Case: 10-3824 Document: 003110377484 Page: 1 Date Filed: 12/13/2010

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 10-3824

STUDENT DOE NO. 1, et. al.,

Appellants

v.

LOWER MERION SCHOOL DISTRICT,

Appellee

On Appeal from the United States District Court

for the Eastern District of Pennsylvania
Civ. No. 09-2095

BRIEF OF AMICUS CURIAE PROFESSOR EARL M. MALTZ

IN SUPPORT OF APPELLANT

Christopher M. Arfaa (Pa. Bar No. 57047)

ARFAA LAW, P.C.
150 N. Radnor Chester Road
Suite F-200
Radnor, PA 19087-5245
(610) 977-2001

Attorney for Amicus Curiae

Professor Earl M. Maltz
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CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii 

IDENTITY AND INTEREST OF AMICUS CURIAE ................................................................. iii 

STATEMENTS IN COMPLIANCE WITH RULE 29(c)(5) ........................................................ iv 

STATEMENT OF THE CASE ....................................................................................................... 1 

ARGUMENT .................................................................................................................................. 1 

I.  Strict Scrutiny Should Be Applied In This Case ................................................................ 2 

II.  The District Court Erroneously Found That The Use Of Race Was Necessary To Serve A
Compelling Governmental Interest ..................................................................................... 4 

A.  The Use Of Race Cannot Be Defended As A Measure Designed To Provide “Diversity.”4 

B.  The Use Of Race To Classify The Appellants Did Not Advance The Educational Interests
On Which The District Court Relied .................................................................................. 5 

III.  The District Court Erred As A Matter Of Law In Finding For The School District On The
Ground That The School District Would Have Adopted The Same Plan If Race Had Not
Been Considered ................................................................................................................. 6 

CONCLUSION ............................................................................................................................... 9 

CERTIFICATE OF COMPLIANCE WITH RULE 32 ................................................................ 10 

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TABLE OF AUTHORITIES

Brown v. Board of Education, 347 U.S. 484 (1954). 3

Grutter v. Bollinger, 539 U.S. 306 (2003). 5

Keyes v. School District No. 1, 413 U.S. 189 (1973). 2, 3

Memorandum of Factual Findings, Student Doe No. 1 v. Lower Merion School District,
No. 09-2095 (E.D. Pa., May 13, 2010). 1, 3, 4, 5, 7, 8

Pryor v. National Collegiate Athletic Association, 288 F.3d 548 (3d Cir., 2002). 4

Student Doe No. 1 v. Lower Merion School District, No. 09-2095

(E.D. Pa., June 24, 2010). 2, 3, 5, 7

Village of Arlington Heights v. Metropolitan Housing Development Corp.,

429 U.S. 252 (1977). 6

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IDENTITY AND INTEREST OF AMICUS CURIAE

Earl M. Maltz is a resident of the Lower Merion School District, a member of the state

bar of Wisconsin and a Distinguished Professor of Law at Rutgers University School of Law in

Camden, New Jersey. As a resident and taxpayer of the Lower Merion School District, he has an

interest in fair governance of the district. As a legal scholar who has written a number of law

review articles dealing with the constitutional issues arising from race-conscious

decisionmaking, he believes that the decision of the district court in this case rests on a

misapprehension of applicable law.

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STATEMENTS IN COMPLIANCE WITH RULE 29(c)(5)

(A) No party’s counsel authored this brief in whole or in part.

(B) No party or party’s counsel contributed money that was intended to fund

preparing or submitting this brief.

(C) No person other than the amicus curiae or its counsel contributed money that was

intended to fund preparing or submitting this brief.

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STATEMENT OF THE CASE

Appellants in this case are African-American students who are being denied the

opportunity to attend a predominantly white school on the basis of their race. Under the

districting plan that was in place prior to 2008, appellants would have had the option to attend

Lower Merion High School [hereinafter, Lower Merion], a school whose student body was

overwhelmingly white. See Memorandum of Factual Findings, Student Doe No. 1 v. Lower

Merion School District, No. 09-2095 (E.D. Pa., May 13, 2010), [hereinafter, Factual Findings]

at 50 (demographics of Lower Merion student body). At that time, the Lower Merion School

District [hereinafter, the school district] adopted a redistricting plan under which plaintiffs were

deprived of the option to attend Lower Merion. By contrast, residents of all-white

neighborhoods who complained about being denied access to Lower Merion were granted that

option, notwithstanding the fact that they lived no closer than the plaintiffs to Lower Merion.

Id. at 40-42.. The district court found as a matter of fact that the officials of the school district

made a conscious decision to limit the number of African-American students who would be

allowed to attend Lower Merion in order to achieve “racial parity” between Lower Merion and

Harriton High School, the other high school in the school district. Id. at 53. Nonetheless, the

district court concluded that the decision to prevent appellants from attending Lower Merion did

not violate the Equal Protection Clause of the Fourteenth Amendment.

ARGUMENT

The school district’s refusal to allow the appellants to attend Lower Merion High School

violated the Equal Protection Clause. Because the school superintendent focused on racial parity

in denying appellants access to Lower Merion, strict scrutiny should be applied to the decision.

The school district did not prove that the consideration of race was necessary to serve a

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compelling governmental interest and introduced no evidence that would suggest that the same

decision would have been made if race had not been considered. Thus, the judgment of the

district court should be reversed.

I. STRICT SCRUTINY SHOULD BE APPLIED IN THIS CASE

Strict scrutiny applies in this case because the plaintiffs were denied the opportunity to

attend Lower Merion because of their race. The district court explicitly found as a matter of fact

that the school superintendent focused on racial parity in determining which high school the

appellants should attend. Nevertheless, describing the issue as “novel,” the court expressed

some doubt about whether strict scrutiny should be applied in this case because race was used

simply as a criteria for drawing attendance boundaries rather than for assigning specific students

individually. Student Doe No. 1 v. Lower Merion School District, No. 09-2095 (E.D. Pa., June

24, 2010), at 3 [herinafter, Doe]. In fact, the application of strict scrutiny is mandated by the

decisions of the Supreme Court of the United States.

For much of the twentieth century, the alteration of attendance boundaries was one of the

devices used by Northern school districts to manipulate the racial composition of elementary and

secondary schools. The Supreme Court consistently held that this practice constituted an

unconstitutional use of race. For example, in Keyes v. School District No. 1, 413 U.S. 189

(1973), the Court specifically listed “the practice of...structuring attendance zones [on the basis

of race]” among the illegal discriminatory acts that supported the imposition of a system-wide

desegregation order on the Denver school system. Id. at 199. Thus, although disagreeing with

the scope of the remedy imposed, Justice William Rehnquist expressed the sentiments of all of

the justices when he declared that “those minority students who, as a result of [the manipulation

of attendance zones], are forced to attend schools other than those that they would have attended

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had attendance zones been neutrally drawn are undoubtedly deprived of their constitutional right

to equal protection of the laws just as surely as were the plaintiffs in Brown v. Board of

Education.” Id. at 255 (Rehnquist, J., dissenting).

The actions of the school district in this case are in principle no different than those

which the Court condemned in Keyes. Like the school district in Keyes, the authorities in this

case manipulated attendance boundaries to ensure that some African-American students would

be prevented from attending an overwhelmingly white school. Therefore, those actions should

be subject to strict scrutiny.

The district court appears to have believed that the school district’s use of race to exclude

appellants from Lower Merion was somehow less significant because of the “outstanding nature

of both high schools.” Doe at 5 n. 3. The court seems to imply that the appellants should simply

be grateful to live in a school district with highly rated schools, and should therefore tolerate

being treated less favorably than their similarly-situated white counterparts who were given a

choice of high schools. Brown v. Board of Education, 347 U.S. 484 (1954), of course, decisively

rejects this contention.

But in any event, the district judge’s view that Lower Merion and Harriton are somehow

“equal” does not appear to have been shared by large portions of the population of the school

district. Many white parents complained bitterly about proposals that would have denied the

children in their families the opportunity to attend Lower Merion. Factual Findings at 40.

Indeed, the administration itself seems to have recognized the merits in these complaints. Plan

3-

R, the plan ultimately adopted by the school district, appears to have been deliberately created

with an eye toward providing more students from all-white neighborhoods with the opportunity

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to attend Lower Merion. Factual Findings at 42. Appellants, of course, were not so lucky; they

were denied that opportunity notwithstanding the fact that they lived no further from Lower

Merion than the residents of many all-white neighborhoods who were allowed to attend the high

school of their choice.

The district court also “reject[ed] any allegation of invidious discrimination or hostility

towards African-American students by the Administration or the Board.” Factual Findings at

53. There is no doubt that the school district officials in this case thought they were doing “the

right thing.” Indeed, most officials (including those who supported racial segregation prior to

the decision in Brown) probably believe that they are doing “the right thing,” no matter how their

actions might be characterized by an objective observer. But benign intentions are not sufficient

to justify the racially-motivated decision to exclude a group of African-Americans from the

nearest high school. See Pryor v. National Collegiate Athletic Association, 288 F.3d 548 (3d

Cir., 2002). Given the findings of fact, the school district must show that the exclusion was

necessary to serve a compelling governmental interest.

II. THE DISTRICT COURT ERRONEOUSLY FOUND THAT THE USE OF RACE WAS NECESSARY
TO SERVE A COMPELLING GOVERNMENTAL INTEREST

A. THE USE OF RACE CANNOT BE DEFENDED AS A MEASURE DESIGNED TO PROVIDE

“DIVERSITY.”

The use of race in the districting process cannot be justified as a means to increase

“diversity” in the high schools. The school district did not make any effort to determine whether

the exclusion of the plaintiffs from Lower Merion was necessary to achieve the benefits

normally

ascribed to diversity. Instead, the district court found as a matter of fact that the process was

driven by a desire to create “racial parity”–in essence, that the goal to was to achieve and

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maintain racial balance. Factual Findings at 53. Even in those decisions where the Supreme

Court has concluded that the consideration of race was justified as a means to provide diversity,

the justices have explicitly stated that the pursuit of racial balance did not justify the use of race.

Thus, for example, speaking for the Court in Grutter v. Bollinger, Justice Sandra Day O’Connor

declared that “outright racial balancing...is patently unconstitutional.” 539 U.S. 306, 330 (2003).

Moreover, in this case, African-Americans were denied the opportunity to attend the

predominantly white Lower Merion because of their race. Thus, any gain in diversity at Harriton

is counterbalanced by a loss of diversity at Lower Merion. This kind of zero sum game is hardly

the formula for a compelling governmental interest.

B. THE USE OF RACE TO CLASSIFY THE APPELLANTS DID NOT ADVANCE THE
EDUCATIONAL INTERESTS ON WHICH THE DISTRICT COURT RELIED

In incorrectly concluding that the exclusion of the appellants from Lower Merion on the

basis of race served a compelling governmental interest, the district court relied primarily on the

claim that Plan 3-R “address[ed] the following goals...(a) equalizing the population at the two

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

continuity, and (d) fostering walkability.” Doe at 21. None of these admittedly valid goals has

ever been held to constitute a compelling governmental interest. But even conceding arguendo

that these goals are “compelling”, they cannot justify the limitations imposed on the African-

Americans in this case.

The major difficulty with the district court’s reasoning is that none of the goals cited by

the court is in any way related to the consideration of race. The consideration of race does

nothing to equalize the population at the two high schools; to minimize travel, time, and

transportation costs; to foster educational continuity; or to foster walkability. Indeed, the

consideration of race can hamper only the efforts of the school district to reach these objectives,

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potentially requiring officials to abandon the most efficient method of achieving their other goals

in service of the effort to achieve racial parity. In short, the pursuit of these goals cannot justify

the use of race in this case.

But in any event, appellants are not challenging the constitutionality of plan 3-R as a

whole, but only the classification of a small number of African-American students on the basis

of race. Allowing a small handful of African-American students the option of attending Lower

Merion High School would not undermine the goals cited by the district court in any meaningful

way. Thus, the racial discrimination in this case cannot be said to have served a compelling

governmental interest.

III. THE DISTRICT COURT ERRED AS A MATTER OF LAW IN FINDING FOR THE SCHOOL
DISTRICT ON THE GROUND THAT THE SCHOOL DISTRICT WOULD HAVE ADOPTED THE
SAME PLAN IF RACE HAD NOT BEEN CONSIDERED

The district court erroneously concluded that the plaintiffs would have been denied the

opportunity to attend Lower Merion even if race had not been considered. Once it has been

determined that race was a factor in the decisionmaking process, the defendant has the burden of

establishing that the same decision would have been made if race had not been considered.

Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 271-72

n. 21 (1977). In this case, the defendant did not meet this burden of proof; indeed, the school

district did not even raise this defense or introduce any evidence of what decision would have

been made if race had not been a factor. Instead, throughout the proceedings below, despite the

overwhelming evidence to the contrary, the school district steadfastly maintained that race had

never been considered during the decisionmaking process.

Notwithstanding the lack of evidence, the district judge concluded that the school district

had met its burden of proof, observing that he “cannot conceive of an alternative redistricting

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plan that could meet all of the District’s race-neutral goals.” Doe at 30. Thus, in essence the

district judge first decided on his own motion to consider a justification that had not been raised

at trial, and then substituted his own impressions for evidence meeting the defendant’s burden of

proof. In making this observation the district court once again incorrectly considered the

justifications for the adoption of plan 3-R as a whole, rather than the decision to bar the plaintiffs

in this case from attending Lower Merion. But in any event, the speculation of the district court

is not a substitute for the evidence that would meet the defendant’s burden of proof on this issue.

The school district never introduced a single witness or a single piece of documentary

evidence that would support the conclusion that no plan that did not exclude the appellants from

Lower Merion would have been consistent with the so-called “non-negotiables.” The record

does indicate that the Dr. Ross Haber, the district’s redistricting consultant, devised race-neutral

alternatives but did not even present them to the superintendent because of the superintendent’s

insistence on concept of racial parity. Factual Findings at 25-26. Given the state of the record,

this court cannot conclude that those plans would have excluded the appellants from Lower

Merion.

Moreover, when the desire of white students to attend Lower Merion was at stake, even

the most basic of the non-negotiables was clearly negotiable. As the district court observed, the

single most important premise of the entire redistricting process–indeed, the entire raison d’etre

of the process–was to equalize the populations of the two high schools in the township. Doe at

22. Yet when students in all-white neighborhoods complained about being denied the option to

attend Lower Merion, the administration was willing to subordinate this “cardinal principle” to

the maintenance of a one mile walk zone that would give “choice” to many of those students–in

essence, adopting the same approach that had resulted in unequal school populations prior to

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redistricting. See Factual Findings at 14. Indeed, the school superintendent conceded that he

could not make an accurate estimate of the number of students from the all-white neighborhoods

that would choose to attend Harriton under Plan 3-R. Id. at 46. By contrast, when the

administration was dealing with the areas in which African-Americans lived, maintenance of the

one mile walk zone suddenly became less critical.

The point is that, apparently, from the administration’s perspective the only truly non-

negotiable principle in the redistricting process was that the student body of Lower Merion

contain no more than its proportionate share of the African-American students. Thus, on this

record, the district court quite literally could have no idea about what shape the plan would have

taken if race had not been a factor and whether the appellants would have been excluded from

Lower Merion under such a plan. Therefore, as a matter of law, the appellees have not met their

burden of proof under the Arlington Heights test.

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CONCLUSION

The judgment of the district court should be reversed and the case remanded with

instructions to grant the plaintiffs the relief that they seek.

Respectfully submitted,

Dated: December 13, 2010 Christopher M. Arfaa (Pa. Bar No. 57047)
ARFAA LAW, P.C.
150 N. Radnor Chester Road
Suite F-200
Radnor, PA 19087-5245
(610) 977-2001

Attorney for Amicus Curiae

Professor Earl M. Maltz

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CERTIFICATE OF COMPLIANCE WITH RULE 32

This brief contains 2592 words, and thus complies with the requirements of Rule32(a)(7).

Dated: December 13, 2010 Christopher M. Arfaa (Pa. Bar No. 57047)

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CERTIFICATE OF SERVICE

I hereby certify that on this day I electronically filed the Brief of Amicus Curiae
Professor Earl M. Maltz with the Clerk of the Court using the CM/ECF system that will
electronically serve such filing to the following Filing Users:

David G. C. Arnold, Esq. Judith E. Harris, Esq.

DAVID G. C. ARNOLD, ESQ. MORGAN, LEWIS & BOCKIUS
Suite 106, 920 Matsonford Road 1701 Market Street
West Conshohocken, Pennsylvania 19428 Philadelphia, PA 19103

I further certify that I have this day served a copy of the above-referenced document on
the following persons by first class mail:

Christina J. F. Grese, Esq. Kenneth A. Roos, Esq.

Allison N. Suflas, Esq. Megan E. Shafer, Esq.
MORGAN, LEWIS & BOCKIUS WISLER, PEARLSTINE, TALOONE,
1701 Market Street CREAIG, GARRITY & POTASH
Philadelphia, PA 19103 484 Norristown Road, Suite 100
Blue Bell, PA 19422

Dated: December 13, 2010 __________________________________

Christopher M. Arfaa (Pa. Bar No. 57047)
Arfaa Law, P.C.
150 North Radnor Chester Road, Suite F200
Radnor, PA 19087
(610) 977-2001
E-mail: carfaa@arfaalaw.com