Plaintiffs Doe released this statement today:

“The plaintiffs are studying the Court’s decision and contemplating their next steps. It is important to note that the Circuit Court’s ruling confirms the earlier District Court’s findings that race was indeed a motivating factor in Lower Merion’s redistricting plan. Moreover, the school district’s extensive deliberations regarding race occurred in secret, behind closed doors, rather than in public forums. The Court nevertheless concluded that these racial motivations did not violate the equal protection clause of the U.S. Constitution.
Two other facts are noteworthy. First, the three justices in this decision could not agree on the appropriate standard of legal review, and one of them explicitly calls for clarification from the US Supreme Court. Second, two recent rulings from the 5th Circuit Court of Appeals are contradictory with respect to this ruling, raising further questions about the constitutionality of such race-based governmental decision making.

The plaintiffs will be considering these facts in their deliberations regarding next steps.”

The specific arguments in this brief are complex, but can be briefly summarized as follows.  The amici argue that the District Court did not interpret a Supreme Court ruling in a 2007 case known as “Seattle” correctly.  In the Seattle case, the Supreme Court ruled unconstitutional a school districting plan in which students were assigned to schools based on their race.  In the Doe case, the District Court ruled that the Seattle decision was not binding because LMSD’s redistricting plan targeted neighborhoods (even though it did so in large measure based on their racial composition), rather than individuals.  Instead, the District Court based its ruling on other legal precedents, principally a case known as “Arlington Heights.” In doing so, the District court applied a legal doctrine known as “strict scrutiny.” Strict scrutiny is a legal standard that requires that governmental policies based on race must be done very carefully, and only for specific, limited, well articulated reasons, whenever a person’s Constitutional rights are infringed upon.  In the Doe case, the right in question is that of equal treatment.

In this brief, the amici argue that the Court should have found instead that the Seattle decision does apply to this particular case, and in addition that strict scrutiny should not be invoked.
It may seem odd that organizations like the NAACP LDF would file a brief supporting a school district against a suit by African American plaintiffs who allege that their constitutional rights to equal protection have been violated.  To understand the likely reasons for their position, it is important to keep in mind a couple of things.  First, the amici do not challenge the Court’s findings of fact, in which it was concluded that race permeated the District’s decision making process (despite the District’s repeated denials that it considered race in crafting its redistricting plans).  Second, theamici appear to be concerned that, should the District’s ruling stand as is, then like the Seattle decision, it might make it harder for governmental bodies (like school boards) to use race in their decision making, even when doing so with good intentions.  It is important to remember that the NAACP also supported the school district in the Seattle case, whose plan was ultimately ruled unconstitutional by the Supreme Court. 
We at LMVUE are not lawyers, and take no formal position on the specific legal arguments in this brief.  That is for the attorneys on both sides to argue, and ultimately for the Courts to decide.  However, we do affirm certain core beliefs in our support of Students Doe in this case.  We appreciate that governmental bodies sometimes have legitimate reasons to consider race in public policy decisions.  When doing so, however, we believe that such consideration should be done openly, transparently, thoughtfully, and only for legitimate purposes within the bounds specified by the law. The Doe case illustrates what can happen when governmental bodies like school districts make decisions about race in secret, behind closed doors, and for ill-defined reasons.  This is why the legal standard of strict scrutiny is important.  It does not preclude the government’s consideration of race, but limits its use to specific legitimate reasons, through a transparent process.

We should also note that this brief actually makes some arguments that strongly support the plaintiffs’  position.  For example, the District Court ruled that LMSD met the strict scrutiny standard because the District had various reasons for considering students’ race in the redistricting process, such as minimizing travel time to schools, etc.  As the amici point out, however, these are not the kinds of “compelling interests” that the Supreme Court have ruled would satisfy strict scrutiny.  In fact, these “reasons” do not even relate to race, and therefore cannot be used to justify race-based decisions.  The brief states:

“It should be noted, however, that in its application of strict scrutiny, the District Court clearly erred in cursorily treating the School District’s reliance on criteria, such as equal-sized student populations and walkability, as “compelling interests.” A67, A80-A91. These criteria are not among the limited number of compelling interests, including promoting diversity and reducing racial isolation in primary and secondary education, that the Supreme Court has recognized. See Parents Involved, 551 U.S. at 797-98 (Kennedy, J., concurring in part and concurring in the judgment); see also id. at 865 (Breyer, J., dissenting). Nor should they be so recognized. If they were elevated to the same level as judicially recognized interests rooted in the Fourteenth Amendment’s antidiscrimination mandate, it would be far easier for school districts to justify—and therefore thwart efforts by amici and others to challenge—intentional segregation and other invidious discrimination. (footnote 12)”

We absolutely agree.  This is one of the principal reasons we continue to support and advocate for plaintiffs Doe.  We believe the District Court set a dangerous precedent in allowing such things as “shorter bus times” to override fundamental Constitutional rights. 

Sadly, it appears that some are misinterpreting this brief as a sign that these organizations fully support LMSD’s actions in the case.  Some have even suggested that those who support Students Doe are somehow “anti-diversity,” “anti-integration,” and “anti-Civil Rights.”  Such claims are absolutely incorrect. The core mission of LMVUE is equitable opportunity in access and programming within our public schools.  We celebrate diversity and support creation of diverse learning experiences where all are respected and treated as equals.  We do not believe that certain students should be denied rights afforded to others based on their race, unless such action is absolutely necessary and is done in an open, transparent process that is fully consistent with the law.  Once again, it is noteworthy that LMSD denied even using race as a basis for its redistricting process, much less doing so for any legitimate purposes.  Both the administration and the school board directors have explicitly and repeatedly denied in legal briefs and in sworn testimony at trial that they used race in the redistricting process to address the “achievement gap” or for any other such goal.

It is possible that other friend-of-the-court briefs will be filed in this case; the US Department of Justice has signaled that they may do so, and it is likely that additional briefs will be filed supporting both sides.  This case is the first involving the landmark and controversial Seattle decision to reach the Federal Appeals level, and is viewed by many in the legal world as having serious potential to be heard by the US Supreme Court. As such, policy makers and legal scholars will seek via theicus  amicus process to advocate their points of view to the Court.  They may argue the facts of the case, as Professor Maltz did, or argue legal principles, as this brief did.  At the end of the day, we believe our system of Justice will expose and understand the injustice that occurred here in Lower Merion, and that Students Doe will prevail.

As always, we thank you for your continued support.
16 Jan, 2011

You can read the full brief (about 6 pages) on LMVUE’s Scribd page.

Inquirer Article

Main Line Times Article

Main Line Times Editorial from LMVUE members and community leaders.

Please click on the links below for details on the Court’s ruling:  

Main Line Times article 

Philadelphia Inquirer article, June 24

Philadelphia Inquirer article, June 25

And please visit the Scribd link on the home page to read the Court’s ruling in its entirety.

On Thursday, May 13, 2010, exactly 364 days after Students Doe filed their lawsuit alleging that Lower Merion School District redistricted schools on the basis of race, the Court agreed. In his Statement of Material Facts (see our Scribd link for the document) he stated “The circumstantial evidence introduced at trial, leads like a well-worn path through the woods, inescapably to the finding that race was a motivating factor for the [district] administration.”

Bonnie Cook at Philadelphia Inquirer has been following this case closely since before the legal action was filed.  You can read her article on the Court’s findings here:   Judge: Race ‘Motivating factor’ in L. Merion school plan

Rich Ilgenfritz, another longtime reporter following this story with the Main Line Times also wrote about the findings:Court says race was a factor in the Doe case

Judy Shaw at the Philadelphia Daily News also covered the story:  Judge finds that L. Merion redrew schools’ line based on race; another hearing June 9

VISIT the Scribd link on the home page to read the Court’s Findings in their entirety

LMVUE supports Students Doe in their fight to restore equal treatment in their schools. We are thankful for our many generous supporters who continue to contribute both financially and through volunteering time and donating services to aid Students Doe with their legal expenses.

Day One: Trial began on schedule as several parents and School Supt Chris McGinley took the stand.  Article and attached video in the Main Line Times.  Read more about the first day of trial for LMSD vs. Doe in this Inquirer article.

Day Two: McGinley spends most of  day on stand and maps presented by Jim Speer show targeting of S. Ardmore’s African American community. Article and attached video commentary in the Main Line Times.

Day Three: Consultant says race was key to Lower Merion Redistricting Plans. Check it out in this Philly Inquirer piece.

Day Five: Main Line Times article provides a brief summary.

Judge encourages settlement in open court at the end of Day 5. Read about it in this Inquirer Editorial, the  Inquirer, and  Main Line Times 

Day Six: Main Line Times article discusses how testimony picked up where it left off because a settlement was not reached.

Day Seven: Testimony ended today with comments from Judge Baylson. He gave a glimpse of issues he thought would be part of his deliberations. See Inquirer article.

Learn about the details.

Read all about it.