The Pacific Legal Foundation filed an amicus brief in the Supreme Court this week supporting African American students being used as pawns in the name of diversity. The case is Student Does v. Lower Merion School District.
After months of debate, parent protests, and charges of racism, the Lower Merion School District in Pennsylvania adopted a controversial redistricting plan to assign students to its two high schools. To achieve diversity, the school district singled out and redistricted the neighborhood with the largest population of African American families to boost minority enrollment at the school far away. Even students within easy walking distance to the school of their choice must now be bused to the distant school.
Parents of nine African American students sued the school district alleging the reassignment violated their children’s rights under the Equal Protection Clause of the Fourteenth Amendment. Following a non-jury trial, the district court agreed that the race of students was a motivating factor in the school district’s decision. Going “above and beyond collecting or reporting general diversity data,” the court found that the district specifically targeted the African American neighborhood to “equalize” enrollment in the interest of racial balancing and diversity. One dissenting school board member warned other members that the new plan created an “additional stressor” for African American students already struggling to overcome an achievement gap. By approving the plan, she said the school board was telling African American students “to take one for the team.” For an article about the district’s high minority failure rate, see here.
The district court held that the district’s use of race was narrowly tailored to the educational interests of equalizing the schools’ populations, minimizing travel time and transportation costs, fostering educational continuity, and fostering “walkability.” The district court’s conclusions of law are here. The problem is that the Supreme Court has never held that a school district may rely on these particular interests to justify the use of race. But on appeal, the Third Circuit Court of Appeals affirmed the judgment of the district court. The court reasoned that the school district did not make racial classifications by identifying students and neighborhoods by race, and that the district’s actions warranted only rational basis review – a level of scrutiny that is most deferential to the government. That decision is here. The students filed a petition for writ of certiorari asking the Supreme Court to review the Third Circuit’s decision.
Students should not be forced to “take one for the team” because of their race. The core purpose of the Equal Protection Clause is to eliminate governmentally sanctioned racial distinctions. Where the government requires the participation of some percentage of a particular group merely because of its race, the government’s action is presumed to be unconstitutional. The Lower Merion School District’s attempt at racial balancing must be subjected to strict judicial scrutiny and invalidated. Students have the right to be assigned to a school fairly, and that right should not be diminished in any way on the basis of race.