3d 343, concerning matters of tremendous

constitutional importance. This Court holds that"[r]acial classifications of any sort pose the risk oflasting harm to our society." Shaw, 509 U.S. at 657.


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14Indeed, "[p]referment by race .. . can be the mostdivisive of all policies, containing within it thepotential to destroy confidence in the Constitution an din the idea of equality." Grutter, 539 U.S. at 388(Kennedy, J ., dissenting). "The equal protectionprinciple," that was "purchased at the price ofimmeasurable human suffering," reflects "our Nation'sunderstanding that such classifications ultimatelyhave a destructive impact on the individual and oursociety." Adarand, 515 U.S. at 240 (Thomas, J .,concurring); seealso Croson, 488 U.S. at 521 (Scalia, J .,concurring) (discrimination based on race is "illegal,immoral, unconstitutional, inherently wrong, an ddestructive of democratic society") (citation omitted).

The facts of this case are similar to those in Lewis.There, a school district that ha d been unitary since2004 implemented a race-based redistricting plandesigned to eliminate overcrowding and maintain thepercentage ofAfrican American students in its schools.Lewis, 662 F.3d at 344 (a goal of the redistricting wasto "maintain unitary status") . The father of twoAfrican American school children sued the schooldistrict alleging the redistrictingviolated his children'sFourteenth Amendment equal protection rights. Id .at 345-46. The district court refused to apply strictscrutiny and granted summary judgment in favor ofthe school district. The court ruled that theredistricting plan was race neutral, an d the parent hadno t established that the district acted withdiscriminatory motive. Id. at 346. Specifically, thedistrict court held the plan did not "explicitly employracial classifications," but based student assignmentson the students' geographic locations . Id . at 349.

15The Fifth Circuit reversed the district court's

grant of summary judgment. A redistricting studentassignment plan that calculates projected enrollmentdata by race an d ethnicity necessarily classifiesindividual students by race. See id. at 350 ("it isunclear how a student assignment plan could calculatethe percentage ofblack students at each school withoutclassifying individual students by race"). The FifthCircuit criticized th e district court's assumption thatschool districts could use racially based decisions forth e "benign" purpose of maintaining post-unitary"racial balance" among the schools in the system. Id.at 349. The court found that reasoning was foreclosedby Parents Involved, which held that preserving aschool district's unitary status by means of raciallybased assignments, albeit a ''benign" racial motive, wasnevertheless constitutionally impermissible. I d. (citingParents Involved, 551 U.S. at 721). If the schooldistrict used geographic lines as a proxy for racialbalancing to "'maintain unitary status,' the plan isexplicitly race-bas ed, and the [school district's] actionsfly in the face of Parents Involved and require strictscrutiny review." Id . at 355 (Jones, J ., concurring).

In th e present case, the District generated racialan d ethnic data for each redistricting scenario.Student Doe, 665 F.3d at 533. This data was used bythe District with the "intent . . . to achieve no t onlyoverall numeric equality, bu t also racial parity,between the two schools ." Student Doe, 665 F.3dat 539. Under Lewis, these findings establish th e useof racial classifications for an unconstitutional purpose.However, in Student Doe, the Third Circuit found noracial classification: "The first alternative by whichintentional discrimination can be shown-racial


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16classification-is inapposite to Plan 3R and the facts ofthis case. Strict scrutiny analysis is not appropriate onthis basis." Student Doe, 665 F.3d at 548. UnderLewis, redistricting attendance zones by consideringthe racial composition of neighborhoods would be heldto be the use of geographic line s as a proxy for racialbalancing an d contrary to this Court's decisions.Lewis, 662 F.3d at 354 (Jones, J ., concurring) (citingBush v. Vera, 517 U.S. 952, 968 (1996); Hunt v.Cromartie, 526 U.S. 541 (1999)). However in StudentDoe, although the District specifically "targeted"Petitioners' neighborhood because of it s highconcentration of African American students, the ThirdCircuit held the District assigned students to schools''based only on the geographical areas in which theylive." Student Doe, 665 F.3d at 545.

Thus, review by this Court is necessary to(1) resolve the conflict between the circuits; (2) reversethe decision of the Third Circuit; an d (3) hold thatcourts must apply strict scrutiny to school distri cts thatredistrict attendance zones in order to achieve racialbalancing an d diversity.

17I I I

TH E ISSUES PRESENTED BY TH EDISTRICT'S RACE-CONSCIOUS

ATTENDANCEZONESAREDIFFERENTTHAN THE ISSUES PRESENTED INPARENTS INVOLVED AND FISHER V.UNIV. OF TEX. ATAUSTIN, AND THUSSEPARATE REVIEW IS WARRANTED

A. This Court's Decision in ParentsInvolved Does Not Resolve th eDistrict's Use of NeighborhoodRacial Classifications to AchieveRacially Balanced High SchoolsReview is needed, because Parents Involved does

not control the District's admitted use of race to makeschool assignments. Student Doe, 665 F.3d at 539.Parents Involved pertained only to plans that expresslyuse the race of the individual student to determinewhich school that student will attend. The pluralityopinion made clear that th e plans the Court examinedused "explicit racial classifications" an d that "othermeans for achieving greater racial diversity inschools . . . implicate different considerations." 551U.S. at 745. Here, under rational basis review, theThird Circuit allowed th e District to essentiallyracially gerrymander high school attendance zones inth e name of diversity. The court recognized thatredistricting plans to achieve student diversity may beunconstitutional, because it may be impossible to"compute the difference between racial diversity andracial balance." Student Doe, 665 F.3d at 559 (Roth, J .,concurring). However the court did not feel obligatedto examine the redistricting under strict scrutiny,because it believedthe racial classificationswere based


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18on neighborhoods, not individual students. Id. at 529.Therefore, the court did not feel that this Court'sdecision in Parents Involved was controlling: "TheSupreme Court . . . ha[s) ye t to se t forth any standardrequiring the application of strict scrutiny whendecisionmakers have discussed race, bu t the schoolassignment plan neither classifies on the basis of racenor has a discriminatory purpose." Student Doe, 665F.3d at 529; see also id. at 559 ("[W]hen dealing withrace-neutral compelling interests, the concurrentconsideration of racial diversity (which of course mustbe race-based) does not invalidate a plan-but we needfurther guidance from th e Supreme Court on thisissue.").

The Fifth Circuit on the other hand, when facedwith similar facts in Lewis, reversed the district courtfor approving a school assignment plan under rationalbasis review. Lewis, 662 F.3d at 352. However, thecourt did not rely upon Parents Involved for it sdecision. See id. at 349 (stating "[w]e need not parseParents Involved," and finding a school district'sattempt to maintain racial balance is a discriminatorypurpose). The issue of whether a school district mayassign students to schools based upon the geographicboundaries of the neighborhoods it classified by race,all to achieve racial balancing, was not settled by thisCourt in Parents Involved. See Parents Involved, 551U.S. at 709-11 (describing how the school assignmentplans classified individual students by race).

19B. Fisher Concerns Diversityin Higher Education, No t

High School Attendance ZonesThe issues in this case are fundamentally differentfrom those presented in Fisher such that separate

review is warranted. The question in Fisher does notconcern school attendance zonesat all. The issue is"(w]hether this Court's decisions interpreting theEqual Protection Clause of the FourteenthAmendment, including Grutter v. Bollinger [), permitthe University of Texas at Austin's use of race inundergraduate admissions decisions."4 In Fisher, thisCourt must examine the Fifth Circuit's strict scrutinyanalysis, which held that under Grutter, universitieshave an abstract compelling interest to pursue racialdiversity which justifies the use of raciallydiscriminatory admissions policies. Fisher, 631 F.3dat 220. Of particular importance will be determiningwhether the Fifth Circuit substituted a good faithprocess-oriented review standardfor the strict scrutinythat is constitutionally required when governmentsresort to th e use of racial preferences. See id . at 234("[W]e apply strict scrutiny to race-consciousadmissions policies in higher education, mindful of auniversity's academic freedom and the complexeducational judgments made when assembling abroadly diverse student body.") In Student Doe, th eThird Circuit failed to apply strict scrutiny at all.

Th e particular factual circumstances in Fisher ar enot present here. In Fisher, the Court will examine i fracial an d ethnic backgrounds play an influential rolein producing the diversity of views and perspectives Supra note 2.


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20which are paramount to a university's educationalmission. Fisher, 631 F.3d at 23637. No such interestis claimed by the District in Studen t Doe for grades K-12. In Fisher, the university claimedunderrepresentedminorities would add to unique perspectives that wereotherwise absent from it s college classrooms. Fisher,631 U.S. at 237. No such claim has been made by theDistrict in Student Doe regarding it s two high schools.

Fisher presents this Court with the Texas 'TopTen Percent" rule an d the concept of "critical mass."The Top Ten Percent rule mandates that Texas highschool seniors in the top ten percent of their class beautomatically admitted to any Texas state university.Id . at 224. Critical mass is the number of minoritystudents which would result in increased minorityengagement in the classroom and enhanced minoritycontributions to the character of the university. Id.at 218-19. Thus, an issue in Fisher is whether the TopTen Percent rule achieves critical mass at theUniversity of Texas at Austin. These importantconsiderations are of course a ll absent in Student Doe.

Whether this Court upholds or reverses the FifthCircuit in Fisher, it is likely this Court's decision willnot address high school neighborhoods classified byrace, or K-12 attendance zones.

21

CONCLUSIONFor the foregoing reasons, Amicus Curiae PacificLegal Foundation respectfully requests that this Court

grant the petition for writ of certiorari.DATED: April, 2012.

Respectfully submitted,MERIEM L. HUBBARD**Counsel of RecordRALPH W. KAsARDAOf CounselJOSHUAP. THOMPSONPacific Legal Foundation930 G StreetSacramento, California 95814Telephone: (916) 419-7111Facsimile: (916) 419-7747E-mail: [email protected]: [email protected]: [email protected]

Counsel for Amicus Curiae Pacific Legal Foundation

Documents

Pacific Legal Foundation Brief