Sargent v. School District of Philadelphia

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SHERICE SARGENT, et al., : CIVIL ACTION

Plaintiffs, :

:

v. :

:

THE SCHOOL DISTRICT OF :

PHILADELPHIA, et al., :

Defendants. : NO. 22-cv-1509

:

MEMORANDUM

KENNEY, J. August 8, 2022

I. INTRODUCTION

Plaintiffs1 allege that in 2021, Defendant2 the School District of Philadelphia (the

“School District”) adopted a “blatantly unconstitutional race-based system for admission to its

criteria-based public schools.”3 ECF No. 31 at 2. According to Plaintiffs, the changes to the

1 Plaintiffs are identified in the First Amended Complaint (ECF No. 31) as Sherice Sargent,

individually, as next friend of her minor child, and on behalf of those similarly situated, Fallon

Girini, individually, as next friend of her minor child, and on behalf of those similarly situated,

Michele Sheridan, individually, as next friend of her minor child, and on behalf of those

similarly situated, and Joshua Meyer individually, as next friend of his minor child, and on

behalf of those similarly situated. ECF No. 31 at 1.

2 The additional Defendants are identified in the First Amended Complaint (ECF No. 31) as

William R. Hite, in his official capacity as Superintendent of the School District of Philadelphia;

Board of Education, the School District of Philadelphia; Joyce Wilkerson, Leticia Egea-Hinton,

Julia Danzy, Mallory Fix Lopez, Maria Mccolgan, Lisa Salley, Reginald Streater, and Cecelia

Thompson, each in their official capacities as members of the Board of Education of the School

District of Philadelphia; Sabriya Jubilee, in her official capacity as director of diversity, equity,

and inclusion for the School District of Philadelphia; and Karyn Lynch, in her official capacity as

chief of student support services for the School District of Philadelphia. ECF No. 31 at 1

3 Additional explanation as to the specific claims brought by Plaintiffs is provided in greater

detail below. See infra Section II.A at 4.

admissions process were enacted “for the illegal and unconstitutional purpose of achieving racial

balancing at the city’s elite [criteria-based] schools[.]” ECF No. 32 at 1. Presently before the

Court is Plaintiffs’ Motion for a Preliminary Injunction (ECF No. 32), asking this Court to

“enjoin the [D]efendants from implementing their changes to the selection standards for the

city’s [criteria-based] schools.” ECF No. 32 at 1. In large part, Plaintiffs’ request for a

preliminary injunction hinges on their interpretation of a single sentence from a Philadelphia

School District Board of Education policy document, which Plaintiffs aver is “as close to a

smoking gun as can be imagined.” ECF No. 41 at 1; see also ECF No. 44 Ex. 5. Plaintiffs claim

that the language in this policy document, “announces a [racial] quota” system as a “first step on

the road to an enforced proportional-representation regime, in which school officials will

consciously and continuously stamp out deviations that arise between the racial composition of

the city’s criteria-based schools and the racial makeup of the city’s population.” ECF No. 41 at

1–2 (emphasis in original).

Yet, this Court finds that Plaintiffs’ so-called “smoking gun” is, at this stage, merely

smoke, as the plain language of the policy statement does not provide what Plaintiffs claim that it

does, and Plaintiffs’ interpretation of its meaning is, as of yet, unsupported by the record. Rather

than announcing a racial quota system for admission to certain schools, the policy statement

plainly articulates that, as an “[i]ndicator” of whether or not the School District is succeeding in

its efforts to protect student-potential from practices that “perpetuate systemic racism,” it will

look to whether the number of “Black/African American” and “Hispanic/Latinx” students who

are achieving the rigorous qualifications required to attend the School District’s criteria-based

schools is increasing. ECF No. 44 Ex. 5 at 4. The remainder of the stipulated facts and evidence

do not support the conclusion that any changes to the admissions process for the criteria-based

schools were made with racially discriminatory intent. Accordingly, and for the reasons set forth

in greater detail below, this Court finds that Plaintiffs have failed to show a reasonable

probability of eventual success on the merits, which is a necessary steppingstone on the path

toward a preliminary injunction. Because Plaintiffs have failed to meet this burden, the Court

will DENY Plaintiffs’ Motion for a Preliminary Injunction (ECF No. 32).

II. BACKGROUND

A. Procedural History

On April 19, 2022, Plaintiffs4 filed their initial Complaint in the United States District

Court for the Eastern District of Pennsylvania. ECF No. 1. In the request for relief section of

their Complaint, Plaintiffs stated that they were seeking a preliminary injunction. See ECF No. 1

¶ 77. On May 10, 2022, Plaintiffs filed a Motion to Certify Class. ECF No. 22. On May 12,

2022, the Court denied Plaintiffs’ Motion to Certify Class, without prejudice, to be resubmitted

for consideration after the close of pleadings and after a ruling had been made on the demand for

a preliminary injunction. ECF No. 23.

Also on May 12, 2022, the Court issued an Order scheduling a Pre-Preliminary

Injunction Hearing and requiring that the parties meet and confer and draft a Proposed

Scheduling Order to “determine a proposed schedule for the remainder of the pleadings and the

preliminary injunction briefings, discovery, and hearing.” ECF No. 24 at 1. The Court’s Order

(ECF No. 24) specifically provided that “[t]he [preliminary injunction] discovery schedule

should take into account the taking of any depositions…,” and also stated that “the parties should

4 Plaintiffs in the initial Complaint were identified as follows, Sherice Sargent, individually, as

next friend of her minor child, and on behalf of those similarly situated, Fallon Girini,

individually, as next friend of her minor child, and on behalf of those similarly situated, and

Michele Sheridan, individually, as next friend of her minor child, and on behalf of those

similarly situated. ECF No. 1.

make every effort to stipulate to facts and to only take depositions on outstanding factual issues

that require credibility determinations.” ECF No. 24 at 2.

On May 19, 2022, the parties submitted a Joint Proposed Scheduling Order. ECF No. 25.

Rather than electing to conduct pre-preliminary injunction discovery, including depositions, the

parties chose to stipulate to a set of pertinent facts. See ECF No. 25; see also ECF No. 44.

Specifically, in the Joint Proposed Scheduling Order, the parties stated that they “intend[ed] to

stipulate to the facts relevant to the [P]laintiffs’ motion for preliminary injunction, and [that] they

expect[ed] their stipulation to obviate any need for discovery before the preliminary-injunction

hearing.” ECF No. 25 at 1.

On June 2, 2022, Plaintiffs filed their First Amended Complaint asserting three claims of

race-based discrimination. ECF No. 31 at 1. Specifically, Plaintiffs alleged, pursuant to 42

U.S.C. § 1983, violations of both Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d

(Count I) and the Equal Protection Clause of the Fourteenth Amendment (Count II). Plaintiffs

also alleged violations of Article I, § 26 and Article I, § 29 of the Pennsylvania Constitution

(Count III).

Also on June 3, 2022, Plaintiffs filed their Motion for a Preliminary Injunction. ECF No.

32. On June 12, 2022, Plaintiffs filed a Proposed Order in relation to their Motion for a

Preliminary Injunction. ECF No. 33. The Proposed Order outlines proposed relief including,

enjoining Defendants from “implementing the changes that the School District of Philadelphia

adopted in 2021 governing the admission of students to the city’s criteria-based or magnet

schools” and ordering Defendants “to return to the admissions policies that existed before the

[D]efendants changed those policies in 2021,” as well as enjoining Defendants “from using race

to determine the admission of students to the city’s criteria-based or magnet schools” and “from

changing the admissions policies to the city’s criteria-based or magnet schools if those changes

are made for the purpose of altering the racial makeup of those schools.” ECF No. 33 at 1–2.

On June 29, 2022, Defendants filed a Response in Opposition to Plaintiffs’ Motion for a

Preliminary Injunction. ECF No. 37. Plaintiffs then filed a Reply on July 13, 2022. ECF No. 41.

In their Reply, Plaintiffs argued that the Court has discretion as to the scope of relief and that the

Court could choose to enjoin Defendants from implementing the changes to the Admissions

Policy for the 2022–2023 school year or order that just the named Plaintiffs be admitted to their

preferred schools. ECF No. 41 at 11.

On July 21, 2022, the parties submitted Stipulated Facts containing a set of 9 (nine)

exhibits as follows: Ex. (1) High School Directory, Fall 2021 Admissions; Ex. (2) High School

Directory, Fall 2022 Admissions; Ex. (3) School District’s Current web page, describing in FAQ

form, the 2021–22 high school admissions process; Ex. (4) School District’s web page

describing, in FAQ form, the 2020–21 high school admission process; Ex. (5) Board of

Education Goals & Guardrails (the “Goals & Guardrails”); Ex. (6) School District’s Research

Brief: Enrollment, 9th Grade Student Enrollment in District High Schools by Home Zip Code,

2017–18 to 2020–21; Ex. (7) 2020 census data for each general residential zip code in

Philadelphia; Ex. (8) Transcript of December 14, 2021 hearing—City of Philadelphia,

Committee on Education; and Ex. (9) Copies of the “school profiles” web pages for Masterman,

Central, Carver and Palumbo. ECF No. 44 Exhibits 1–9.

On July 27, 2022, a Preliminary Injunction Hearing was held before this Court.

B. Findings of Fact

The Court adopts and incorporates herein the Stipulated Facts (ECF No. 44, including

Exhibits 1–9) as set forth by the parties for purposes of ruling on Plaintiffs’ Motion for a

Preliminary Injunction (ECF No. 32). ECF No. 44.

III. STANDARD OF REVIEW

“A preliminary injunction is an extraordinary remedy never awarded as of right.” Groupe

SEB USA, Inc. v. Euro-Pro Operating LLC, 774 F.3d 192, 197 (3d Cir. 2014) (quoting Winter v.

Natural Res. Def Council, Inc., 555 U.S. 7, 24 (2008)). Accordingly, granting preliminary

injunctive relief is only appropriate “upon a clear showing that the plaintiff is entitled to such

relief.” Winter, 555 U.S. at 22; see also Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)

(quoting 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948, pp. 129–

130 (2d ed. 1995) (“a preliminary injunction is an extraordinary and drastic remedy, one that

should not be granted unless the movant, by a clear showing, carries the burden of persuasion”).

As the Third Circuit has long instructed, “upon application for a preliminary injunction to doubt

is to deny.” Madison Square Garden Corp. v. Braddock, 90 F.2d 924, 927 (3d Cir. 1937); see

also Talbert v. Corr. Dental Assocs., No. CV 18-5112, 2019 WL 6460499, at *2 (E.D. Pa. Nov.

29, 2019) (quoting Madison Square Garden Corp., 90 F.2d at 927) (“Our Court of Appeals

instructs, ‘upon an application for a preliminary injunction to doubt is to deny.’”); see also

Stephan Zouras LLP v. Marrone, No. 3:20-CV-2357, 2021 WL 5154159, at *5 (M.D. Pa. June 9,

2021), report and recommendation adopted sub nom. Stephen Zouras, LLP v. Marrone, No. CV

3:20-2357, 2022 WL 107186 (M.D. Pa. Jan. 11, 2022) (same).

To meet this lofty burden, the Third Circuit requires that a moving party show “(1) a

reasonable probability of eventual success in the litigation, and (2) that it will be irreparably

injured ... if relief is not granted…” Reilly v. City of Harrisburg, 858 F.3d 173, 176 (3d Cir.

2017), as amended (June 26, 2017). If those two factors are met, district courts “should

[additionally] take into account, when they are relevant, (3) the possibility of harm to other

interested persons from the grant or denial of the injunction, and (4) the public interest.” Id.

The Third Circuit has made clear that the first two factors, that is “a reasonable probability of

eventual success in the litigation,” and whether the moving party “will be irreparably injured ... if

relief is not granted…,” are “the most critical factors” and are to be treated as “gateway factors.”

Id. at 176, 179. In other words, “a movant for preliminary equitable relief must meet the

threshold for the first two…,” and only “[i]f these gateway factors are met,” should “a court then

consider[] the remaining two factors and determine[] in its sound discretion if all four factors,

taken together, balance in favor of granting the requested preliminary relief.” Id. at 179–180.

IV. DISCUSSION

A. Plaintiffs Have Failed to Establish a Reasonable Probability of Eventual Success in the

Litigation.

1. Legal Standard

To establish a reasonable probability of eventual success in the litigation, a moving party

“must demonstrate that it can win on the merits (which requires a showing significantly better

than negligible but not necessarily more likely than not)[.]” Reilly, 858 at 179.

In the present case, Plaintiffs’ Amended Complaint asserts three counts of racial

discrimination against Defendants. Specifically, Plaintiffs allege, pursuant to 42 U.S.C. § 1983,

violations of both Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (Count I) and the

Equal Protection Clause of the Fourteenth Amendment (Count II). Plaintiffs also allege

violations of Article I, § 26 and Article I, § 29 of the Pennsylvania Constitution (Count III). The

Court finds that all three of these claims are analyzed pursuant to the standards the United States

Supreme Court uses in reviewing federal equal protection claims. See Grutter v. Bollinger, 539

U.S. 306, 343 (2003) (the prohibitions of the Equal Protection Clause and Title VI are co-

extensive); see also Regents of Univ. of California v. Bakke, 438 U.S. 265, 287, 98 S.Ct. 2733

(1978) (opinion of Powell, J.) (“Title VI must be held to proscribe only those racial

classifications that would violate the Equal Protection Clause”); Doe ex rel. Doe v. Lower

Merion School Dist., 665 F.3d 524, 557 (3d Cir. 2011) (“Lower Merion”) (explaining same);

Com. v. Albert, 758 A.2d 1149, 1151 (Pa. 2000) (Article I, § 26 of the Pennsylvania Constitution

is analyzed under the same standards that the United States Supreme Court uses in reviewing

federal equal protection claims).5

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

“deny to any person within its jurisdiction equal protection of the laws.” U.S. Const. amend. XIV

§ 1. When considering claims of racial discrimination, “[p]roof of racially discriminatory intent

or purpose is required to show a violation of the Equal Protection Clause.” Lower Merion, 665

F.3d at 543 (citing 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, 123 S.Ct. 1389, 155 L.Ed.2d

349 (2003)) (internal citations and quotation marks omitted in Antonelli).

5 The Court notes that Section 29 of the Pennsylvania Constitution (added May 18, 2021) has not

yet been subject to any reported judicial construction, and that the Court finds no basis to find

that Section 29—which expressly bars the denial or abridging of “[t]he equality of rights under

the law” on the basis of “race or ethnicity”—would be construed differently than the more

generally worded Section 26, which does not mention race or ethnicity. Accordingly, the Court

finds it appropriate, here, to also analyze Section 29 under the federal equal protection standards.

Compare Pa. Const. art I, § 26 (“[n]o discrimination by Commonwealth and its political

subdivisions”) with Pa. Const. art I, § 29 (“[p]rohibition against denial or abridgment of equality

of rights because of race and ethnicity”).

The Supreme Court has recognized three circumstances that show intentional race-based

discrimination. First intentional racial discrimination can be shown when “a law or policy

explicitly classifies citizens on the basis of race.” Lower Merion, 665 F.3d at 543 (citing Hunt v.

Cromartie, 526 U.S. 541, 119 S.Ct. 1545 (1999)). Second, intentional race-based discrimination

can also be shown when a “facially neutral law or policy is applied differently on the basis of

race.” Id. (citing Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064 (1886)). Lastly, when “a

facially neutral law or policy that is applied evenhandedly is motivated by discriminatory intent

and has a racially discriminatory impact” it can demonstrate intentional race-based

discrimination. Id. (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,

97 S.Ct. 555 (1977)).

When considering Equal Protection challenges, courts “apply strict scrutiny to actions

with racially discriminatory purposes,” meaning that the action is either an explicit racial

classification imposed by government, it is a policy or law being applied differently on the basis

of race, or it is a policy or law for which a plaintiff establishes a discriminatory race-based

purpose. Id. (citing Grutter, 539 U.S. at 327, 123 S.Ct. 2325; Yick Wo, 118 U.S. 356, 6 S.Ct.

1064; Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 562 (3d Cir. 2002)). “[A]bsent a

racially discriminatory purpose, explicit or inferable, on the part of the [decisionmaker], the

statutory distinction is subject only to rational basis review.” Id. at 544.

Whether a law or policy has a racially discriminatory purpose, is a “‘sensitive inquiry’

into the available ‘circumstantial and direct evidence of intent.” Id. at 552 (citing Arlington

Heights, 429 U.S. at 266–68, 97 S.Ct. 555). Courts should consider, “(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.” Id. (citing Arlington Heights, 429

U.S. at 266–68, 97 S.Ct. 555).

2. Analysis

For the reasons set forth below, this Court finds that Plaintiffs have failed to show

reasonable probability of eventual success on the merits. Specifically, this Court finds that (a)

Plaintiffs have failed to show that there is a reasonable probability that the changes to the 2021–

2022 admissions process for the School District’s criteria-based schools were motivated by a

racially discriminatory purpose, and thus, this Court cannot conclude that there is a reasonable

probability such policy changes would be evaluated under strict scrutiny; (b) Plaintiffs have

failed to show that there is a reasonable probability that the changes to the admissions process for

the criteria-based schools would fail under a rational basis review; and finally (c) even if these

policy changes were subject to strict scrutiny review, Plaintiffs have failed to show a reasonable

probability of eventual success on the merits because they have not shown any evidence that the

changes to the admissions policy have had a racially discriminatory impact.

a. Plaintiffs Have Failed to Show That There Is a Reasonable Probability That the

Changes to the Admissions Policy Will be Subject to Strict Scrutiny.

Plaintiffs argue that they have shown that they have a reasonable probability of proving

that the changes to the admissions policy for the 2021–2022 admissions process to the School

District’s criteria-based schools were motivated by a racially discriminatory purpose, and thus,

there is a reasonable probability that the relevant standard of review will be strict scrutiny.

According to Plaintiffs, they have, therefore, shown a reasonable probability of eventual success

on the merits because strict scrutiny is a difficult hurdle to overcome, and Defendants will not be

able to show that the changes were narrowly tailored to a compelling state interest. See ECF No.

32 at 16; see also Grutter, 539 U.S. at 326. Based on the current record, however, this Court

cannot find that there is a reasonable probability Plaintiffs will successfully prove that the

changes to the admissions policy for the 2021–2022 admissions process were implemented for a

racially discriminatory purpose or that they have had a racially discriminatory impact, and thus,

Plaintiffs have failed to show that there is a reasonable probability that such policy changes will

be subject to strict scrutiny review.

As set forth in the Stipulated Facts, it is undisputed that the School District made changes

to the 2021–2022 admissions process for criteria-based schools. ECF No. 44 ¶ 24. Specifically,

“[t]he School District changed its admission[s] process for all criteria-based schools by admitting

qualified students to these schools by lottery.” ECF No. 44 ¶ 24. Additionally, “[t]he 2021-22

admission process provided qualified students residing in six specified zip codes—19121, 19132,

19133, 19134, 19135, and 19140—with preference in the lottery for admission to” Julia R.

Masterman High School (“Masterman”), Central High School (“Central”), George Washington

Carver High School of Engineering and Science (“Carver”) and Academy at Palumbo

(“Palumbo”). ECF No. 44 ¶ 25; see also ECF No. 44 Ex. 2 at 4 (“[z]ip code preference will be

applied at select criteria-based schools for students who meet minimum qualifications”). Under

the zip code preference policy, “[i]f a student was qualified to attend [Palumbo, Carver, Central

or Masterman] applied for admission, and resided in one of those six specified zip codes, the

student would automatically receive admission to that school.” ECF No. 44 ¶ 25. Palumbo,

Carver, Central and Masterman each have their own set of requirements that determine whether

or not a student is qualified for admission (i.e., able to participate in the lottery for a spot at that

school). See ECF No. 44. Ex. 2 at 19, 25, 26, 49 (providing the fall 2022 admissions

requirements at Palumbo, Carver, Central and Masterman, respectively).

In the spring of 2021, the School District of Philadelphia Board of Education approved a

“Goals & Guardrails” policy document. The Goals & Guardrails document includes a general

vision statement and lays out a series of “Goals” and “Guardrails” consistent with that vision.

ECF No. 44 Ex. 5. In the final section of the Goals & Guardrails, entitled “Addressing Racist

Practices,” the document includes “Guardrail 4,” which provides that “[o]ur students’ potential

will not be limited by practices that perpetuate systemic racism and hinder student achievement.”

ECF No. 44 Ex. 5 at 4. Under the Guardrail 4 section heading, the document lists two

“[i]ndicators” (Indicator 4.1 and Indicator 4.2). Relevant here, “Indicator 4.1” provides,

Among 8th grade students who are qualified to attend Special Admission High

schools [sic], the percentage who are Black/African American or

Hispanic/Latinx will grow from 33.8% in August 2020 to at least 52.0% (making

progress toward being proportional to population as a whole) by August 2026.

ECF No. 44 Ex. 5 at 4 (emphasis added).

Plaintiffs allege that the language in Indicator 4.1 followed by changes to the 2021–2022

admissions process for the School District’s criteria-based schools, demonstrates that such

changes were instituted for a racially discriminatory purpose. Plaintiffs state that, “[t]he [S]chool

[D]istrict is not even attempting to hide its racial motivations and it proudly proclaims that it

‘will’ increase [B]lack and Hispanic enrollment to its announced quota of ‘at least 52.0%.’” ECF

No. 32 at 15. Plaintiffs claim that within Indicator 4.1 the School District “announces that this

will be only the first step in a five-year march toward racially proportional representation in the

city’s [criteria-based] schools.” ECF No. 32 at 15 (emphasis in original).

This Court finds, however, that Plaintiffs’ characterization of Indicator 4.1 is contrary to

its plain language and unsupported by the current record. See ECF No. 44 Ex. 5 at 4. By its plain

language, Indicator 4.1 does not address, at all, increasing the number of Black/African

American or Hispanic/Latinx students who are admitted to or who attend the School District’s

criteria-based schools, rather Indicator 4.1 addresses increasing the number of Black/African

American or Hispanic/Latinx students who are qualified to attend such schools. Id. Specifically,

the Goals & Guardrails document provides that as an “[i]ndicator” of whether or not the School

District is achieving Guardrail 4, that is ensuring that student-potential is “not be[ing] limited by

practices that perpetuate systemic racism and hinder student achievement,” the School District

will look to whether the number of Black/African American and Hispanic/Latinx students who

are able to meet the rigorous requirements necessary to qualify for admission to the School

District’s criteria-based schools is increasing and “making progress toward being proportional to

[the demographics of the] population as a whole.” Id. As Plaintiffs’ counsel agreed at the

Preliminary Injunction Hearing, “[t]here’s absolutely nothing wrong with a school district saying

that we want to improve academic performance among any particular group, racial or non-

racial.” ECF No. 47 Tr. 29:15–18.

Plaintiffs contend that because the School District also controls the qualifications for

admissions to the criteria-based schools, one can infer from the language of Indicator 4.1 that the

changes to the 2021–2022 admissions process were made for a racially discriminatory purpose.

See ECF No. 47 Tr. 25: 1–4 (“the [C]ity…will define the scope of qualified applicants according

to these racial goals they put forth in the [G]oals and [G]uardrails document). Yet, the Court

finds this jump in logic too attenuated to support such inference and unsupported by the record.

Plaintiffs have not identified any changes made by the School District to the qualifications

required for admittance to Palumbo, Carver, Masterman or Central, (or any of the School

District’s criteria-based schools) that would benefit any one race of students over another. To

qualify for a spot in the admissions lottery, students are all held to the same race-neutral

standards.6

Plaintiffs also argue that statements made by two School District employees, Defendant

Sabriya Jubilee, the School District’s Chief of Equity, Office of Diversity, Equity, and Inclusion

(“Dr. Jubilee”) and Defendant Karyn Lynch, the School District’s Chief of Student Support

Services (“Ms. Lynch”), at a December 15, 2021 Council of the City of Philadelphia Committee

on Education Public Hearing (the “Public Hearing”), support the conclusion that the changes to

the admissions policy were instituted for a racially discriminatory purpose.

During the Public Hearing, Dr. Jubilee discussed the School District’s commitment to

“becoming an anti-racist equitable organization by uprooting policies, deconstructing processes

and eradicating practices that create systems of privilege and power for one group over the

other.” ECF No. 44 Ex. 8 Tr. 84:19–24. Dr. Jubilee spoke generally about “dismantling

institutionalization of norms” and specified that “[t]he upending of privilege” she was

highlighting was “not simply in reference to a configuration of numbers or an assessment of

differences in skin color or features.” ECF No. 44 Ex. 8 Tr. 84:25–85:10. In direct reference to

the “school selection process” Dr. Jubilee stated that “we have the opportunity to redesign a

process that from inception to current practice has only truly benefited a small group of

stakeholders, many of whom do not reflect the majority demographic of our School District or

6 The Court notes that a review of the relevant admission qualifications for Palumbo, Carver,

Central, and Masterman from the fall of 2021 to the fall of 2022 indicates that, at least to some

extent, the qualifications have become more rigorous. For example, to qualify for fall 2022

admission at Palumbo, Carver, Central, or Masterman, students were required to have earned

exclusively A’s and B’s, whereas to qualify for fall 2021 admission to any of these schools,

students were permitted a possible exception of one C. Compare ECF No. 44 Ex. 2 at 19, 25, 26,

49 (providing Palumbo, Carver, Central and Masterman fall 2022 admissions requirements,

respectively) with ECF No. 44 Ex. 1 at 19, 24, 25, 48, (providing Palumbo, Carver, Central and

Masterman fall 2021 admissions requirements, respectively).

City.” ECF No. 44 Ex. 8 Tr. 85:11–21. Likewise, Ms. Lynch explained with respect to the

previous admissions process for criteria-based schools that “[w]e’ve known for year[s] that this

process is inequitable and in some cases not even equal.” ECF No. 44 Ex. 8 Tr. 102:23–25.

Upon review of the transcript of the Public Hearing, (see ECF No. 44 Ex. 8), and in

particular, the statements emphasized by Plaintiffs’ counsel at the Preliminary Injunction

Hearing (see e.g., ECF No. 47 Tr. 48:5–49:18), the Court finds that none of the statements made

by Dr. Jubilee or Ms. Lynch demonstrate that the changes to the admissions policy were

instituted for a racially discriminatory purpose. The Third Circuit has made clear that “[t]he

consideration or awareness of race while developing or selecting a policy…is not in and of itself

a racial classification.” Lower Merion, 665 F.3d at 548. Further, the Third Circuit has

specifically provided that “[d]esigning 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.”

Id.

Consideration of whether prior practices allowed for racial bias to exist in the admissions

process and a desire to safeguard against the potential for race-based-discrimination by moving

to an objective system for selecting which students are admitted to the schools they are qualified

to attend does not constitute a racially discriminatory motive. It constitutes the opposite. See

Lower Merion, 665 F.3d at 548 (“the mere awareness or consideration of race should not be

mistaken for racially discriminatory intent or for proof of an equal protection violation”); id.

(“[r]acially discriminatory purpose means that the decisionmaker adopted the challenged action

at least partially because the action would benefit or burden an identifiable group”).

Additionally, the 2020 Census data providing the racial demographics for each zip code

located within the School District, also does not support Plaintiffs’ contention that the zip code

preference policy was motivated by a racially discriminatory purpose. As Defense counsel

pointed out at the Preliminary Injunction Hearing, the six zip codes at issue “are not the {quote}

‘blackest’ zip codes, they are not the {quote} ‘whitest’ zip codes.” ECF No. 47 Tr. 14:18–19; see

also ECF No. 44 Ex. 7. Moreover, the criteria-based schools that the zip code preference policy

applies to are racially diverse in distinct ways, (e.g., Palumbo in 2020–2021 was 36% Asian,

34% Black/African American, 15% white, 11% Hispanic/Latino, and 4% other, whereas Carver

was 14% Asian, 61% Black/African, 8% white, 11% Hispanic/Latino and 6% other). See ECF

No. 44 ¶ 28 (providing the racial demographics for Palumbo, Carver, Central, Masterman and the

Philadelphia School District for the 2020–2021 school year). This data-supported-reality

logically cuts against Plaintiffs’ assertion that the zip code preference policy was instituted to

move the student populations of Palumbo, Carver, Central, and Masterman toward the ultimate

goal of having the population at each of these schools mirror the racial demographic breakdown

of the City of Philadelphia as whole. To actually achieve that alleged goal through zip code

preference, it appears, given the data, that each of the schools would need a school-specific

admissions policy preferencing different zip codes with distinct racial demographics targeted to

that school’s unique racial breakdown.

There is no dispute that the changes to the 2021–2022 admissions process to the School

District’s criteria-based schools are facially neutral or that the admissions process is being

administered in a race neutral fashion, and there is, likewise, no dispute that, presently, there is

no evidence before the Court that the changes to the admissions process are resulting in a racially

discriminatory impact. There is, thus, no indication from the record that Plaintiffs will be able to

prove the changes to the admissions policy for the 2021–2022 admissions process for the School

District’s criteria-based schools were instituted for a racially discriminatory purpose or with

racially discriminatory intent. Accordingly, there is no evidence on which this Court could find

that there is a reasonable probability that the changes to admissions policies to the criteria-based

schools will be reviewed under strict scrutiny. Lower Merion, 665 F.3d at 548 (“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.”); see also Boston's Child. First v. City of Bos., 62 F. Supp. 2d 247, 260

(D. Mass. 1999), aff'd sub nom. Anderson ex rel. Dowd v. City of Bos., 375 F.3d 71 (1st Cir.

2004) (concluding that based on the record available at the time of the court’s preliminary

injunction decision it could not determine whether “either side [was] likely to succeed on the

merits”).

b. Plaintiffs Have Failed to Show a Reasonable Probability of Success on the Merits

Because They Have Failed to Show That the Changes to the 2021–2022 Admissions

Process for Criteria-Based Schools Would Not Be Able to Withstand Rational Basis

Review.

Plaintiffs have failed to show a reasonable probability of success on the merits because

they have failed to show that the changes to the admissions policy fail rational basis review. For

a policy to be found constitutional under a rational basis review, “the challenged classification

must be upheld if it is ‘rationally related to a legitimate state interest.’” Lower Merion, 665 F.3d

at 556 (citing City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513 (1976) (per

curiam)). Under this deferential standard and based on the current record, the Court finds that

Defendants would almost certainly be able to prove that the changes to the admissions policy

were rationally related to a legitimate government interest, and Plaintiffs have not provided any

evidence that allows this Court to find otherwise.

The evidence before the Court shows that the six zip codes given preference in the lottery

selection system for admission to Carver, Central, Masterman and Palumbo (that is, 19121,

19132, 19133, 19134, 19135, and 19140) are the six zip codes that for the last four years have

had the lowest “[p]ercent of [f]irst-[t]ime 9th [g]raders” who “[e]nrolled at Carver, Central,

Masterman and Palumbo.”7 ECF No. 44. Ex. 6 at 10–11. Based on this data, the Court finds that

there are a variety of legitimate state interests that are rationally related to the policy decision to

give qualified students in these six zip codes preference in the lottery selection system to Carver,

Central, Masterman, and Palumbo, including, inter alia, the goal of ensuring that all qualified

students, regardless of where they are located geographically within the City of Philadelphia,

have equal access to the School District’s elite criteria-based schools.

7 Specifically, Table 4 in the School District’s Research Brief addressing 9th Grade Enrollment in

District High School by Home Zip Code, 2017–18 to 2020–21 (ECF No. 44 Ex. 6) provides the

total number of first-time 9th graders enrolled in any School District school by zip code from

2017–2018 to 2020–21, as well as the total number of 9th graders enrolled at Carver, Central,

Masterman and Palumbo by zip code from 2017–2018 to 2021–21. ECF No. 44 Ex. 6 at 10–11.

Based on this information, Table 4 also calculates the percent of first-time 9th graders from each

zip code that enrolled at Carver, Central, Masterman, and Palumbo. ECF No. 44 Ex. 6 at 10–11.

Table 4 clearly shows that the six zip codes given preference, 19121, 19132, 19133, 19134,

19135, and 19140 have had the six lowest percentages of 9th grade students enrolled at Carver,

Central, Masterman and Palumbo from 2017–2018 to 2020-21. Id.

c. Even If the Changes to the 2021–2022 Admissions Process for Criteria-Based

Schools Were Subject to Strict Scrutiny, Plaintiffs Have Failed to Show a

Reasonable Probability of Success on the Merits as They Have Failed to Show Any

Racially Discriminatory Impact.

Even if Plaintiffs had been able to establish that there is a reasonable probability that the

changes to the admissions policy will be subject to strict scrutiny, Plaintiffs would still not be

entitled to a preliminary injunction based on the current record because Plaintiffs have failed to

show the changes to the admissions policy resulted in a racially discriminatory impact. The Third

Circuit has made clear, that even if a law is enacted for a racially discriminatory purpose, if it is a

facially neutral law and it is being applied in a race-neutral manner, it will only result in a

constitutional violation, if it results in a racially discriminatory impact. Lower Merion, 665 F.3d

at 549 (quoting Palmer v. Thompson, 403 U.S. 217, 224, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971))

(“no 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”).

In the present case, where the parties stipulated to the fact that the “School District does

not have complete data regarding the race of each student who accepted an offer to attend

Palumbo, Carver, Masterman, or Central in the 2022–2023 school year” and that the School

District will not have the “demographic information for the complete incoming class until after

August 29, 2022,” the Court is unable to conclude that Plaintiffs have a reasonable probability of

success on the merits for purposes of granting a preliminary injunction.

B. Because Plaintiffs Have Failed to Show a Reasonable Probability of Eventual

Success on the Merits, Plaintiffs Cannot Succeed on Their Motion for a

Preliminary Injunction.

While the Third Circuit adopts a balancing approach to the grant of preliminary

injunctions, the actual balancing of factors only comes into play once the moving party has

successfully met the two critical gateway factors—that is (1) a reasonable probability of eventual

success in the litigation, and (2) the possibility that the moving party will be irreparably injured

in the event the preliminary injunction is not granted. Reilly, 858 F.3d at 176; id. at 179 (“[i]f

these gateway factors are met, a court then considers the remaining two factors and determines in

its sound discretion if all four factors, taken together, balance in favor of granting the requested

preliminary relief”).

Here, while the Court does not rule out the possibility that further discovery will change

the status quo, as of right now, there is not enough evidence on the record for the Court to

reasonably conclude that the changes to the 2021–2022 admissions process for the School

District’s criteria-based schools were made for any racially discriminatory purpose. Additionally,

the parties have stipulated to the fact that the evidence is not yet available as to whether the

changes in admissions policies have resulted in a racially discriminatory impact. Therefore,

Plaintiffs have not shown that there is a reasonable probability that the changes to admissions

policy will be reviewed under strict scrutiny. Under rational basis review, as the record stands

now, Plaintiffs chances of success on the merits are de minimis as Defendants have plainly set

forth enough evidence to survive such a deferential standard of review.

Plaintiffs have, therefore, failed to establish a reasonable probability of eventual success

on the merits—one of the threshold requirements necessary to secure a preliminary injunction.

Accordingly, this Court need not consider the remaining factors. Instant Air Freight Co. v. C.F.

Air Freight, Inc., 882 F.2d 797, 800 (3d Cir. 1989) (“a failure to show a likelihood of success or

a failure to demonstrate irreparable injury must necessarily result in the denial of a preliminary

injunction.”) (emphasis added); see also Talbert v. Corr. Dental Assocs., No. CV 18-5112, 2019

WL 6460499, at *3 (E.D. Pa. Nov. 29, 2019) (citing Hohe v. Casey, 868 F.2d 69, 72 (3d Cir.

1989)) (citing Morton v. Beyer, 822 F.2d 364, 367 (3d Cir. 1987)) (providing that to succeed on a

motion for a preliminary injunction a moving party “must demonstrate both a likelihood of

success on the merits and the probability of irreparable harm if relief is not granted”) (emphasis

in original).

V. CONCLUSION

For the reasons provided above, this Court will DENY Plaintiffs’ Motion for a

Preliminary Injunction (ECF No. 32). An appropriate Order follows.

BY THE COURT:

/s/ Chad F. Kenney

CHAD F. KENNEY, JUDGE