After questioning whether the Supreme Court’s recent decision in Parents Involved required the district court to apply strict scrutiny to a school board’s decision to consider race when making a re-zoning decision, the Fifth Circuit found that there was a genuine issue of material fact and therefore vacated a grant of summary judgment. Lewis v. Ascension Parish School Bd., No. 09-30971, 2011 WL 5245600 (5th Cir. Nov. 3, 2011) (per curiam). The panel consisted of Chief Judge Edith H. Jones, a Reagan nominee, Judge Carolyn Dineen King, a Carter nominee, and Judge Catharina Haynes, a George W. Bush nominee. Jones concurred, and King dissented.
The Ascension Parish District (“the District”) operates four high schools in Southeast Louisiana, along with several elementary and middle schools that “feed” into specified high schools. The District’s “feeder plan,” which has been in existence since at least 1972, assigns elementary-school students to a particular middle school based on the elementary school they attended, and assigns middle-school students to a particular high school based on the middle school they attended. Since a federal district court dismissed a longstanding desegregation case against the District and declared it unitary in 2004, the District has been free to assign students within the school district as it sees fit.
In 2006, Dutchtown Middle School, which is a Dutchtown High School “feeder,” became overcrowded. In response, the District charged an action committee with developing a plan to move approximately 450 students from the middle school to other middle schools with room for growth. The committee prepared and presented a number of options to the District, and after receiving public feedback on the options the District narrowed its consideration down to four. The Superintendent of the District then prepared a statistical analysis of the options to the Ascension Parish School Board (“the Board”), which listed “the current enrollment, percentage of African-American students, and percentage of at-risk students at each school in the district, then projected the enrollment, percentage of African-American students, and percentage of at-risk students at each school under each of the four options.”
At a Board meeting in January 2008, a Board member who was discussing the re-districting efforts informed the Board and the audience that “the criteria most concentrated on was [sic] maintaining our current unitary status with the Department of Justice and moving the least amount of kids as possible.” The Board then voted to adopt Option 2f, which, amongst other things, moved an elementary school from the Dutchtown feeder zone to the East Ascension feeder zone, and re-drew attendances so that students from the Dutchtown feeder zone and another feeder zone were moved to the East Ascension feeder zone.
Shortly after the adoption of Option 2f, Mr. Lewis, the father of two black schoolchildren in East Ascension’s feeder zone, filed a lawsuit against the Board under 42 U.S.C. § 1983. Mr. Lewis claimed that the Board’s actions violated his children’s rights under the Equal Protection Clause of the Fourteenth Amendment. Mr. Lewis alleged that “minority students are being discriminated based upon their race by a disproportionate influx of at-risk students into their schools.”
At the district court level, the court did not use strict scrutiny to review the District’s decision to adopt Option 2f. The court refused to do so because it found that the plan was facially race-neutral and that Mr. Lewis failed to present any evidence of discriminatory motive by the Board or of disparate impact. The court then applied rational basis review to Option 2f, and concluded that Option 2f satisfied the test because the District had a legitimate interest in alleviating overcrowding at Dutchtown Middle School. Based on that finding, the court granted the Board’s motion to dismiss or for summary judgment.
On appeal, a Fifth Circuit majority found the district court’s refusal to apply strict scrutiny to Option 2f “troubling” for two reasons. First, the majority stated that the record was not developed fully enough to determine whether the Board had a discriminatory purpose. Second, the majority stated that the “[district] court’s assumption that it might be justifiable to use racially-based decisions for the ‘benign’ purpose of maintaining post-unitary ‘racial balance’ among the schools in the system is at least in tension with the Supreme Court’s decision in Parents Involved.” See Parents Involved in Community Schools v. Seattle Sch. Dist. No. 1, 551 US 701 (2007). Although the majority implied that strict scrutiny might be the appropriate standard of review given the District’s “racial-balanc[ing],” it declined to “parse Parents United further,” since it concluded that there was a genuine factual dispute regarding whether the Board acted with a discriminatory purpose and whether Option 2f had a discriminatory impact. Accordingly, the Fifth Circuit vacated the summary judgment, and remanded to the district court. The court stated: “No doubt the district had a responsibility to address overcrowding in Dutchtown High School. It could not, however, do so by assigning individual students among the schools based upon disadvantaging one race over another in the assignment of at-risk students, even if the motive in doing so is the ‘benign’ motive of ‘maintaining unitary status.’ The standard of review, whether strict scrutiny or rational basis, turns on the factual questions of discriminatory motive and impact.”
Jones wrote a concurring opinion to express her belief that the Plaintiff preserved an additional Equal Protection claim – a “racial gerrymandering” claim – that the court should have considered. This claim stems from the Board’s alteration of the attendance zones, which Mr. Lewis contended was unconstitutional.
In Jones’ view, if the Board had deliberately altered the attendance zones to maintain the pre-unitary status ratios of minority and non-minority students, Parents Involved requires the Defendants’ motivation to re-district to be tested under strict scrutiny. See id. at 721. Although the record revealed that a racial balance was the outcome of the re-districting process, it did not reveal whether the Board revised the district lines in order to achieve that balance. Accordingly, Jones would have vacated the district court’s decision and remanded for a trial to determine whether the Defendants revised the district lines “for the ‘benign’ but wholly misguided purpose of maintaining the district’s unitary status.”
King wrote a dissenting opinion, in which she contended that the majority opinion misconstrued Parents Involved and, consequently, inappropriately suggested that the Board’s decision should be subject to strict scrutiny review. Unlike in Parents Involved, where the Seattle School District used race as a “deciding factor” in assigning students to schools, King found that Option 2f was “facially race neutral,” since it assigns students to schools based “on where they live, not on their race.” According to King, “[b]y blurring the line between awareness of the consequences of Option 2f and how Option 2f actually assigns students to schools, the majority opinion seems to be taking a step toward requiring that strict scrutiny apply to any action in which effects on race were known or considered.” In Judge King’s view, this reading of Parents Involved is “contrary to the law,” since strict scrutiny is only warranted when a decision is taken “because of, not merely in spite of, its adverse effects upon an identifiable group.” See Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979).
King went on to conclude that because Mr. Lewis failed to show that the Board had a discriminatory motive in assigning at-risk students to East Ascension High, rational basis review – rather than strict scrutiny review – should have been used to assess the Board’s decision. Since King found that Mr. Lewis presented no evidence or argument showing that the Board did not have a rational basis for its decision, King stated that she would have affirmed the district court’s decision to grant summary judgment for the Defendants.
Scott Herrig, University of California, Berkeley-School of Law 2012