1

 PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

_____________ 

No. 10-3824 

_____________ 

STUDENT DOE 1, BY AND THROUGH HIS PARENTS/GUARDIANS DOES 1 AND 

2; STUDENT DOE 2, BY AND THROUGH HER PARENT/GUARDIAN DOE 3; 

STUDENT DOES 3 AND 4, BY AND THROUGH THEIR PARENT/GUARDIAN 

DOE 4; STUDENT DOE 5, BY AND THROUGH HIS PARENTS/GUARDIANS DOE 

5; STUDENT DOE 6, BY AND THROUGH HIS PARENTS/GUARDIANS DOES 6 

AND 7; STUDENT DOE 7, BY AND THROUGH HIS PARENT/GUARDIAN DOE 8; 

STUDENT DOES 8 AND 9, BY AND THROUGH THEIR PARENTS/GUARDIANS 

DOES 9 AND 10,

 Appellants 

v. 

LOWER MERION SCHOOL DISTRICT 

______________ 

APPEAL FROM AN ORDER ENTERED BY THE UNITED STATES DISTRICT 

COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civ. Action No. 2:09-cv-02095) 

District Judge: Honorable Michael M. Baylson

______________ 

Argued on April 28, 2011

______________ 

Before: GREENAWAY, JR., ROTH, Circuit Judges, and HAYDEN,1 District Judge

(Opinion Filed: December 14, 2011) 

 

1

The Honorable Katharine S. Hayden, United States District Judge for the District of 

New Jersey, sitting by designation.
2

______________ 

David G. C. Arnold (argued)

920 Matsonford Road 

West Conshohocken, PA 19428 

Counsel for Appellants

Judith E. Harris (argued)

Morgan, Lewis & Bockius 

1701 Market Street 

Philadelphia, PA 19103 

Counsel for Appellee 

Christopher M. Arfaa 

Littleton Joyce Ughetta Park & Kelly 

150 North Radnor Chester Road Suite F-200 

Radnor, PA 19087 

Counsel for Amicus Curiae Earl M. Maltz 

Joshua I. Civin

Kimberly A. Liu 

NAACP Legal Defense & Educational Fund 

1444 I Street, N.W. 10th Floor 

Washington, DC 20005 

Counsel for Amicus Curiae NAACP Legal Defense & Educational Fund, Lawyers 

Committee for Civil Rights Under Law, ACLU Foundation 

Erin H. Flynn (argued)

Mark L. Gross

United States Department of Justice Civil Rights Division, Appellate Section 

P.O. Box 14403 

Ben Franklin Station 

Washington, DC 20044 

Counsel for Amicus United States of America 
3

______________ 

OPINION OF THE COURT

______________ 

GREENAWAY, JR., Circuit Judge. 

This case involves school redistricting in Lower Merion, Pennsylvania and 

allegations that the implemented redistricting plan violates the Equal Protection Clause. 

Here, the Lower Merion School District (―the District‖) used pristine, non-discriminatory 

goals as the focal points of its redistricting plan, Plan 3R. The District‘s goals included

that: 

1. ―The enrollment of the two high schools and two middle schools will be 

equalized;‖

2. ―Elementary students will be assigned so that the schools are at or under the 

school capacity;‖

3. ―The plan may not increase the number of buses required;‖

4. ―The class of 2010 will have the choice to either follow the redistricting 

plan or stay at the high school of their previous year;‖ (referred to as 

―grandfathering‖) and

5. ―Redistricting decisions will be based upon current and expected future 

needs and not based on past practices.‖

(App. at A16.) 

The District Court concluded that the District‘s assignment plan employing these 

goals required strict scrutiny because race was a factor in the formation of the plan, but 

concluded that the plan is constitutional because it does not use race impermissibly. 

Upon review, we disagree with the District Court‘s determination that strict scrutiny is 

the appropriate level of review, but we affirm the conclusion that the District‘s school 
4

assignment plan is consonant with the Constitution. 

The Supreme Court and this Court have yet to set forth any standard requiring the 

application of strict scrutiny when decisionmakers have discussed race, but the school 

assignment plan neither classifies on the basis of race nor has a discriminatory purpose. 

We hold that the plan here passes constitutional muster because it does not select students 

based on racial classifications, it does not use race to assign benefits or burdens in the 

school assignment process, it does not apply the plan in a discriminatory manner, and it 

does not have a racially discriminatory purpose. Strict scrutiny does not apply. The 

appropriate test to determine the constitutionality of the District‘s school assignment plan 

is rational basis. In our view, the District has met the rational basis test with its 

redistricting plan — Plan 3R. We shall affirm the District Court‘s order. 

I. BACKGROUND

The District operates six elementary schools (Belmont Hills, Cynwyd, Gladwyne, 

Merion, Penn Valley, and Penn Wynne); two middle schools (Bala Cynwyd and Welsh 

Valley); and two high schools (Harriton and Lower Merion High School (―LMHS‖)). 

The high schools are both ―ranked as being among the best in the state, if not the nation.‖ 

(App. at A6.) Nine elected School Directors (―Board members‖) comprise the Lower 

Merion Board of School Directors (―Board‖), which has the authority to assign Lower 
5

Merion students to schools within the District.2 The District‘s Administration includes 

the District‘s Superintendent and several cabinet members.3

 

In 1997, the District began a capital improvement program to modernize each 

District school. In May 2004, a forty-five member Community Advisory Committee 

(―CAC‖) of school officials and community members investigated a plan to modernize 

the two high schools. At the time, approximately 1600 students attended LMHS and 900 

students attended Harriton. The CAC considered four proposals: (1) creating a separate 

school for grade nine only and another school for grades ten through twelve; (2) building 

one new high school that all high school students would attend; (3) building two new 

high schools to replace Harriton and LMHS with the same student populations as 

Harriton and LMHS; and (4) building two new high schools with 1,250 students enrolled 

at each school. 

The CAC rejected the first three proposals due to academic and logistical 

shortcomings. The CAC voted in favor of the fourth proposal (building two high schools 

with equal student enrollment) because students would benefit from a stronger sense of 

 

2 During the January 2009 school redistricting process, the Board members were: Diane 

DiBonaventuro; Linda Doucette-Ashman; David Ebby, the President; Gary J. 

Friedlander; Susan Guthrie; H. Linda Kugel; Ted Lorenz; Gerald Gene Novick; and Lisa 

Pliskin.

3 Dr. Christopher McGinley was the District‘s Superintendent, beginning in June 2008, 

and Dr. Jamie P. Savedoff was his predecessor. During the school redistricting process, 

Dr. McGinley‘s cabinet included Dr. Michael J. Kelly, Assistant Superintendent; Edward 

Andre, Director of Transportation; Scott A. Schafer, Business Manager; Pat Guinnane, 

Director of Human Resources; and Doug Young, Director of Public Relations.
6

community, better student-faculty interactions, and better educational outcomes. The 

CAC also determined that this option would give students at both high schools the most 

equitable access to programs and facilities while securing the best use of both school 

sites. This option would also alleviate traffic and parking problems near LMHS. 

The Board accepted the CAC‘s recommendation to equalize the student 

populations at the two high schools and chose to keep the schools at their existing 

locations because the District did not have other possible sites. Equalizing student 

enrollment between the two schools would require redistricting because, under the prior 

plan, LMHS had 700 more students than Harriton. Harriton, which is located farther 

from the center of the student population than LMHS, has always had a substantially 

lower enrollment than LMHS despite Harriton‘s magnet programs aimed at attracting

more students. 

 Students Doe 1 through 9 (―Students‖) are African-American students who live 

in an area referred to as South Ardmore or the Affected Area, which is within the District. 

Ardmore, which is comprised of North Ardmore and South Ardmore, is a neighborhood 

in Lower Merion. Six of the Parents Doe testified that they and their children live within 

a mile of LMHS and the District‘s Director of Transportation, Michael Andre, testified 

that at least three Students Doe live within a mile of LMHS. Of the neighborhoods in the 
7

District, the Affected Area and North Ardmore have the highest concentration of AfricanAmerican families.4

 

Decades before this litigation, the District assigned students who lived in North 

Ardmore and the Affected Area to an elementary school in Ardmore. After that 

elementary school was torn down, the District assigned students in North Ardmore and 

the Affected Area to five of the District‘s other elementary schools and the District 

provided bus service to those schools. In the 1990s, the District reassigned students of 

North Ardmore and the Affected Area: North Ardmore students attended Penn Wynne 

Elementary School and Bala Cynwyd Middle School; Affected Area students attended 

Penn Valley Elementary School and Welsh Valley Middle School. During that time, 

students in both North Ardmore and the Affected Area could choose to attend either 

Harriton High School or LMHS. 

Prior to the adoption of Plan 3R, the plan at issue here, students assigned to 

Belmont Hills, Gladwyne, and Penn Valley Elementary Schools would attend Welsh 

Valley Middle School and then would attend Harriton for high school, with the exception 

that students who lived in the Narberth Borough area, Haverford, and the Affected Area 

were assigned to LMHS. Students assigned to Cynwyd, Merion, and Penn Wynne 

 

4 As of September 2008, the Affected Area had 308 students in kindergarten through 

twelfth grade (140 were white, 140 were African-American, 9 were Asian, and 18 were 

Hispanic) and North Ardmore had 167 students in kindergarten through twelfth grade (32 

were white, 107 were African-American, 12 were Asian, and 16 were Hispanic). (App. 

at A10 n.2 (citing Plaintiff‘s Exhibit 154, ¶¶ 13–14).) 
8

Elementary Schools would attend Bala Cynwyd Middle School and, then, were assigned 

to LMHS for high school. All students assigned to LMHS could, instead, choose to 

attend Harriton. Prior to redistricting, forty-six African-American students attended 

Harriton (5.7 percent of Harriton‘s total student population) and ten percent of the 

District‘s high school students were African-American. (App. at A13.) 

The District has always provided bus service to students except those students who 

live in the ―walk zones‖ of the school that they attend. Walk zones are the areas within a 

mile of District Schools.5

 Students who live within a walk zone for their assigned school 

walk to school instead of receiving bus service. The boundaries of the LMHS walk zone 

were selected in the late 1990s. Because the Pennsylvania Department of Transportation 

declared that the street on which Harriton is located is hazardous for student walking, 

Harriton is the only school without a walk zone.

A. Redistricting

The redistricting process began in the summer of 2008 and ended on January 12, 

2009, when the Board adopted Proposed Plan 3R. Initially, the Board authorized the 

Administration to develop proposed redistricting plans and to choose plans for the 

Board‘s consideration. The Board also developed a list of ―Non-Negotiables‖ to guide 

 

5

The historic LMHS walk zone does not extend to all of the area within a mile of LMHS. 

Appellants have not challenged the constitutionality of the historic LMHS walk zone 

boundaries. 
9

the redistricting process.6 On April 21, 2008, the Board adopted the following NonNegotiables:

1. ―The enrollment of the two high schools and two middle schools will be 

equalized;‖

2. ―Elementary students will be assigned so that the schools are at or under the 

school capacity;‖

3. ―The plan may not increase the number of buses required;‖

4. ―The class of 2010 will have the choice to either follow the redistricting 

plan or stay at the high school of their previous year;‖ (referred to as 

―grandfathering‖) and

5. ―Redistricting decisions will be based upon current and expected future 

needs and not based on past practices.‖

(Id. at A16.) 

In May 2008, the District hired two outside consultants, Dr. Harris Sokolov and 

Ellen Petersen, to compile a list of Lower Merion residents‘ values for the purpose of 

informing the redistricting process. As a result of a series of public forums and a 

collection of online surveys from Lower Merion residents, information was gathered and 

all had an opportunity to participate. 

The consultants issued a report identifying the following ―Community Values‖:

1. ―Social networks are at the heart of where people live, and those networks 

expand as people grow older;‖

2. ―Lower Merion public schools are known for their excellence: academic as 

well as extracurricular;‖

3. ―Those who walk should continue to walk while the travel time for nonwalkers should be minimized;‖

 

6

The Administration recommended several Non-Negotiables to the Board. One of the 

Administration‘s suggestions was to address the ―distribution of minority students‖ and 

―racial balanc[ing].‖ (App. at A15.) The Board did not accept this suggestion. 
10

4. ―Children learn best in environments when they are comfortable — socially 

as well as physically;‖ and

5. ―[E]xplore and cultivate whatever diversity — ethnic, social, economic, 

religious and racial — there is in Lower Merion.‖

(Id. at A17, n.9.)7 

In June 2008, the Board hired Dr. Ross Haber to review and analyze District 

enrollment data and to create redistricting plans called ―Scenarios.‖ 

Dr. Haber prepared eight sets of Scenarios8that were considered by the 

Administration, in the first instance. Under the Scenarios, the projected enrollment for 

Harriton ranged from 1080 to 1195 and the projected enrollment for LMHS ranged from 

1137 to 1270. Both the Affected Area and North Ardmore would be redistricted to 

Harriton in Scenarios 1, 2, and 5; the Affected Area, but not North Ardmore, would be 

redistricted to Harriton in Scenario 8; North Ardmore, but not the Affected Area, would 

be redistricted to Harriton in Scenarios 3, 4, and 7; and neither the Affected Area nor 

North Ardmore would be redistricted to Harriton in Scenario 4a. No Scenario redistricted 

only the Affected Area to Harriton. The percentage of students at each high school that 

would be African-American ranged from 4.4 percent to 14.5 percent under the Scenarios. 

 

7 Dr. Ross Haber, who developed the redistricting plans, testified that he was aware of 

and used the Community Values in developing the plans.

8

The Scenarios are numbered 1, 2, 3, 4, 4a, 5, 7, and 8. No Scenario 6 was ever 

presented to the Administration. 
11

Most Scenarios would yield a percentage of African–American students between 7 and 

10 percent.9

Dr. Haber prepared informational handouts of the Scenarios for the 

Administration. The handouts regarding Scenarios 1, 2, 3, 4, and 5 included the number 

of African-American students, but did not include any other racial/ethnic data or any data 

regarding socioeconomic status or disability.10

 Dr. Haber reported data on race, ethnicity, 

and socioeconomic disability for Scenarios 4a, 7, and 8. The summaries of the Scenarios 

on the District‘s website did not include the statements regarding the racial/ethnic 

numbers for each Scenario. Dr. Haber testified11 that this information was probably 

reported because the Administration expressed concerns regarding African-American 

students and that he was never directed to create or change a Scenario based on diversity 

outcomes.12

 A chart dated August 26, 2008 lists the African-American and 

 

9

The percentage of the Harriton student population that would be African-American is, 

in ascending order: Scenario 4a, 4.4 percent; Scenario 7, 7.8 percent; Scenarios 4 and 5, 

8.6 percent; Scenario 2, 9.3 percent; Scenario 8, 9.6 percent; Scenario 3, 9.9 percent; and 

Scenario 1, 14.5 percent. 

10 On his personal set of the handouts, Dr. McGinley wrote by hand the projected 

African-American student populations for Scenarios 1, 2, and 3. For Scenarios 3, 3a, 4, 

and 5, the African-American student projections appear under the heading ―racial 

balance.‖

11 This refers to Dr. Haber‘s testimony on April 12, 2010 during the District Court bench 

trial.

12 Dr. McGinley was aware of the Supreme Court‘s decision in Parents Involved in 

Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007) (―Seattle‖), 
12

socioeconomically disadvantaged population estimates for the Scenarios.13 The 

following day, the chart was updated to include additional, general diversity data. 

The Administration considered Scenarios 1, 2, 3, 4, 4a, and 5 before eliminating 

Scenarios 1 and 4a. Drs. McGinley and Haber testified that Scenario 1 was ―eliminated 

due to inequitable racial balancing‖ — this Scenario redistricted both the Affected Area 

and North Ardmore to Harriton. (Id. at A24.) Additionally, Scenario 1 was eliminated 

because it violated the Non-Negotiable to equalize the high school population and it 

would result in longer travel times. Scenario 4a was eliminated because it ―[d]oes not 

support the community value of diversity as does other scenarios.‖ (Id.) Scenario 4a is 

the only considered Scenario that redistricted neither North Ardmore nor the Affected 

Area to Harriton. Dr. McGinley crossed out his copy of the slide presenting diversity 

data under Scenario 4a and wrote, ―Don‘t present.‖ (Id. at A30.) He also wrote, ―Say 

don‘t post,‖ next to the slide listing reasons for not selecting Scenario 4a. (Id.)

 

and asked Dr. Haber how the case affected a redistricting plan that sent a portion of 

Ardmore students to Harriton. 

13 Dr. McGinley wrote by hand on his personal copy of the chart the population for other 

racial and ethnic groups and the number of special needs students under Scenario 3. 

Additionally, on his copy of the chart, Dr. McGinley handwrote ―OK‖ next to the 

numbers of African-American students and socioeconomically disadvantaged students for 

Scenario 4b. 
13

B. Proposed Plans

i. Proposed Plan 1

After considering Scenarios 1, 2, 3, 4, 4a, and 5, the Administration presented 

Proposed Plan 1, which was based on the Scenario 3 series, to the Board at a public 

meeting on September 8, 2008. Under Proposed Plan 1, there was no redistricting at the 

elementary school level and high school districting was determined by where the student 

lived. Under this plan, students remained with the same group of students from 

kindergarten through grade eight. The projected student enrollment of Harriton was 1108 

and that of LMHS was 1137. Under Proposed Plan 1, North Ardmore, along with all of 

Penn Wynne Elementary School and some areas of Penn Valley Elementary School, 

would be redistricted for Harriton while the Affected Area would be districted for LMHS. 

Proposed Plan 1 was projected to result in African-American students accounting for 9.9 

percent of Harriton‘s student population. Any high school student could still choose to 

attend Harriton to enroll in the school‘s International Baccalaureate Program.14 Under 

the plan‘s grandfathering provision, all current high school students could choose to 

remain at the high school they attended when the plan went into effect. 

The slide show presentation for Proposed Plan 1 included a slide with student 

population information on race/ethnicity, socioeconomic status, and disability. A press 

release regarding this plan initially included a sentence stating that enrollments would 

 

14 This is a specialized academic program for a limited number of students. 
14

reflect ―balance with regard to students of various ethnic, socio-economic, and special 

needs backgrounds,‖ but that sentence was removed prior to publication. (Id. at A29.) 

After Proposed Plan 1 was presented at the public meeting, the District did not include 

the number of African-American students that would attend each high school when it 

posted Dr. Haber‘s summaries of the Scenarios on the District‘s website. Dr. McGinley 

had asked Doug Young, the Director of Public Relations, not to post that information. 

On September 19, 2008, Board Member Diane DiBonaventuro sent an email to 

Dr. McGinley explaining that people might have ―the perception that Harriton is 

completely homogenous,‖ attended by ―filthy [rich] spoiled white kids.‖ (Id. at A31.) 

She also stated that the Board should emphasize that it is not merely trying to increase 

Harriton‘s racial diversity and the Board ―should be selling both our schools to the 

community.‖ (Id.) 

Board Member David Ebby responded to an email from a concerned citizen by 

saying that ―diversity is looked at in total,‖ and that Dr. McGinley ―is not trying to use 

the diversity of the Penn Wynne elementary attendance area to benefit a homogenous 

group in the western end of the Township by making their school more diverse.‖ (Id.) 

After receiving comments regarding the plan, the Board rejected Proposed Plan 1 

because it resulted in excessive travel times for students. 
15

ii. Proposed Plan 2

After the Board rejected Proposed Plan 1, the Administration considered the 

Scenario 7 series. Scenario 7C, which Dr. McGinley stated was ―more consistent with 

the non-negotiables and the community values,‖ was modified to become Proposed Plan 

2. (Id. at 32.) Under the plan, the projected student enrollment of Harriton was 1135 and 

that of LMHS was 1139. Proposed Plan 2 determined high school districting based on 

where the student lived. The only students who could choose which high school to attend 

were those districted for LMHS but who chose to attend Harriton to enroll in the school‘s 

IB program. Under this plan, students remained with the same group of students from 

kindergarten through grade eight, then they were separated for high school. Under 

Proposed Plan 2, North Ardmore, along with all of Penn Wynne Elementary School, 

some areas of Penn Valley Elementary School, Narberth Borough of Belmont Hills, and 

some areas of Merion, would be redistricted for Harriton while the Affected Area would 

be districted for LMHS. Proposed Plan 2 was projected to result in African-American 

students accounting for 7.8 percent of Harriton‘s student population. 

On October 28, 2008, Proposed Plan 2 was presented at a Board meeting open to 

the public. Instead of adopting Proposed Plan 2, the Board asked Petersen and Dr. 

Sokolov, who had compiled a report of the Community Values in May 2008, to reassess 

the factors that were important to the community in a redistricting plan. During this 

period of time, the Board thought that the community‘s primary concern was educational 
16

continuity in terms of keeping students who attended the same kindergarten together at 

the same elementary, middle, and high schools through grade twelve. The Board also 

identified additional goals of distance, access, and walkability. 

iii. Proposed Plan 3

Next, the Administration developed Scenario 8, which would later become 

Proposed Plan 3.15 Before Proposed Plan 3 was selected and presented publicly, all of 

the Board members saw Scenario 8 and some individual Board members discussed race 

when speaking to others about potential proposals.16

 

15 At this point in the redistricting process, Dr. Haber‘s role was substantially diminished.

16 Dr. McGinley sent a memorandum to the Board stating that a proposal developed by 

some parents ―creates a racially isolated group of African American Students at 

Harriton.‖ (App. at A35.) He noted that it ―ads travel distance to several areas.‖ (Id.) 

On November 6, 2008, Board member Lisa Pliskin emailed Dr. McGinley, stating 

that she might want to see more of the diversity data for the plan. Diane DiBonaventuro 

prepared a document with a new proposal and indicated that her proposal would lead to a 

problem of ―a larger population of minority students‖ at LMHS and that she would work 

racial diversity into an adopted plan if she could. 

On November 20, 2008, Dr. McGinley sent an email to Pliskin stating that he was 

―concerned about the Ardmore side of the map‖ and the ―achievement gap.‖ (Id. at A36.) 

He continued that he ―wish[ed] there was a way to extend the option area into the 

[Affected Area] but doing so would not only mean another hundred at [LMHS] but many 

fewer A[frican]-A[merican] kids at [Harriton].‖ (Id.) Pliskin responded, ―You are not 

alone in trying to solve Ardmore. I look at it every day and I know others would like to 

resolve it as well . . . . Can we open 100 tuition paying spots and would folks take them in 

this economy . . . and what happened to no racial isolation?‖ (Id.) 

Board Member David Ebby sent Dr. McGinley an email stating that ―redistricting 

is an opportunity . . . to end the stereotyping of Harriton as an inferior school populated 

by elitists and racists.‖ (Id. at A37.) 

DiBonaventuro sent Dr. McGinley an email about an alternative proposal she 

developed, noting that her proposal had ―a larger population of minority students‖ at 
17

On November 24, 2008, Proposed Plan 3 was presented at a public Board meeting. 

Under the plan, the projected student enrollment of Harriton was 1089 and that of LMHS 

was 1185. Proposed Plan 3 determined high school districting based on where the 

student lived. The Affected Area, along with Narberth Borough of Belmont Hills and all 

areas of Penn Valley Elementary School except an abbreviated LMHS walk zone, would 

be redistricted for Harriton while North Ardmore would be districted for LMHS. The 

students who lived in the abbreviated LMHS walk zone could choose to attend either 

high school. The only other students who could choose their high school were those who 

were districted for LMHS, but who chose to attend Harriton to enroll in the school‘s IB 

program. Proposed Plan 3 was projected to result in African-American students 

accounting for 9.6 percent of Harriton‘s student population. 

Proposed Plan 3 was a ―3-1-1 Feeder Pattern,‖ which sends the students districted 

for three elementary schools to attend a single middle school and a single high school. 

Under Proposed Plan 3, students districted for Cynwyd, Merion, and Penn Wynne 

Elementary Schools were districted to Bala Cynwyd Middle School and Lower Merion 

High School. Students districted for Belmont Hills, Gladwyne, and Penn Valley 

Elementary Schools were districted to Welsh Valley Middle School and Harriton High 

 

LMHS, but that ―expanding the choice to include the [Affected Area] may help a little.‖ 

(Id.) DiBonaventuro also sent an email to Dr. McGinley entitled ―African American 

students,‖ which stated that she was ―strugling with the issue of where to place the 

[Affected Area] kids‖ because there were compelling arguments for districting them to 

LMHS, but she ―worr[ied] about the kids that would become somewhat isolated at 

Harriton without a higher population.‖ (Id. at A37–38.) 
18

School. Under this plan, students remained with the same group of students from 

kindergarten through grade twelve. 

Students in the Affected Area would travel eighteen to nineteen minutes by bus to 

attend Harriton. That ride is half the distance and half the time of the longest bus ride in 

the District. The slideshow for the presentation of Plan 3 included diversity data. 

The Board‘s understanding of community members‘ concerns regarding Proposed 

Plan 3 was that there was a walkability issue due to the abbreviated LMHS walk zone. In 

response, the Board decided to revise the proposal to become Proposed Plan 3R, which 

restored the LMHS walk zone to the non-abbreviated LMHS walk zone area. 

iv. Proposed Plan 3R

The main difference between Proposed Plan 3R and Proposed Plan 3 is that Plan 

3R expanded Plan 3‘s abbreviated LMHS walk zone to the LMHS walk zone‘s historical 

boundaries. The historic LMHS walk zone did not include the Affected Area and it did 

not have a high concentration of African-American students. Under Proposed Plan 3R, 

all students assigned to LMHS and all students in the historic walk zone can choose to 

attend either high school. Students assigned to Harriton who do not live within the 

LMHS walk zone do not have the option of attending LMHS. Plan 3R still followed the 

3-1-1 Feeder Pattern with students in the Affected Area, along with Narberth Borough of 

Belmont Hills and all areas of Penn Valley Elementary School except the historic LMHS 
19

walk zone, redistricted for Harriton and North Ardmore districted for LMHS.17 Plan 3R 

also included a grandfathering provision that allowed students who had already begun 

attending high school to choose to stay at that high school, even if they were assigned to 

the other high school under Plan 3R. 

On December 15, 2008, Proposed Plan 3R was presented at a public Board 

meeting. Dr. McGinley testified that it was impossible to know the diversity data for 

Plan 3R because the grandfathering provision allowed so many students to choose to 

attend either high school.18

 Drs. McGinley and Haber exchanged emails regarding how 

to discuss the role of race in the redistricting process.19 The presentation for Plan 3R did 

 

17 Plan 3R‘s 3-1-1 Feeder Pattern was the same as Plan 3‘s: students districted for 

Cynwyd, Merion, and Penn Wynne Elementary Schools were districted to Bala Cynwyd 

Middle School and LMHS. Students districted for Belmont Hills, Gladwyne, and Penn 

Valley Elementary Schools were districted to Welsh Valley Middle School and Harriton. 

18 If students attend the schools to which they are assigned under Plan 3R, one would 

expect the student populations of the school to be similar to those of Proposed Plan 3, 

where the projected student enrollment of Harriton was 1089, the projected enrollment of 

LMHS was 1185, and Harriton was projected to have a student enrollment that was 

approximately 9.6 percent African-American. 

19 Dr. Haber emailed Dr. McGinley, stating that

[t]he issue of race is still out front. I think it is important to 

emphasize that you hired a consultant who had no horse in 

this race and the charge was simply to balance the 

enrollments at the high school. . . . We not only considered 

race when considering diversity but also socio-economic 

status as well as special needs considerations.

(App. at A44.) Dr. Haber testified that discussion of diversity focused on AfricanAmerican students because the African-American students were ―more concentrated‖ 

geographically. (Id.) 
20

not include any diversity data. Hours before the Board‘s vote on Plan 3R, Dr. McGinley 

emailed to the Board projected Plan 3R enrollment data for race and ethnicity, 

socioeconomic status, and disability. Dr. McGinley testified that he sent these 

projections in response to a flyer that alleged the plan was ―artifcially designed to create 

token diversity at Harriton.‖ (Id. at A45.) Dr. McGinley explained in the email that he 

did not agree with the flyer and stated that ―[t]he community value of diversity is what 

caused us to look at this issue in the process. This was clearly misinterpreted in the 

public and the press.‖ (Id. at A46.) Dr. McGinley continued that, of the 214 students 

who would be redistricted to Harriton, the 45 African-American students made up 21 

percent of those students who would be redistricted under Plan 3R.20

 (Id.) 

On January 12, 2009, the Board voted to adopt Plan 3R. Six Board members 

voted in favor of the plan, David Ebby and Diane DiBonaventuro voted against the plan, 

and then-Board President Lisa Pliskin indicated that she supported the plan, but could not 

vote because she was hospitalized. All of the Board members testified that they did not 

cast their vote or give their support based on race. Four of the Board members who 

supported the plan stated they did so primarily because they believed that the educational 

continuity of the 3-1-1 Feeder Pattern provided substantial benefits. Six of the Board 

 

20 Dr. McGinley testified at trial that he no longer believed that there was a way to 

estimate enrollment at Harriton and he no longer believed the projections in the email 

were accurate.
21

members who supported the plan indicated they did so due to the plan‘s educational 

benefits and the Administration‘s support for the plan.21

 

Diane DiBonaventuro, who voted against Plan 3R, sent Dr. McGinley an email 

stating that Proposed Plan 3R created an ―aditional stressor‖ for African-American 

students by ―asking Ardmore kids to take one for the team,‖ when there ―just aren‘t a lot 

of A[frican]-A[merican] families.‖ (Id. at A48.) DiBonaventuro stated that she did not 

think it was ―worth it‖ to redistrict Ardmore in order to ―marginally increase diversity.‖ 

(Id.) She testified that she wanted students in the Affected Area to be able to choose 

which high school to attend because they live within walking distance from LMHS.

David Ebby, who voted against Plan 3R, testified that he did so because he 

considered the Affected Area and North Ardmore to be one community and he believed 

that the 3-1-1 Feeder Pattern and educational continuity allows ―stagnation‖ by not 

mixing students from different areas in the District. (Id. at A49.) Ebby testified that he 

did not believe race was ―at all relevant‖ in the redistricting process. (Id.) 

 

21 Board member Susan Guthrie, who voted in favor of the plan, made a chart of her 

opinions on each of the Proposed Plans. Under the chart headings ―keeps Community 

together,‖ Guthrie noted that Plans 1, 2, and 3 split Ardmore, ―minimize[] [b]us time and 

―preserve[] [w]alkers,‖ and provide for educational continuity. (App. at A47–48.) Under 

a ―Diversity Ardmore‖ heading, she wrote ―Yes Divides‖ for Proposed Plans 1 and 2, 

wrote ―Depends Divides, but with choice?‖ for Proposed Plan 3, and wrote ―Yes Yes‖ for 

Proposed Plan 3R. (Id. at A47.) 
22

C. Developments After Redistricting 

Plan 3R was implemented beginning with the 2009–2010 school year. During that 

year, the impact of redistricting was unclear because grandfathering was allowed. For 

2009–2010, Harriton had a student enrollment of 897 students: according to the District‘s 

records, 740 are white, 74 are African-American, 55 are Asian-American, 23 are 

Hispanic-American, 5 are American Indian, and 5 are more than one race. Twenty-one 

students from the Affected Area were redistricted to Harriton, fourteen of whom were 

African-American. Twenty-three students from areas districted for Penn Valley 

Elementary School were also redistricted to Harriton, none of whom were AfricanAmerican. Less than one-third of the students redistricted were African-Americans from 

the Affected Area. 

D. Students Doe Bring Lawsuit 

On May 14, 2009, Students Doe 1 through 9, by and through their 

Parents/Guardians Doe 1 through 20, filed a complaint alleging that the District 

discriminated against them based on their race by adopting Plan 3R, which assigned 

Students Doe to Harriton. For the 2009–2010 academic year, Student Doe 4 chose to 

attend Harriton and all other Students Doe attended Penn Valley Elementary School or 

Welsh Valley Middle School. 

Appellants allege that the District violated the Equal Protection Clause of the 

Fourteenth Amendment, 42 U.S.C. § 1981, and Title VI of the Civil Rights Act, 42 
23

U.S.C. § 2000d, all pursuant to 42 U.S.C. § 1983, by discriminating against the Students 

Doe based on their race. 

The District Court denied the District‘s Motion to Dismiss or, in the Alternative, 

for a More Definite Statement. Appellants moved for preliminary injunctive relief, 

seeking to restore their ability to choose to attend either high school, but they 

subsequently withdrew the request. After oral argument, on February 24, 2010, the 

District Court denied the District‘s Motion for Summary Judgment. 

Appellants and the District filed numerous Motions in Limine, including the 

Appellants‘ Motion in Limine to Preclude the Trial Testimony of Drs. Claudia Lyles and 

Robert Lee Jarvis because the District had not identified these witnesses during the 

course of discovery. 22 The District Court granted the Appellants‘ Motion to Proceed 

 

22 Before the District Court, Appellants filed a brief supporting the motion and Appellees 

filed a brief opposing the motion. Appellants objected to the testimony of Drs. Lyles and 

Jarvis, who did not participate in the redistricting process, but who had worked with Dr. 

McGinley and had personal knowledge of his work. Appellants objected to the testimony 

of Drs. Lyles and Jarvis because: (1) the District did not identify the witnesses to the 

plaintiff in advance of discovery, thereby allegedly violating Federal Rule of Civil 

Procedure 26(a), and (2) the District failed to timely supplement its disclosure upon 

discovery of additional information, thereby allegedly violating Federal Rule of Civil 

Procedure 26(e). Appellants also argued that the District sought to depose these 

witnesses in order to introduce a new defense that the District had waived by asserting 

other ―mutually exclusive‖ defenses. Appellants argued that allowing the District to, 

thus, ―change the focus of its case‖ constituted a ―trial by ambush.‖ Appellants offer no 

case law to support their argument.

Appellants also sought to exclude the testimony of Anthony Stevenson and Wanda 

Anderson, but the objection to these witnesses is not at issue on appeal. The District 

intended to solicit testimony from Stevenson and Anderson regarding their knowledge of 

Dr. McGinley‘s work regarding the achievement gap and diversity issues.
24

Pseudonymously,23 but denied the Motions in Limine without prejudice. During trial, the 

District Court denied the renewed motion to preclude testimony of Drs. Claudia Lyles 

and Robert Lee. The District Court held a nine-day bench trial. 

E. District Court Findings of Fact and Conclusions of Law

i. District Court Findings of Fact

After the close of testimony on May 3, 2010, the District Court held oral argument 

on the parties‘ proposed findings of fact and, on May 13, 2010, the District Court issued a 

Memorandum on Factual Findings. In addition to the findings of fact indicated above, 

the District Court found that the District had a ―race-neutral goal of equalizing the student 

enrollment at the two high schools‖ and that legitimate factors24 motivated the 

Administration‘s action. The District Court noted that ―racial considerations were one of 

several motivating factors that resulted in the Administration‘s development of various 

plans,‖ including the recommendation to adopt Plan 3R.25 (Id. at A54.) This 

 

23 Thereafter, Appellants were referred to as Students Doe 1–9 and Parents Doe 1–10 

instead of being referred to by their actual names.

24 Legitimate factors that the District Court referenced include: ―helping students attain 

educational excellence, attaining equal student populations at the two high schools, 

minimizing travel time, developing the 3-1-1 Feeder Pattern, and also closing the 

achievement gap that the Administration perceived to exist between African–American 

and white students.‖ (App. at A51.) Additionally, the District Court concluded that the 

Non-Negotiables are all valid, educational purposes that are legitimate and nondiscriminatory. 

25 The District Court determined that the Scenarios are of minor importance to this 

litigation because the four Board members who attended the Administration meeting 
25

consideration of race ―went above and beyond collecting or reporting general diversity 

data‖ and the evidence reflected a specific concern about the African-American student 

population throughout the redistricting process. (Id.) The District Court found that ―the 

Administration plainly allowed racial consideration to influence what neighborhoods 

would be assigned to attend Harriton High School, without the choice to attend Lower 

Merion High School.‖ (Id. at A52.) The District Court continued, opining that the 

Affected Area was ―targeted‖ for redistricting to Harriton, in part, because it has a high 

concentration of African-American students. According to the District Court, the 

Administration‘s ―intent was to achieve not only overall numeric equality, but also racial 

parity, between the two schools.‖ (Id. at A53.) 

The District Court rejected any allegation of invidious discrimination toward 

African-American students by the Administration or the Board. Moreover, the District 

Court noted that there were valid educational reasons for recommending and adopting 

Plan 3R, but that there was also a desire for racial diversity in both high schools. The 

District Court found that providing information at the public Board meetings for the 

Proposed Plans regarding race/ethnicity, socioeconomic status, and disability was not 

objectionable. The District Court found that some of the Board members considered 

diversity among other factors when considering Proposed Plans, but the Court also found 

 

where the Scenarios were presented do not recall the Scenarios and the Scenarios were 

never presented to, nor voted upon by, the whole Board. 
26

credible the Board members‘ testimony that race was not the basis of their votes on Plan 

3R.26

ii. District Court Conclusions of Law

On June 24, 2010, the District Court issued a Memorandum on Conclusions of 

Law. The Court stated that the central issue in this case is whether the District‘s

―targeting‖27 of the Affected Area for redistricting to Harriton, ―in part because that 

community has one of the highest concentrations of African-American students in the 

District,‖ violates the Equal Protection Clause or Title VI of the Civil Rights Act. (App. 

at A65.) 

In determining the appropriate level of scrutiny to apply to this equal protection 

challenge, the District Court concluded that Parents Involved in Community Schools v. 

Seattle School District No. 1, 551 U.S. 701 (2007) (―Seattle‖); Grutter v. Bollinger, 539 

U.S. 306 (2003); Gratz v. Bollinger, 539 U.S. 244 (2003); Adarand Constructors v. Pena, 

515 U.S. 200 (1995); City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1988) 

(―Croson‖); and Johnson v. California, 543 U.S. 499 (2005) are not controlling here. The 

District Court held that the level of scrutiny applied in Seattle, Grutter, Gratz, Adarand, 

Croson, and Johnson is inapposite here. Specifically, strict scrutiny as applied in Seattle, 

 

26 The District Court concluded that Susan Guthrie and Diane DiBonaventuro considered 

race or diversity as a factor.

27 The District Court describes this as including ―a particular geographic area [to be 

redistricted] due to its racial makeup.‖ (App. at A67.)
27

Grutter, Gratz, Adarand, Croson, and Johnson is not required here because each of those 

cases involves a policy that employs express, individual racial classifications, whereas 

Plan 3R does not. Plan 3R assigns students based on the neighborhood in which they 

reside without using individual racial classifications. The District Court noted that Plan 

3R is a facially neutral redistricting plan with facially neutral guidelines, so, unlike the 

cases above, the action brought by Appellants does not ―involve the  ̳additional 

difficulties posed by policies that, although facially race neutral, [may] result in racially 

disproportionate impact and [may be] motivated by a racially discriminatory purpose.‘‖ 

(App. at A76 (quoting Adarand, 515 U.S. at 213).) 

The District Court found, however, that the reasoning of Village of Arlington 

Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252 (1977), and 

Pryor v. National Collegiate Athletic Association, 288 F.3d 548 (3d Cir. 2002), 

nonetheless require Plan 3R to be reviewed under strict scrutiny. The District Court 

interpreted the Pryor holding that, ―a discriminatory purpose based on race‖ requires 

strict scrutiny analysis, Pryor, 288 F.3d at 562 (emphasis added), to mean that, ―once race 

has been shown to be a motivating factor in decisionmaking, all racial classifications 

must survive strict scrutiny.‖ (App. at A76 (emphasis added)). The District Court noted 

that it is unclear whether Pryor requires the application of strict scrutiny to student 

assignment plans that do not involve individual racial classifications. 
28

In its analysis of Arlington Heights, the District Court interpreted the Supreme 

Court‘s holding that, ―[w]hen there is a proof that a discriminatory purpose has been a 

motivating factor in the decision, . . . judicial deference is no longer justified,‖ Arlington 

Heights, 429 U.S. at 265–66 (emphasis added), to mean that such deference is no longer 

justified when ―race was a motivating factor.‖ (App. at A78 (emphasis added).) The 

District Court noted that, under Arlington Heights, a court must ―conduct a sensitive 

inquiry into such circumstantial and direct evidence of intent as may be available‖ to 

determine whether ―invidious discriminatory purpose was a motivating factor.‖ (App. at

A78 (quoting Arlington Heights, 429 U.S. at 266) (emphasis added).) 

The District Court referenced its own rejection of ―any allegation[] of invidious 

discrimination . . . by the Administration or the Board.‖ (App. at A79 (quoting Doe II, 

2010 WL 1956585, at *28).) However, the District Court held that ―the Affected Area‘s 

high concentration of African-American students factored into the District‘s adoption of 

Plan 3R‖ and, thus, ―racial demographics . . . factored into the District‘s recommendation 

that the Board adopt the Plan.‖ (App. at A80.) The District Court held that, because 

―race was a motivating factor during redistricting,‖ it must determine ―whether plan 3R 

would have been adopted regardless of the racial composition of the Affected Area.‖ (Id.

at A80.) The District Court also noted that ―no congressional statute or Supreme Court 

precedent expressly provides that mere consideration of a neighborhood‘s racial 
29

demographics in assigning students to schools constitutes decisionmaking in which race 

has been a motivating factor.‖ (Id. at A80 n.8.) 

Before embarking on a strict scrutiny review of Plan 3R, the District Court noted 

that, if the plan survived strict scrutiny, it would necessarily survive intermediate scrutiny 

or rational basis review. Because Plan 3R is the only plan that meets the District‘s 

―compelling educational interests‖ of ―(a) equalizing the populations at the two high 

schools, (b) minimizing travel time and transportation costs, (c) fostering educational 

continuity, and (d) fostering walkability,‖ the District Court held that Plan 3R is narrowly 

tailored and survives strict scrutiny. (Id. at A83.) The District Court held that ―the mere 

fact that the District considered racial demographics . . . does not render the District‘s 

adoption of Plan 3R unconstitutional‖; ―Plan 3R would still have been adopted even had 

racial demographics not been considered.‖ (Id. at A92–93.) The District Court held that 

the adoption of Plan 3R comports with the Equal Protection Clause. Because the 

prohibitions of Title VI and 42 U.S.C. § 1981 against discrimination are coextensive with 

the Equal Protection Clause, the District Court held that the Appellants‘ remaining claims 

must also fail. On June 25, 2010, the District Court entered judgment in favor of the 

District.

Students Doe filed a timely Motion for a New Trial, pursuant to Federal Rule of 

Civil Procedure 59, but the District Court ruled against the Motion on August 19, 2010. 

Students Doe filed a timely appeal.
30

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction over this case, pursuant to 28 U.S.C. § 1331. 

This Court has jurisdiction to review final decisions of the District Court, pursuant to 28 

U.S.C. § 1291.

We review the District Court‘s conclusions of law de novo and we review its 

findings of fact for clear error. Lozano v. City of Hazleton, 620 F.3d 170, 181 (3d Cir. 

2010) (citing McCutcheon v. Am.‘s Servicing Co., 560 F.3d 143, 147 (3d Cir. 2009)). 

A district court‘s evidentiary rulings are reviewed for abuse of discretion. United 

States v. Kemp, 500 F.3d 257, 295 (3d Cir. 2007). The District Court‘s interpretation of 

the Federal Rules of Evidence is, however, subject to plenary review. United States v. 

Brown, 254 F.3d 454, 458 (3d Cir. 2001). 

III. ANALYSIS

―Article III of the Constitution restricts the  ̳judicial power‘ of the United States to 

the resolution of cases and controversies.‖ Valley Forge Christian Coll. v. Ams. United 

for Separation of Church & State, 454 U.S. 464, 471 (1982). To satisfy the Article III 

case or controversy requirement, a plaintiff must establish that he or she has suffered an 

―injury in fact‖ that is both ―concrete and particularized‖ and ―actual or imminent, not 

conjectural or hypothetical.‖ Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) 

(internal quotation marks omitted). In the equal protection context, an injury resulting 

from governmental racial discrimination ―accords a basis for standing only to those 
31

persons who are personally denied equal treatment by the challenged discriminatory 

conduct.‖ United States v. Hays, 515 U.S. 737, 744–45 (1995) (quoting Allen v. Wright, 

468 U.S. 737, 755 (1984)) (internal quotation marks omitted).28 

―[O]ne form of injury under the Equal Protection Clause is being forced to 

compete in a race-based system that may prejudice the plaintiff.‖ Seattle, 551 U.S. at 

719. Appellants have asserted an injury by alleging that Plan 3R is such a system. (See

App. at A137 (Appellants allege in their complaint that Plan 3R ―discriminates against 

Students Doe on the basis of race by mandating that said students attend Harriton High 

School because they are minorities‖ and ―it imposes an undue burden on minority 

students‖).) That Students Doe have not alleged that, when they attend high school, they 

will want to attend LMHS instead of Harriton is irrelevant for purposes of standing. In 

Seattle, the Supreme Court held that the possibility of a child being assigned to that 

child‘s preferred school under the race-based plan at issue did ―not eliminate the injury 

claimed.‖ Seattle, 551 U.S. at 718–19. Because the children in Seattle lived in the 

 

28 In Allen, the Supreme Court held that the plaintiffs did not have standing in a suit 

against the Internal Revenue Service for its grant of tax exempt status to racially 

exclusive private schools, because, in part, the plaintiffs did not allege ―that their children 

had ever applied or would ever apply for admission to any private school.‖ Allen, 468 

U.S. at 746. Plaintiffs maintained that they had ―no interest whatever in enrolling their 

children in a private school.‖ Wright v. Regan, 656 F.2d 820, 827 (D.C. Cir. 1981). 

Student Doe would be analogous to Allen if Students Doe had alleged that they did not 

intend to enroll in either public high school in the District. Students Doe, however, live 

within the District and attend the District‘s elementary, middle, or high schools. Thus, 

Allen is not controlling even though Students Doe have not alleged that they will attend 

LMHS if given the choice. Students Doe allege an injury in fact because they claim that 

they are being forced to compete in a race-based system. 
32

district and attended elementary, middle, and high schools in the district, they asserted an 

imminent injury that was not speculative by claiming that they were ―being forced to 

compete in a race-based system that may prejudice‖ them. Id. Similar to the children in 

Seattle, Students Doe live within the District, attend District schools, and assert that the 

District is discriminating against them by assigning them to a school on the basis of race. 

Students Doe have asserted an injury that is not conjectural or hypothetical.29

A. Equal Protection Clause 

i. Level of Scrutiny

The Equal Protection Clause of the Fourteenth Amendment provides that no State 

shall ―deny to any person within its jurisdiction the equal protection of the laws.‖ U.S. 

Const. amend. XIV, § 2. The central purpose of the Clause ―is to prevent the States from 

purposely discriminating between individuals on the basis of race.‖ Shaw v. Reno, 509 

U.S. 630, 642 (1993) (citing Washington v. Davis, 426 U.S. 229, 239 (1976)). A 

government action does not necessarily purposely discriminate merely because it is racerelated. Crawford v. Bd. of Educ., 458 U.S. 527, 538 (1982) (―a distinction may exist 

between state action that discriminates on the basis of race and state action that addresses, 

in neutral fashion, race-related matters. . . . the Equal Protection Clause is not violated by 

the mere repeal of race-related legislation or policies that were not required by the 

 

29 That Student Doe 4 chose to attend Harriton does not render his claim moot because 

Student Doe 4 alleges the same injury as the other students — being assigned to a school 

under a discriminatory race-based system. 
33

Federal Constitution‖). Thus, ―[p]roof of racially discriminatory intent or purpose is 

required to show a violation of the Equal Protection Clause.‖ Antonelli v. New Jersey, 

419 F.3d 267, 274 (3d Cir. 2005) (quoting City of Cuyahoga Falls v. Buckeye Cmty. 

Hope Found., 538 U.S. 188, 194 (2003)) (internal citations and quotation marks omitted 

in Antonelli). 

Precedent in this Court and the Supreme Court has established that 

Intentional discrimination can be shown when: (1) a law or 

policy explicitly classifies citizens on the basis of race, see

Hunt v. Cromartie, 526 U.S. 541 (1999); (2) a facially neutral 

law or policy is applied differently on the basis of race, see

Yick Wo v. Hopkins, 118 U.S. 356 (1886); or (3) a facially 

neutral law or policy that is applied evenhandedly is 

motivated by discriminatory intent and has a racially 

discriminatory impact, see Vill. of Arlington Heights v. 

Metro. Hous. Dev. Corp., 429 U.S. 252 (1977). 

Antonelli, 419 F.3d at 274. Similarly, in Equal Protection Clause cases, we apply strict 

scrutiny to actions with racially discriminatory purpose: (1) ―all racial classifications 

imposed by government,‖ Grutter, 539 U.S. at 32730; (2) policies or laws that are applied 

 

30 See also Seattle, 551 U.S. at 720 (K-12 education) (―It is well established that when the 

government distributes burdens or benefits on the basis of individual racial 

classifications, that action is reviewed under strict scrutiny.‖ (citing Johnson v. 

California, 543 U.S. 499, 505–06 (2005); Grutter, 539 U.S. at 326; Adarand, 515 U.S. at 

224))); Gratz, 539 U.S. at 271 (university admissions) (―It is by now well established that 

 ̳all racial classifications reviewable under the Equal Protection Clause must be strictly 

scrutinized.‘‖ (quoting Adarand, 515 U.S. at 224)); Johnson, 543 U.S. at 506 (―We have 

held that ―all racial classifications [imposed by government] . . . must be analyzed by a 

reviewing court under strict scrutiny.‖ (quoting Adarand, 515 U.S. at 227) (alteration in 

original)); Adarand, 515 U.S. at 228 (holding that ―all racial classifications, imposed by 

whatever federal, state, or local governmental actor, must be analyzed by a reviewing 
34

differently on the basis of race, see Yick Wo, 118 U.S. 356; or (3) policies or laws for 

which ―a plaintiff establishes a discriminatory purpose based on race,‖ Pryor, 288 F.3d at 

562.31 However, ―absent a racially discriminatory purpose, explicit or inferable, on the 

part of the [decisionmaker], the statutory distinction is subject only to rational basis 

review.‖ United States v. Frazier, 981 F.2d 92, 95 (3d Cir. 1992) (citing Feeney, 442 

U.S. 256; Davis, 426 U.S. 229).32

 

court under strict scrutiny‖); Pers. Adm‘r of Mass. v. Feeney, 442 U.S. 256, 272 (1979) 

(―A racial classification, regardless of purported motivation, is presumptively invalid and 

can be upheld only upon an extraordinary justification.‖ (citing Brown v. Board of Educ., 

347 U.S. 483 (1954); McLaughlin v. Florida, 379 U.S. 184 (1964))); Bakke, 438 U.S. at

291 (university admissions) (―Racial and ethnic classifications . . . are subject to stringent 

examination without regard to [the discreteness and insularity of the persons being 

classified].‖).

31 See also Arlington Heights, 429 U.S. at 265–66 (―when there is proof that a 

discriminatory purpose has been a motivating factor in the decision, . . . judicial 

deference is no longer justified‖).

32 ―If state action does not burden a fundamental Constitutional right or target a suspect 

class, the  ̳challenged classification must be upheld if there is any reasonably conceivable 

state of facts that could provide a rational basis for the classification.‘‖ Doe v. 

Pennsylvania Bd. of Probation and Parole, 513 F.3d 95, 107 (3d Cir. 2008) (quoting 

Donatelli v. Mitchell, 2 F.3d 508, 513 (3d Cir. 1993)). 

In its Memorandum on Conclusions of Law, the District Court referenced Justice 

Kennedy‘s concurrence in Seattle, in which Justice Kennedy notes that strict scrutiny is 

unlikely to apply to race conscious measures that do employ racial classifications. The 

District Court, however, did not determine whether that concurrence is binding under 

Marks v. United States, 430 U.S. 188 (1977), and Planned Parenthood v. Casey, 947 F.2d 

682 (3d Cir. 1991). In their amicus brief, the NAACP Legal Defense & Educational 

Fund, Inc., the Lawyers Committee for Civil Rights Under Law, and the American Civil 

Liberties Union Foundation, amicus curiae, urge this Court to treat Justice Kennedy‘s 

concurrence in Seattle as binding.
35

1. Scrutiny Inquiry 

a. Intentional Discrimination Shown by Racial 

Classification 

The first alternative, a classification based explicitly on race, ―is presumptively 

invalid and can be upheld only upon an extraordinary justification.‖ Crawford, 458 U.S. 

 

In Marks, the Supreme Court held that, ―[w]hen a fragmented Court decides a case 

and no single rationale explaining the result enjoys the assent of five Justices,  ̳the 

holding of the Court may be viewed as that position taken by those Members who 

concurred in the judgments on the narrowest grounds.‘‖ 430 U.S. at 193 (quoting Gregg 

v. Georgia, 428 U.S. 153, 169 n.15); see also Casey, 947 F.2d at 693 (noting that Marks

stands for the proposition that ―the controlling opinion in a splintered decision is that of 

the Justice or Justices who concur on the ―narrowest grounds‖), overruled in part on other 

grounds by Planned Parenthood v. Casey, 505 U.S. 833 (1992). 

In Seattle, the Chief Justice and four other Justices, including Justice Kennedy, 

agreed that racial classifications in the assignment plans at issue in that case required the 

application of strict scrutiny and that the plans did not survive strict scrutiny. Seattle, 551 

U.S. at 720, 733–35. These portions of Chief Justice Roberts‘s opinion constitute the 

opinion of the Court and, thus, there is a ―single rationale explaining the result [that] 

enjoys the assent of five Justices.‖ Neither Marks nor Casey governs the level of 

deference required by Justice Kennedy‘s concurring opinion in Seattle. Justice 

Kennedy‘s proposition that strict scrutiny is ―unlikely‖ to apply to race conscious 

measures that do not lead to treatment based on classification does not ―explain[] the 

result‖ of Seattle. The result of Seattle was the holding that the two assignment plans at 

issue employed race-based classifications and failed strict scrutiny, but Justice Kennedy‘s 

proposition pertains to assignment plans that do not require strict scrutiny because they 

do not employ race-based classifications. The portion of Justice Kennedy‘s concurrence 

discussing race-conscious measures is not binding because it is dicta; it refers to 

hypothetical facts and is not material to the result of Seattle. 

As has occurred on other occasions with some other non-binding rationales, a 

future plurality or majority of the Court could adopt Justice Kennedy‘s rationale for raceconscious, non-discriminatory school assignments to give it precedential effect. See

Grutter v. Bollinger, 539 U.S. 306, 325 (2003) (―today we endorse Justice Powell‘s view 

[from his Bakke concurrence] that student body diversity is a compelling state interest 

that can justify the use of race in university admissions‖). 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.
36

at 536–37 (1982) (citing Pers. Adm‘r of Mass. v. Feeney, 442 U.S. 256, 272 (1979)); see 

also Adarand, 515 U.S. at 213. Thus, ―when the government distributes burdens or 

benefits on the basis of individual racial classifications, that action is reviewed under 

strict scrutiny.‖33

 Seattle, 551 U.S. at 720 (citing Johnson v. California, 543 U.S. 499, 

505–06 (2005); Grutter, 539 U.S. at 326; Adarand, 515 U.S. at 224). ―The term racial 

classification  ̳normally refers to a governmental standard, preferentially favorable to one 

race or another, for the distribution of benefits.‘‖ Anderson ex rel. Dowd v. City of 

Boston, 375 F.3d 71, 77 (1st Cir. 2004) (quoting Raso v. Lago, 135 F.3d 11, 16 (1st Cir. 

1998), cert. denied, 525 U.S. 811, 1 (1998)). ―A statute or policy utilizes a  ̳racial 

classification‘ when, on its face, it explicitly distinguishes between people on the basis of 

some protected category.‖ Hayden v. Cnty. of Nassau, 180 F.3d 42, 48 (2d Cir. 1999). 

Plan 3R is facially race neutral, assigning students to schools based only on the 

geographical areas in which they live. 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 lack of racial classification in Plan 3R distinguishes 

Plan 3R from the policies in every Supreme Court equal protection education case upon 

 

33 The standard of review ―is not dependent on the race of those burdened or benefited by 

a particular classification.‖ Croson, 488 U.S. at 494 (citing Wygant v. Jackson Bd. of 

Educ., 476 U.S. 267, 279–80 (plurality opinion); id. at 285–86 (O‘Connor, J., concurring 

in part and concurring in the judgment)).
37

which Appellants rely in their brief34 — in this manner, Plan 3R starkly differs from the 

policies at issue in Seattle, Gratz, Grutter, Bakke, Brown, McLaurin v. Oklahoma State 

Regents, 339 U.S. 637 (1950), and Sweatt v. Painter, 339 U.S. 629 (1950).35 In each of 

 

34 The District Court frequently distinguished Plan 3R from other equal protection cases 

because it does not make individual racial classifications. For equal protection purposes, 

however, the key difference between Plan 3R and the policies at issue in other equal 

protection cases is not whether Plan 3R makes individual racial classifications as opposed 

to group or neighborhood racial classifications; it is whether Plan 3R makes racial 

classifications or does not. Our holding addresses whether Plan 3R contains any racial 

classification or does not. There is no precedent in this Court or the Supreme Court for 

holding that whether strict scrutiny is applied in equal protection challenges alleging 

racial discrimination in education admissions or assignments turns on whether a policy‘s 

racial classification is applied by group or by individual. 

35 Seattle, 551 U.S. at 711–12, 716 (the Supreme Court analyzed the policies of two 

different school districts, one in Seattle, Washington and the other in Jefferson County, 

Kentucky: Seattle School District No. 1‘s assignment policy considered race as one of the 

multiple tiebreaking factors to determine whether to assign a student to an 

―oversubscribed‖ school; Jefferson County Public Schools‘ plan required certain schools 

to maintain black student enrollment between fifteen and fifty percent of the student 

population); Gratz, 539 U.S. at 253–57 (the policy made university admission decisions 

based on points given to applicants for multiple factors, including points awarded to 

applicants in underrepresented ethnic or racial groups, and the policy reserved ―protected 

seats‖ for applicants from ―protected categories,‖ including underrepresented minorities); 

Grutter, 539 U.S. 306 (the policy admitted students based on an evaluation of all the 

information in each student‘s file, which included an essay on how the applicant would 

contribute to the school‘s diversity; reaffirmed the school‘s commitment to diversity with 

special reference to the inclusion of certain racial and ethnic groups; and stated that the 

school wanted to enroll a ―critical mass‖ of underrepresented minority students); Bakke, 

438 U.S. 265 (policy included a special admissions program that considered applicants 

who self-identified as minority group members and admitted a prescribed number of selfidentified minority students each year); Brown, 347 U.S. 483 (policies permitted separate 

schools for black children and white children); McLaurin, 339 U.S. at 638 (policy denied 

admission on the basis of race because state statute criminalized operating, teaching, or 

attending an integrated school); and Sweatt v. Painter, 339 U.S. 629 (policy restricted 
38

those cases, the school district or university policy at issue used racial classifications as 

the sole factor, or as one factor among many, to make determinations regarding student 

school assignments or admission to a higher education institution. 

In Bakke, the Court even noted that the policy ―involves a purposeful, 

acknowledged use of racial criteria. This is not a situation in which the classification on 

its face is racially neutral, but has a disproportionate racial impact. In that situation, 

plaintiff must establish an intent to discriminate.‖ Bakke, 438 U.S. at 289 n.27 (citing 

Arlington Heights, 429 U.S. 252; Davis, 426 U.S. 229). 

The facial neutrality of Plan 3R also distinguishes it from the policies in many of 

the Supreme Court race-based equal protection cases upon which Appellants rely in their 

brief — Adarand, Croson, and Plessy.

36

 Moreover, in Adarand, the Court emphasized 

that the ―case concerns only classifications based explicitly on race, and presents none of 

the additional difficulties posed by laws that, although facially race neutral, result in 

 

enrollment to white students, in accordance with state law, and rejected an application 

solely because of the applicant‘s race). 

36 Adarand, 515 U.S. at 213 (policy employed a race-based rebuttable presumption in 

some certification decisions); Croson, 488 U.S. at 477 (policy required certain contractors 

to whom the city awarded construction contracts to subcontract at least thirty percent of 

the dollar amount of the contract to a minority business); Plessy, 163 U.S. at 540 (statute 

required that railway companies provide separate accommodations for passengers based 

on race); see also Ricci v. DeStefano, -- U.S. ----, 129 S. Ct. 2658, 2664–65 (2009) 

(relied upon by Appellants, but Ricci is inapposite because the Supreme Court did ―not 

reach the question whether respondents‘ actions may have violated the Equal Protection 

Clause‖). Shaw v. Hunt, 517 U.S. 899 (1996), and Arlington Heights are the only cases 

upon which Appellants rely in their brief that involve facially race neutral policies or 

laws.
39

racially disproportionate impact and are motivated by a racially discriminatory purpose.‖ 

515 U.S. at 213. 

Appellants repeatedly frame the central question in this case as whether ―race was 

a factor,‖ or whether race was considered. (Appellant‘s Br. at 28, 30, 34, 35, 36, 38.) 

Although Appellants argue that, if race is a factor in a decision, we must apply strict 

scrutiny, counsel for Appellants admitted at oral argument that being aware of or 

considering race when making some decisions can be proper within certain 

circumstances, including doing so to achieve a better racial composition within a school. 

In any event, these arguments are irrelevant to our inquiry. Appellants and the District 

Court conflate the consideration or awareness of race with (1) racial classifications and 

(2) racially discriminatory purpose. Equal protection law does not make the same 

conflation. As a result, both the District Court and Appellants improvidently believed 

that the appropriate level of scrutiny to apply was strict scrutiny. 

The District Court conflated discriminatory purpose with the consideration or 

awareness of race and in doing so stated an incorrect standard for determining the 

appropriate level of scrutiny. The District Court cited the Pryor holding that an action 

adopted because of ―a discriminatory purpose based on race‖ requires strict scrutiny 

analysis. Pryor, 288 F.3d at 562 (emphasis added). In restating that holding, however, 

the District Court substituted ―race‖ for ―discriminatory purpose,‖ and incorrectly 

characterized Pryor to hold that, ―once race has been shown to be a motivating factor in 
40

decisionmaking, all racial classifications must survive strict scrutiny.‖ (App. at A76 

(emphasis added)).

A racial classification occurs only when an action ―distributes burdens or benefits 

on the basis of‖ race. Seattle, 551 U.S. at 720. In United States v. Hays, 515 U.S. 737 

(1995), the Court noted that the record contained ―evidence tending to show that the 

legislature was aware of the racial composition of [the districts in which the plaintiffs 

lived],‖ but the Court also noted that ―the legislature always is aware of race when it 

draws district lines.‖ Id. at 744 (emphases added) (quoting Shaw v. Reno, 509 U.S. 630, 

646 (1993) (Shaw I)) (internal quotation marks omitted). ―That sort of race 

consciousness does not lead inevitably to impermissible race discrimination‖ and proof of 

that race consciousness ―in the redistricting process is inadequate to establish injury in 

fact.‖ Id. at 745–46. Moreover, the Court noted that the justices had ―never held that the 

racial composition of a particular voting district, without more, can violate the 

Constitution.‖ Id. at 746. 

Similarly, the District Court misstated the legal standard for determining the 

appropriate level of scrutiny as described in Arlington Heights because the District Court 

conflated race as a factor with discriminatory purpose. In Arlington Heights, the 

Supreme Court noted that, ―[w]hen there is a proof that a discriminatory purpose has 

been a motivating factor in the decision, . . . judicial deference is no longer justified.‖ 

429 U.S. at 265–66 (emphasis added). The District Court incorrectly stated that 
41

Arlington Heights held that such deference is no longer justified when ―race was a 

motivating factor.‖ (App. at A78 (emphasis added).) Neither Pryor nor Arlington 

Heights stands for the proposition that strict scrutiny must be applied when race, but not a 

discriminatory purpose, was a motivating factor. 

Racially discriminatory purpose means that the decisionmaker adopted the 

challenged action at least partially because the action would benefit or burden an 

identifiable group. Feeney, 442 U.S. at 279 (―discriminatory purpose‖ ―implies that the 

decisionmaker . . . selected or reaffirmed a particular course of action at least in part 

 ̳because of,‘ not merely  ̳in spite of,‘‖ the action‘s beneficial or adverse effects ―upon an 

identifiable group‖). Thus, the mere awareness or consideration of race should not be 

mistaken for racially discriminatory intent or for proof of an equal protection violation. 

Pryor, 288 F.3d at 562 (―A mere awareness of the consequences of an otherwise neutral 

policy will not suffice.‖ (citing Feeney, 442 U.S. at 277–78)).37

Appellants also conflate a school assignment policy that explicitly classifies based 

on race with the consideration or awareness of neighborhood racial demographics during 

 

37 It is also error to treat ― ̳racial motive‘ as a synonym for a constitutional violation‖ or 

―racial classification.‖ Raso, 135 F.3d at 16 (holding that an action that is adopted 

because of a ―racial motive‖ or purpose is not ―automatically  ̳suspect‘ under the Equal 

Protection Clause‖). This holds true even for a decisionmaker‘s racially discriminatory 

purpose. Racially discriminatory purpose, alone, is not a racial classification because 

racial classification is more than a mere thought. Compare Seattle, 551 U.S. at 720 

(racial classification occurs when an action ―distributes burdens or benefits on the basis 

of‖ race), with discussion of racially discriminatory purpose, infra Part III.A.i.3.b, noting 

that racially discriminatory purpose refers to the purpose or intent in selecting an action 

and not to whether the selected action resulted in actual discrimination or classifications.
42

the development and selection of a policy. The former is a facially racial policy, such as 

the policies in Seattle, Gratz, Grutter, Bakke, Brown, McLaurin, and Sweatt. The 

consideration or awareness of race while developing or selecting a policy, however, is not 

in and of itself a racial classification. Thus, a decisionmaker‘s awareness or 

consideration of race is not racial classification. Designing a policy ―with racial factors 

in mind‖ does not constitute a racial classification if the policy is facially neutral and is 

administered in a race-neutral fashion. Hayden, 180 F.3d at 48 (holding that designing a 

policy with a racially discriminatory purpose should not be construed as a facial 

classification when the policy does not explicitly, or in its application, distinguish 

between people on the basis of a protected category). 

When the Supreme Court, in Seattle, Grutter, and Bakke, has referenced applying 

strict scrutiny to a ―plan that uses race as one of many factors,‖ it has meant just that — 

strict scrutiny should be applied to a school admissions or student assignment policy or 

plan that uses race as a factor to determine whether a student is admitted or assigned to a 

school. Grutter, 539 U.S. at 339; see also Seattle, 551 U.S. at 793; Bakke, 438 U.S. at 

318-19 (Opinion of Powell, J.). The Court has never held that strict scrutiny should be 

applied to a school plan in which race is not a factor merely because the decisionmakers 

were aware of or considered race when adopting the policy. When there is no racial 

classification in the plan, strict scrutiny is only applied if plaintiffs show discriminatory 

intent. 
43

The first alternative by which intentional discrimination can be shown — racial 

classification — is inapposite to Plan 3R and the facts of this case. Strict scrutiny 

analysis is not appropriate on this basis. 

b. Intentional Discrimination Shown by Discriminatory 

Application of a Facially Neutral Policy

The second alternative to show intentional discrimination — that a facially neutral 

policy is applied differently on the basis of race — is also inapplicable to Plan 3R. There 

is no record evidence that the District has applied Plan 3R in a discriminatory manner. 

The Supreme Court first established the standard for this method of proving an Equal 

Protection violation in Yick Wo. In that case, the city and county of San Francisco 

denied every Chinese laundry owner a permit to operate a laundry business, but denied 

permits for only one of approximately eighty non-Chinese laundry owners. With that 

example of discriminatory application of a law in mind, to demonstrate that Plan 3R is 

applied differently on a discriminatory basis, Appellants would have needed to show 

below that the District enforces Plan 3R within some areas or regarding some students, 

on the basis of race, while not enforcing Plan 3R within other areas or regarding other 

students. Appellants have not alleged that Plan 3R is enforced in a disproportionate 

manner. 

c. Intentional Discrimination Shown by Discriminatory 

Purpose for a Facially Neutral Policy 
44

To establish government action within the third alternative, a plaintiff is ―required 

to prove that the actions of . . . officials (1) had a discriminatory effect and (2) were 

motivated by a discriminatory purpose.‖

38

 Bradley v. United States, 299 F.3d 197, 205 

(3d Cir. 2002) (citing Arlington Heights, 429 U.S. at 264–66 (race discrimination); 

Davis, 426 U.S. at 239–42 (race discrimination); Chavez v. Ill. State Police, 251 F.3d 

612, 635–36 (7th Cir. 2001) (race discrimination)). 

i. Discriminatory Impact 

Although disproportionate impact, alone, is not dispositive, a plaintiff must show 

discriminatory impact in order to prove an equal protection violation under this third 

alternative. ―[N]o case in [the Supreme] Court has held that a legislative act may violate 

equal protection solely because of the motivations of the men who voted for it.‖ Palmer 

v. Thompson, 403 U.S. 217, 224 (1971). In Palmer, the Supreme Court noted that ―there 

is an element of futility in a judicial attempt to invalidate a law [solely] because of the 

bad motives of its supporters. If the law is struck down for this reason, rather than 

 

38 See also Antonelli, 419 F.3d at 274 (holding that, to show an equal protection violation 

when the policy is facially neutral, ―the Apellants would have to show that the 

Appellees acted with discriminatory intent and the [policy] had a discriminatory 

impact‖); cf. Adarand, 515 U.S. at 213 (noting that ―this case concerns only 

classifications based explicitly on race, and presents none of the additional difficulties 

posed by laws that, although facially race neutral, result in racially disproportionate 

impact and are motivated by a racially discriminatory purpose‖) (citing Arlington 

Heights, 429 U.S. 252; Davis, 426 U.S. 229); Bakke, 438 U.S. at 289 n.27 (noting that 

the policy at issue ―involves a purposeful, acknowledged use of racial criteria. This is not 

a situation in which the classification on its face is racially neutral, but has a 

disproportionate racial impact. In that situation, plaintiff must establish an intent to 

discriminate.‖) (citing Arlington Heights, 429 U.S. 252; Davis, 426 U.S. 229). 
45

because of its facial content or effect, it would presumably be valid as soon as the 

legislature or relevant governing body repassed it for different reasons.‖ Id. at 225. 

Moreover, discriminatory impact must be shown to establish an equal protection violation 

because ―plaintiffs must show that they have been injured as a result‖ of the 

governmental action to ensure that courts ―can impose a meaningful remedy.‖ Garza v. 

County of Los Angeles, 918 F.2d 763, 771 (9th Cir. 1990). 

To establish discriminatory impact in a racial discrimination case, Appellants must 

show that similarly situated individuals of a different race were treated differently. The 

Appellants do not meet this burden. 

Despite Appellants‘ numerous references to the alleged consideration of race by 

Board members and Administrators during discussions of Scenarios and Proposed Plans, 

Appellants have not provided any evidence that Plan 3R treats similarly situated 

individuals of a different race in a different manner. Along with Students Doe, all white 

students in the Affected Area are also assigned to attend Harriton without the choice to 

attend LMHS unless they live within the LMHS walk zone. Appellants have not 

provided any evidence that Plan 3R treats black individuals outside of the Affected Area 

in the same way in which it treats Students Doe or other black individuals who live in the 

Affected Area. North Ardmore, like the Affected Area, has a high percentage of AfricanAmerican residents in comparison to other areas. However, all of the students in North 

Ardmore, both black and white, are assigned to attend LMHS, not Harriton, where 
46

Students Doe and Affected Area students are assigned. Two-thirds of the students 

redistricted to Harriton were students who were not African-Americans and who lived in 

the Affected Area or other areas redistricted to Harriton under plan 3R.39

 Plan 3R does 

not treat black students in the Affected Area and North Ardmore similarly, nor does it 

treat white students in either area similarly to other white students or differently from the 

black students in the same area.40

 No evidence has been provided indicating assignments 

based on racial classification here. 

To show a discriminatory impact in the form of a stigma, Appellants would still 

need to demonstrate that they ―are personally denied equal treatment by the challenged 

discriminatory conduct.‖41 Allen, 468 U.S. at 756 (quoting Heckler v. Mathews, 465 

 

39 See discussion supra Part I.C, noting that, in 2009–2010 under Plan 3R, twenty-one 

students from the Affected Area were redistricted to Harriton, fourteen of whom were 

African-American. Twenty-three students from areas districted for Penn Valley 

Elementary School were also redistricted to Harriton, none of whom were AfricanAmerican. Less than one-third of the students redistricted were African-Americans from 

the Affected Area. 

40 Cf., Brown v. Philip Morris, Inc., 250 F.3d 789, 797–98 (3d Cir. 2001) (discussing 

civil rights claims under 42 U.S.C. §§ 1981, 1982). In Brown, we held that Plaintiff 

African-American smokers ―at no place in their submissions . . . argue any disparities . . . 

on the basis of race‖ where Plaintiffs conceded that Philip Morris ―[sold] menthol 

cigarettes to African-Americans at the same price and on the same terms as such products 

are offered to whites‖ and Plaintiffs ―do not allege that the mentholated tobacco products 

sold to African-Americans differ from those sold to whites.‖ Id.

41 See also Allen, 468 U.S. at 756 (holding that plaintiffs had no standing to challenge 

allegedly racially discriminatory tax exemptions to racially discriminatory schools 

because plaintiffs did not allege that their children had ever applied or would ever apply 

to the discriminatory schools); O‘Shea v. Littleton, 414 U.S. 488 (1974) (holding that 
47

U.S. 738, 739–40 (1984)) (internal quotation marks omitted). Furthermore, the Court‘s 

discussion of stigma has been in the context of racial classifications. See generally, 

Johnson v. California, 543 U.S. 499, 507 (2005) (―[a]s we have recognized in the past, 

racial classifications threaten to stigmatize individuals by reason of their membership in a 

racial group‖ (quoting Shaw v. Reno, 509 U.S. at 643) (internal quotation marks 

omitted)). Because Plan 3R includes no racial classifications, arguments regarding 

stigma are of no avail. 

Appellants can also show discriminatory impact by demonstrating that there are 

racial classifications in the school assignment system. Such classifications force students 

―to compete in a race-based system that may prejudice‖ them. Seattle, 551 U.S. at 718–

19 (internal quotation marks omitted). In such circumstances, the discriminatory impact 

―is the denial of equal treatment resulting from the imposition of the barrier. . . . And in 

the context of a challenge to a set-aside program, the  ̳injury in fact‘ is the inability to 

compete on an equal footing in the bidding process.‖ Gratz, 539 U.S. at 262 (quoting Ne.

Fla. Chapter, Associated Gen. Contractors of Am. v. Jacksonville, 508 U.S. 656, 666 

(1993)). Unlike the systems at issue in Seattle, Plan 3R is not a race-based system and, 

under Plan 3R, there is no possibility that any of the Students Doe will be denied a school 

 

plaintiffs had no standing to challenge racial discrimination in a city‘s criminal justice 

system because plaintiffs had not alleged that they had been or would likely be subject to 

the challenged practices); Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972) (holding 

that a plaintiff had no standing to challenge a club‘s racially discriminatory membership 

policies because plaintiff had not applied for membership). 
48

assignment because of his or her race. Appellants cannot rely on Seattle, Grutter, Gratz, 

or Bakke to demonstrate discriminatory impact because Plan 3R imposes no racial barrier 

and assigns students on an equal basis — geography. 

ii. Discriminatory Purpose 

 Even if we were to conclude that Appellants have shown discriminatory impact, 

―the Fourteenth Amendment guarantees equal laws, not equal results.‖ Feeney, 442 U.S. 

at 273. The Supreme Court held in Washington v. Davis, 426 U.S. 229 (1976), that 

―[p]roof of racially discriminatory intent or purpose is required to show a violation of the 

Equal Protection Clause.‖ Arlington Heights, 429 U.S. at 266. ―When there is a proof 

that a discriminatory purpose has been a motivating factor in the decision, . . . judicial 

deference is no longer justified‖ and courts should apply strict scrutiny.42 Id. at 266–67. 

However, ―absent a racially discriminatory purpose, explicit or inferable, on the part of 

the [decisionmaker], the statutory distinction is subject only to rational basis review.‖ 

Frazier, 981 F.2d at 95 (citing Feeney, 442 U.S. 256; Davis, 426 U.S. 229).

The term ―discriminatory purpose‖ ―implies that the decisionmaker . . . selected or 

reaffirmed a particular course of action at least in part  ̳because of,‘ not merely  ̳in spite 

of,‖ the action‘s beneficial or adverse effects ―upon an identifiable group.‖43 Feeney, 442 

 

42 The racially discriminatory purpose need not be the sole or primary factor motivating 

the decision to adopt the challenged action. Arlington Heights, 429 U.S. at 266. 

43 See also Antonelli, 419 F.3d at 274 (―the government‘s  ̳benign‘ use of racial 

considerations in decision-making . . . is no less subject to strict scrutiny than  ̳invidious‘ 
49

U.S. at 279. Racially discriminatory purpose means that the decisionmaker adopted the 

challenged action at least partially because the action would benefit or burden an 

identifiable group. ―Even conscious awareness on the part of the [decisionmaker] that the 

[policy] will have a racially disparate impact does not invalidate an otherwise valid law, 

so long as that awareness played no causal role‖ in the adoption of the policy. Frazier, 

981 F.2d at 95 (citing Feeney, 442 U.S. at 279). 

In Arlington Heights, the Supreme Court outlined how courts should determine 

whether a discriminatory purpose was a motivating factor. The determination requires a 

―sensitive inquiry‖ into the available ―circumstantial and direct evidence of intent,‖ 

including: (1) whether the official action has a racially disproportionate impact; (2) the 

historical background of the decision; and (3) the legislative or administrative history of 

the decision. Arlington Heights, 429 U.S. at 266–68. Proof put forth to demonstrate 

discriminatory intent ―must necessarily usually rely on objective factors.‖ Feeney, 442 

U.S. at 278 n.24. 

If discriminatory impact cannot be ―plausibly explained on a neutral ground, 

impact itself would signal that the real classification made by the law was in fact not 

neutral.‖ Id. at 275. However, ―[j]ust as there are cases in which impact alone can 

unmask an invidious classification, there are others, in which — notwithstanding impact 

— the legitimate noninvidious purposes of a law cannot be missed.‖ Id. As stated above, 

 

use of racial considerations in decision-making‖) (citing Croson, 488 U.S. at 493–94; 

Adarand, 515 U.S. at 226–27). 
50

Plan 3R does not have a discriminatory impact. Even if we were to find that Plan 3R has 

a discriminatory impact, the District has plausibly explained any such impact on a neutral 

ground. The Board‘s goals in redistricting included the Non-Negotiables of equalizing 

the enrollments of Harriton and LMHS and not increasing the number of buses required. 

The Community Values during redistricting included allowing students who walked to 

school to continue walking to school, minimizing travel-time for bused students, and to 

ensure that children were in comfortable learning environments. 

In addition to these neutral bases for the selection of Plan 3R, the District Court 

noted other race-neutral explanations for the adoption of Plan 3R, including helping 

students attain educational excellence, developing a 3-1-1 Feeder Pattern, and closing the 

achievement gap between students. Moreover, there is no evidence establishing that the 

District Court clearly erred when it found credible the Board members‘ testimony that 

race was not the basis of their votes for Plan 3R. 

In Feeney, the Supreme Court held that the neutral purposes of a statute, aimed to 

benefit veterans ―provide[d] the surest explanation for its impact‖ benefitting more men 

than women. Id. The Court continued, stating that the law could not rationally be 

explained as a pretext for preferring men over women because significant numbers of 

those placed at a disadvantage by the law were men. Comparably, Plan 3R redistricts to 

Harriton a significant number of students who are not African-American. Even while 

grandfathering was still in effect, forty-four students were redistricted to Harriton for the 
51

2009–2010 school year and thirty of those students, nearly two-thirds, are not AfricanAmerican. 

When inquiring into the historical background of the decision to redistrict and 

adopt Plan 3R, there is nothing that sparks suspicion of discriminatory intent and 

Appellants have not alleged otherwise. The decision to redistrict was born of a capital 

improvement program intended to modernize every school in the district. Under the plan 

in effect prior to Plan 3R, the enrollment of the District‘s two high schools was very 

uneven (LMHS had roughly twice the number of students that Harriton had) and the 

District was committed to equalizing the two high schools. The process to select a new 

student assignment plan was carried out over a number of months with the involvement 

of the public. 

To ascertain whether there was discriminatory intent in the development and 

selection of Plan 3R, Appellants and the District Court appear focused on the 

administrative history, especially on statements made by Board members and the 

information included in reports and presentations. Appellants pay particular attention to 

when racial demographics only or racial demographics in addition to other 

socioeconomic demographics were or were not included in report estimates, slide 

presentations, personal notes, and on the District‘s website. Awareness of such data or 

omitting such data, however, does not constitute discriminatory intent. ―[C]onscious 

awareness‖ of a racially disparate impact of a facially neutral policy is irrelevant to equal 
52

protection analysis. See Frazier, 981 F.2d at 95 (citing Feeney, 442 U.S. at 279). 

Additionally, the mere awareness of data regarding racial demographics under various 

Scenarios and Proposed Plans is not necessarily awareness of racially disparate impact. 

The racial data showed, under some Scenarios and Proposed Plans, that there would not 

be a racially disparate impact. For a facially neutral policy, awareness of a racially 

discriminatory impact is only relevant if the policy is adopted at least in part because of a 

racially discriminatory impact. Id. 

While the statements upon which Appellants rely may indicate awareness or 

consciousness of race, the statements do not constitute discriminatory intent, i.e., that 

Plan 3R was developed or selected because it would assign benefits or burdens on the 

basis of race. Instead of being adopted for the purpose of discrimination, the statements 

indicate, if anything, that Board members and Administrators adopted Plan 3R in an 

attempt not to discriminate on the basis of race. Testimony that Scenario 1 was 

eliminated ―due to inequitable racial balancing‖ could indicate that the Administration 

did not want to propose a plan that seemed to treat students differently on the basis of 

race, by having a disproportionate percentage of students of a certain race redistricted. 

(App. at A24.) Notably, the Administration decided not to formulate any proposed plans 

based on Scenarios 1, 2, or 5. Scenarios 1 and 2 would redistrict both areas with higher 

African-American populations, the Affected Area and North Ardmore, to attend Harriton 

and Scenario 5 would keep students in both of those areas assigned to LMHS. Thus, the 
53

only Scenarios selected to develop into proposed plans were those that did not treat the 

two areas with the highest African-American populations in the same manner. Because 

all of the Scenarios assigned students geographically, no Scenario or Proposed Plan 

treated similarly situated African-American students differently from other students. 

Moreover, the District eliminated the Scenarios that arguably treated differently situated 

African-American students similarly, by assigning both areas with higher AfricanAmerican populations to the same school. 

Given these circumstances, it is nearly inconceivable that the District intended to 

discriminate on the basis of race. DiBonaventuro‘s September 2008 email reaffirms the 

anti-discriminatory goals of the redistricting process. In her email, she stated that the 

Board should emphasize that it is not trying to increase Harriton‘s diversity, but that it, 

instead, is trying to ensure numerically equal total student enrollments at both high 

schools.

Board and Administrator references to ―diversity‖ do not imply a discriminatory 

purpose. On the contrary, references to diversity in the context of this facially neutral 

policy implied that decisionmakers did not want the selected plan to have a racially 

disproportionate impact. Avoiding discriminatory impact seemed to be one of the 

District‘s goals in developing and adopting a plan. Because the African-American 

students were ―more concentrated‖ geographically, assigning students based on 
54

geography could easily lend itself to disproportionate impact unless the Board members 

were aware of the demographics of the areas during the redistricting process. 

In Arlington Heights and Feeney, the Supreme Court found that, despite 

awareness of disparate impact on a group, there was no showing of discriminatory intent 

in the formulation or adoption of the actions at issue. The Court in Arlington Heights

held that a zoning decision that bore more heavily on racial minorities was nonetheless 

not adopted due to discriminatory intent because the majority of the statements by the 

decisionmakers focused on neutral factors and the zoning policy had been applied 

consistently. 429 U.S. at 270. 

Similarly, Plan 3R has been applied consistently, regardless of race, and the 

majority of Board members‘ discussions regarding Lower Merion redistricting focused 

on neutral factors: (a) equalizing the populations at the two high schools, (b) minimizing 

travel time and transportation costs, (c) fostering educational continuity, and (d) fostering 

walkability. Additionally, Plan 3R did not bear more heavily on racial minorities.44

In Feeney, the Court held that there was no discriminatory purpose in the adoption 

of a statute that benefited an overwhelmingly male class — veterans — because the 

benefit was consistently offered to any person who was a veteran, including women. 

Similarly, Plan 3R consistently assigns students, including students who are not AfricanAmerican, based on the location of their residence. 

 

44 Less than one-third of the students redistricted were African-Americans from the 

Affected Area. 
55

In Pryor, the Court held that the plaintiffs had sufficiently alleged discriminatory 

intent because the complaint and exhibits alleged that the NCAA stated that it adopted a 

policy because ―it believed the adoption of this policy would increase the graduation rates 

of black athletes relative to white athletes.‖ 288 F.3d at 564. The Court noted that the 

complaint did not merely allege that the NCAA was aware of the likely racially 

disproportionate impact; plaintiffs alleged that this discriminatory impact was the 

NCAA‘s ―purpose,‖ ―stated goal,‖ and ―pretext‖ for adopting the policy. Id. at 564–65. 

In contrast, Appellants have not demonstrated that the District formulated or adopted 

Plan 3R at least partially to benefit or burden African-American students.

Significantly, the District Court found credible the Board members‘ testimony that 

race was not the basis of their votes for Plan 3R. We see no evidence of clear error in 

that finding. If race was not the basis of the Board members‘ votes for Plan 3R, it 

follows logically that they did not vote to adopt Plan 3R for racially discriminatory 

reasons.

Thus, none of the three alternatives necessary to show intentional discrimination 

and to trigger strict scrutiny is applicable to Plan 3R. 

2. Racially Discriminatory Intent in Electoral Redistricting 

 The District Court held that strict scrutiny was appropriate because it opined that 

the Affected Area was ―targeted‖ for redistricting to Harriton, in part, because it has a 

high concentration of African-American students. Similarly, our colleague, in her 
56

concurrence, concludes that we are required to apply strict scrutiny because, as she notes, 

the racial composition of neighborhoods was considered in determining school 

assignments. The concurrence suggests a paradigm not present or contemplated in our 

law – be aware of or talk about race and strict scrutiny is triggered. This theory is 

untenable. There is no precedent in this Court or the Supreme Court holding that we 

apply strict scrutiny in equal protection challenges alleging racial discrimination in 

education admissions or assignments because decisionmakers were cognizant of the 

racial demographics of neighborhoods when they selected the assignment plan. 

At oral argument, counsel for Appellants compared Plan 3R to electoral 

redistricting, an area for which the Supreme Court has set out tests for determining 

whether strict scrutiny should be applied to redistricting that involves the consideration of 

racial demographics. It is not clear that the electoral redistricting precedent controls in 

the educational context, but, even if we were to apply that precedent to the facts in Doe,

we would still hold that Plan 3R was not developed or adopted for a discriminatory 

purpose and, thus, should not be subjected to strict scrutiny. 

In equal protection challenges to electoral redistricting, the Supreme Court has 

held that strict scrutiny does not apply to facially race neutral legislation merely because 

(a) ―redistricting is performed with consciousness of race‖ or (b) because there was an 

―intentional creation of majority-minority districts.‖ Bush v. Vera, 517 U.S. 952, 958 

(1996). The Court has held, instead, that, for strict scrutiny to apply to facially race 
57

neutral electoral redistricting legislation, the plaintiff must prove that (1) the statutes, 

―although race neutral, are, on their face,  ̳unexplainable on grounds other than race,‘‖ 

Shaw I, 509 U.S. at 643 (quoting Arlington, 429 U.S. at 266) or that (2) ―legitimate 

districting principles were  ̳subordinated‘ to race‖ such that ―race must be  ̳the 

predominant factor motivating the legislature‘s [redistricting] decision,‖ Vera, 517 U.S. 

at 958–59, or the statute. 

Because Plan 3R is facially race neutral, ―consciousness of race,‖ alone, will not 

require the application of strict scrutiny. Cf. Vera, 517 U.S at 958 (noting that strict 

scrutiny does not apply ―merely because [electoral] redistricting is performed with 

consciousness of race‖). Although the Affected Area has the highest concentration of 

African-American students in Lower Merion, that fact does not require strict scrutiny. 

Cf. id. at 958 (noting that strict scrutiny does not ―apply to all cases of intentional 

creation of majority-minority [electoral] districts‖). 

 For strict scrutiny to apply to Plan 3R, the plan would have to be ―unexplainable 

on grounds other than race‖ or it must be shown that other legitimate redistricting 

principles were subordinated to race such that race was the predominant factor motivating 

the District‘s redistricting decision. Shaw I, 509 U.S. at 643. Appellants have not cast 

doubt on the proposition that equalizing the student enrollments at the two high schools 

was the primary factor motivating redistricting and the adoption of Plan 3R. The other 

primary factors motivating the decision included: minimizing travel time and 
58

transportation costs, increasing educational continuity such that students who attended 

the same elementary school would stay together through middle school and high school, 

and fostering walkability. 

As the District Court noted, the decision to adopt Plan 3R is explainable on 

grounds other than race. Moreover, race was not the predominant factor motivating the 

decision to adopt Plan 3R. If race had been the predominant factor, the District likely 

would have adopted a plan that: assigned students based on race; moved white students or 

predominantly white neighborhoods to LMHS, while moving African-American students 

or high concentration African-American areas to Harriton without increasing the student 

population at Harriton or decreasing the student population at LMHS; or draw new 

district lines that were not quadrilateral, following major streets and natural boundaries. 

Additionally, race does not explain why the District would adopt Plan 3R instead of 

adopting Plan 1, which would have resulted in African-American students being 9.9% of 

the Harriton student population, or Plan 3, which would have resulted in AfricanAmerican students being the same percentage of the Harriton student population as in 

Plan 3R. Thus, strict scrutiny would not be applied to Plan 3R under the Supreme 

Court‘s electoral redistricting precedent.

Regarding Plan 3R, there has not been ―prof that a discriminatory purpose has 

been a motivating factor in the decision.‖ Arlington Heights, 429 U.S. at 265–66. 

Because Plan 3R is ―absent a racially discriminatory purpose, explicit or inferable, on the 
59

part of the [decisionmakers], [it] is subject only to rational basis review.‖ Frazier, 981 

F.2d at 95 (citing Feeney, 442 U.S. 256; Davis, 426 U.S. 229).45

ii. Constitutional Analysis

Under rational basis review, the challenged classification must be upheld if it is 

―rationally related to a legitimate state interest.‖ City of New Orleans v. Dukes, 427 U.S. 

297, 303 (1976) (per curiam). Plan 3R is rationally related to a legitimate interest ―if 

there is any reasonably conceivable state of facts that could provide a rational basis for 

the classification.‖ Donatelli v. Mitchell, 2 F.3d 508, 513 (3d Cir. 1993) (quoting FCC v. 

Beach Commc‘n, Inc., 508 U.S. 307, 313 (1993)) (internal quotation marks omitted). 

In determining whether Plan 3R is reasonably related to legitimate state interests, 

our review is highly deferential. ―[J]udges are not well suited to act as school 

administrators. Indeed, in the context of school desegregation, this Court has repeatedly 

stressed the importance of acknowledging that local school boards better understand their 

own communities and have a better knowledge of what in practice will best meet the 

educational needs of their pupils.‖ Seattle, 551 U.S. at 848–49 (citing Milliken v. 

Bradley, 418 U.S. 717, 741–42 (1974)). 

 

45 See also Doe v. Pennsylvania Bd. of Probation and Parole, 513 F.3d 95, 107 (3d Cir. 

2008) (―If state action does not burden a fundamental Constitutional right or target a 

suspect class, the  ̳challenged classification must be upheld if there is any reasonably 

conceivable state of facts that could provide a rational basis for the classification.‘‖ 

(quoting Donatelli v. Mitchell, 2 F.3d 508, 513 (3d Cir. 1993))).
60

Applying this deferential standard of review, we conclude that Plan 3R is 

rationally related to legitimate government interests. As noted by the District Court, the 

District presented evidence that Plan 3R is aimed at addressing the following goals: (a) 

equalizing the populations at the two high schools, (b) minimizing travel time and 

transportation costs, (c) fostering educational continuity, and (d) fostering walkability. 

Plan 3R is reasonably related to these four goals. Equalizing the populations at Harriton 

and LMHS was the impetus for redistricting. The CAC supported this capital 

improvement proposal because committee members thought that, with equalized high 

school populations, students would benefit from a stronger sense of community, better 

interactions with faculty, and better educational outcomes. Equalizing student enrollment 

between the two schools required redistricting because, under the prior plan, LMHS had 

700 more students than Harriton. Under Plan 3R, student enrollment at the two high 

schools is projected, under some estimates, to equalize to a difference of only a handful 

of students. 

The creation of a 3-1-1 Feeder Pattern under Plan 3R is rationally related to the 

Board‘s legitimate goal of ensuring educational continuity. Administrators and Board 

members testified that aiming to keep students in the same schools as their classmates 

from kindergarten through high school has pedagogical and psychological benefits. Plan 

3R‘s goal of fostering walkability by restoring the historic LMHS walk zone, which is 

larger than the limited walk zone proposed prior to Plan 3R‘s adoption, is rationally 
61

related to a legitimate state interest because it saves the District money that would 

otherwise be needed to cover the cost of buses. The District has a legitimate interest in 

not increasing its number of buses because doing so would increase costs. Plan 3R is 

rationally related to this goal because Plan 3R does not increase the number of buses 

required and it also takes into account minimizing travel times. Additionally, the 

Affected Area is one of the areas closer to Harriton in travel time. Accordingly, the 

District Court‘s selection of Plan 3R has a rational basis and does not violate the Equal 

Protection Clause. 

B. Title VI and 42 U.S.C. § 1981 

Title VI and 42 U.S.C. § 1981 prohibitions against discrimination are coextensive 

with those of the Equal Protection Clause. See Grutter, 539 U.S. at 343; Bakke, 438 U.S. 

at 287 (opinion of Powell, J.) (―Title VI must be held to proscribe only those racial 

classifications that would violate the Equal Protection Clause‖); Gen. Bldg. Contractors 

Ass‘n., Inc. v. Pennsylvania, 458 U.S. 375, 389–91 (1982) (―§ 1981, like the Equal 

Protection Clause, can be violated only by purposeful discrimination‖). As stated above, 

Plan 3R does not violate the Equal Protection Clause. Therefore, Appellants‘ remaining 

claims, pursuant to Title VI and 42 U.S.C. § 1981, must also fail. See Grutter, 539 U.S. 

at 343 (holding that, because ―the Equal Protection Clause does not prohibit the Law 

School‘s narrowly tailored use of race in admissions decisions[,] . . . petitioner's statutory 

claims based on Title VI and 42 U.S.C. § 1981 also fail‖). 
62

C. Testimony of Drs. Lyles and Jarvis 

On appeal, Appellants continue to argue that the testimony of Drs. Lyles and 

Jarvis should have been precluded; however, Appellants make no new arguments 

regarding this testimony. 

Federal Rule of Civil Procedure 26(a)(1) requires a party, at initial disclosure, to 

provide information for ―each individual likely to have discoverable information — along 

with the subjects of that information — that the disclosing party may use to support its 

claims or defenses, unless the use would be solely for impeachment.‖ FED. R. CIV. P.

26(a)(1). Drs. Lyles and Jarvis did not participate in the redistricting process and, thus, 

they did not have discoverable knowledge regarding the litigation. Instead, the District 

questioned Drs. Lyles and Jarvis regarding Dr. McGinley and his work on the 

achievement gap. The District sought to admit this testimony because the doctors had 

worked with Dr. McGinley and had personal knowledge about ―his work concerning 

issues such as the achievement gap, his advocacy for children of color and children with 

disabilities, and his commitment to ensuring greater access to challenging coursework for 

minority students and students with disabilities.‖ (Appellee‘s Br. at 64.) 

The District asserts that it learned about Drs. Lyles and Jarvis on March 11, 2010, 

one day before the deadline for its Pretrial Memorandum. The District, then, listed the 

two new witnesses in its Pretrial Memorandum. As the District noted in its reply brief to 

the Appellants‘ Motion in Limine, District Courts have ―allowed parties to call witnesses 
63

in rebuttal even when they were not disclosed in a pretrial memorandum or order, as long 

as the witness and his testimony are within the scope of proper rebuttal.‖ (App. at A302 

(citing Upshur v. Shepherd, 538 F. Supp. 1176, 1180 (E.D. Pa. 1982)).) The District 

argued that the testimony sought from these witnesses was within the proper scope of a 

rebuttal to the Appellants‘ allegation that the District violated federal law. 

Appellants have not claimed that the District Court abused its discretion in 

denying the motion to preclude testimony, nor does it appear that they could support such 

a claim. Neither precedent nor any Federal Rule of Civil Procedure requires the 

testimony‘s preclusion. The District Court did not abuse its discretion in denying the 

motion and we will affirm the denial of Appellants‘ motion. 

IV. CONCLUSION

For the reasons set forth above, we will affirm the judgment of the District Court. 
1

STUDENT DOE v. LOWER MERION SCHOOL

No. 10-3824 

 

ROTH, Circuit Judge, Concurring: 

 I concur with the result reached by the majority. I 

would, however, arrive there by a more arduous route. For 

reasons that I will explain below, I believe that strict scrutiny 

is the test to be applied here. In addition, I conclude that the 

assignment plan here meets the strict scrutiny test. 

 

 First, I agree with the holding of the District Court: 

Applying strict scrutiny to [the facts of 

this case], the Court concludes that the District 

has satisfied its burden of showing that Plan 3R 

was narrowly tailored to meet numerous raceneutral compelling interests – namely, having 

two equally sized high schools, minimizing 

travel time and costs, maintaining educational 

continuity, and fostering students’ ability to 

walk to school. The District’s mere 

consideration of the racial demographics of 

Plaintiffs’ neighborhood does not warrant an 

opposite conclusion under existing Supreme 

Court or Third Circuit precedent. 

Because Plan 3R is narrowly tailored to meet the 

school district’s compelling interests, it survives strict 

scrutiny. In my view, however, there is a problem with my 

conclusion. I am not happy that the test for reviewing a plan 
2

to create diversity in a student body should be strict scrutiny. 

I believe that diversity is a worthy goal for student 

assignments in a school district. My concern is that Supreme 

Court precedent, and in particular the decision in Parents 

Involved in Community Schools v. Seattle School District No. 

1, 551 U.S. 701 (2007), does not permit a school district to 

institute a plan to diversify student populations of a school 

district on the basis of race. 

In Part III.B of Seattle, Chief Justice Roberts, in his 

plurality opinion, concluded that school attendance plans 

“directed only to racial balance, pure and simple,” are 

illegitimate. Id. at 726. The plurality goes on to ask how we 

differentiate between the benefits that flow from racial 

diversity and racial balance pure and simple. Id. My concern 

is that we will be unable to do so. For that reason, any plan 

for student diversity is faced with the threat of being held 

unconstitutional because we cannot compute the difference 

between racial diversity and racial balance. 

Justice Kennedy, in his concurrence, endorses 

diversity as a compelling educational goal. Id. at 783. He 

joins in the judgment, however, because the school district 

plans for diversity in Seattle were directed at individual 

students, not at neighborhoods as is the case here. Id. at 782. 

My concern is that the consideration of the racial 

composition of individual neighborhoods to determine school 

assignments may be just as problematic as the consideration 

of the race of individual students. Plan 3R does involve race: 

not the race of individuals but the racial balance of 

neighborhoods. An awareness of the racial make-up of the 

neighborhoods is a factor in the assignment plan. This 
3

consideration of the racial composition of neighborhoods is, 

in my opinion, a parallel to the consideration of the race of 

the individual. It in effect brings consideration of race back 

into the formula. 

Moreover, the plaintiffs contend that Plan 3R 

discriminated against them because it mandated their 

attendance at a particular high school on the basis of their 

race. Although they were not individually assigned to a 

school, the court did find that plaintiffs’ race, through the 

racial composition of their neighborhoods, was a factor that 

was considered in determining their assignments. 

Furthermore, in making the Plan 3R assignments, the School 

District was attempting to improve on the racial diversity of 

its schools through its choice of the areas to be assigned to the 

high schools. 

Nevertheless, 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. I agree with the 

conclusion of the District Court, quoted above, that Plan 3R is 

narrowly tailored to meet race-neutral compelling interests 

and that it would have passed without a consideration of the 

racial make-up of the neighborhoods. All the same, race was 

a factor in the mix and diversity was a goal of Plan 3R. 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. 
4

Finally, I believe that our decision in Pryor v. National 

Collegiate Athletic Association, 288 F.3d 548 (3d Cir. 2002), 

holding that “a law or policy that purposefully discriminates 

on account of race is presumptively invalid and can survive 

only if it withstands strict scrutiny review,” id. at 566, 

supports my conclusion that strict scrutiny review is required 

here. Indeed, I believe that this panel should be bound by 

Pryor. 

For the above reasons, I agree that we should affirm 

the judgment of the District Court but I conclude that we 

should do so using strict scrutiny review.