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No. 10-3824 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT STUDENT DOE 1 et al., Plaintiffs-Appellants, v. LOWER MERION SCHOOL DISTRICT, Defendant-Appellee. _________ Appeal from the United States District Court for the Eastern District of Pennsylvania Civ. No. 09-2095 _________ BRIEF OF AMICI CURIAE NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW, AND AMERICAN CIVIL LIBERTIES UNION FOUNDATION URGING AFFIRMANCE ON ALTERNATIVE GROUNDS _________ JOHN PAYTON Director-Counsel DEBO P. ADEGBILE DAMON T. HEWITT KIMBERLY LIU NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 99 Hudson St., 16th Floor New York, NY 10013 (212) 965-2200

JOSHUA CIVIN * NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 1444 I Street, NW, 10th Floor Washington, DC 20005 (202) 682-1300 * Counsel of Record January 12, 2011

Counsel for the Amici Curiae

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Of Counsel: DENNIS D. PARKER AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street New York, NY 10004 (212) 549-2500 WITOLD J. WALCZAK ACLU OF PENNSYLVANIA (PA I.D. No. 62976) 313 Atwood Street Pittsburgh, PA 15213 (412) 681-7864 JOHN C. BRITTAIN Professor of Law DAVID A. CLARKE SCHOOL OF LAW UNIVERSITY OF THE DISTRICT OF COLUMBIA 4200 Connecticut Avenue, NW Washington, DC 20008 (832) 687-3007 (institutional affiliation listed for identification purposes only) DEREK W. BLACK Associate Professor of Law HOWARD UNIVERSITY SCHOOL OF LAW 2900 Van Ness St., NW Washington, D.C. 20008 (202) 806-8163 (institutional affiliation listed for identification purposes only) JON M. GREENBAUM BRENDA SHUM LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1401 NEW YORK AVENUE, NW, SUITE 400 WASHINGTON, DC 20005 (202) 662-8600

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CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1 and Local Rule 26.1.1, Amici Curiae NAACP Legal Defense & Educational Fund, Inc. (LDF), the Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee), and the American Civil Liberties Union Foundation (ACLU), file the following statement of disclosure: Each amici is a non-profit 501(c)(3) corporation, is not a publically held company that issues stock, and has no parent corporation.

s/ Kimberly Liu Kimberly Liu NAACP Legal Defense & Educational Fund, Inc. 99 Hudson Street, 16th Floor New York, New York 10013 (212) 965-2200 January 12, 2011 Counsel for Amici Curiae

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TABLE OF CONTENTS Table of Authorities ................................................................................................. ii Interests of the Amici................................................................................................1 Introduction and Summary of the Argument............................................................2 Argument...................................................................................................................6 I. Justice Kennedy’s Parents Involved concurrence provides the controlling standard of constitutional review for this case.............................6 A. B. II. Under Parents Involved, race-consciousness in the drawing of school attendance zones is presumptively valid ..................................7 This presumption of validity furthers the equal educational opportunity mandate of Brown v. Board of Education ..................... 14

Justice Kennedy’s controlling concurrence encompasses principles set forth in prior authority of the Supreme Court and this Court...................... 18 A. B. Nothing in Parents Involved prevents application of strict scrutiny where there is evidence of segregative intent ..................... 20 Arlington Heights does not require strict scrutiny simply because a school district considers neighborhood racial demographics..................................................................................... 22

III.

The District Court’s findings provide no clear ground to disregard Parents Involved’s presumption of validity, but a remand could be prudent to allow the District Court to clarify the facts in light of the proper legal standard.................................................................................... 26

Conclusion ............................................................................................................. 30

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TABLE OF AUTHORITIES Cases Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)......................................21 American Civil Rights Foundation v. Berkeley Unified School District, 172 Cal. App. 4th 207 (Cal. Ct. App. 2009) .................................................. 16-17 Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237 (1991) ....................................................................................................18 Brown v. Board of Education, 347 U.S. 483 (1954)........................................ passim Bush v. Vera, 517 U.S. 952 (1996) .................................................................... 23-24 Citizens for Better Education v. Goose Creek Consolidated Independent School District, 719 S.W.2d 350 (Tex. App. 1986) ....................................... 11-12 City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) ....................................14 Columbus Board of Education v. Penick, 443 U.S. 449 (1979) ..............................21 Doe 1 v. Lower Merion School District, 689 F. Supp. 2d 742 (E.D. Pa. 2010) .......................................................................................................................9 Easley v. Cromartie, 532 U.S. 234 (2001)...............................................................24 Gratz v. Bollinger, 539 U.S. 244 (2003)..................................................................21 Grutter v. Bollinger, 539 U.S. 306 (2003)....................................................... passim Johnson v. California, 543 U.S. 499 (2005)............................................................14 Keyes v. School District No. 1, 413 U.S. 189 (1973) ..............................................22 Keyes v. School District No. 1, 313 F. Supp. 61 (D. Colo. 1970) ...........................22 Marks v. United States, 430 U.S. 188 (1977) ......................................................9, 10 Miller v. Johnson, 515 U.S. 900 (1995).............................................................23, 24 Panetti v. Quarterman, 551 U.S. 930 (2007).............................................................9

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Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007) ..................................................................................... passim Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979) ....25, 26 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)....................................................................................................................10 Planned Parenthood of Southeastern Pennsylvania v. Casey, 947 F.2d 682 (3d Cir. 1991) .......................................................................................................10 Pryor v. NCAA, 288 F.3d 548 (3rd Cir. 2002).............................................19, 25, 26 Rappa v. New Castle County, 18 F.3d 1043 (3d Cir. 1994) ....................................10 Shaw v. Reno, 509 U.S. 630 (1993) .........................................................................23 Smith v. University of Washington, Law School, 233 F.3d 1188 (9th Cir. 2000) .....................................................................................................................10 Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971).............24 Tometz v. Board of Education, 237 N.E. 2d 498 (Ill. 1968).............................. 11-12 Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977) ..................................................................................... passim Statutes and Constitutional Provisions No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425 ......................................................................................................................14 Cal. Const., art. 1, § 31, subdiv. (a) ................................................................... 16-17 Other Authorities Douglas S. Massey & Mary J. Fischer, The Effect of Childhood Segregation on Minority Academic Performance in Selective Colleges, 29 Ethnic & Racial Stud. 1 (2006) .......................................................17

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National Academy of Education, Race-Conscious Policies for Assigning Students to Schools: Social Science Research and the Supreme Court Cases (2007) ...............................................................................17 NAACP Legal Defense & Educational Fund, Inc. & The Civil Rights Project, Still Looking to the Future: Voluntary K-12 Integration, A Manual for Parents, Educators, & Advocates (2008)..........................................16 Elizabeth Stearns, Long-Term Correlates of High School Racial Composition, 112 Teachers Coll. Rec. 1654 (2010) ............................................17 Transcript of Oral Argument, Ricci v. DeStefano, 129 S. Ct. 2658 (2009) (No. 07-1428)............................................................................................12 Linda R. Tropp & Mary A. Prenovost, The Role of Intergroup Contact in Predicting Children’s Interethnic Attitudes in Intergroup Attitudes and Relations in Childhood Through Adulthood 236 (Sheri R. Levy & Melanie Killen eds., 2008) .................................................................17

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INTERESTS OF THE AMICI Amici are the NAACP Legal Defense & Educational Fund, Inc. (LDF), the Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee), and the American Civil Liberties Union Foundation (ACLU). Pursuant to Federal Rule of Appellate Procedure 29(a), all parties have consented to the filing of this amicus brief. No counsel for any party had a role in authoring this brief. LDF is a non-profit legal organization that has litigated numerous landmark cases over the past six decades to dismantle racial segregation and ensure equal educational opportunity for all students, including the cases leading up to and including Brown v. Board of Education, 347 U.S. 483 (1954). In addition, LDF has played and continues to play a critical role in litigation and advocacy to ensure diversity and reduce racial isolation in primary, secondary, and higher education. See, e.g., Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007); Grutter v. Bollinger, 539 U.S. 306 (2003). The Lawyers’ Committee is a tax-exempt, nonprofit civil rights organization that was founded in 1963 by the leaders of the American bar at the request of President John F. Kennedy to help defend the civil rights of minorities and the poor. Throughout its history, the Lawyers’ Committee has been involved in cases examining the proper scope of coverage afforded to civil rights laws, including

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laws related to equal educational opportunity.

The Lawyers’ Committee also

engages in litigation and public policy advocacy to ensure diversity in education. The ACLU is a nationwide, nonprofit, nonpartisan organization with more than 550,000 members dedicated to the principles of liberty and equality embodied in the Constitution and this nation’s civil rights laws. In support of these

principles, the ACLU has appeared in numerous cases involving educational diversity and the reduction of racial and ethnic isolation both as direct counsel and amicus curiae including Parents Involved, 551 U.S. 701, and Grutter, 539 U.S. 306. The ACLU of Pennsylvania is a state affiliate of the national ACLU, with more than 16,000 members.

INTRODUCTION AND SUMMARY OF THE ARGUMENT There are two key facts in this case: First, the student assignment plan adopted by Lower Merion School District (hereinafter “the School District”) is facially race-neutral because it does not allocate benefits or burdens based on explicit racial classifications of individual students. Rather, students are assigned to the School District’s two high schools—both ranked among the best in the nation—based on the geographic attendance zone in which they live. Second, this student assignment plan resulted from a process that was race-conscious. School District staff drew attendance zones based in part on consideration of the racial

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demographics of affected neighborhoods, and the School Board approved the resulting plan, including the rezoning of students from South Ardmore—a neighborhood with a large but not exclusively African-American population—to attend Harriton High School, which previously had low African-American enrollment. Significantly, however, all students in each attendance zone receive the same high school assignment, regardless of their individual racial background. Amici accept that the District Court’s factual findings on each of these issues were correct. A50-A55, A69-A72.1 But its opinion was marred by a fundamental legal error: its assumption that strict scrutiny was automatically triggered by the School District’s “mere consideration” of neighborhood racial demographics. A67; accord A80. The District Court failed to appreciate that Justice Kennedy’s pivotal concurrence in Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007), establishes the governing legal standard of constitutional review. School authorities’ consideration of neighborhood racial demographics at the aggregate level when drawing school attendance zones is precisely the type of non-individualized, race-conscious decision-making that Justice Kennedy expressly identified as presumptively valid and, thus, “unlikely . . . [to] demand strict scrutiny to be found permissible.” Id. at 789 (Kennedy, J., concurring in part and concurring in the judgment). Because Justice Kennedy’s
1

Amici cite to the appendix to appellants’ brief as “A__.” 3

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Parents Involved concurrence is controlling on this point, it was inappropriate for the District Court to apply a separate legal analysis based on Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), and its progeny. In fact, the principles set forth in Arlington Heights are incorporated into Parents Involved’s governing standard. Regardless of the outcome of this case, amici’s overriding interest is to urge this Court to give effect to Justice Kennedy’s controlling concurrence in Parents Involved. To do otherwise would unnecessarily restrict school districts, parents, and advocates from working to redeem the promise of high-quality, racially inclusive schools for all students—a commitment unanimously embraced by the Supreme Court in Brown v. Board of Education, 347 U.S. 483 (1954). Justice Kennedy’s concurrence in Parents Involved draws heavily upon Brown. He recognized that “[t]his Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children.” Parents Involved, 551 U.S. at 797 (Kennedy, J., concurring in part and concurring in the judgment). Yet, in many American communities, the “problem of de facto resegregation in schooling” makes it challenging to fulfill this obligation. Id. at 788. As Justice Kennedy emphasized, the Constitution does not tie the hands of school authorities who “are concerned that the student-body compositions of certain schools interfere with [Brown’s]

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objective of offering an equal educational opportunity to all of their students.” Id. at 788. Rather, school authorities “are free to devise race-conscious measures to address the problem in a general way . . . [such as] drawing attendance zones with general recognition of the demographics of neighborhoods.” Id. at 788-89. As in this case, school attendance boundaries consistently are matters of intense debate because they have very practical effects on the lives of families and their children. Appellants have raised serious educational and civic concerns that merited close attention by the School District, its decision-makers, and the community at large.2 But the contested nature of the public debate does not automatically trigger the most rigorous level of constitutional review. To the contrary, under Parents Involved, strict scrutiny is not applicable unless a plaintiff demonstrates distinctive circumstances—such as a segregative purpose—that provide grounds for overcoming the presumptive validity of non-individualized race-consciousness in drawing school attendance zones. It is this threshold legal inquiry that the District Court overlooked. The District Court’s judgment in favor of the School District could be affirmed on this alternative basis: Parents Involved’s presumption of validity applies, so there is no need for this Court to reach the question of whether the District Court correctly upheld the constitutionality of the School District’s plan on Amici file this brief to clarify the legal principles at issue and take no position regarding the School District’s actions in matters unrelated to this case. 5
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the ground that it satisfied strict scrutiny. Nevertheless, this Court, in the interest of prudence, may wish to remand for the District Court to clarify certain inconsistencies in its factual findings under the proper legal standard.

ARGUMENT I. Justice Kennedy’s Parents Involved concurrence provides controlling standard of constitutional review for this case. the

Appellants contend that Parents Involved compels application of strict scrutiny whenever there is any consideration of race in school authorities’ decision-making, see Appellants’ Br. 36-39, 40-41, but the District Court properly concluded that the Supreme Court’s decision “require[s] this Court to apply strict scrutiny to student assignment plans only if they are based on individual racial classifications,” A72 (emphasis added). The District Court failed to recognize, however, that Justice Kennedy’s Parents Involved concurrence also provides a different controlling standard of review for this case: It establishes a presumption of validity where, as here, a court reviews the constitutionality of nonindividualized race-consciousness in the drawing of school attendance zones. This approach provides school districts with a limited degree of latitude to pursue Brown’s objective of racially inclusive, high-quality education.

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A.

Under Parents Involved, race-consciousness in the drawing of school attendance zones is presumptively valid.

In Parents Involved, the salient feature of the student assignment plans adopted by the school districts of Seattle, Washington, and Jefferson County, Kentucky, was consideration of individual students’ race as one factor in determining whether to approve their requests for assignments to particular schools. 551 U.S. at 711-13, 715-17 (plurality opinion). The threshold question was whether voluntary integration plans that utilized such individualized racial classifications trigger strict scrutiny. The Justices sharply disagreed over the

answer to this question under the circumstances at issue in Parents Involved. But a majority supported the view that strict scrutiny is unlikely to be triggered where, as here, a school district draws attendance zones with general recognition of the racial demographics of its neighborhoods at the aggregate level, but does not assign any individual student to a particular school based explicitly on his or her racial background. 1. In Parents Involved, the Chief Justice and the four Justices who joined the material portion of his plurality opinion agreed that strict scrutiny had to be applied because Seattle and Jefferson County “classif[ied] students by race and rel[ied] upon that classification in making school assignments.” Id. at 711.

Applying this heightened standard of review, these five Justices further agreed that

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the school districts’ plans were not sufficiently narrowly tailored. Id. at 726; see also id. at 783-84 (Kennedy, J., concurring in part and concurring in the judgment). Justice Kennedy, however, was unwilling to go so far as to require strict scrutiny for all race-conscious decision-making by school districts. He expressly distinguished the individualized racial classifications utilized in Seattle’s and Jefferson County’s student assignment plans from “mechanisms [that] are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race.” Id. at 789 (Kennedy, J.,

concurring in part and concurring in the judgment). Of particular relevance to this case, in defining the latter category, Justice Kennedy listed several examples of mechanisms routinely used by school districts seeking to promote racial integration, including “drawing attendance zones with general recognition of the demographics of neighborhoods.” Id.3 This distinction is significant because it determines the appropriate standard of constitutional review for the student assignment plan now before this Court. Justice Kennedy thought it “unlikely” that drawing attendance zones with general recognition of neighborhood racial demographics, or any of the other raceconscious mechanisms that he enumerated, “would demand strict scrutiny to be The four other examples identified by Justice Kennedy were: (1) “strategic site selection of new schools”; (2) “allocating resources for special programs”; (3) “recruiting students and faculty in a targeted fashion”; and (4) “tracking enrollments, performance, and other statistics by race.” Id. 8
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found permissible.” Id. at 789. Rather, these race-conscious mechanisms warrant what amounts to a presumption of validity: If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of their students, they are free to devise race-conscious measures to address the problem in a general way and without treating each student in a different fashion solely on the basis of a systematic, individual typing by race. Id. at 788-89 (emphasis added). By contrast, “[a]ssigning to each student a

personal designation according to a crude system of individual racial classifications is quite a different matter; and the legal analysis changes accordingly.” Id. at 789. Because of the “presumptive invalidity of a State’s use of racial classifications to differentiate its treatment of individuals,” strict scrutiny automatically applies. Id. at 793. 2. The District Court in this case declined to analyze Justice Kennedy’s concurrence under the prevailing approach for interpreting “fragmented” Supreme Court decisions. Marks v. United States, 430 U.S. 188, 193 (1977); accord Panetti v. Quarterman, 551 U.S. 930, 949 (2007). The District Court therefore failed to recognize that Justice Kennedy’s presumption of validity is controlling because it garnered the votes of the four dissenting Justices. A92; Doe 1 v. Lower Merion Sch. Dist., 689 F. Supp. 2d 742, 751 (E.D. Pa. 2010). Applying Marks, this Court has held that “[w]here a Justice or Justices concurring in the judgment . . . articulates a legal standard which, when applied, 9

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will necessarily produce results with which a majority of the Court from that case would agree, that standard is the law of the land.” Planned Parenthood of

Southeastern Pa. v. Casey, 947 F.2d 682, 693 (3d Cir. 1991), rev’d in part on other grounds, 505 U.S. 833 (1992); see also Smith v. Univ. of Wash., Law Sch., 233 F.3d 1188, 1199-1200 (9th Cir. 2000) (concluding that the opinion of a single Justice, which would have been joined by four other Justices, results in a controlling legal standard). In Casey, this Court noted that four Justices of the then-existing Supreme Court would apply strict scrutiny review to abortion restrictions, and four would apply a less restrictive standard of review. 947 F.2d at 694-96. The controlling legal standard was therefore Justice O’Connor’s middle position—that strict scrutiny was warranted when the restriction placed an “undue burden” on a woman’s right to an abortion. Id. at 697; see also Rappa v. New Castle County, 18 F.3d 1043, 1057 (3d Cir. 1994) (explaining this Court’s decision in Casey). A similar split occurred in Parents Involved, but with Justice Kennedy as the determinative vote. Whereas the Chief Justice and the three other Justices who joined this portion of his plurality opinion took a restrictive approach to voluntary integration plans, the four dissenting Justices agreed with Justice Kennedy that race-conscious measures that do not utilize individual racial classifications are presumptively valid. Parents Involved, 551 U.S. at 837 (Breyer, J., dissenting).

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Indeed, the dissenting Justices would have gone further and applied a more permissive analysis to a much broader array of measures that seek racially inclusive educational goals, including the Seattle and Jefferson County plans at issue in Parents Involved. Id. at 834, 837. Thus, a majority of the Court in Parents Involved supported Justice Kennedy’s analysis of general race-conscious policymaking by school authorities that does not allocate burdens or benefits based on individualized racial classifications; accordingly, his opinion on that subject controls. 3. Not only did Justice Kennedy’s presumption of validity win the votes of the four dissenters, but the Chief Justice’s plurality opinion did not rule out this approach to the circumstances at issue here. See id. at 738-39 (plurality opinion). Responding to the dissenters’ arguments against applying strict scrutiny, the Chief Justice highlighted the same distinction that Justice Kennedy drew between the individualized racial classifications utilized by Seattle and Jefferson County, on the one hand, and “race-consciousness in drawing school attendance boundaries,” on the other; the latter, in the Chief Justice’s view, presented “an issue well beyond the scope of the question presented.” Id. at 738. Moreover, the Chief Justice expressly distinguished two cases in which state courts in Illinois and Texas, respectively, applied rational-basis review to uphold “race-consciousness in drawing school attendance boundaries.” Id. at 738-39; see

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Tometz v. Bd. of Educ., 237 N.E.2d 498, 499, 502-503 (Ill. 1968) (upholding as reasonable Illinois’s requirement that school boards “take into consideration” reduction of de facto racial segregation when drawing school attendance boundaries); Citizens for Better Educ. v. Goose Creek Consol. Indep. Sch. Dist., 719 S.W.2d 350, 352 (Tex. App. 1986) (upholding a school district’s attendance zone plan, designed in part “to achieve ethnic balance” between its two high schools, on the ground that “[s]chool authorities are traditionally given broad discretionary powers to formulate and implement educational policy and may properly decide to ensure to their students the value of an integrated school experience”). The Chief Justice concluded that Tometz and Citizens for Better Education provided “an improper standard for evaluating [the] express racial classifications” utilized by Jefferson County and Seattle, but he did not suggest that a more relaxed standard of review was inappropriate for the type of nonindividualized race-consciousness that was upheld in those two cases and that is at issue here. Parents Involved, 551 U.S. at 738 (plurality opinion).4

The Chief Justice subsequently suggested his support for Justice Kennedy’s approach even more clearly. During oral argument in Ricci v. DeStefano, the Chief Justice stated his view that “both the plurality and the concurrence in Parents Involved accepted the fact that race conscious action such as school siting or drawing district lines . . . is okay, but discriminating in particular assignments is not.” Transcript of Oral Argument at 54, Ricci v. DeStefano, 129 S. Ct. 2658 (2009) (No. 07-1428). To be clear, while Parents Involved requires strict scrutiny review of student assignment plans that utilize individualized racial classifications, Justice Kennedy refused to rule out this 12

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A presumption of validity for non-individualized race consciousness is also the only legal principle consistent with the Supreme Court’s repeated insistence in Parents Involved and other cases that government actors must give serious, goodfaith consideration to facially race-neutral alternatives before adopting measures that allocate benefits or burdens based on individualized racial classifications. See id. at 744 (plurality opinion); id. at 783-84, 789-90 (Kennedy, J., concurring in part and concurring in the judgment); see also Grutter, 539 U.S. at 339 (“Narrow tailoring does, however, require serious, good faith consideration of workable raceneutral alternatives. . . .”). Under the Supreme Court’s jurisprudence, a student assignment mechanism or any other measure that does not rely on individualized racial classifications is at least facially race-neutral. Parents Involved, 551 U.S. at 735 (plurality opinion). If such facially race-neutral mechanisms triggered strict scrutiny simply because they were adopted in pursuit of a race-conscious goal, the well-established narrowtailoring analysis would be internally inconsistent and impossible to satisfy. The very act of giving good-faith consideration to facially race-neutral alternatives

approach in all circumstances. In his view, such classifications could satisfy strict scrutiny with “more nuanced, individual evaluation of school needs and student characteristics” than was utilized by Seattle or Jefferson County. Parents Involved, 551 U.S. at 790 (Kennedy, J., concurring in part and concurring in the judgment). In any event, no such individualized racial classifications are at issue here. 13

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requires school authorities to evaluate whether those alternatives are effective at achieving the intended race-conscious goal. See Grutter, 539 U.S. at 339-40.5 B. This presumption of validity furthers the equal educational opportunity mandate of Brown v. Board of Education.

Parents Involved’s controlling distinction between individualized racial classifications and non-individualized race-consciousness is not “a distinction that simply makes no difference.” Cf. Appellants’ Br. 39. In Justice Kennedy’s view, the “dangers” presented by the latter “are not as pressing.” Parents Involved, 551 U.S. at 797 (Kennedy, J., concurring in part and concurring in the judgment). Thus, Justice Kennedy deemed non-individualized race-consciousness a preferable approach in pursuit of Brown’s objective of high-quality, racially inclusive education for all students. 1. Individualized racial classifications trigger strict scrutiny because they “raise special fears that they are motivated by an invidious purpose.” Johnson v. California, 543 U.S. 499, 505 (2005). As Justice Kennedy explained, such

classifications “command people to march in different directions based on racial Moreover, if strict scrutiny applies to all facially race-neutral measures that are designed in part to further race-conscious objectives, it could jeopardize government action, for example, to address achievement gaps between African Americans and other students. See No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425 (codified as amended in scattered sections of 20 U.S.C.). Even Justices who have largely rejected any use of race to confer or deny individual benefits have not gone so far as to bar facially race-neutral measures to dismantle structural barriers to equal opportunity. See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 526 (1989) (Scalia, J., concurring in the judgment). 14
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typologies” and “can lead to corrosive discourse, where race serves not as an element of our diverse heritage but instead as a bargaining chip in the political process.” Parents Involved, 551 U.S. at 797 (Kennedy, J., concurring in part and concurring in the judgment). By contrast, “[r]ace-conscious measures that do not rely on differential treatment based on individual classifications” are less problematic because “the same ends are achieved by more indirect means.” Id. 2. Equally significant, Parents Involved’s binding presumption of validity for non-individualized race-consciousness provides school authorities a limited degree of latitude to further the objectives of Brown. Justice Kennedy recognized that our nation has made great progress in the fifty-plus years since the Supreme Court’s landmark decision. Even so, “flaws and injustices . . . remain,” including the increasing “problem of de facto resegregation,” and impede realization of “Brown’s objective of equal educational opportunity.” Id. at 787, 788. Although “[t]he enduring hope is that race should not matter; the reality is that too often it does” in determining whether students have access to high-quality schools and classrooms. Id. at 787. Moreover, as Brown proclaimed and Parents Involved reaffirmed, one of the most important lessons that “[t]he Nation’s schools strive to teach [is] that our strength comes from people of different races, creeds, and cultures uniting in commitment to the freedom of all.” Id. at 782. But “teach[ing] that principle” is

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more difficult if schools do not have “classrooms that reflect the racial makeup of the surrounding community.” Id. The challenges are particularly salient in communities with strong patterns of residential segregation. “Due to a variety of factors—some influenced by

government, some not—neighborhoods in our communities do not reflect the diversity of our Nation as a whole.” Id. at 798; accord A53. Recognizing these trends, school authorities have voluntarily employed a variety of integration methods to help realize Brown’s promise of equal educational opportunity. To the extent that the School District adopted a student assignment plan that took neighborhood racial demographics into account, it is not alone. See NAACP Legal Defense & Educational Fund, Inc. & The Civil Rights Project, Still Looking to the Future: Voluntary K-12 Integration, A Manual for Parents, Educators, & Advocates (2008) (describing examples from across the country of facially raceneutral student assignment plans intended to achieve integration).6

For instance, the Berkeley, California Unified School District aims to reduce racial isolation by considering, when making student assignments, a diversity index of the attendance zone in which the student resides—determined by the zone’s average household income, average educational attainment, and racial demographics. See Am. Civil Rights Found. v. Berkeley Unified Sch. Dist., 172 Cal. App. 4th 207, 212-15 (Cal. Ct. App. 2009). In the face of a state constitutional challenge, that plan was upheld precisely because it did not use individualized racial classifications. See id. at 211 (“We find that educators who include a general recognition of the demographics of neighborhoods in student assignments, without classifying a student by his or her race, do not ‘discriminate 16

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Recent research confirms that students from all racial backgrounds benefit from efforts to produce integrated educational settings. See, e.g., National

Academy of Education, Race-Conscious Policies for Assigning Students to Schools: Social Science Research and the Supreme Court Cases (2007).7 Indeed, “the nation’s future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples.” Grutter, 539 U.S. at 324 (internal quotations and citations omitted). 3. It is precisely for these reasons that Justice Kennedy declined to join fully the Chief Justice’s plurality opinion: “To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken.” Parents Involved, 551 U.S. at 788 (Kennedy, J., concurring in part and concurring

against, nor grant preferential treatment to, any individual or group on the basis of race.’” (quoting Cal. Const., art. 1, § 31, subdiv. (a))). For instance, when compared to their more segregated peers, students who attend integrated schools have higher comfort levels with members of other racial groups, an increased sense of civic engagement, reduced prejudices, and a greater desire and ability to live and work in multiracial settings. See, e.g., Elizabeth Stearns, Long-Term Correlates of High School Racial Composition, Teachers Coll. Rec. 1654, 1669-71 (2010); Linda R. Tropp & Mary A. Prenovost, The Role of Intergroup Contact in Predicting Children’s Interethnic Attitudes, in Intergroup Attitudes and Relations in Childhood Through Adulthood 236, 245 (Sheri R. Levy & Melanie Killen eds., 2008). An integrated learning environment also better prepares students to attend and succeed in college. See, e.g., Douglas S. Massey & Mary J. Fischer, The Effect of Childhood Segregation on Minority Academic Performance at Selective Colleges, 29 Ethnic & Racial Stud. 1, 3-4, 20-22 (2006). 17
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in the judgment). As Justice Kennedy recognized, if strict scrutiny invariably applies even to mechanisms that are race-conscious in the aggregate but do not classify individual students by race, many school districts would be deterred from taking any voluntary action to redeem Brown’s promise: Executive and legislative branches, which for generations now have considered these types of policies and procedures, should be permitted to employ them with candor and with confidence that a constitutional violation does not occur whenever a decisionmaker considers the impact a given approach might have on students of different races. Id. at 789. Thus, Parents Involved’s presumption of validity helps ensure that “[t]hose entrusted with directing our public schools can bring to bear the creativity of experts, parents, administrators, and other concerned citizens” to “continu[e] the important work of bringing together students of different racial, ethnic, and economic backgrounds.” Id. at 798; cf. Bd. of Educ. of Okla. City Pub. Schs. v. Dowell, 498 U.S. 237, 248 (1991) (“Local control over the education of children allows citizens to participate in decisionmaking, and allows innovation so that school programs can fit local needs.”). II. Justice Kennedy’s controlling concurrence encompasses principles set forth in prior authority of the Supreme Court and this Court. Instead of following the controlling framework set forth in Parents Involved, the District Court assumed that strict scrutiny is compelled by the Supreme Court’s holding thirty years earlier in Arlington Heights, 429 U.S. 252, as well as this 18

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Court’s application of Arlington Heights five years before Parents Involved in Pryor v. NCAA, 288 F.3d 548 (3rd Cir. 2002). A76-A80. Although the District Court expressed doubts about how to apply Arlington Heights and Pryor to this case, A78 n.7, A80 n.8, it ultimately determined that they warranted an analysis separate from that in Parents Involved. A76-A80. After conducting this analysis, the District Court decided to apply strict scrutiny based on the “mere fact” that the School District considered neighborhood racial demographics, among other factors, when it rezoned students from South Ardmore to attend Harriton High School. A92; see also A67, A79-A80. The District Court not only misinterpreted Arlington Heights and its progeny, but it also misunderstood the relationship between Parents Involved and prior cases regarding race-conscious government decision-making. Sensitive to concerns such as those raised by appellants in this case, Justice Kennedy’s concurrence does not rule out strict scrutiny for all non-individualized raceconscious decision-making by school authorities. But this rigorous review is

warranted only if a plaintiff demonstrates special circumstances—such as segregative intent—that warrant overcoming the presumption of validity; mere consciousness of neighborhood racial demographics is alone insufficient. Parents Involved, 551 U.S. at 789 (Kennedy, J., concurring in part and concurring in judgment). This approach fully encompasses the principles that the Supreme Court

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set forth in Arlington Heights for ferreting out when government actions are motivated by segregative intent or an otherwise invidious discriminatory purpose. A. Nothing in Parents Involved prevents application of strict scrutiny where there is evidence of segregative intent.

Justice Kennedy’s controlling concurrence made clear that the presumption of validity applies only when school districts pursue “the objective of offering an equal educational opportunity to all of their students.” Id. at 788. Thus, Parents Involved does not disturb the well-established principle that strict scrutiny applies if a plaintiff demonstrates that a school district intentionally took nonindividualized, race-conscious actions for the purpose of segregating students, or otherwise discriminatorily denying them access to educational opportunity, based on their race. This principle flows directly from Brown, where the Court held that segregative intent per se is constitutionally suspect. 347 U.S. at 493, 495. Following Brown, subsequent decisions leading up to and including Parents Involved have reaffirmed that an intention to foster racial integration is not similarly suspect under the Equal Protection Clause. Rather, as Justice Kennedy made clear in Parents Involved, a school district’s race-conscious decision-making with the intent to ensure that its “classrooms . . . reflect the racial makeup of the surrounding community” can help further Brown’s objective of equal educational opportunity. 551 U.S. at 782, 788 (Kennedy, J., concurring in part and concurring

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in the judgment).8 By contrast, school authorities’ actions that take race into consideration for the discriminatory purpose of segregating students or denying educational opportunity based on their race are contrary to, and undermine, Brown’s objective. See id. at 835 (Breyer, J. dissenting) (distinguishing between school district actions that “keep the races apart” and those that “bring them together”).9 Thus, even when school authorities draw attendance zones or take other actions that are facially race-neutral (in that no government decision allocates benefits or burdens based on individualized racial classifications), those actions should be subject to strict scrutiny if they are shown to have been motivated by a segregative purpose. See, e.g., Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 455, 461-63 (1979) (upholding a finding of unconstitutional segregation where a

Indeed, Justice Kennedy departed from the Chief Justice’s plurality opinion and joined the four dissenters to provide majority support for the view that, to the extent that strict scrutiny is triggered by a school district’s actions, it has a “compelling interest” in “avoiding racial isolation” and “achiev[ing] a diverse student population.” Id. at 797-98; see also id. at 865 (Breyer, J., dissenting). Appellants invoke cases, such as Gratz v. Bollinger, 539 U.S. 244 (2003), and Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). Cf. Appellants’ Br. 40-41, 43-44. These cases are inapposite. As in Parents Involved, the reason why the Supreme Court applied strict scrutiny in those cases was that they involved the allocation of benefits or burdens based on an individualized racial classification. See Gratz, 539 U.S. at 270; Adarand, 515 U.S. at 224. The Court did not suggest that strict scrutiny was warranted simply because a governmental entity acted in furtherance of the goal of promoting equal opportunity in education, employment, or other contexts. A72-A80. 21
9

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school board racially gerrymandered attendance zones to create segregated schools); Keyes v. Sch. Dist. No. 1, 413 U.S. 189, 191-92, 201-02, 204-05 (1973), aff’g in relevant part Keyes v. Sch. Dist. No. 1, 313 F. Supp. 61, 64-65 (D. Colo. 1970) (finding that the manipulation of student attendance zones and school sites created or maintained segregated schools in violation of the Constitution). But “[n]othing” in these cases “is meant to discourage school boards from . . . promoting the values of an integrated school experience.” Keyes, 413 U.S. at 242 (Powell, J., concurring in part, dissenting in part). B. Arlington Heights does not require strict scrutiny simply because a school district considers neighborhood racial demographics.

The District Court incorrectly assumed that, under Arlington Heights and its Third Circuit progeny, a school district triggers strict scrutiny by shifting a neighborhood to a different school attendance zone, based in part on consideration of the neighborhood’s racial demographics at the aggregate level—even where, as here, there is no finding of segregative intent or any other invidious discriminatory purpose. A79-A80. 1. In Arlington Heights, the Supreme Court provided guidance for how to go about unearthing whether a facially race-neutral government action is, in fact, motivated by segregative intent or an otherwise “invidious discriminatory purpose” and, thus, triggers strict scrutiny. 429 U.S. at 265-68. As the Court explained, a “sensitive inquiry” is required, which may take into account “such circumstantial 22

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and direct evidence of intent as may be available,” including evidence of unjustified disparate impact. Id. at 266. Under that standard, however, the Court concluded that the plaintiffs in Arlington Heights failed to prove that the Village’s decision to prohibit construction of low- and moderate-income housing was motivated by an invidious discriminatory purpose. Id. at 270-71. Even though the Village was aware that its decision had a clear disparate effect on racial minorities, it was not “unexplainable on grounds other than race.” Id. at 266. The Supreme Court elaborated on the “unexplainable on grounds other than race” standard set forth in Arlington Heights in a line of cases reviewing the constitutionality of state legislative efforts to expand political opportunities for racial minorities through the creation of majority-minority electoral districts. In these cases, the Supreme Court has consistently made clear that, under Arlington Heights, not all race-conscious government decision-making is equivalent to “impermissible racial discrimination” that triggers strict scrutiny. Shaw v. Reno, 509 U.S. 630, 646 (1993); see also id. at 643-44 (citing Arlington Heights, 429 U.S. at 266); Miller v. Johnson, 515 U.S. 900, 913-14 (1995) (citing Arlington Heights, 429 U.S. at 266); see also id. at 916. Justice Kennedy’s concurrence in Parents Involved expressly invoked this line of cases by quoting the plurality opinion in Bush v. Vera, 517 U.S. 952 (1996), for the proposition that strict scrutiny does not reflexively apply “merely because redistricting is performed with

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consciousness of race.”

Parents Involved, 551 U.S. at 789 (Kennedy, J.,

concurring in part and concurring in the judgment) (quoting Vera, 517 U.S. at 958 (plurality opinion)). Justice Kennedy’s reliance on Vera confirms that Arlington Heights does not mandate a framework for determining whether strict scrutiny applies that is distinct from that articulated in Parents Involved. Like state legislatures or local zoning authorities, school authorities “will . . . almost always be aware of racial demographics” in the communities they serve, especially in light of patterns of housing segregation that persist in many parts of this nation. See Miller, 515 U.S. at 916; see also Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 20-21 (1971) (describing the reciprocal influence of school location and neighborhood racial composition). But general consciousness of community racial

demographics, or even consideration of “racial balance,” is insufficient, standing alone, to trigger strict scrutiny. Easley v. Cromartie, 532 U.S. 234, 253 (2001); Miller, 515 U.S. at 916. As clarified by the subsequent line of electoral redistricting cases, Arlington Heights is fully consistent with the approach drawn from the Columbus and Keyes line of cases, discussed supra at 21-22, for determining whether special circumstances warrant overcoming the presumptive validity of non-individualized

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race-conscious decision-making by school authorities.10 Absent an individualized racial classification, Arlington Heights counsels that the trigger for strict scrutiny is evidence of segregative intent or an otherwise invidious discriminatory purpose— rather than the impact of a government actor’s mere consciousness of race. 429 U.S. at 264-66.11 If the District Court’s contrary interpretation of Arlington

Heights were correct, Justice Kennedy’s binding presumption of validity for nonindividualized race-consciousness effectively would be nullified. 2. For the same reason that the District Court erred in interpreting Arlington Heights, it also misapplied Pryor, 288 F.3d 548. Pryor is the only Third Circuit precedent cited by the District Court and appellants to support application of strict scrutiny in this case. A76-A78, A80; Appellants’ Br. 41-43. The District Court misunderstood Pryor as holding that if race-consciousness per se is a motivating factor in a school district’s decision-making, strict scrutiny is triggered. A77, A80. In fact, Pryor held, consistent with Arlington Heights, that only an “invidious discriminatory purpose” triggers strict scrutiny. (quoting Arlington Heights, 429 U.S. at 266). Of course, “[c]ontext matters when reviewing race-based governmental action under the Equal Protection Clause,” Grutter, 539 U.S. at 327, and principles drawn from zoning and electoral redistricting cases cannot be directly translated to address challenges to school attendance zones. Notably, however, facially race-neutral measures do trigger strict scrutiny where they are “an obvious pretext for racial discrimination.” Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 272 (1979). 25
11 10

Pryor, 288 F.3d at 562-63

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In Pryor, the plaintiffs survived a motion to dismiss because their complaint alleged that the NCAA adopted facially race-neutral eligibility standards at least in part for the discriminatory purpose of reducing the number of black athletes who could qualify for scholarships, and not merely in spite of the resulting disproportionate reduction in scholarships awarded to black athletes. Id. at 562 (citing Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979)); see also id. at 567. In contrast to the integrative goals of the types of non-individualized raceconscious decision-making endorsed by Justice Kennedy in his Parents Involved concurrence, the purpose alleged by the plaintiffs in Pryor was segregative insofar as it limited eligibility for aspiring college athletes based on their individual racial backgrounds. III. The District Court’s findings provide no clear ground to disregard Parents Involved’s presumption of validity, but a remand could be prudent to allow the District Court to clarify the facts in light of the proper legal standard. Amici’s primary concern is to expose the District Court’s errors in interpreting Parents Involved. In light of these errors, it could be prudent for this Court to remand so the parties may argue and the District Court may consider, in the first instance, whether its factual and legal determinations warrant clarification under the proper constitutional standard of review set forth in Parents Involved. A remand could be particularly helpful in light of certain inconsistencies in the District Court’s findings. 26

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Nevertheless, the District Court’s existing findings provide no clear basis for rejecting the presumption of validity that, under Parents Involved, applies to the School District’s plan for redrawing school attendance zones. This presumption provides an alternative basis to affirm the judgment below. If the Court takes this approach, it need not reach the question of whether the District Court correctly concluded that the School District’s plan satisfied strict scrutiny because it was narrowly tailored to serve a compelling interest.12 Under Parents Involved, the undisputed fact that the School District never employed individualized racial classifications in its redistricting process is critical in establishing a presumption that the process was constitutionally valid and therefore strict scrutiny should not apply. A69, A72. As the District Court found, students were not identified or accorded differential treatment on a racial basis. Any racial considerations were made on a general, aggregate level, and students It should be noted, however, that in its application of strict scrutiny, the District Court clearly erred in cursorily treating the School District’s reliance on criteria, such as equal-sized student populations and walkability, as “compelling interests.” A67, A80-A91. These criteria are not among the limited number of compelling interests, including promoting diversity and reducing racial isolation in primary and secondary education, that the Supreme Court has recognized. See Parents Involved, 551 U.S. at 797-98 (Kennedy, J., concurring in part and concurring in the judgment); see also id. at 865 (Breyer, J., dissenting). Nor should they be so recognized. If they were elevated to the same level as judicially recognized interests rooted in the Fourteenth Amendment’s antidiscrimination mandate, it would be far easier for school districts to justify—and therefore thwart efforts by amici and others to challenge—intentional segregation and other invidious discrimination. 27
12

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were assigned on the basis of their geographic residence rather than their race.13 The findings below are less clear, however, with respect to the question of whether the School District considered neighborhood racial demographics in furtherance of Brown’s “objective of offering an equal educational opportunity to all of their students.” Parents Involved, 551 U.S. at 788 (Kennedy, J., concurring in part and concurring in the judgment). As plaintiffs below, appellants had the burden to prove otherwise. The District Court expressly “reject[ed] any allegations of invidious discrimination or hostility toward African-American students” by School District staff and the School Board. A53, A79. Moreover, the District Court found that the factors motivating the District Administration included reducing racial isolation and its “obvious desire for racial diversity in both high schools.” A53; see also A91. Prior to redistricting, low numbers of African Americans attended Harriton High School. A13. As a result of the challenged student assignment plan, AfricanAmerican enrollment has increased at Harriton and therefore reduced racial isolation at that school—an outcome which should have beneficial educational consequences for all students. A50; see Parents Involved, 551 U.S. at 787-88 (Kennedy, J., concurring in part and concurring in the judgment); Grutter, 539 The District Court found that African Americans comprised, as of September 2008, only 140 of the 308 students in kindergarten through grade 12 who lived in South Ardmore, the neighborhood whose rezoning to Harriton High School precipitated this litigation. A10 n.2. 28
13

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U.S. at 330-33; supra at 17. Moreover, the School District’s attendance zone changes did not involve reassignment of African-American students to schools regarded as ineffective or inferior in the community. A81. To the contrary, the School District’s two high schools are “ranked as being among the best in the state, if not the nation.” A6. The District Court’s suggestion that the School District embraced “racial parity” might raise concerns, if it were interpreted to mean that the District Court was unsure whether the School District acted in pursuit of the educational interests furthered by racially integrated educational environments. A3, A53-A54.

Although seeking racial parity “for its own sake” likely would not trigger the presumption of validity, see Grutter, 539 U.S. at 330 (citation and quotation marks omitted), seeking “classrooms that reflect the racial makeup of the surrounding community” in order to achieve the benefits of integration is precisely the approach that Parents Involved embraces. 551 U.S. at 782 (Kennedy, J.,

concurring in part and concurring in the judgment). This Court may conclude that clarification of this issue by the District Court in light of the proper Parents Involved standard would be beneficial to support its judgment.

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CONCLUSION For the reasons set forth above, the judgment of the District Court should be affirmed on alternative grounds or remanded for further consideration under the applicable legal standard set forth in Parents Involved.

Dated: January 12, 2011

Respectfully submitted, s/ Joshua Civin JOHN PAYTON DEBO P. ADEGBILE DAMON T. HEWITT KIMBERLY LIU NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 99 Hudson St., 16th Floor New York, NY 10013 (212) 965-2200 JOSHUA CIVIN NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 1444 I Street, NW, 10th Floor Washington, DC 20005 (202) 682-1300 Counsel for the Amici Curiae

Of Counsel: DENNIS D. PARKER AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street New York, NY 10004 (212) 549-2500 30

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WITOLD J. WALCZAK ACLU OF PENNSYLVANIA (PA I.D. No. 62976) 313 Atwood Street Pittsburgh, PA 15213 (412) 681-7864 JOHN C. BRITTAIN Professor of Law DAVID A. CLARKE SCHOOL OF LAW UNIVERSITY OF THE DISTRICT OF COLUMBIA 4200 Connecticut Avenue, NW Washington, DC 20008 (832) 687-3007 (institutional affiliation listed for identification purposes only) DEREK W. BLACK Associate Professor of Law HOWARD UNIVERSITY SCHOOL OF LAW 2900 Van Ness St., NW Washington, D.C. 20008 (202) 806-8163 (institutional affiliation listed for identification purposes only) JON M. GREENBAUM BRENDA SHUM LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1401 New York Avenue, NW Suite 400 Washington, DC 20005 (202) 662-8600

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CERTIFICATE OF BAR MEMBERSHIP PURSUANT TO L.A.R. 28.3(D) Pursuant to Local Rule 28.3(d), I hereby certify that the following attorneys are members in good standing of the bar of United States Court of Appeals for the Third Circuit:

Debo P. Adegbile Kimberly Liu NAACP Legal Defense & Educational Fund, Inc. 99 Hudson St., 16th Floor New York, NY 10013 (212) 965-2200 Joshua Civin NAACP Legal Defense & Educational Fund, Inc. 1444 I Street, NW, 10th Floor Washington, DC 20005 (202) 682-1300

s/ Kimberly Liu Kimberly Liu NAACP Legal Defense & Educational Fund, Inc. 99 Hudson Street, 16th Floor New York, New York 10013 (212) 965-2200 Counsel for Amici Curiae

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Date Filed: 01/12/2011

CERTIFICATE OF COMPLIANCE Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C) and Local Rule 31.1(c), I certify that the foregoing Brief of Amici Curiae complies with the typevolume limitation of Federal Rule of Appellate Procedure 32(a)(7)(B) because it contains 6,991 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii). This brief also complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Office Word 2003 in 14-point Times New Roman font. Furthermore, this brief complies with the electronic filing requirements of Local Rule 31.1(c) because the text of this electronic brief is identical to the text of the paper copies. I have also scanned the electronic brief using Symantec

Antivirus Endpoint Protection Version 11.06005.562, and no viruses have been detected. s/ Kimberly Liu Kimberly Liu NAACP Legal Defense & Educational Fund, Inc. 99 Hudson Street, 16th Floor New York, New York 10013 (212) 965-2200 Counsel for Amici Curiae 2

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Date Filed: 01/12/2011

CERTIFICATE OF SERVICE I hereby certify that I filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Third Circuit by using the appellate CM/ECF system on January 12, 2011. I further certify that ten (10) paper copies, identical to the brief filed electronically, was sent to the Clerk’s Office by Federal Express. The following attorneys of record who are registered CM/ECF users were served by the appellate CM/ECF system:

David G. C. Arnold Suite 106 920 Matsonford Road West Conshohocken, PA 19428 Attorney for Appellants

Christopher M. Arfaa Suite F-200 150 North Radnor Chester Road Radnor, PA 19087 Attorney for Amicus Appellant

Judith E. Harris Morgan, Lewis & Bokius LLP 1701 Market Street Philadelphia, Pennsylvania 19103 Attorney for Appellee

Mark L. Gross Erin H. Flynn U.S. Department of Justice Civil Rights Division (Appellate Section) Ben Franklin Station P.O. Box 144403 Washington, D.C. 20044-4403 Attorney for Amicus Appellee

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I also certify that some of the participants in the case are not registered CM/ECF users. I have served the foregoing document by Federal Express to the following non-CM/ECF participants:

Christina J.F. Grese, Esq. Allison N. Suflas, Esq. Morgan, Lewis & Bockius 1701 Market Street Philadelphia, PA 19103-0000 Kenneth A. Roos, Esq. Megan E. Shafer, Esq. Wisler, Pearlstine, Talone, Craig, Garrity & Potash 484 Norristown Road, Suite 100 Blue Bell, PA 19422-0000 Attorneys for Appellee

s/ Kimberly Liu Kimberly Liu NAACP Legal Defense & Educational Fund, Inc. 99 Hudson Street, 16th Floor New York, New York 10013 (212) 965-2200 Counsel for Amici Curiae

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