Darrin Lewis, Sr. v. Ascension Parish Schoo

Case: 15-30030 Document: 00513274476 Page: 1 Date Filed: 11/17/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

November 17, 2015

No. 15-30030

Lyle W. Cayce

Clerk

DARRIN KENNY LEWIS, SR., individually and as natural tutor of his minor

child B; OSCAR VARNADO,

Plaintiffs–Appellants,

v.

ASCENSION PARISH SCHOOL BOARD,

Defendant–Appellee.

Appeal from the United States District Court

for the Middle District of Louisiana

Before REAVLEY, PRADO, and COSTA, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

This school-redistricting equal protection case is now before us for the

second time. In the first appeal, in 2011, a divided panel of this Court reversed

summary judgment in favor of Defendant–Appellee Ascension Parish School

Board (“Board”), holding that material fact issues surrounded the

discriminatory purpose and effect of the Board’s adoption of a redistricting plan

that concentrated economically disadvantaged students in a majority-nonwhite

school district. Lewis v. Ascension Par. Sch. Bd., 662 F.3d 343 (5th Cir. 2011)

(per curiam). On remand, the district court held a three-day bench trial and

entered judgment for the Board. It concluded that the plan was facially race

neutral, that the plaintiffs had failed to prove the redistricting plan treated

similarly situated students of different races differently, and that, even if he had

made this threshold showing, he failed to establish that the plan had a

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discriminatory effect. Discerning no material infirmities in the court’s legal

conclusions and no clear error in its findings of fact, we affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background 1

The Ascension Parish School District (“the District”) operates four high

schools in southeast Louisiana—Donaldsonville High School on the west bank

of the Mississippi River, and East Ascension High School, Dutchtown High

School, 2 and St. Amant High School on the east bank. Since at least 1972, the

District has assigned students to these schools through an attendance-zone-

based “feeder plan,” whereby specified elementary schools “feed” into specified

middle schools, which in turn “feed” into one of the high schools. This

organization allows students to matriculate together to middle school and high

school.

In 2004, a federal district court dismissed the District’s longstanding

desegregation case and declared the District unitary after finding that all

vestiges of the prior compulsory dual school system had been eliminated to the

extent practicable.

Later that year, in response to dramatic population growth in the

Dutchtown area, the Board convened a “Growth Impact Committee.” Troy

Gautreau, Sr., a Board member and chairman of the Committee, presented the

Board with a “Growth Impact Charter,” which included the following

“objectives”: (1) “develop a plan to address the growth with minimal impact on

1 The facts of this case were recounted in detail in this Court’s 2011 opinion. This

opinion incorporates much of the “Background” section of that opinion verbatim, see Lewis v.

Ascension Par. Sch. Bd., 662 F.3d 343, 344–45 (5th Cir. 2011) (per curiam), varying only to

note additional facts found by the district court during the bench trial. The parties do not

dispute the essential facts underlying this suit.

2 The District constructed Dutchtown High School in 2002 to address the population

growth in the Dutchtown area. Correspondingly, that year the District also implemented a

new school attendance zone “feeder plan” that included Dutchtown High School.

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residents”; (2) “ensure equal facilities and instructional quality for all children”;

(3) attain “enrollment maximums” established for the elementary, middle, and

high school levels; and (4) “maintain unitary status.” (alterations omitted).

According to then-Superintendent Donald Songy, the District sought to move

approximately 450 students from Dutchtown Middle School, and thus out of

Dutchtown High School’s feeder zone, to other east bank schools with capacity

for growth.

To facilitate the Board’s consideration of various rezoning options,

Superintendent Songy, Gautreau, and other Board members requested that

Demographics Application Specialist David Duplechein generate demographic

data for several plans. Using the District’s “Edulog” computer program—which

“geographically code[d] all students actually enrolled in the school system based

on their physical residential addresses”—Duplechein projected the demographic

effects of various prospective rezoning plans. Ultimately, the Board, which

governs the District, narrowed its consideration down to four rezoning plans,

referred to as Options 1, 2, 2f, and 3.

Between 2004 and 2007, Gautreau delivered several PowerPoint

presentations to the Board on the topic of rezoning. In a 2004 presentation,

Gautreau discussed the persistent overcrowding issues in several of the

District’s primary and middle schools. The presentation indicated that, since

the implementation of the 2002 feeder plan that accompanied the construction

of Dutchtown High School, the percentage of at-risk students 3 at the primary

and middle schools in the East Ascension High School feeder zone had

increased and the average School Performance Scores (“SPS”) 4 at those schools

3 “‘At-risk’ students are those who are eligible for free or reduced-price lunch due to

disadvantaged socioeconomic status.” Lewis, 662 F.3d at 346 n.7.

4 School Performance Scores are calculated according to a formula devised by the

Louisiana Department of Education. They represent a combination of end-of-course test

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had decreased. It further highlighted a decline in student enrollment, SPS, and

standardized test scores, and an increase in the percentage of at-risk students,

at East Ascension High School. In addition, the presentation delineated the

negative effects of a higher at-risk student population, emphasizing that “the

concentration of poverty within a school can be shown to be harmful to all

students in that school whether or not an individual student comes from a poor

background.” It concluded that “a higher percentage of majority students

should increase at[-]risk achievement.” It is unclear whether the presentation

incorporated demographic data derived from Edulog.

By 2006, the enrollment of Dutchtown Middle School, a Dutchtown High

School feeder school, had risen to over 1,000 students, causing severe

overcrowding. No other east bank middle school had more than 730 students

enrolled. Accordingly, in 2006 or 2007 Gautreau prepared another PowerPoint

presentation that examined Options 2f and 3 in detail. The presentation

compared then-current racial demographics at each of the high schools,

projected total enrollment at several primary and middle schools, projected

percentages of “black” and “white” students at several primary and middle

schools, and projected percentage of “Title I” 5 and “fully paid” students at

several primary and middle schools. It concluded that Option 3 “clearly offers

the best opportunity for all students in Ascension Parish and avoids putting

an undue burden on one particular school by increasing the at[-]risk student

population.” (alteration omitted). As with Gautreau’s 2004 presentation, it is

unclear whether the 2006–2007 presentation incorporated Edulog data.

results, ACT scores, four-year graduation numbers, and graduation credentials (e.g.,

advanced placement courses, entry-based certifications, etc.).

5 Title I schools have a high number or a high percentage of students from low-income

families. They derive this name from Title I of the Elementary and Secondary Education Act

of 1965, 20 U.S.C. § 6301 et seq., which authorizes awards of federal financial assistance to

schools with a qualifying population of low-income students.

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Sometime after 2007, Gautreau created a chart using Edulog data that

projected the total enrollment and the percentages of “minority” and at-risk

students at each of the three east bank high schools under each of the rezoning

options under consideration. The chart indicated, in relevant part, that: (1)

under current conditions, with no redistricting, (a) the enrollment of

Dutchtown High School would increase from 1695 students in 2007 to 2072

students in 2012, a total student population exceeding the 2012 projections at

East Ascension High School and St. Amant High School by 700 students and

400 students, respectively, and (b) the percentage of at-risk students in all

three high schools would increase, with the largest jump occurring at East

Ascension High School; and (2) under each of Options 2, 2f, and 3, (a) the total

enrollment in all three schools would increase but would approach parity, and

(b) the percentage of at-risk students in all three high schools would increase,

again with the largest jump occurring at East Ascension High School. 6

In 2008, Superintendent Songy also compiled a chart with Edulog data,

titled “Statistical Analysis of Options 1, 2, 2f and 3,” and presented it to the

Board for consideration. The chart listed the current enrollment, percentage of

African–American students, and percentage of at-risk students at each school

in the district, then projected the enrollment, percentage of African–American

students, and percentage of at-risk students at each school under each of the

four rezoning options. Unlike Gautreau’s chart, Songy’s chart did not project

data beyond the 2007–2008 school year. Songy’s chart indicated, in relevant

part, that: (1) the current African-American population at East Ascension High

School exceeded that of the other high schools, but would decrease at East

Ascension High School and would increase at the remaining schools under any

6Notably, Gautreau’s chart seems to replicate the projected demographics of St.

Amant High School with no redistricting plan in the projections under Options 2, 2f, and 3.

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plan; (2) the at-risk population at East Ascension High School would decrease

under any plan, with the greatest drop under Option 3 and the second greatest

drop under Option 2f; (3) the at-risk populations at Dutchtown High School and

St. Amant High School would increase under any plan; and (4) the total student

enrollment would increase at East Ascension High School and St. Amant High

School, but not at Dutchtown High School, under any plan. 7

At its January 15, 2008 meeting, Gautreau discussed the School Board’s

redistricting efforts and, according to the meeting minutes, told the School

Board and audience that “the criteria most concentrated on was [sic]

maintaining our current unitary status with the Department of Justice and

moving the least amount of kids as possible.” Lewis, 662 F.3d at 345. Gautreau

also “informed the public that Option 2f or Option 3 needed to be passed by the

School Board that night, and that some people would be upset with the School

Board’s decision.” 8 Following remarks by each of the eleven Board members and

by nineteen members of the public, the Board voted on Options 2f and 3. 9 Option

3 failed by a vote of six to four, then Option 2f passed by a vote of the same

margin, with precisely the same voting blocs on either side. Each Board member

was in possession of Songy’s chart at the time of the vote, but it is unclear which

Board members, if any, were in possession of Gautreau’s chart or presentations.

Four of the six Board members who voted in favor of Option 2f testified at the

bench trial, and each Board member who testified stated that, at the time of the

vote, they were aware of the demographic projections and of the correlation

between at-risk status and lower academic achievement.

7 Similarly to Gautreau’s chart, Songy’s chart seems to replicate the same projections

for St. Amant High School in each plan.

8 Neither party presented evidence to explain Gautreau’s remark.

9 Neither party offered a transcript of the Board members’ or the public’s comments.

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Option 2f employed several means to shift the student population among

the east bank schools. First, it redrew the District’s geographic attendance lines

so that a number of students were moved from the Dutchtown and St. Amant

High School feeder zones to the East Ascension High School feeder zone. In total,

Option 2f moved 339 students into different feeder zones during the 2008–2009

school year. Second, Option 2f moved Duplessis Primary School, a Title I school,

from the Dutchtown feeder zone to the East Ascension feeder zone. As a result,

all five of the primary schools in the East Ascension feeder zone were now Title

I schools. Third, Option 2f assigned one new primary school and one new middle

school to the East Ascension feeder zone, two new primary schools to the

Dutchtown feeder zone, and three new primary schools to the St. Amant feeder

zone.

According to data collected by the Louisiana Department of Education,

since the implementation of Option 2f, total student enrollment has increased

at all three east bank high schools; the percentage of at-risk students has

increased at all three east bank high schools; and East Ascension High School

has maintained the highest percentages of nonwhite students and at-risk

students among the east bank high schools, and those percentages have each

grown from 2007 to 2013. In addition, the percentages of both nonwhite

students and at-risk students at each primary school and middle school in the

East Ascension feeder zone have increased during this time.

Further, it is undisputed that, since the adoption of Option 2f the

majority of the District’s nonwhite students and a majority of the District’s at-

risk students attend schools in the East Ascension feeder zone; East Ascension

High School is the only majority nonwhite and majority at-risk high school in

the District; a majority of the East Ascension feeder schools are majority

nonwhite, unlike the Dutchtown and St. Amant feeder schools; and all of the

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East Ascension feeder schools are majority at-risk, unlike the Dutchtown and

St. Amant feeder schools.

The evidence of academic performance under Option 2f is mixed. The

average ACT score for the 2013 graduating class at East Ascension was 19.4,

lower than St. Amant’s average score of 20.3 and Dutchtown’s average score of

21.3, and lower than the state’s average score of 19.5, but average ACT scores

also declined for all three schools during this time. Additionally, Dutchtown and

St. Amant high school students performed better than East Ascension students

on Advanced Placement (“AP”) exams in the 2011-2012 academic year.

Dutchtown also attained superior SPS to East Ascension High School, both

before and after the implementation of Option 2f. In the 2007–2008 school year,

East Ascension’s SPS was 95.1, compared to Dutchtown’s SPS of 109.8. In the

2012–2013 school year—after the Department of Education revised the SPS

scale from 150 points to 200 points—East Ascension’s SPS was 135.2, compared

to Dutchtown’s SPS of 163.3 and St. Amant’s SPS of 149.7. On the other hand,

East Ascension’s SPS has gradually increased since the implementation of

Option 2f, and its state school ranking and graduation rate are now at all-time

highs.

B. Procedural Background

1. The Suit

Shortly after the adoption of Option 2f, Lewis, the father of two African–

American schoolchildren assigned to the East Ascension feeder zone both pre-

and post-Option 2f, filed suit against the Board in Louisiana state court. Lewis,

662 F.3d at 345. Lewis sued under 42 U.S.C. § 1983, asserting violations of his

children’s Fourteenth Amendment rights to equal protection. Id. at 346. He

essentially raised two challenges to Option 2f: first, he alleged that the Board

adopted Option 2f “to ensure that East Ascension High School [and its feeder

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schools] would maintain a disproportionately large non-white minority

population, leaving the remaining two East Bank schools as predominantly

white” (the “racial balancing” claim), id. (alteration in original) (internal

quotation marks omitted); and second, he alleged that because Option 2f placed

a disproportionate number of at-risk students in the East Ascension feeder

zone, “Option 2f ‘would ensure that the nonwhite minority students at East

Ascension High School [and in its feeder system] would not, now and in the

future, be afforded educational opportunities equal to those available to the

students at either Dutchtown High School or St. Amant High School” (the

“funneling” claim), id. (alteration in original).

The Board removed the action to federal court and successfully moved

for summary judgment. Id. The district court found Option 2f facially race

neutral and concluded that Lewis had not presented competent evidence of

both discriminatory intent and discriminatory effect so as to invoke strict

scrutiny. Id. It then upheld the plan on rational basis review because the Board

had a legitimate government interest in reducing overcrowding. Id.

2. The First Appeal

A divided panel of this Court reversed. Id. at 352. The Court held, first,

that Lewis’s racial-balancing claim was not preserved and that Lewis’s only

live claims were his funneling claim and his claim that Option 2f employs

explicit racial classifications. Id. at 348 & n.11. It then criticized the district

court’s analysis, which relied in part on evidence that the Board “considered

[the race of reassigned students] in an effort at maintaining the racial balance

already existing among the schools in East Ascension Parish and in

maintaining the school district’s unitary status, not as part of a racially

discriminatory motive to allocate a ‘disproportionate number’ of African–

American students to the East Ascension school zone.” Id. at 349. The Court

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raised two concerns with this reasoning: first, “it is unclear how, on the record

before us, the court could make a factual finding as a matter of law about the

Board’s lack of discriminatory purpose”; and second, “the court’s assumption

that it might be justifiable to use racially-based decisions for the ‘benign’

purpose of maintaining post-unitary ‘racial balance’ among the schools in the

system is at least in tension with the Supreme Court’s decision in Parents

Involved.” Id.

The Court then identified several pieces of evidence that created a

genuine issue of material fact concerning the Board’s discriminatory purpose.

Id. at 350–52. First, the Court cited the Board’s reliance on Edulog data, noting

that Edulog “coded each enrolled student in order to predict the ‘statistical

effects’ of Option 2f’s boundary assignments” and that, in turn, “it is unclear

how a student assignment plan could calculate the percentage of black

students at each school without classifying individual students by race.” Id. at

350. The Court rejected the Board’s explanation “that the Statistical Analysis

underlying Option 2f . . . does not constitute Option 2f itself” because “to accept

that self-serving, summary allegation would be to allow a school district to

skew reality by selectively including documents in the record and labeling only

those documents its ‘plan.’” Id. This, the Court said, it could not countenance

on review of a summary judgment. Id.

Next, the Court quoted the testimony of Superintendent Songy and

various Board members that “suggest[ed] that the District relied upon the race

of the individual students residing in different geographic locations when it re-

zoned its schools.” Id. at 350–51. The Court also cited an excerpt from the

District’s website that referred to “alter[ing] the racial balance” and

“balanc[ing] the demograph[ics]” at East Ascension. Id. at 351 (second

alteration in original). In response to the district court’s finding that “‘only’ 339

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students, in a district population of 18,000, were affected by Option 2f,” the

Court observed that, “[i]n light of the testimony, this seems to be a group

identifiable and identified principally on racial grounds (whether minority or

not) for assignment to particular schools.” Id.

Lastly, the Court concluded that there were material questions of fact

surrounding the discriminatory effect of Option 2f. Id. Criticizing the district

court for basing its finding on a statistical analysis of Option 2f’s impact on

only the east bank high schools, the Court pointed out that Lewis alleged a

discriminatory effect on the East Ascension feeder system. Id. The statistics in

the record, the Court said, “provide some support” for Lewis’s funneling claim.

Id. at 352. The Court gave particular attention to statistics showing disparities

between the percentage of the total east bank student population enrolled in

each feeder system and the percentage of the east bank’s total at-risk student

population and total nonwhite student population in each feeder system. Id. at

351–52. 10 In any event, the Court declined to identify the pertinent standard

of review, holding that the determination of whether to apply strict scrutiny or

rational basis review “turns on the factual questions of discriminatory motive

and impact.” Id. at 352.

3. Remand, Pretrial Motions, and the Bench Trial

On remand, the district court permitted additional discovery; then both

parties moved for summary judgment. The district court denied Lewis’s motion

and granted in part and denied in part the Board’s motion. Two aspects of the

district court’s ruling are relevant here. First, the district court “conclude[d]

10 Importantly, these statistics appear only in Lewis’s submissions on summary

judgment. Lewis appears to have derived these statistics from data compiled by Bridget

Thomas, a “concerned parent,” whose children attended schools within the District and who

testified as a lay witness at trial. There is no mention of these statistics in Lewis’s post-trial

briefing or in his appellate briefs.

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that the School Board’s consideration of projected racial and socioeconomic

data prior to voting does not amount to a racial classification.” It

correspondingly denied “Lewis’[s] request that the Court review Option 2f

under strict scrutiny on this basis” and granted “[t]he School Board’s request

that the Court dismiss Lewis’[s] claim that Option 2f employs a racial

classification.” Second, the district court denied “the School Board’s request

that the Court dismiss Lewis’[s] remaining Equal Protection claim on th[e]

basis” that “Lewis cannot establish that [his children] were treated differently

than similarly situated students of a different race”—namely, white students

in the Dutchtown and St. Amant feeder zones. Despite announcing that it was

“unable to consider all of the evidence presented until after a full trial on the

merits,” the district court “conclude[d],” based on “the evidence presented here,

[the] context of this matter, and factors considered by the School Board when

it adopted Option 2f,” that the plaintiff’s children “are, in fact, similarly

situated to white students in the Dutchtown High School and St. Amant High

School feeder zones.”

The case proceeded to a three-day bench trial. At the opening of the trial,

the Board orally requested that the district court reconsider several of its rulings

in its summary-judgment order, including its conclusion on the “similarly

situated” issue. The district court denied the Board’s requests without prejudice

to the Board’s right to reurge them in its post-trial briefs. Lewis made no request

that the district court reconsider its ruling that Option 2f did not employ racial

classifications.

At trial, Lewis called ten witnesses: five members of the Board who voted

on Option 2f, Demographics Application Specialist Duplechein, Lewis, Lewis’s

son, Bridget Thomas (a “concerned parent” who compiled statistics on the

rezoning options), and Dr. Percy Bates (an expert witness in educational

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psychology). The Board, in turn, called two witnesses: Patrice Pujol, current

Superintendent of the Board, and former Superintendent Songy.

Following post-trial briefing, the district court issued Rule 52 findings of

fact and conclusions of law. The court’s findings of fact are summarized in Part

I(A), supra. The court opened its conclusions of law with a summary of Lewis’s

theory:

“Here, the gravamen of Lewis’s section 1983 claim is that the School

Board has denied nonwhite students in the East Ascension High

School attendance zone equal educational opportunities, in

violation of the Fourteenth Amendment, by adopting a school

rezoning plan that ‘feeds’ a disproportionate number of at-risk

students into the East Ascension High School attendance zone.”

The court then held that: (1) Option 2f does not employ explicit racial

classifications, (2) Lewis failed to prove that nonwhite students in the East

Ascension attendance zone are similarly situated to white students in the

Dutchtown and St. Amant attendance zones, and, in turn, that Option 2f accords

disparate treatment to similarly situated students of a different race, and (3)

even if Lewis had proven that Option 2f treats similarly situated students

differently on the basis of race, the record evidence does not support the

conclusion that Option 2f has had a discriminatory effect on nonwhite students

in the East Ascension feeder zone. Accordingly, the court omitted discussion of

whether the Board acted with a discriminatory purpose. In addition, the court

did not identify the level of scrutiny it would apply to Lewis’s challenge to Option

2f; it held only that “Lewis has not satisfied his burden of proving by a

preponderance of the evidence that [the Board’s] adoption of Option 2f violates

the Equal Protection Clause.” Lewis timely appealed.

II. JURISDICTION AND STANDARD OF REVIEW

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The district court had jurisdiction over Lewis’s suit pursuant to 28 U.S.C.

§ 1331. This Court has jurisdiction to review the district court’s final judgment

pursuant to 28 U.S.C. § 1291.

“The standard of review for a bench trial is well established: findings of

fact are reviewed for clear error and legal issues are reviewed de novo.” Bd. of

Trs. New Orleans Emp’rs Int’l Longshoremen’s Ass’n v. Gabriel, Roeder, Smith

& Co., 529 F.3d 506, 509 (5th Cir. 2008) (quoting Water Craft Mgmt. LLC v.

Mercury Marine, 457 F.3d 484, 488 (5th Cir. 2006)). “A finding is clearly

erroneous if it is without substantial evidence to support it, the court

misinterpreted the effect of the evidence, or this court is convinced that the

findings are against the preponderance of credible testimony.” Id.

III. DISCUSSION

The Equal Protection Clause of the Fourteenth Amendment mandates

that “[n]o State shall . . . deny to any person within its jurisdiction the equal

protection of the laws.” U.S. Const. amend. XIV, § 1. “Its central purpose is to

prevent the States from purposefully discriminating between individuals on

the basis of race.” Shaw v. Reno, 509 U.S. 630, 642 (1993). Accordingly, “[l]aws

that explicitly distinguish between individuals on racial grounds fall within

the core of that prohibition,” id., and are subject to strict scrutiny, Hunt v.

Cromartie, 526 U.S. 541, 546 (1999). “Strict scrutiny also applies to

government action that is ‘ostensibly neutral,’ but only if the neutral law has

a ‘disproportionately adverse effect’ that ‘can be traced to a discriminatory

purpose.’” Lewis, 662 F.3d at 348 (quoting Pers. Adm’r of Mass. v. Feeney, 442

U.S. 256, 272 (1979)). 11 Under strict scrutiny, “the burden [is] on the

11Strict scrutiny also applies to “a classification that is ostensibly neutral but is an

obvious pretext for racial discrimination.” Feeney, 442 U.S. at 272 (citing, inter alia, Yick Wo

v. Hopkins, 118 U.S. 356 (1886)). This class of actions refers to facially neutral laws that are

applied in a discriminatory fashion—as, for instance, “a laundry permit ordinance . . .

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government to prove that its actions are narrowly tailored to achieve a

compelling government interest.” Id. By contrast, where there is no proof of

either discriminatory purpose or discriminatory effect, the government action

is subject to rational basis review, id., and the burden is on the challenger to

rebut the “strong presumption of validity” accorded the action and prove that

the action is not rationally related to a legitimate government purpose, Heller

v. Doe, 509 U.S. 312, 319–20 (1993).

At trial, Lewis mounted a two-pronged attack on Option 2f: he alleged

that Option 2f was subject to strict scrutiny (1) because it contains explicit

racial classifications, and, alternatively, (2) because its funneling feature was

motivated by racial animus and had a disproportionately adverse impact on

nonwhite students in the East Ascension feeder zone. On appeal, he contends

that the district court committed numerous errors in entering judgment

against him. We address each claim of error in turn.

A. Option 2f and Explicit Racial Classifications

Lewis first urges that the district court erred in holding that Option 2f

does not explicitly classify students on the basis of race.

Although the district court granted summary judgment to the Board on

Lewis’s claim that Option 2f should be subjected to strict scrutiny because it

employs express racial classifications, it rejected this argument anew in its

Rule 52 findings of fact and conclusions of law. It cited three grounds for its

decision: (1) the court had previously ruled against Lewis, and Lewis had not

requested reconsideration; (2) “a review of the evidence supports the conclusion

that Option 2f does not employ an explicit racial classification” because the

administered in a deliberate way to exclude all Chinese from the laundry business.” Miller v.

Johnson, 515 U.S. 900, 913 (1995) (citing Yick Wo, 118 U.S. 356). The district court held that

Lewis did not advance this theory of discrimination at trial and Lewis does not argue to the

contrary on appeal.

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plan is facially race neutral and “Lewis failed to point to any provision of

Option 2f that classifies students on the basis of race[ ] or uses race as a factor

in school assignment”; and (3) “the School Board’s consideration of the

projected enrollment and percentage of nonwhite and ‘at-risk’ students . . . does

not amount to a rezoning plan that assigns students on the basis of race.”

Given these ostensible alternative rulings—one procedural and one on

the merits—we requested supplemental briefing on the ruling subject to appeal

and the corresponding standard of review. The parties agreed that the district

court reconsidered its summary judgment ruling sua sponte when it announced

a post-trial merits holding, see, e.g., Zarnow v. City of Wichita Falls, Tex., 614

F.3d 161, 171 (5th Cir. 2010), and our standard of review therefore tracks that

applicable to an ordinary bench trial: we review findings of fact for clear error

and legal issues de novo, Bd. of Trs., 529 F.3d at 509.

“It is well established that when the government distributes burdens or

benefits on the basis of individual racial classifications, that action is reviewed

under strict scrutiny.” Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No.

1, 551 U.S. 701, 720 (2007). “A statute or policy utilizes a ‘racial classification’

when, on its face, it explicitly distinguishes between people on the basis of some

protected category.” Hayden v. Cty. of Nassau, 180 F.3d 42, 48 (2d Cir. 1999)

(citing Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995); Wygant v.

Jackson Bd. of Educ., 476 U.S. 267, 282–84 (1986); Loving v. Virginia, 388 U.S.

1, 11–12 (1967)).

Although the Supreme Court has not addressed the facial neutrality of

school district boundaries in the context of a post-desegregation equal

protection challenge, 12 we find its precedents on electoral redistricting

12Significantly, in Parents Involved, a case on which Lewis places great emphasis,

“the school district[s] relie[d] upon an individual student’s race in assigning that student to

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instructive. In this context, the Court has repeatedly made clear that

redistricting plans do not classify individuals and are therefore facially race

neutral. 13 As a result, “a more searching inquiry is necessary before strict

scrutiny can be found applicable in redistricting cases than in cases of

‘classifications based explicitly on race.’” Bush, 517 U.S. at 958. Moreover, the

Court has unequivocally stated that a legislative body’s mere awareness or

consideration of racial demographics in drawing district boundaries will not

alone trigger strict scrutiny. 14 To the contrary, the challenger must

demonstrate that race was “the predominant factor motivating the

legislature’s decision.” Miller, 515 U.S. at 916. To make this showing, the

challenger is obligated to prove—using direct or circumstantial evidence, or a

combination of the two—“that ‘the legislature subordinated traditional race-

neutral districting principles, including . . . compactness, contiguity, and

respect for political subdivisions or communities defined by actual shared

interests, to racial considerations[.]’” Hunt, 526 U.S. at 547 (quoting Miller,

a particular school, so that the racial balance at the school f[ell] within a predetermined range

based on the racial composition of the school district as a whole.” 551 U.S. at 710. In both

student-assignment plans at issue in Parents Involved, students applied to or were assigned

to individual schools and their race was taken into consideration in the district’s admission

decision. Id. at 711–12, 716–17. The school districts’ geographical boundaries were not at

issue.

13 See Hunt, 526 U.S. at 547 (“Districting legislation ordinarily, if not always, classifies

tracts of land, precincts, or census blocks, and is race neutral on its face.”); Bush v. Vera, 517

U.S. 952, 958 (1996) (plurality opinion) (“Electoral district lines are ‘facially race neutral’ . .

. .”); Shaw, 509 U.S. at 646 (“A reapportionment statute typically does not classify persons at

all; it classifies tracts of land, or addresses.”).

14 See Bush, 517 U.S. at 958 (plurality opinion) (“Strict scrutiny does not apply merely

because redistricting is performed with consciousness of race. Nor does it apply to all cases

of intentional creation of majority-minority districts.” (internal citation omitted)); Miller v.

Johnson, 515 U.S. 900, 916 (1995) (“Redistricting legislatures will, for example, almost

always be aware of racial demographics; but it does not follow that race predominates in the

redistricting process.”); Shaw, 509 U.S. at 646 (“[R]edistricting differs from other kinds of

state decisionmaking in that the legislature always is aware of race when it draws district

lines . . . . That sort of race consciousness does not lead inevitably to impermissible race

discrimination.”).

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515 U.S. at 916). One form of circumstantial evidence is the shape of the

district, which may, in some cases, be so “bizarre” or “highly irregular that, on

its face, it rationally cannot be understood as anything other than an effort to

segregat[e] . . . voters on the basis of race.” Miller, 515 U.S. at 914 (alteration

and ellipsis in original) (quoting Shaw, 509 U.S. at 646–47) (internal quotation

marks omitted). 15

While there is no post-Parents Involved law in this Circuit assessing

whether school redistricting plans like Option 2f contain express racial

classifications, the Third and Sixth Circuits have recently held that school

zoning plans that divide the student population by geography are facially race

neutral. See Spurlock v. Fox, 716 F.3d 383, 394–96 (6th Cir. 2013); Doe ex rel.

Doe v. Lower Merion Sch. Dist., 665 F.3d 524, 545–48 (3d Cir. 2011).

Importantly, both of these cases affirmed bench-trial verdicts in favor of the

school districts, Spurlock, 716 F.3d at 385; Lower Merion, 665 F.3d at 539, 558,

and both cases were decided after this Court issued its first opinion in Lewis.

In both Spurlock and Lower Merion, the courts distinguished Parents Involved

as a case speaking only to student-assignment plans that explicitly use a

student’s race as a factor in assignments; a plan that, on its face, relies

exclusively on a student’s home address is necessarily race neutral, and

Parents Involved has no application. Spurlock, 716 F.3d at 394; Lower Merion,

665 F.3d at 545–46. Additionally, both courts rejected the students’ arguments

that the rezoning bodies’ consideration of racial demographic data in

15 It is not clear from the Court’s discussion whether evidence of “predominance” can

establish an express racial classification, or whether this evidence is used to prove that the

facially neutral districts are nonetheless the product of discrimination. The Court’s analysis

in Hunt, which opened with the observation that the challenged redistricting plan was “race

neutral on its face” and described the challengers’ burden to prove that “race was the

‘predominant factor’ motivating the legislature’s districting decision,” suggests the latter. 526

U.S. at 547. The same does not seem to be true of evidence of “bizarreness,” which, the Court

said in Miller, may evince discrimination “on its face.” 515 U.S. at 913, 914.

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formulating the district boundaries amounted to an express racial

classification. 16 To this end, the Third Circuit relied in part on the Supreme

Court’s electoral redistricting precedents. See Lower Merion, 665 F.3d at 547.

And, notably, the Sixth Circuit held that its conclusion was not inconsistent

with this Court’s opinion in Lewis. Spurlock, 716 F.3d at 395–96. 17

Before this Court, Lewis contends that the record evidence and the trial

court’s findings of fact “clearly show that race was an important stand alone [sic]

factor in the adoption of Option 2f and that a main goal of Option 2f was to keep

a specific balance of racial groups in each East Bank school in order to maintain

unitary status.” This, Lewis says, is contrary to Parents Involved, in which the

Court “held that a unitary school district’s decision to classify students by race

16 See Spurlock, 716 F.3d at 394 (observing that the rezoning body “obtained data on

the racial breakdown of students . . . under the old student-assignment plan, as well as

projections of student enrollment by race in the event that various modifications were

adopted” but rejecting the argument that “obtaining this data and including some of it in the

Rezoning Plan shows that the Plan classifies students by race” because “[r]acial classification

requires more than the consideration of racial data”); Lower Merion, 665 F.3d at 548

(criticizing the students for “conflat[ing] a school assignment policy that explicitly classifies

based on race with the consideration or awareness of neighborhood racial demographics

during the development and selection of a policy” and holding 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”).

17 The Sixth Circuit interpreted Lewis’s holding—that factual issues regarding

discriminatory purpose and effect precluded summary judgment—as “a holding with respect

to the issue of de jure segregation, not racial classification.” Spurlock, 716 F.3d at 395.

However, the Sixth Circuit criticized this Court’s opinion as internally inconsistent in its

express-classification analysis: although “[t]he court nowhere opined that the consideration

of demographic data alone amounts to a classification by race . . . , certain confusing

pronouncements in the Lewis per curiam opinion appear to suggest the contrary.” 716 F.3d

at 395 (citing Lewis, 662 F.3d at 350 (“Indeed, it is unclear how a student assignment plan

could calculate the percentage of black students at each school without classifying individual

students by race.”)). The Sixth Circuit resolved this ambiguity by crediting the Lewis dissent

and observing that “if the court majority had truly believed that there was racial

classification at play, it would have ordered the district court on remand to subject the

challenged policy to strict scrutiny, which it did not do.” Id. at 395–96. Moreover, the Spurlock

court remarked, “to the extent that certain statements in Lewis conflict with Supreme Court

precedent, the latter obviously prevails.” Id. at 396.

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and to rely on that classification in determining school assignments is subject to

strict scrutiny.” Lewis’s position hinges on the premise that Option 2f is more

than the maps and written descriptions laying out the geographic boundaries of

the feeder zones; in his view, the demographic analysis underlying Option 2f

classifies students on the basis of race, and this data, as well as the race-

conscious motives of the Board members, evince express racial classifications in

the plan.

The Board counters that the district court correctly looked only to the

face of Option 2f to assess its race neutrality, and it contends that the court’s

finding that none of the documents that make up Option 2f include any

reference to race is not clearly erroneous. The Board urges this Court to follow

the Third and Sixth Circuits and hold that a school zoning plan that assigns

students to schools based on their home addresses is facially race neutral, and

the rezoning body’s consideration of demographic data in drawing the relevant

geographic boundaries does not amount to making an express classification.

Lastly, the Board posits that even if Option 2f incorporated Gautreau’s or

Songy’s statistical analysis, the plan would still not contain any express racial

classifications because there is no provision that “identif[ies] any classification

by individual student or group for purposes of school assignment” or that

“require[s] the consideration of race when enrolling students in any school.”

We agree with the Board and find no error in the district court’s ruling

that Option 2f contains no explicit racial classifications. Lewis provides no basis

for this Court to conclude that the district court’s factual finding that Option 2f

is facially race neutral and assigns students to schools on the sole basis of

geography is clearly erroneous. The only evidence he points to on appeal relates

to the Board’s awareness of racial demographics and its alleged desire to

maintain the District’s unitary status through racial balancing. Under the

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Supreme Court’s electoral-redistricting precedents, and consistent with the

Third and Sixth Circuit’s reasoning, this evidence has no bearing on the facial

neutrality of the Board’s action—at least absent evidence that the geographic

boundaries are explicable only as the product of intentional segregation, see

Miller, 515 U.S. at 914; see also supra note 16; cf. Spurlock, 716 F.3d at 394;

Lower Merion, 665 F.3d at 548. Even accepting Lewis’s position that Option 2f

incorporated the demographic data and projections, this does not establish that

the plan explicitly classified students by race; it shows only that the Board

considered the same sort of data that the Supreme Court has refused to equate

to a facial racial classification, albeit in the electoral context. 18 See Bush, 517

U.S. at 958; Miller, 515 U.S. at 916; Shaw, 509 U.S. at 646. It also does not

bring the plan within the ambit of Parents Involved, as that case addressed

individualized student assignments that took into account the student’s race

and the overall racial makeup of the school. See supra note 13.

Likewise, the district court’s legal conclusion that the Board’s

consideration of demographic data in formulating Option 2f “does not amount to

[adopting] a rezoning plan that assigns students on the basis of race” conforms

to Supreme Court case law, see, e.g., Bush, 517 U.S. at 958, and is in accord with

the decisions of this Court’s sister circuits, see Spurlock, 716 F.3d at 394; Lower

Merion, 665 F.3d at 548. Accordingly, we hold that the district court did not err

in concluding that Option 2f does not make express racial classifications and so

is not subject to strict scrutiny on that basis.

B. The Discriminatory Purpose and Effect of Option 2f

18 Lewis has not argued that Option 2f’s boundaries are so “bizarre” or “highly

irregular” that, on its face, the plan “rationally cannot be understood as anything other than

an effort to segregat[e] . . . on the basis of race.” Miller, 515 U.S. at 914 (alteration in original)

(quoting Shaw, 509 U.S. at 646–47) (internal quotation marks omitted).

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Lewis next contends that the district court erred in rejecting his

alternative theory that, despite Option 2f’s facial neutrality, the redistricting

plan’s funneling feature is nevertheless subject to strict scrutiny because it had

both a discriminatory purpose and a discriminatory effect. See Vill. of Arlington

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264–66 (1977) (holding that

an equal protection claim premised on an outwardly neutral law requires proof

of both a discriminatory effect and a discriminatory purpose). Relevant to this

determination, the district court first found that the pertinent comparator group

for Lewis’s equal protection claim was white students within the East Ascension

feeder zone—not white students in the other feeder zones, as it had originally

ruled on post-remand summary judgment. It then found that, even if Lewis had

successfully established that nonwhite students in the East Ascension feeder

zone were similarly situated to their white counterparts in the other feeder

zones, he had not proven that Option 2f had a discriminatory adverse effect on

nonwhite students in the East Ascension feeder zone. Lewis urges that the

district court erred in both regards.

Because we resolve the district court’s treatment of Lewis’s alternative

equal protection theory on the discriminatory-effect finding, we need not

address either the court’s similarly situated finding or Lewis’s proffered

evidence of discriminatory purpose. See id.; Palmer v. Thompson, 403 U.S. 217,

224 (1971) (“[N]o case in this Court has held that a legislative act may violate

equal protection solely because of the motivations of the men who voted for

it.”); Lower Merion, 665 F.3d at 549–50 (“[D]iscriminatory impact must be

shown to establish an equal protection violation because ‘plaintiffs must show

that they have been injured as a result’ of the governmental action to ensure

that courts ‘can impose a meaningful remedy.’” (quoting Garza v. Cty. of Los

Angeles, 918 F.2d 763, 771 (9th Cir. 1990))). We simply assume without

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deciding that it was Lewis’s burden to identify a similarly situated comparator

group and that he met this burden, 19 and we proceed to the district court’s

finding on the issue of discriminatory impact.

As a preliminary matter, we note a disagreement between the parties

concerning the standard of review applicable to the district court’s

determination. On one hand, there is general agreement that a finding of

discriminatory effect is a finding of fact subject to review for clear error. 20 On

the other hand, there is authority for the proposition that where, as here, the

facts are essentially undisputed, the question of whether those facts evince a

discriminatory effect is ultimately one of law that this Court reviews de novo. 21

19 We note that there is uncertainty in the law regarding the circumstances under

which an equal protection plaintiff alleging racial discrimination is required to identify a

similarly situated comparator group and the showing required to discharge this burden. See

generally Giovanna Shay, Similarly Situated, 18 Geo. Mason L. Rev. 581 (2011). Although

the Third Circuit in Lower Merion conducted a similarly situated analysis—which informed

the district court’s analysis in this case—it did so without citation to authority. See 665 F.3d

at 550. Moreover, Lower Merion addressed a different type of claim—that “targeting” a

particular area for redistricting “in part because that Community has one of the highest

concentrations of African–American students in the District” violates the Equal Protection

Clause, 665 F.3d at 540—and it grounded its similarly situated analysis in relevant part on

evidence that the redistricting affected both white and nonwhite students in the “targeted

area,” id. at 550. Not only does this formulation of the inquiry seem to preclude a finding of

disparate treatment, but it does not neatly track Lewis’s novel funneling theory. Accordingly,

we express no view on the district court’s treatment of this issue and merely assume without

deciding that Lewis proved that the nonwhite students in the East Ascension feeder zone are

similarly situated to white students in the other feeder zones, as his theory of discrimination

presumes.

20 See, e.g., Ortiz v. City of Phila. Office of City Comm’rs Voter Registration Div., 28

F.3d 306, 308 (3d Cir. 1994) (“A district court’s conclusion that a challenged electoral practice

has a discriminatory effect is a question of fact subject to review for clear error.”); Velasquez

v. City of Abilene, Tex., 725 F.2d 1017, 1021 (5th Cir. 1984) (“We have no doubt that the

finding of discriminatory effect or result under the Voting Rights Act amendments of 1982 is

also governed by the clearly erroneous standard, and while appellants try to argue that

dilution cases involve a mixed question of law and fact not governed by

the clearly erroneous standard, we cannot embrace this argument.”).

21 See, e.g., Anderson ex rel. Dowd v. City of Bos., 375 F.3d 71, 80 (1st Cir. 2004)

(“[W]hen the issues on appeal ‘raise[ ] either questions of law or questions about how the law

applies to discerned facts,’ such as whether the proffered evidence establishes a

23

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We assume without deciding that our review is de novo, as affirmance under

this standard compels the same result as under the more deferential

alternative standard.

To subject a facially race neutral government action to strict scrutiny, the

plaintiff must establish both discriminatory intent and a disproportionate

adverse effect upon the targeted group. Feeney, 442 U.S. at 272. The

discriminatory-impact element of an equal protection claim may be satisfied

with statistical evidence. See, e.g., Chavez v. Ill. State Police, 251 F.3d 612, 638

(7th Cir. 2001) (“While few opinions directly acknowledge that statistics may be

used to prove discriminatory effect, the Court has repeatedly relied on statistics

to do just that.” (citing Yick Wo, 118 U.S. at 374 and Hunter v. Underwood, 471

U.S. 222, 227 (1985))); accord Bennett v. City of Eastpointe, 410 F.3d 810, 818

(6th Cir. 2005). “Of course, parties may not prove discrimination merely by

providing the court with statistical analyses. The statistics proffered must

address the crucial question of whether one class is being treated differently

from another class that is otherwise similarly situated.” Chavez, 251 F.3d at

638. Further, statistical analysis, like other expert testimony, must be “both

relevant and reliable,” and “[d]etermining the validity and value of statistical

evidence is firmly within the discretion of the district court.” Id. at 641.

Although this Court has not spoken on the quantum of evidence sufficient

to prove discriminatory impact as a matter of law, cases from other circuits shed

some light on the subject. In Chavez, the Seventh Circuit affirmed summary

judgment in favor of the state-police defendants in a class action alleging that

the officers “utilize[d] impermissible racial classifications in determining whom

to stop, detain, and search.” 251 F.3d at 635. The plaintiffs had obtained records

discriminatory purpose or a disproportionate racial impact, ‘our review is essentially

plenary.’”).

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of citations and police field reports, which were used to document traffic stops,

and had compared the race of the targets with various population benchmarks,

including the Census and the Nationwide Personal Transportation Survey. Id.

at 642–44. After holding that the plaintiffs could utilize statistics to show

discriminatory effect, id. at 640, the court independently reviewed the proffered

statistics and found them inadequate as a matter of law to carry the plaintiffs’

burden, id. at 641, 645. As relevant here, the court cited the absence of evidence

of the total number of field reports prepared (or even the number analyzed by

the plaintiffs) and the lack of an adequate population benchmark against which

to measure whether the plaintiffs’ racial groups were stopped at a rate

disproportionate to their representation in the driving population. Id. at 643–

44.

Similarly, in a case with facts closer to those presented here, the First

Circuit in Anderson affirmed a bench-trial judgment in favor of the city

defendant in an equal protection challenge to a school-rezoning plan. 375 F.3d

at 74, 79. To establish the discriminatory effect of the rezoning plan, the

plaintiffs relied exclusively on the testimony of a single witness. Id. at 88. The

witness, who lacked formal training in statistical analysis, “testified that she

reviewed admissions data from ‘every school in the city,’ [but] she only presented

data for the 2002–03 admission rounds for one class in each of three schools.”

Id. The witness prepared charts for each of these schools, comparing the racial

demographics of students admitted under the new plan with those of students

who would have been eligible for admission under an alternative plan. Id. at 88–

89. These charts showed that “in the three elementary schools—out of the 85 or

so in the [public school] system—a total of twenty white students . . . were not

admitted under the actual [plan].” Id. at 89. Further, the plaintiffs declined to

“engage in any systemwide analysis of the racial impact” of the plan, resting

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instead on the “individual examples of the racial effect” evident in the witness’s

charts. Id. The First Circuit held this evidence insufficient to show

discriminatory effect—and, as a corollary, discriminatory purpose inferable

from a gross statistical disparity. Id.

Here, the district court held that Lewis’s proffered evidence failed to

establish that Option 2f worked a discriminatory effect on nonwhite students in

the East Ascension feeder zone by funneling a disproportionate number of at-

risk students to their schools. Even accepting the undisputed evidence that the

percentage of at-risk students in the East Ascension feeder zone increased after

the implementation of Option 2f, the court found that this was insufficient,

standing alone, to carry Lewis’s burden. The court found that the objective

evidence of student performance adduced at trial—ACT scores, SPS, and AP

classes and exam results—was unpersuasive. Lewis only offered average ACT

scores for a single year; although the scores placed East Ascension 0.1 point

below the state average, 0.9 point below St. Amant, and 1.9 points below

Dutchtown, these results were neither broadly representative of student

performance nor relevant to the educational experiences of students in the East

Ascension feeder zone’s primary and middle schools. East Ascension High

School’s SPS had “gradually increased since the implementation of Option 2f,”

and although it was outpaced by Dutchtown’s and St. Amant’s SPS—by 28.1

points and 14.5 points, respectively—“Lewis failed to introduce evidence to

establish that these differences are statistically significant, or that such

differences are the result of unequal educational opportunities[.]” The AP scores

were similarly unavailing: Lewis presented evidence of inferior performance by

East Ascension High School students in one academic year, but he again failed

to establish statistical significance. And, as with the ACT scores, the SPS and

AP performance related only to East Ascension High School and not its feeders.

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Finally, the court rejected the opinion of Lewis’s expert, Dr. Percy Bates,

as “meaningless.” Although Dr. Bates was qualified as “an expert on the impact

of a disproportionate number of at-risk students on an academic environment,”

he based his expert report solely on “the general research findings of other

experts, student performance scores from 2006 and 2007, iLEAP test scores

from 2006 and 2007, and Gautreau’s projections.” 22 He claimed that his opinion

was confirmed—and, indeed, strengthened—by the evidence he observed at

trial, but he conceded that he had not considered any post-Option 2f data in

rendering his opinion in the first instance. In particular, he acknowledged that

he had not researched the quality of instruction or the course offerings in the

East Ascension schools relative to their counterparts in the other feeder zones,

he had not interviewed Lewis’s children, and he had not done any calculations

of the actual effect of Option 2f on the at-risk population. As for Dr. Bates’s

“research findings in other districts” and his consideration of “the general

research findings of other experts,” the court noted that this research could be

“instructive,” but “his failure to conduct an independent analysis in this case

renders his opinion meaningless.”

Lewis essentially makes two arguments on appeal. First, he contends

that the objective evidence of student performance he presented at trial,

coupled with Dr. Bates’s expert testimony, proved as a matter of law that

Option 2f’s funneling caused a disproportionate adverse effect on the nonwhite

population in the East Ascension feeder zone. Second, he asserts that the

district court committed legal error by faulting him for failing to prove

discriminatory purpose, despite the court declining to reach that issue in the

first instance.

22Notably, the district court observed that Lewis failed to introduce Dr. Bates’s expert

report into the trial record.

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We find that Lewis failed to prove as a matter of law that Option 2f’s

funneling feature had a racially discriminatory effect. Lewis’s statistical

evidence is stronger than that offered in Anderson, as it at least offers a glance

at the system-wide effects of Option 2f, but it suffers from many of the same

flaws identified in Chavez (e.g., nonrepresentativity and difficulty isolating the

operative factor). Many of the statistics are limited in scope (e.g., one year of

ACT and AP scores), and those that are not (e.g., SPS) do not clearly support

Lewis’s theory. 23 In addition, the statistical evidence of at-risk-population

figures is only inferentially related, at best, to the conditions at the East

Ascension feeder schools. Importantly, the district court observed that Lewis

offered no evidence of statistical significance at trial, 24 and he makes no

colorable argument to the contrary on appeal—nor, for that matter, does he cite

any case law in support of his contention that his evidence proved

discriminatory impact as a matter of law. Moreover, we agree with the district

court that the expert testimony of Dr. Bates was not specific enough to establish

discriminatory impact. Dr. Bates based his conclusions on general research

findings from other school districts and the findings of other experts, and failed

to evaluate the specific impact of Option 2f on the nonwhite population in the

23 Lewis makes much of the growing disparity between the SPS attained by East

Ascension, Dutchtown, and St. Amant. However, he fails to account for the recent change to

the SPS scale, so it is unclear to what extent the 14.3-point gap between East Ascension and

Dutchtown that prevailed in 2007–2008 differs from the 28.1-point gap between the schools

in 2012–2013.

24 “Statistical significance” refers to a showing that a numerical difference is unlikely

to be the product of chance. See Chavez, 251 F.3d at 642–43. Lewis could demonstrate

significance by showing, for example, that 1) East Ascension feeder zone performance

declined after the implementation of Option 2f, or that the gap between the East Ascension

feeder zone performance and other feeder zones’ performances has increased since the

implementation of Option 2f, and 2) that such performance variations were unlikely to be

caused by random fluctuations from year to year. See id.

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East Ascension feeder zone. This general evidence is insufficient to establish

discriminatory impact as a matter of law.

Lewis’s claim of legal error is similarly unavailing. It is true that the

district court’s discussion could be read to suggest that statistical evidence of

racial disparities cannot prove discriminatory effect absent evidence of

discriminatory purpose. Indeed, while explaining that “evidence of an increase

in the percentage of nonwhite and at-risk students at schools in the East

Ascension High School zone, without more, is insufficient to establish disparate

impact[,]” the district court cited portions of Feeney and Washington v. Davis,

426 U.S. 229 (1976), that indicate that a violation of equal protection cannot be

founded solely on disparate impact. This construction provides the impetus for

Lewis’s claim that “[t]he ‘more’ referenced by the Trial Court is ‘discriminatory

intent’ . . . [and] not additional ‘disparate impact.’” However, immediately after

making this pronouncement, the court proceeded to assess the remainder of

Lewis’s evidence of discriminatory effect and it ultimately held that Lewis failed

to carry his burden to prove a discriminatory impact. Accordingly, viewed in the

context of its entire discussion, the district court’s legal framework is sound, and

we affirm its determination on this dispositive issue.

C. Lewis’s Other Claims of Error

Lewis’s remaining arguments—that the district court erroneously failed

to consider his racial balancing and de jure segregation arguments—relate to

claims not properly before us. In the first appeal, this Court held that Lewis’s

claim of racial balancing or racial gerrymandering was not preserved. Lewis,

662 F.3d at 348 & n.11. The waiver doctrine barred the district court from

considering this claim anew on remand, and it bars this Court’s review now. See

Lindquist v. City of Pasadena, Tex., 669 F.3d 225, 239 (5th Cir. 2012) (“The

waiver doctrine holds that an issue that could have been but was not raised on

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appeal is forfeited and may not be revisited by the district court on remand. The

doctrine also prevents us from considering such an issue during a second

appeal.” (footnote and internal quotation marks omitted)). As for Lewis’s de jure

segregation claim, Lewis never advanced this theory of relief in the district

court, and he correspondingly cannot do so now. See, e.g., Leverette v. Louisville

Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999) (per curiam).

D. The Appropriate Level of Scrutiny

Although the district court did not announce the level of scrutiny it was

applying to Lewis’s equal protection claim, it may be inferred from the court’s

subsidiary rulings that it deemed rational basis review appropriate. When a

government action is facially race neutral and there is no proof of either

discriminatory purpose or discriminatory effect, that action is subject to rational

basis review. See Lewis, 662 F.3d at 348. On rational basis review, the burden

is on the challenger to rebut the “strong presumption of validity” accorded the

action and prove that the action is not rationally related to a legitimate

government purpose. Heller, 509 U.S. at 319–20. We agree with the district

court that rational basis review applies to the funneling aspect of Option 2f and

that the plan survives this limited scrutiny. Given that the Board has cited at

least one legitimate governmental purpose animating its adoption of Option 2f—

alleviating overcrowding in the Dutchtown feeder zone 25—and Lewis has made

no effort to “negative every conceivable basis which might support” the Board’s

action, id. at 320, we concur in the district court’s conclusion that rational basis

review is satisfied.

25 Our sister circuits have treated mitigating school overcrowding and optimizing

school utilization as legitimate government purposes. See Spurlock, 716 F.3d at 403; Lower

Merion, 665 F.3d at 557.

30

Case: 15-30030 Document: 00513274476 Page: 31 Date Filed: 11/17/2015

No. 15-30030

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment.

31