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Appeals Court Upholds Race-Conscious Student Assignment Plan

A federal appeals court has upheld a Pennsylvania school district's attendance-zone plan that took neighborhood racial demographics into account but did not assign individual students based on race.

The three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, unanimously upheld the assignment plan adopted in 2009 by the Lower Merion school district.

The plan for the district's six elementary schools, two middle schools, and two high schools was related to a capital program to modernize the schools and achieve goals such as equalizing the enrollments of the high schools and keep the use of bus transportation to a minimum.

In the plan eventually adopted by the Lower Merion school board, called Plan 3R, the board took neighborhood racial demographics into account in reassigning some 350 students from Lower Merion High School to Harriton High School.

Nine African-American students affected by the new attendance zones, and their parents, sued the district, arguing that the plan's consideration of race violated the 14th Amendment's equal-protection clause.

They lost in both a federal district court and in the Dec. 14 decision of the 3rd Circuit court panel.

"Plan 3R is facially race neutral, assigning students to schools based only on the geographical areas in which they live," Judge Joseph A. Greenaway Jr. wrote for the court in Student Doe 1 v. Lower Merion School District. "The plan, on its face, neither uses racial classification as a factor in student assignment nor distributes any burdens or benefits on the basis of racial classification."

Two judges on the panel said a plan taking only neighborhood racial characteristics into account did not call for "strict scrutiny"—the most demanding level of judicial scrutiny and that usually applied to race-based government action. Instead, they applied "rational basis" review and found that the district had numerous reasons for its plan that were rationally related to a legitimate state interest.

The third judge said she believed strict scrutiny should be applied to considerations of neighborhood racial demographics in drawing student attendance zones. Still, Judge Jane R. Roth said, she would uphold the Lower Merion plan.

"I am convinced that, although racial diversity was an object of Plan 3R, it was not the racial composition of the neighborhoods that was the primary motive for the new assignment plan," Judge Roth said in her concurrence.

Interestingly, the court stopped short of accepting Justice Anthony M. Kennedy's concurring opinion in the U.S. Supreme Court's 2007 decision in Parents Involved in Community Schools v. Seattle School District as controlling for the high court, as many other legal observers have. Justice Kennedy said a race-conscious assignment plan that did not employ racial classifications of students would likely pass strict scrutiny.

"School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means" than the racial classifications at issue in the Seattle case, Justice Kennedy said, including "drawing attendance zones with general recognition of the demographics of neighborhoods."

In the main 3rd Circuit opinion this week, Judge Greenaway said, "Because the Supreme Court has not yet given its imprimatur to the propositions in Justice Kennedy's Seattle concurrence, it is not yet the law of the Supreme Court or binding on this court."

In her concurrence, Judge Roth said, "The conclusion I draw is that, when dealing with race-neutral compelling interests, the concurrent consideration of racial diversity (which of course must be race-based) does not invalidate a plan—but we need further guidance from the Supreme Court on this issue."

The Obama administration backed the school district's plan in a friend-of-the-court brief in the 3rd Circuit. Earlier this month, the federal departments of Education and Justice issued guidance emphasizing the ways in which schools and colleges could legally take race into account in student assignments and admissions, which I blogged about here and wrote about at greater length in this Education Week story.

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