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Justices Decline Review of K-12 Race Case

The U.S. Supreme Court on Monday declined to step back into the issue of race-conscious actions by school districts to promote student racial diversity.

The justices refused without comment to take up the appeal of a federal appeals court ruling that 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.

A three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, in December 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," U.S. Circuit Judge Joseph A. Greenaway Jr. wrote for the 3rd Circuit court panel. "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."

The appeals 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. 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 his opinion for the 3rd Circuit, 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 their appeal to the Supreme Court in Student Doe 1 v. Lower Merion School District (Case No. 11-1135), lawyers for the black families said, "Because Seattle was such a fractured opinion, district courts and courts of appeals have been left wondering exactly what standards they are to apply when school districts, without court intervention, seek to use race as a factor in student assignment plans in order to create diversity."

In a friend-of-the-court brief on the black families side, the Pacific Legal Foundation argued that the school district's "consideration of the composition of individual neighborhoods to determine school assignments is just as problematic as the consideration of the race of individual students."

The school district defended its plan in a response brief, and said the case would make a poor vehicle for deciding larger issues about race-conscious actions to promote diversity.

The Obama administration had backed the school district's plan in a friend-of-the-court brief in the 3rd Circuit, but did not file a brief in the Supreme Court. (It likely would have gotten involved if the high court had granted review.)

In December, 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.

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