# Sargent v. School District of Philadelphia

> District Court, E.D. Pennsylvania · August 8, 2022

URL: https://www.frixlaw.com/law-library/cases/10403874

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** August 8, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10403874. Public record. Not legal advice.