Darrin Lewis, Sr. v. Ascension Parish School Board

Case: 09-30971 Document: 00511654276 Page: 1 Date Filed: 11/03/2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

November 3, 2011

No. 09-30971 Lyle W. Cayce

Clerk

DARRIN KENNY LEWIS, SR., Individually and as Natural Tutor of His

Minor Children, A and B,

Plaintiff-Appellant

v.

ASCENSION PARISH SCHOOL BOARD,

Defendant-Appellee

Appeal from the United States District Court

for the Middle District of Louisiana

Before JONES, Chief Judge, and KING and HAYNES, Circuit Judges.

PER CURIAM:

In this equal protection case, Darrin Lewis appeals from a grant of

summary judgment in favor of the Ascension Parish School Board in Louisiana.

The district court rejected Lewis’s claim that the School Board’s student

assignment plan, formulated to address school population changes while

“maintaining the district’s unitary status,” was impermissibly race-based and

discriminatory against minority elementary, middle, and high school students

zoned for East Ascension High School. We affirm in part, reverse in part and

remand. Under the state of this record, we cannot determine whether the

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No. 09-30971

district’s plan must be subjected to strict or rational basis scrutiny. Further

factual development is required.

Background

The Ascension Parish School District operates four high schools in

Southeast Louisiana—Donaldsonville High School on the west bank of the

Mississippi River,1 and East Ascension High School, Dutchtown High School,

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.2 The District was thereafter able to assign students within

the school district as necessary pursuant to its authority under Louisiana

Revised Statute § 17:81, but the District maintained its pre-unitary status feeder

plan.

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

School feeder school, rose to over 1,000 students and caused severe

overcrowding. No other East Bank middle school had more than 730 students

enrolled. Consequently, the District’s “Growth Impact Committee” was charged

with developing a plan that would “address the growth with minimal impact on

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

“attain enrollment maximums” established for the elementary, middle, and high

1

Student assignments to Donaldsonville High School are not at issue in this appeal.

2

See Charles v. Ascension Parish Sch. Bd., Civil Action No. 65-3257 (M.D. La.).

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school levels; and “maintain unitary status.” Superintendent Donald Songy and

district staff also began exploring various re-zoning options. According to

Superintendent 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.

Scott Duplechein, the “demographics application specialist” with the

District’s Construction and Planning Department, originally prepared three

alternative plans—Options 1, 2, and 3—using enrollment data from the

District’s “Edulog” software. According to Superintendent Songy, Edulog was

used to “geographically code all students actually enrolled in the school system

based on their physical residential addresses and to project the statistical effects

of various rezoning options.” From input during public hearings held by the

Growth Impact Committee, the District also considered Options 2c, 2d, 2e,

2f—variations on Option 2—and a “Prairieville Option,”3 all of which were

formulated based upon Edulog data provided by Duplechein. Ultimately, the

Ascension Parish School Board, which governs the District, narrowed its

consideration down to Options 1, 2, 2f, and 3.

Summarizing Duplechein’s proposals, Superintendent Songy put together

a document entitled “Statistical Analysis of Options 1, 2, 2f and 3" and presented

it to the School Board for consideration. The document 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

3

School Board member and Growth Impact Committee chairman Troy Gautreau gave

a PowerPoint presentation to members of the public some time in 2007, detailing a “Duplessis

Feeder Option” and a “Prairieville Feeder Option.” According to Superintendent Songy, the

“Duplessis Feeder Option” referred to Option 2 and the “Prairieville Feeder Option” referred

to Option 3. Later, the District simultaneously considered both a “Prairieville Option” and an

“Option 3," so it appears that Gautreau’s “Prairieville Feeder Option” and the subsequently-

considered “Prairieville Option” refer to two different plans.

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

under each of the four options.4 These data were generated from Edulog.

At its January 15, 2008 meeting, School Board member Troy 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.” The School Board

thereafter voted to adopt Option 2f. Option 2f moved Duplessis Primary from

the Dutchtown feeder zone to the East Ascension feeder zone, assigned two

brand new primary schools to each of the high school feeder zones, and re-drew

attendance zones so that students from the Dutchtown feeder zone and the St.

Amant feeder zone were moved to the East Ascension feeder zone.

Procedural History

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

black schoolchildren assigned to East Ascension’s feeder zone both pre- and post-

Option 2f, filed this suit against the Appellee School Board in Louisiana state

court. Individually and on behalf of children “A” and “B,” Lewis brought, inter

alia, a 42 U.S.C. § 1983 action for violations of his children’s Fourteenth

Amendment rights to equal protection.5 Lewis claimed that the School Board’s

4

Before narrowing its options to 1, 2, 2f, and 3, the District had similarly compiled a

document listing the projected minority and at-risk student percentages in each feeder zone

under Options 2c, 2d, 2e, 2f, 3, and the Prairieville Option. Gautreau’s presentation of the

Duplessis and Prairieville Options (i.e., original Options 2 and 3), which emphasized

“[m]aintain[ing] our Unitary Status with the Department of Justice,” also compared each

plan’s projected effect on the percentages of black and white students and the percentages of

at-risk students who would attend each affected school.

5

Lewis’s real property value diminution, Voting Rights Act, First Amendment free

association, Title IX, and state law tort claims are not at issue in this appeal.

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“actions since the construction of Dutchtown High School6 and in the adoption

of Plan 2f were taken to ensure that East Ascension High School [and its feeder

schools] would maintain a disproportionately large non-white minority

population, leaving the remaining two East Bank schools as predominantly

white.” He further alleged that, because Option 2f placed a disproportionate

number of at-risk students7 in the East Ascension feeder zone, Option 2f “would

ensure that the non-white 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.”8 Lewis does not suggest that at-risk students

are a suspect class for equal protection purposes. His claim is that minority

students are being discriminated against based upon their race by a

disproportionate influx of at-risk students into their schools.

The School Board removed the action to federal court and filed a motion

to dismiss or for summary judgment. Lewis responded but did not cross-move

for summary judgment. The district court adopted the magistrate judge’s Report

6

Before Option 2f, the feeder plan was last modified in 2002, when Dutchtown High

School opened to address population growth in the Dutchtown area of East Ascension Parish.

7

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

disadvantaged socioeconomic status.

8

Lewis supports this claim with evidence that children who attend schools with high

levels of low income students are at risk of low achievement regardless of their academic

potential. As confirmation, he points to the School Performance Score data of each of the three

feeder systems and notes that the schools in East Ascension’s feeder zone, whose student

populations have the highest levels of at-risk students, consistently score much lower than the

schools in St. Amant’s and Dutchtown’s feeder zones. The magistrate judge dismissed these

data as covering the years 2000-2007, but pre-Option 2f evidence that schools with high

percentages of at-risk students suffered academically is relevant to the contention that Lewis’s

children will be damaged as a result of Option 2f’s concentration of at-risk students in the East

Ascension feeder zone. We need not and do not here find that higher percentages of at-risk

students negatively impact the learning experience of the remaining students or the school

environment as a whole. We recognize that there are high-achieving low-income students and

low-achieving high-income students. We conclude only that Lewis has so stated and provided

a plausible basis for considering this claim.

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and Recommendation to grant the motion. Relevant to this appeal, the

magistrate judge found that Lewis lacked standing to pursue claims on behalf

of child A but did have standing as to child B. Further, the court found that,

though Lewis’s § 1983 claims based upon Option 2f’s implementation were

timely, his claims based upon the 2002 modification of the District’s feeder plan9

were prescribed. Finally, the court refused to apply strict scrutiny to the

District’s adoption of Option 2f. The court found the plan facially race neutral

and that Lewis had not presented competent evidence of discriminatory motive

by the School Board or disparate impact resulting from Option 2f. The

magistrate judge determined that Option 2f satisfied rational basis review

because the District had a legitimate government interest in alleviating school

overcrowding. Lewis appeals.

Standard of Review

The operative pleading was styled a “Motion to Dismiss and/or for

Summary Judgment.” The district court considered evidence outside the

pleadings in granting the School Board’s motion and treated it as a motion for

summary judgment. “This court reviews the summary judgment de novo,

applying the same standards as the district court.” DePree v. Saunders, 588 F.3d

282, 286 (5th Cir. 2009) (citation omitted). Summary judgment is appropriate

if “the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that

the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c).

“On review of a grant of summary judgment, all facts and inferences must be

construed in the light most favorable to the non-movant.” E.E.O.C. v. Agro

Distrib., LLC, 555 F.3d 462, 469 (5th Cir. 2009) (citation omitted).

9

Supra, n.6.

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Discussion

We address each appealed issue—standing as to child A, prescription of

Lewis’s claims based upon the 2002 feeder plan modification, and whether

Option 2f violates the Fourteenth Amendment’s equal protection clause—in

turn.

A. Standing

The magistrate judge held that Lewis lacked standing to pursue claims on

behalf of child A because, while Lewis produced a judgment and letters of

tutorship indicating that he was confirmed as child A’s natural tutor on June 2,

2009, he presented no evidence that he was child A’s tutor at the time suit was

filed on March 14, 2008.

We note that child A indisputably has standing as the party affected by

the alleged wrongful redistricting. See Lujan v. Defenders of Wildlife, 504 U.S.

555, 571, 112 S. Ct. 2130, 2142 n.5 (1992). The problem is that child A, as a

minor, lacks capacity to sue under Article 683 of the Louisiana Code of Civil

Procedure. La. Code Civ. Pro. 683 (“An unemancipated minor does not have the

procedural capacity to sue.”). Unlike standing, the lack of which cannot be

waived or cured, capacity to sue can be cured. Fed. Rule Civ. Pro. 17(c). See 6A

WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE (2010) § 1570, at

676 (“Defects in the appointment of a guardian under Rule 17(c) are not

jurisdictional . . . especially when timely objection to the defective appointment

would have permitted the mistake to be cured.”); Cf. Scott v. Jack’s Cookie Co.,

413 So. 2d 1334 (La. App. 1982) (remanded to allow parent to cure capacity

defect). Because we remand on other grounds, we vacate the district court’s

ruling on this matter and remand for consideration by the district court in the

first instance as to whether to permit Lewis to cure his defective allegations of

capacity. No one disputes that Lewis has standing (and capacity) to pursue

equal protection claims on behalf of child B.

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B. Prescription of 2002 Feeder Plan Modification Claim

The magistrate judge found that Lewis’s equal protection claims based

upon the School Board’s 2002 modification of its feeder plan were prescribed

under the one-year statute of limitations applicable to § 1983 claims in

Louisiana.10 The court rejected Lewis’s “continuing violation” theory, noting the

requirement that Lewis show a “series of related acts, one or more of which falls

within the limitations period.” The court found that Lewis had presented no

evidence that Option 2f, which fell within the limitations period, was related to

the 2002 modification of the District’s feeder system such that the latter claims

survived prescription.

On appeal, Lewis has abandoned his continuing violation argument.

Instead, he argues that he was not, nor should he have been, aware of the facts

necessary to assert his claim based on the 2002 modification until public

hearings were held in the summer or early fall of 2007. This argument is waived

because it was not presented to the magistrate judge, see Cupit v. Whitley,

28 F.3d 532, 535 n.5 (5th Cir. 1994), and, alternatively, it fails on the merits.

Lewis asserts that not until the 2007 hearings were data provided to the public

regarding the 2002 modification’s allocation of minorities and at-risk students

to the East Ascension feeder zone. Nothing in the record supports that

proposition. The district court correctly held that the 2002 feeder plan

modification claims are time-barred.

C. Option 2f Equal Protection Claim

To assess the constitutionality of the district's Option 2f districting, one

must first understand Lewis's challenge to the plan. This opinion and the

dissent agree that Lewis alleges minority students in the East Ascension feeder

system were denied equal opportunity by the assignment of a disproportionate

10

See Bourdais v. New Orleans City, 485 F.3d 294, 298 (5th Cir. 2007).

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number of at-risk students to that system.11 Such assignments allegedly

resulted in a denial of equal educational opportunities to children in East

Ascension comparable to those available in the Dutchtown or St. Amant high

schools. Lewis also contends that Option 2f is automatically subject to strict

scrutiny because it employs racial classifications and, alternatively, that he

produced sufficient evidence that the Board had a discriminatory motive in

assigning a disproportionate number of at-risk students to East Ascension, with

corresponding evidence of disparate results.

In assessing Fourteenth Amendment equal protection challenges, the

Supreme Court holds that “[a]ll racial classifications imposed by the government

‘must be analyzed by a reviewing court under strict scrutiny.’” Grutter v.

Bollinger, 539 U.S. 306, 326, 123 S. Ct. 2325, 2337 (2003) (quoting Adarand

Constructors, Inc., v. Pena, 515 U.S. 200, 227, 115 S. Ct. 2097, 2113 (1995). This

is because a “racial classification, regardless of purported motivation, is

presumptively invalid and can be upheld only upon an extraordinary

justification.” Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 272, 99 S. Ct. 2282,

2292 (1979) (citations omitted). 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.” Id. at 272,

99 S. Ct. at 2292–93 (citations omitted).

If the government is found to have acted with a discriminatory purpose ,

strict scrutiny review places the burden on the government to prove that its

actions are narrowly tailored to achieve a compelling government interest. See

Gratz v. Bollinger, 539 U.S. 244, 270, 123 S. Ct. 2411, 2427 (2003). Absent a

discriminatory purpose, its action is reviewed under the rational basis test.

11

Chief Judge Jones's special concurrence contends that Lewis has also maintained a

claim for "racial balancing" of the attendance zones based on the district's intent to preserve

the same "demographics" in each feeder system that existed when the district was declared

unitary. The other panel members disagree that this argument is preserved.

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The magistrate judge here found that because Option 2f is “race neutral”

on its face, the critical questions are (1) whether the school board intended to

discriminate racially and (2) whether the plan had racially disparate effects.

Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040 (1976). In this context, an

allegation that the Board knew there would be a disproportionate impact in the

re-zoning is “only relevant to the extent that it ‘reflects a discriminatory

purpose.’” Ricketts v. City of Columbia, 36 F.3d 775, 781 (8th Cir. 1994),

(quoting Davis, 426 US at 239). A discriminatory purpose, however, requires

more than a mere “awareness of consequences.” Feeney, 442 U.S. at 279,

99 S. Ct. at 2296.

Immediately following her recognition of these general principles, the

magistrate judge referred to evidence in the record that the Board members and

administrators all acted under the apprehension that “the reassignment option

chosen could not upset the unitary status of those high schools.” The magistrate

judge goes on:

Thus, it appears that, although the race of reassigned students was

one of the factors considered when Option 2f was adopted, that

factor was considered 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 designed to allocate a

‘disproportionate number’ of African-American students to the East

Ascension school zone. (Emphasis added).

The court accordingly rejected the application of strict scrutiny to Option

2f because it "does not explicitly employ racial classifications" and the plan

assigns students to schools based on their "geographical location."

We find the court's analysis troubling for two reasons. 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. Second, the court's

assumption that it might be justifiable to use racially-based decisions for the

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"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 in Community Schools v. Seattle Sch. Dist. No. 1, 551 US 701,

127 S. Ct. 2738 (2007).12 In Parents Involved, the Court required strict scrutiny

review for a racially-based student assignment decision in a Kentucky school

district that had been declared unitary. The Court held that preserving the

district's unitary status by means of racially-based assignments, albeit a

"benign" racial motive, was nevertheless constitutionally impermissible. Parents

Involved, 551 U.S. at 721, 127 S. Ct. at 2752. We need not parse Parents

Involved further here, as we conclude that the following evidence created a

genuine issue of material fact whether the Board acted with a racially

discriminatory motive.

Superintendent Songy compiled, and the School Board considered,

documentation detailing the percentage of black students that would be enrolled

at each East Bank school under Option 2f. The data were generated from

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

effects” of Option 2f’s boundary adjustments. 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 School Board insists that

the Statistical Analysis underlying Option 2f—submitted by Lewis in opposition

to summary judgment—does not constitute Option 2f itself. But to accept that

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

12

To support its conclusion, the court actually relies on cases that all predate the

Parents Involved decision. Anderson ex rel. Dowd v. City of Boston, 375 F.3d 71 (1st Cir. 2004).

See also McDaniel v. Barressi, 402 U.S. 39, 41, 91 S. Ct. 1287, 1288 (1971); Tometz v. Bd. of

Ed. Waukegan City Sch. Dist. No. 61, 39 Ill.2d 593, 597–98, 237 N.E.2d 498, 501 (1968);

Offermann v. Nitkowski, 378 F.2d 22, 24 (2d Cir. 1967); Deal v. Cincinnati Bd. of Ed., 369 F.2d

55, 61 (6th Cir. 1966); Springfield Sch. Comm. v. Barksdale, 348 F.2d 261, 266 (1st Cir. 1965);

Penn. Human Relations Comm’n v. Chester Sch. Dist., 427 Pa. 157, 164, 233 A.2d 290, 294

(1967); Booker v. Bd. of Ed. of Plainfield, Union Cty., 45 N.J. 161, 170–71, 212 A.2d 1, 6 (1965);

Jackson v. Pasadena City Sch. Dist., 59 Cal.2d 876, 881–82, 382 P.2d 878, 881–82 (1963).

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

those documents its “plan.”13 We decline to so elevate form over substance,

especially where we are obliged to construe all facts in the light most favorable

to Lewis and reject conclusory allegations in support of a motion for summary

judgment. See Brock v. Chevron U.S.A., Inc., 976 F.2d 969, 970 (5th Cir. 1992).

The following testimony also suggests that the District relied upon the

race of the individual students residing in different geographic locations when

it re-zoned its schools:

1. Deposition of Superintendent Donald Songy - “We had to

make sure that in doing this, we did not, by this move,

increase the minority, the black percentage at East Ascension

High School . . . in all the plans we developed, we made sure

that the move of the students did not increase that

percentage.”

2. Deposition of School Board Member Ed Price - “[O]ur

demographer started looking at the numbers, we wanted to

see how we could best relieve overcrowding at Dutchtown

High School and, of course, we looked at the majority and the

minorities and see where we could best pull kids away in

order to achieve that without basically upsetting the populace

to where we could put more, you know, minority kids and

majority kids and things like that.”

3. Deposition of School Board Member Jody Elisar - “ . . . when

Troy [Gautreau] came up to me, he said, well, what about if

we go south of I-10 into the Pelican Point area. I said, Troy,

I understand we’re trying to get numbers that are sending

white people to East Ascension because that’s what he wanted

to talk about. . . . He said, well, can I just run the numbers

with Scott [Duplechein]. I said, absolutely. But I knew in

13

That is precisely what the District has done here. The School Board states that

“Option 2f consists of a flow chart setting out the feeder plan, a set of written descriptions of

the attendance zone lines by street boundaries, and a set of maps showing the geographical

boundaries of the attendance zones” and directs this court to the School Board’s record exhibit

K, which conveniently excludes the document displaying the statistical analysis of Option 2f.

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Pelican Point that there were a lot of African-Americans . . .

.”

4. Deposition of School Board Member Catherine Davis -“Q: . .

. the percentage of black[s] . . . at certain schools? Was that

an issue? . . . A: Had to be because there were different plans.

Q: So that was really the only difference between the plans,

really, was the percentages of - - A: Well, that would make up

the plans, right? Q: Right. It was where these minorities

were going . . . correct? A: The plan showed where students

went. Q: And those students had labels attached to them

such as - - A: Unfortunately, yes.”

5. Deposition of School Board Member Harold Jarreau - “Q:

Now, you said it’s important for you to see the black, white

minority ratios, yes? A: You have to try and - - you have to try

and consider those numbers when you make the move, yeah.”

In addition to the referenced deposition testimony and affidavits from the

Superintendent and School Board members, the record contains an excerpt from

the District’s website, posted on November 9, 2007, but later removed, to provide

the public with re-districting information. In it, the School Board indicated that

“Students who are currently in the Dutchtown High School feeder line may be

bused to the East Ascension High School feeder line to alter the racial balance.

. . . We are simply trying to balance the demograph[ics] of East Ascension.”

Notwithstanding this body of evidence, the magistrate judge found that

“only” 339 students, in a district population of 18,000, were affected by Option

2f. In 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.

There are also material questions whether strict scrutiny must apply

because evidence viewed in the light most favorable to Lewis supports Lewis’s

contention that Option 2f was discriminatory in effect.

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The magistrate judge determined that Option 2f neither has nor will result

in a disparate impact on the basis of race. The court’s findings were based on a

statistical analysis of Option 2f’s impact on the three East Bank high schools.14

Lewis, however, also alleges a disparate impact upon the East Ascension feeder

system. The evidence shows that Option 2f effected an increase from 46% to 49%

in the East Ascension feeder system’s percentage of the total number of minority

students in the District, while the Dutchtown feeder system’s percentage

decreased from 37% to 33%, and the St. Amant feeder system’s percentage

remained at 18%. The East Ascension feeder system’s percentage of the total

number of at-risk students in the District rose from 40% to 43%, while the

Dutchtown feeder system’s percentage decreased from 27% to 25%, and the St.

Amant feeder system’s percentage remained at 32%. These effects occurred even

though only 29% of the East Bank student population was enrolled in the East

Ascension feeder system, compared to 37% in the Dutchtown feeder system and

34% in the St. Amant feeder system.

14

After Option 2f’s implementation, during the 2008–09 school year, East Ascension

High School shifted from 41% minority students to 42.2% (and from 34.9% black students to

33.9%), Dutchtown High School shifted from 23.3% minority students to 24.1% (and from

19.6% black students to 20.1%), and St. Amant High School shifted from 11.9% minority

students to 14.1% (and from 10.3% black students to 12.6%). Thus, Option 2f effected

approximately a 1 to 3 percentage increase in minority population at each of the three high

schools, with the largest percentage increase at St. Amant, and a decrease in the percentage

of black students at East Ascension. As before Option 2f, East Ascension continued to have

approximately twice the percentage of minority students as Dutchtown and three times the

percentage of minority students as St. Amant. These percentages seem to reflect the success

of the Board’s effort to maintain each school’s pre-existing racial balance.

After Option 2f, East Ascension High School shifted from 40% at-risk students to 44%,

Dutchtown High School shifted from 18% at-risk students to 20%, and St. Amant High School

shifted from 24% at-risk students to 28%, a 2 to 4 percentage increase at each of the three

schools with East Ascension and St. Amant experiencing the same percentage increase. As

was the case before Option 2f, East Ascension continued to have slightly more than twice the

percentage of at-risk students as Dutchtown and slightly less than twice the percentage of at-

risk students as St. Amant.

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Importantly, the only school that Option 2f realigned to a different feeder

zone, Duplessis Primary, was projected to shift from 38% at-risk in the 2007–08

school year to 43% at-risk in the 2008–09 school year, thereby becoming a Title

I-designated school.15 Option 2f moved Duplessis Primary from Dutchtown’s

feeder zone to East Ascension’s feeder zone, thereby ensuring that all of the

schools in the East Ascension feeder zone would continue to be Title I-designated

and that none of the schools in Dutchtown’s feeder zone would be so designated.

These statistics provide some support for Lewis’s contention that Option 2f

disproportionately funneled minorities and at-risk students into the East

Ascension feeder zone, thereby discriminating against minorities whose

educational environments suffer from disadvantages allegedly attributable to

high levels of at-risk children.

Because factual questions exist as to whether Option 2f had both a racially

discriminatory motive and a disparate impact, and the court misapprehended

the significance of the evidence before it, the court erred in awarding summary

judgment under a rational basis test.

Conclusion

No doubt the district had a responsibility to address overcrowding in

Dutchtown High School. It could not, however, do so by assigning individual

students among the schools based upon disadvantaging one race over another

in the assignment of at-risk students, even if the motive in doing so is the

“benign” motive of “maintaining unitary status.” The standard of review,

whether strict scrutiny or rational basis, turns on the factual questions of

discriminatory motive and impact. Therefore, the judgment of the district court

is AFFIRMED insofar as it found Lewis’s claim against the 2002 Feeder

15

Schools with a Title I designation are those in which low-income children (i.e., “at-

risk”) make up at least 40% of the enrollment. These schools are eligible for certain federal

funds.

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No. 09-30971

Modification plan barred by prescription; otherwise, the judgment, including its

denial of “standing” for Lewis as to Child A, is REVERSED and REMANDED,

AFFIRMED in PART, REVERSED and REMANDED in PART, for further

proceedings.

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No. 09-30971

EDITH H. JONES, Chief Judge, concurring:

While I concur in the majority opinion, I believe that Appellant Lewis

pursues an additional equal protection claim that we must consider. He

challenges the school district's racial gerrymandering of attendance zones to

maintain almost the exact racial balance that prevailed in the schools before the

district was declared unitary. Indeed, the district court seems to have accepted

that this "benign" motive for racial assignments is legally acceptable because the

district judge evaluated it on the standard of rational basis review. Without

expressing an opinion on what a fully developed evidentiary record might show,

I believe we ought to confirm that race-based student assignments undertaken

"to preserve unitary status," like other racially motivated government actions,

presumptively violate the equal protection clause. Then we must remand this

issue for trial.

A. Lewis preserved the "racial gerrymandering" argument.

My colleagues limit Lewis's claim to that portrayed in the majority

opinion, a claim contesting the disproportionate assignment of at-risk students

to the East Ascension feeder system by means of race conscious redistricting.

But Lewis also clearly asserted that, by itself, "race was a factor in the creation

of the new high school districts." That is, he contended that race-based zoning,

even if "facially neutral" and independent of its effects, is unconstitutional. His

brief states the issue "whether the District court erred in...concluding...despite

competent evidence presented...that race was a factor, that Defendant did not

have the requisite intent and that a disproportionate impact did not occur . . . ."

Lewis asserted that the Board's "actions since...the adoption of Plan 2f were

taken to ensure that East Ascension High School [and its feeder system] would

maintain a disproportionately large non-white minority population, leaving the

remaining two East Bank schools as predominantly white."

I disagree that vague statements made at oral argument waived this

claim. Judge King's opinion asserts, for example, that waiver arises from the

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No. 09-30971

assertion that Lewis's claim does not rest on "the number/percentage of minority

students being transferred [to] East Ascension," and the district court

"incorrectly assumed that Plaintiff based his cause of action on an increase in

the minority population at EAHS." Statements like these simply clarify,

correctly, that the appellant does not believe a magic number or percentage of

minority students is per se violative of equal protection. What matters is the

government's intentional use of racial classifications. Lewis states flatly later

in his reply brief that "the actions of racial balancing by the [District] are

unconstitutional." This is an issue we cannot avoid.

Finally, it seems to me conclusive that the District's brief describes at

length why, in its view, Lewis's claim is not governed by the Parents Involved

decision of the Supreme Court. The interpretation of Parents Involved is the

crux of Lewis's contention that the racial balancing of the feeder school lines

serving East Ascension is unconstitutional. This is an issue we cannot avoid.

B. It is unconstitutional to engage in "racial balancing" in post-

unitary status schools for the purpose of maintaining pre-unitary

status ratios of minority and non-minority students.

I preface these comments with a disclaimer that we do not know, at this

stage of litigation, that the Board members and administrators who testified

that they were concerned with preserving the district's unitary status actually

revised the district lines in a racially conscious way to maintain pre-unitary

percentages of minority and non-minority students in the schools. We know,

however, that such a racial balance was the outcome of the process. A trial on

the merits would determine the degree of correspondence between the Board's

intent and the result achieved.

The essential problem with the Board's argument is the contention, shared

by the magistrate judge and the district court, that maintaining the "racial

balance" extant when unitary status was declared is NOT an unconstitutional

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use of race and thus may be analyzed under the rational basis standard for equal

protection claims. A further problem is the misperception that when the desired

racial balance is achieved by geographical lines, rather than assignment of

specific students of certain races, the action is "facially neutral" and thus also

subject to no more than rational basis scrutiny. These errors must be corrected.

In Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701,

127 S. Ct. 2738 (2007), the Supreme Court required strict scrutiny review of a

race-based student assignment decision in a Kentucky school district that had

been declared unitary. The Court held that the district's unitary status

conferred no discretion, much less an obligation, on the district to continue to

assign individual students based on racial criteria. Id. at 721, 127 S. Ct. at 2752.

It seems clear following Parents Involved that, if the Board deliberately aimed

at racial balancing as a device to maintain unitary status, this motivation must

be tested under strict scrutiny.

The Board distinguishes Parents Involved on three bases. First, it relies

on cases which all predate Parents Involved, (see n.__supra in majority opinion),

and principally analogizes to Anderson ex rel. Dowd v. City of Boston, 375 F.3d

71 (1st Cir. 2004). In Anderson, however, the post-unitary district plan removed

any racial consideration in school attendance in favor of a 100% "walk zone"

preference and adhered to racial diversity merely as a desideratum.

Fortuitously, the district's entirely race-neutral plan was estimated to result in

approximately the same population diversity in the schools as had existed in a

race-conscious, and unconstitutional, Old Plan. Anderson, 375 F.3d at 85. The

Anderson court found the New Plan facially race-neutral for these reasons,

noting that it would not "hesitate to apply strict scrutiny review" if the plan had

employed "racial classifications for the distribution of benefits...." Id.

Here, in contrast to Anderson, it is arguable that the Ascension Parish

district required its statisticians to draft attendance zone boundaries that would

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No. 09-30971

preserve a precise racial balance among the high schools. The boundaries are

only race-neutral because streets are not people. Streets, though, may well be

racial proxies because the district or its agents apparently knew and used the

racial composition of the people living on those streets to pursue racial

balancing.

Appellee next distinguishes Parents Involved as involving only individual

student assignments. The magistrate judge concurs: "By contrast, Option 2f,

on its face, does not indicate that Dutchtown students were reassigned to the

East Ascension school zone based upon their race. Instead, the reassignment

was based upon the geographical location of their residences." That the

boundaries are "facially race-neutral," however, does not necessarily insulate

them from strict scrutiny review. In cases challenging legislative redistricting,

the use of racial data to formulate districts can evidence discrimination. See,

e.g., Bush v. Vera, 517 U.S. 952, 968, 116 S. Ct. 1941, 1953, 1958 (1996). To

allow a school district to use geography as a virtually admitted proxy for race,

and then claim that strict scrutiny is inapplicable because "Option 2f designated

geographical lines for student assignment with no mention of race" is

inconsistent with the Supreme Court's holdings. See also Hunt v. Cromartie,

526 U.S. 541, 119 S. Ct. 1545 (1999). Moreover, the Court has condemned racial

balancing, however accomplished, when it is undertaken "to assure...some

specified percentage of a particular group merely because of its race or ethnic

origin." Grutter v. Bollinger, 539 U.S. 306, 329-30, 123 S. Ct. 2325, 2339 (2003)

(quoting Regents of U. of Cal. v. Bakke, 438 U.S. 265, 307, 98 S. Ct. 2733

(1978)(opinion of Powell, J.).

The third, and most plausible, ground for distinguishing Parents Involved

is that Justice Kennedy, who provided the fifth vote for the judgment, refused

to accept the plurality opinion's rejection of all race-based classifications and

noted instead that school boards may pursue

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the goal of bringing together students of diverse backgrounds and

races through other means, including strategic site selection of new

schools; drawing attendance zones with general recognition of the

demographics of neighborhoods . . . . These mechanisms are race

conscious but do not lead to different treatment based on a

classification that tells each student he or she is to be defined by

race, so it is unlikely any of them would demand strict scrutiny to

be found permissible. See Bush v. Vera . . . .

551 U.S. at 789, 127 S. Ct. at 2792 (Kennedy, J., concurring) (internal quotation

omitted). As one commentator put it, Justice Kennedy's controlling opinion

approves the possibility of a school board’s adopting generic measures to increase

racial diversity in primary and secondary schools. Michelle Renee Shamblin,

Silencing Chicken Little: Options for School Districts After Parents Involved,

69 La. L. Rev. 219 (2008).

That Justice Kennedy adopted a middle-ground position does not render

irrelevant the factual issue raised here. The Justice suggests strict scrutiny

review would be "unlikely" if a school board adopts race-conscious boundary lines

in order to support diverse K-12 student populations. Parents Involved in Cmty.

Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 127 S. Ct. 2738 (2007). But the

district here does not argue that its re-zoning decisions had anything to do with

an interest in fostering diversity as envisioned by Justice Kennedy. He also cites

a plurality statement in Bush v. Vera expressing the view that, because electoral

district lines are "facially neutral," a "searching inquiry" is required to determine

whether strict scrutiny governs constitutional review. Id.1 These distinctions,

plus his dichotomy between "general" race-conscious measures and individual

1

One goal of Option 2f, eliminating overcrowding in the Dutchtown feeder system, is

race neutral, but the law "does not require a plaintiff to prove that the challenged action rested

solely on racially discriminatory purposes. Rarely can it be said that a legislature or

administrative body operating under a broad mandate made a decision motivated solely by a

single concern...." Village of Arlington Heights v. Metro. Hous. Dev. Corp., 428 U.S. 252, 265,

97 S. Ct. 555, 563 (1977).

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racial stereotyping of students, emphasize the fact-intensive nature of the

inquiry that must be made here. Compare, Friends of Lake View Sch. Dist. v.

Beebe, 578 F.3d 753, 761 (8th Cir. 2009) (facially neutral school closing statute

judged by rational basis in absence of any allegations of racial motive).

Perhaps most pertinent to this case, Justice Kennedy's concurrence adopts

the clear statement in Parents Involved that once a school district formerly

under a desegregation decree has been declared unitary, "[a]ny continued use of

race must be justified on some other basis," 551 U.S. at 721, 127 S. Ct. at 2752.

If the Ascension Parish Board used geographic lines as a proxy for racial

balancing to "maintain unitary status," the plan is explicitly race-based, and the

Board's actions fly in the face of Parents Involved and require strict scrutiny

review.

For these reasons, I would vacate the district court's decision and remand

for a trial to determine whether the Board's redistricting effected racial

balancing impermissible under strict scrutiny review, even if it occurred for the

"benign" but wholly misguided purpose of maintaining the district's unitary

status.

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KING, Circuit Judge, concurring in part and dissenting in part:

In reversing the district court’s grant of summary judgment, the majority

creates a fact issue where none exists. Plaintiff Darrin Kenny Lewis’s only claim

on appeal is that the Ascension Parish School Board allocated a

disproportionately large number of at-risk students to East Ascension High

School and its feeder schools, which adversely impacted the education of

minority children at those predominately minority schools. Lewis, however,

failed to present any evidence that the Board intended to discriminate against

minority students by placing too many at-risk students in their schools. Because

Option 2f, the student assignment plan at issue in this appeal, is facially race

neutral and there is no evidence that the Board adopted Option 2f with the

intent to discriminate against minorities by targeting their schools with an

influx of at-risk students, Lewis’s claim was properly assessed under a rational

basis analysis. Lewis failed to present evidence that the Board acted arbitrarily

or irrationally, and thus I would affirm the judgment of the district court

dismissing Lewis’s claim. I respectfully dissent from the majority’s decision to

remand this case for further fact-finding on the Board’s intent in adopting

Option 2f and on whether Option 2f had a racially disparate impact.1

Although the only relevant evidence of discriminatory intent would pertain

to the desire to discriminate against minorities by sending at-risk children to

their schools, the majority finds a fact issue regarding intent based on evidence

indicating (1) that the Board did not want to disturb the district’s unitary status

while addressing the problem of overcrowding and (2) that the Board was aware

of the effects Option 2f would likely have on racial demographics and the number

of at-risk students assigned to various schools within the district. The desire to

1

I agree with the majority’s handling of the issue regarding Lewis’s capacity to sue on

behalf of Child A. I also agree that Lewis’s claims related to the redistricting that occurred

in 2002 are barred by the statute of limitations.

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maintain unitary status, however, speaks to the racial composition of schools

within the district, not the assignment of at-risk students to schools. Thus, this

evidence does not pertain to Lewis’s sole claim on appeal. Furthermore, the

Supreme Court has been absolutely clear that mere awareness of consequences

is insufficient to demonstrate discriminatory intent. Thus, the evidence relied

upon by the majority is either unrelated to Lewis’s claim or insufficient to

establish it.

In reaching its decision, the majority engages in additional problematic

analysis that has potentially far-reaching consequences and threatens to require

the application of strict scrutiny to actions taken with a mere awareness of their

effects on racial demographics. The majority suggests that Option 2f classifies

students by race because a statistical analysis predicting the impact of Option

2f (and, for that matter, all the other options under consideration) tracked the

number of African American and at-risk students expected to attend various

schools within the district. However, under Option 2f, the determination of

which school a student will attend depends only on where the student lives—not

on the student’s race. Taking the race of individual students into account when

compiling statistics about the probable effects of Option 2f is something very

different from assigning individual students to particular schools based on their

race. This is a very important distinction, and it is one that the majority fails

to make. The majority’s expansive take on what constitutes a racial

classification likely functions as a push toward the application of strict scrutiny

to any governmental action taken with an awareness of its consequences on

racial demographics—information often available to decisionmakers in many

contexts. Requiring the application of strict scrutiny in such a broad range of

circumstances, however, is at odds with Supreme Court precedent holding that

discriminatory intent must be shown for strict scrutiny to apply to facially race-

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neutral acts and that mere awareness of consequences is not enough to

demonstrate discriminatory intent.

Chief Judge Jones’s concurrence also asserts that Option 2f employs

explicit racial classifications, arguing that geography functions as a proxy for

race in Option 2f. Whether the Board used geography as a proxy for race,

however, is not related to what Option 2f says on its face. An explicit

classification must be just that—explicit. Determining whether the Board

sought to classify students based on their race and did so using geographical

lines as pretext involves analysis of the Board’s intent and has no bearing on

Option 2f’s express terms. That Option 2f is facially race neutral is, in my view,

beyond dispute.

The attempts of both the majority and concurring opinions to describe

Option 2f as employing explicit racial classifications seem to be geared toward

extending the reach of the Supreme Court’s decision in Parents Involved in

Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007), to

decisions involving the mere awareness of an act’s probable effects on racial

demographics. The majority and concurring opinions also seem to push for the

application of strict scrutiny to student assignment plans merely because

decisionmakers show some desire not to upset a school district’s unitary status.

However, if the court were to confine itself to the case before it, the case would

not provide an appropriate platform to further either of these ends.

In Parents Involved, the Court held that student assignment plans using

express racial classifications were not sufficiently narrowly tailored to withstand

strict scrutiny. The holding in Parents Involved pertains only to plans using

explicit racial classifications, and Option 2f is facially race neutral.

Consequently, Parents Involved does not bear directly on the case before us, and

the suggestions to the contrary in the majority and concurring opinions

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inappropriately seek to extend the reach of Parents Involved and the

applicability of strict scrutiny.

To be clear, although in the district court Lewis at one time asserted a

claim that the Board impermissibly re-assigned too many minority students to

attend East Ascension and its feeder schools, he expressly waived that claim on

appeal. Nonetheless, the majority continues to rely on and discuss evidence

related to the Board’s desire not to disrupt the district’s unitary status. Lewis’s

only claim on appeal, however, relates to the placement of at-risk children in

schools and has nothing to do with altering or maintaining racial demographics,

whether to preserve unitary status or for any other reason. The only

discriminatory intent that matters in this appeal is the desire to engage in racial

discrimination through the placement of at-risk children in East Ascension and

its feeder schools. Thus, whether the Board intended to avoid significantly

altering the racial makeup of its schools is an issue we need not, and should not,

address.

I. The Nature of Lewis’s Claim

In his complaint, Lewis alleged that “the district lines drawn and adopted

by the defendant disproportionately pull African American students and

economically disadvantaged students from across the east bank and feed them

into East Ascension High School.” Fairly read, Lewis’s complaint challenged two

aspects of Option 2f. First, Lewis claimed that the Board impermissibly re-

assigned too many minority students to attend East Ascension High School

(“East Ascension” or “EAHS”),2 and second, he claimed that the Board allocated

a disproportionately large number of at-risk students to East Ascension and its

2

Lewis’s complaint alleged that “[the Board’s] actions . . . were taken to ensure that

[East Ascension] would become predominantly African American, leaving the remaining two

(2) east bank high schools as predominantly white” and that “race was a factor in [the Board’s]

adoption of Option 2f.”

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feeder schools, which adversely impacted the education of minority children

attending East Ascension, including his children.3

On appeal, Lewis clarified, and in fact insisted, that his claim rests solely

on the second aspect of Option 2f. In his opening brief,4 his reply brief, and at

oral argument,5 Lewis contended that at-risk students adversely impact the

educational environment at East Ascension, which in turn disparately impacts

minority students because East Ascension has the largest proportion of minority

students of the three high schools on the east bank. As Lewis himself appears

to recognize, the decision to send a student to one school rather than another

because of the student’s race is distinct from the decision to send at-risk students

to a certain school because of the high percentage of minority students at that

school. He expressly told this court that his claim rests on the second decision,

3

Lewis alleged that the Board “was aware that the disproportionately large numbers

of economically disadvantaged/‘at risk’ students being allocated to East Ascension High School,

and the even larger economically disadvantaged/‘at risk’ populations at the feeder schools

within the East Ascension High School feeder system would ensure that the non-white

minority students at East Ascension High School 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.”

4

“The Plaintiff contends that the vastly disproportionate number of minorities

assigned to attend EAHS is the ‘suspect class’ which is being treated unequally. The cause

of this unequal treatment is the placing of an even higher proportion of ‘at risk’ students into

the EAHS school system through the adoption and enactment of Option 2f . . . .” Appellant’s

Br. at 30–31.

5

Lewis’s counsel made the following statements during oral argument: (1)“What we’re

saying . . . is that when you take an abnormal number of ‘at risk’ students and congregate

them into a school situation, it has an adverse impact on the other students in that school”;

(2)“We say that what’s unjust is to congregate the mass of this challenge [the ‘at risk’ students]

into the feeder system and school system that also contains a majority of the minority

students”; and (3)“We feel that loading up or putting an abnormal number of ‘at risk’ students

into the same school and school system where the minorities are is a breach of their civil

rights.”

When asked, Lewis’s counsel agreed his claim is that “this plan that’s been adopted

here takes the ‘at risk’ students and puts them in the EA feeder pattern and thereby

disadvantages minority students.” He also agreed that “[t]he aggrieved part[ies are] the

minority students, and they are aggrieved because [the Board] put the ‘at risk’ students with

them in a way that disadvantages minority students.”

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and he no longer asserted any claim based on the first decision. In his opening

brief, Lewis began his discussion of the merits of his equal protection claim by

stating, “[t]he District Court first incorrectly assumed that Plaintiff based his

cause of action on an increase of the minority population at EAHS.” Appellant’s

Br. at 30. In his reply brief, Lewis stated:

Once again, Appellant urges that the number/percentage of minority

students is not the basis for the Appellant’s cause of action in this

matter. The Appellant reasserts that its cause of action exists upon

the number/percentage of “at-risk” students being transferred into

East Ascension High School and its feeder system . . . . The transfer

of this high number of “at-risk” students to the EAHS feeder system

is the action causing injury to the Appellant, who is a minority at

EAHS.

Appellant’s Reply Br. at 1–2 (emphasis added). Chief Judge Jones’s concurrence

asserts that Lewis’s claim related to gerrymandering or racial balancing is still

before us, indicating that Lewis’s statements on appeal merely “clarify, correctly,

that the appellant does not believe a magic number or percentage of minority

students is per se violative of equal protection.” Jones Concurrence at 2. To the

contrary, because Lewis stated that “the number/percentage of minority

students is not the basis for the Appellant’s cause of action in this matter,” we

can only fairly assume that Lewis meant exactly what he said: “the

number/percentage of minority students is not the basis for the Appellant’s

cause of action in this matter.” Thus, the majority opinion is correct when it

says that the only claim at issue is whether the Board violated the Lewis

children’s right to equal protection by assigning a disproportionate number of at-

risk students to East Ascension and its feeder schools.

II. Assignment of At-Risk Students to East Ascension

Having established that Lewis claims only that a disproportionate number

of at-risk children were assigned to East Ascension and its feeder schools under

Option 2f, I turn to the merits of that claim. Lewis’s only argument on appeal

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with respect to the merits of his equal protection claim is that the district court

erred by failing to apply strict scrutiny to the Board’s adoption of Option 2f. He

contends that Option 2f is automatically subject to strict scrutiny because it

employs racial classifications and, alternatively, that he produced sufficient

evidence that the Board acted with a discriminatory motive in assigning a

disproportionate number of at-risk students to East Ascension. The district

court held that the Board’s decision was subject to rational basis review because

Option 2f is facially race neutral and Lewis had not carried his burden to present

evidence that the Board acted with a discriminatory purpose. I agree. We

should review the Board’s decision for a rational basis, and because Lewis

presented no evidence that the decision was arbitrary or irrational, I would

affirm the district court’s grant of summary judgment in favor of the Board.

A. Level of Scrutiny

The touchstone in the analysis of any racial discrimination claim is a

determination of whether the government acted with “a racially discriminatory

intent or purpose.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429

U.S. 252, 265 (1977); see also Washington v. Davis, 426 U.S. 229, 239–40 (1976).

If the government has acted with such a purpose, we apply strict scrutiny and

examine whether the law is narrowly tailored to further a compelling

governmental interest. See Grutter v. Bollinger, 539 U.S. 306, 326–27 (2003).

If the government did not act with such a purpose, we review its decision for a

rational basis. Id.

“No inquiry into legislative purpose is necessary when the racial

classification appears on the face of the statute,” Shaw v. Reno, 509 U.S. 630,

642 (1993), or when the law is “unexplainable on grounds other than race,”

Village of Arlington Heights, 429 U.S. at 266. However, when a racial

classification does not appear on the face of the statute, we must conduct a more

searching inquiry into the intent of the lawmakers. Strict scrutiny will be

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applied only if the plaintiff can demonstrate that the government acted with a

discriminatory motive. See Vill. of Arlington Heights, 429 U.S. at 266. Thus, at

the outset, we must determine whether we ought automatically to apply strict

scrutiny because Option 2f is facially race conscious, or whether we must

conduct a more searching inquiry into the Board’s intent.

1. Option 2f is Facially Race Neutral

Option 2f is facially race neutral and not automatically subject to strict

scrutiny for two reasons. First, Lewis challenges only the aspect of Option 2f

that assigned additional at-risk students to East Ascension. The decision to

assign at-risk students to attend a particular school is race neutral on its face.

At-risk students are not a protected class, and the students categorized as at-

risk are not limited to a particular race or ethnicity. Option 2f also does not on

its face require at-risk students to attend a school with a particular racial

makeup.

Second, even examining Option 2f as a whole, the student assignment plan

is race neutral. Option 2f is a school assignment plan that tells students where

they will attend school based on where their residence is located. Option 2f does

not on its face implicate the race of the students. Under Option 2f, if a new

family moves into the East Ascension attendance zone, the children will attend

East Ascension regardless of race or socio-economic class. Race is simply not a

factor in the assignment of students.

Cases in which the Supreme Court has considered the validity of

legislative redistricting provide an apt analogy. The Court has consistently

stated that the redistricting of legislative districts is facially race neutral, and

that a more searching inquiry must be made into the intent of the redistricting

body before strict scrutiny will be applied. Bush v. Vera, 517 U.S. 952, 958

(1996) (plurality opinion) (“Electoral district lines are ‘facially race neutral,’ so

a more searching inquiry is necessary before strict scrutiny can be found

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applicable in redistricting cases than in cases of ‘classifications based explicitly

on race.’” (citation omitted)); Hunt v. Cromartie, 526 U.S. 541, 547 (1999)

(“Districting legislation ordinarily, if not always, classifies tracts of land,

precincts, or census blocks and is race neutral on its face.”); Shaw, 509 U.S. at

646 (“A reapportionment statute typically does not classify persons at all; it

classifies tracts of land, or addresses.”). Moreover, the Court has indicated that

legislative districts may be drawn with an awareness of racial demographics

without triggering strict scrutiny. See 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, just as it is aware of age, economic status, religious

and political persuasion, and a variety of other demographic factors. That sort

of race consciousness does not lead inevitably to impermissible race

discrimination.”); Bush, 517 U.S. at 1001 (Thomas, J., concurring) (“We have

said that impermissible racial classifications do not follow inevitably from a

legislature’s mere awareness of racial demographics.”).

Despite the fact that Option 2f does not even mention race on its face, the

majority seems to suggest that Option 2f employs racial classifications. See Maj.

Op. at 14 (stating that the students affected by Option 2f “seem[] to be a group

identifiable and identified principally on racial grounds (whether minority or

not) for assignment to particular schools”). To do this, the majority points to a

chart that details the demographic projections under each of the plans

considered by the Board (the “Statistical Analysis”) and suggests that this

analysis should be considered part of Option 2f. See Maj. Op. at 12 (“The School

Board insists that the Statistical Analysis underlying Option 2f—submitted by

Lewis in opposition to summary judgment—does not constitute Option 2f itself.

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

district to skew reality simply by selectively including documents in the record

and labeling only those documents its ‘plan.’”). This chart, which is not part of

Option 2f, provides the total expected enrollment for each plan in each school

and lists the percentage of African American students and the percentage of

students that are expected to receive a free or reduced price lunch (i.e., at-risk

students). If Option 2f facially classified students based on race, however, strict

scrutiny would automatically apply. The majority does not hold that this is the

case and leaves the level of scrutiny to be determined by the district court.

Nonetheless, the majority states that “it is unclear how a student

assignment plan could calculate the percentage of black students at each school

without classifying individual students by race.” Maj. Op. at 12. In making this

statement, the majority appears to condemn the Board for even creating such a

chart. But the document does no more than show that the Board was aware of

the demographic implications of each plan, and the Supreme Court has never

held that a mere awareness of a student’s race is automatically subject to strict

scrutiny, much less unconstitutional. Cf. Shaw, 509 U.S. at 646; Pers. Adm’r of

Mass. v. Feeney, 442 U.S. 256, 279 (1979) (“‘Discriminatory purpose’ . . . implies

more than intent as volition or intent as awareness of consequences.”). A

compilation of demographic information, even racial demographic information,

does not by itself suggest a racial classification or a facially race-conscious

decision.

Instead, to subject its decision to strict scrutiny, the government must use

that demographic information to take action affecting the plaintiff. In every

case in which the Court has applied strict scrutiny to a “racial classification,” a

racial preference or classification appeared on the face of the government

decision and required that action be taken with respect to an individual based

on the classification. See Parents Involved, 551 U.S. at 720 (school district used

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race to determine whether students would be assigned to their school of choice);

Johnson v. California, 543 U.S. 499, 502–05 (2005) (state prison used race to

determine where inmates would be housed); Gratz v. Bollinger, 539 U.S. 244,

254, 270 (2003) (university awarded admissions “points” to minority applicants);

Grutter, 539 U.S. at 314, 326 (law school used applicant’s race as one factor in

admissions process); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 205

(1995) (government gave contractors a financial incentive to hire minority

subcontractors); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 477–78,

493–94 (1989) (city mandated that a certain percentage of construction contracts

would be awarded only to minority contractors); Wygant v. Jackson Bd. of Educ.,

476 U.S. 267, 271, 273–74 (1986) (school laid off nonminority teachers to achieve

racial balance between faculty and students); Regents of Univ. of Cal. v. Bakke,

438 U.S. 265, 272–73, 290, 357 (1978) (medical school set aside a specified

number of spots in the entering class for minority students only); see also Walker

v. City of Mesquite, 169 F.3d 973, 980–81 (5th Cir. 1999) (declaring invalid city’s

decision to build public housing units in “predominantly white areas”); Raso v.

Lago, 135 F.3d 11, 16 (1st Cir. 1998) (“The term [racial classification] normally

refers to a governmental standard, preferentially favorable to one race or

another, for the distribution of benefits.” (emphasis added)). None of these cases

stands for the proposition that the government’s awareness of race, and the

racial demographics of neighborhoods or schools, is a racial classification

automatically subject to strict scrutiny.

The Statistical Analysis does not on its face suggest that the Board

actually used the document to decide which plan to adopt or that the Board

considered race when it undertook to redistrict the attendance zones. For that

conclusion, the majority must look to other evidence in the record, such as the

deposition testimony of various Board members. Maj. Op. at 12–13. Because

Option 2f is facially race neutral, we must review the record to determine

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whether Lewis presented sufficient evidence that the Board acted with a

discriminatory motive when it adopted Option 2f.

Before examining the intent of the Board, I note briefly that Chief Judge

Jones’s concurrence goes one step further than the majority opinion to

mischaracterize the nature of Option 2f. The concurrence suggests that, in

assessing whether Option 2f is facially neutral, it is proper to look behind the

face of Option 2f and assess whether any way in which the plan expressly

classifies students is actually a proxy for race. See, e.g., Jones Concurrence at

3–4 (“A further problem is the misperception that when the desired racial

balance is achieved by geographical lines, rather than assignment of specific

students of certain races, the action is ‘facially neutral’ . . . .”); id. at 5 (“The

boundaries are only race-neutral because streets are not people. Streets, though,

may well be racial proxies because the district or its agents apparently knew and

used the racial composition of the people living on those streets to pursue racial

balancing.”); id. at 2 (“What matters is the government’s intentional use of racial

classifications.”). However, it seems inescapable that a “facial” or “explicit”

category would have to be expressed on the face of Option 2f. The inquiry

regarding the level of scrutiny does not end with an examination of the face of

Option 2f, but the inquiry regarding the explicit classifications Option 2f

employs does. Examination of the intent behind the adoption of Option 2f

involves a separate analysis.

2. Lewis Has Not Shown that the Board Had a Discriminatory Motive

in Assigning At-Risk Students to East Ascension

Although Option 2f is facially race neutral, it nevertheless may be subject

to strict scrutiny if the Board adopted the plan with a discriminatory purpose.

See Vill. of Arlington Heights, 429 U.S. at 265–66. The majority focuses its

attention on whether Lewis presented sufficient evidence that the Board acted

with discriminatory motive in re-assigning students based on the race of those

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students. As I have repeated, Lewis does not challenge that aspect of Option 2f.

The only relevant issue is whether the Board acted with a discriminatory

purpose or motive when it assigned additional at-risk students to East

Ascension.

In Village of Arlington Heights, the Supreme Court set forth a now-

familiar test by which we are to determine whether “there is a proof that a

discriminatory purpose has been a motivating factor in [a facially neutral

government decision].” Id. at 265–66. The Court held that disproportionate

impact is but one factor which a plaintiff can use to support a finding of

discriminatory purpose. Id. at 265; see also Washington, 426 U.S. at 242. The

plaintiff must also prove that the disproportionate impact is traceable to a

discriminatory purpose. Washington, 426 U.S. at 242 (“Standing alone,

[disproportionate impact] does not trigger the rule . . . that racial classifications

are to be subjected to the strictest scrutiny . . . .” (citation omitted)); see also

Sonnier v. Quarterman, 476 F.3d 349, 368 (5th Cir. 2007) (“Even if a neutral law

has a disproportionately adverse impact, it is unconstitutional under the Equal

Protection Clause only if that impact can be traced to a discriminatory purpose.”

(internal quotation marks, alteration, and citation omitted)). The Supreme

Court identified the following additional factors as relevant in determining

whether purposeful discrimination animated a particular action:

(1) whether a clear pattern of discrimination emerges from the effect

of the state action; (2) the historical background of the decision,

which may take into account any history of discrimination by the

decisionmaking body; (3) the specific sequence of events leading up

[to] the challenged decision, including departures from normal

procedures; and (4) the legislative or administrative history of the

state action, including contemporary statements by decisionmakers.

Allstate Ins. Co. v. Abbott, 495 F.3d 151, 160 (5th Cir. 2007) (citing Vill. of

Arlington Heights, 429 U.S. at 266–68).

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The crux of Lewis’s argument that the Board acted with discriminatory

intent is that the assignment of additional at-risk students under Option 2f had

a disproportionate impact on the minority students attending East Ascension.

Lewis offers the following statistics to support his claim that Option 2f had a

disproportionate impact on minority students. Prior to the redistricting under

Option 2f, approximately 43 percent of the students enrolled at East Ascension

were “at risk.” At Dutchtown High School (“Dutchtown”) the at-risk population

was approximately 19 percent, and at St. Amant High School (“St. Amant”) the

at-risk population was approximately 24 percent.6 Without any redistricting, the

Board projected that those numbers would rise to 61 percent, 27 percent, and 36

percent, respectively, by the beginning of the 2012 school year. Under Option

2f, the Board projected that the percentage of at-risk students at East Ascension

would decrease slightly for the first year that the redistricting was in effect and

rise more slowly than without redistricting. By the 2012 school year, East

Ascension was projected to have 57 percent at-risk students under Option 2f,

Dutchtown was projected to have 26 percent, and St. Amant was projected to

have 36 percent. In addition, the proportion of minority students at East

Ascension was projected to be lower under Option 2f than without any

redistricting—47 percent by 2012 under Option 2f compared to 51 percent under

the then-current plan.

After examining these statistics and the rest of the record, I am frankly

perplexed at Lewis’s contention that Option 2f disproportionately impacted East

6

The record contains two charts with demographic information regarding each plan.

Because we must construe the evidence in the light most favorable to Lewis at this stage, I

refer to the chart showing the greatest percentage of at-risk students. I also note that these

percentages are slightly different from those referred to in the majority’s opinion. See Maj. Op.

at 14 n.14. The majority appears to analyze the demographic shift, or lack thereof, after the

implementation of Option 2f. Because we are concerned with the Board’s intent in adopting

Option 2f, the more appropriate evidence on this point is the information the Board was

actually presented with before it made its decision.

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Ascension. It is true that East Ascension received more at-risk students under

Option 2f, but East Ascension was going to receive more students under any

redistricting plan. The undisputed evidence suggests that East Ascension was

under-enrolled at the time of the redistricting and was the high school in the

best position to relieve the overcrowding in the Dutchtown feeder system. Thus,

additional students were going to attend East Ascension regardless of whether

those students were “at risk,” minority, or non-minority students. And under

Option 2f, the proportion of at-risk students with respect to the entire student

population actually decreased compared to the projected at-risk enrollment had

the Board taken no redistricting action.

Even if Lewis could demonstrate that the assignment of at-risk students

to East Ascension under Option 2f had a disproportionate impact, he has not

demonstrated that the Board acted with a discriminatory purpose. Lewis makes

little effort to demonstrate discriminatory intent under any of the Village of

Arlington Heights factors. Instead, he simply argues that the Board must have

acted with a discriminatory intent because it was aware of the racial

demographics when it assigned additional at-risk students to attend East

Ascension. But discriminatory intent “implies more than intent as volition or

intent as awareness of consequences.” Feeney, 442 U.S. at 279. “It implies that

the decisionmaker . . . selected or reaffirmed a particular course of action at least

in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an

identifiable group.” Id. Lewis must therefore demonstrate that the Board

adopted Option 2f because of its disproportionate impact, not merely that the

Board was aware of its impact.

Lewis argues that the addition of two “Title I”7 elementary schools to the

East Ascension feeder system is evidence of discriminatory intent because the

7

A “Title I” school is a school that is eligible to receive additional federal funds due to

the large proportion of low-income or “at risk” students.

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Board did not add the schools to the Dutchtown or St. Amant feeder systems.

The two schools to which Lewis refers are Duplessis Elementary and Pecan

Grove Elementary. Pecan Grove is a new school, and the record contains no

evidence that the at-risk students who will attend Pecan Grove did not

previously attend another East Ascension elementary school. However, it is

undisputed that Duplessis was transferred from Dutchtown to East Ascension

under Option 2f. Lewis presented evidence that the Board considered at least

one redistricting option under which Duplessis would remain assigned to

Dutchtown and Prairieville, a new elementary school that was not projected to

be a Title I school, would be assigned to East Ascension instead of Dutchtown.

The record suggests that the Board was well aware that the Duplessis option

would cause a high number of at-risk children to be assigned to East Ascension

and that at least one Board member expressed concern about the transfer.

While the record indicates that the Board members were aware of the

impact that the Duplessis option, which became Option 2f, would have on the

students at East Ascension, there is no evidence that the Board chose the

Duplessis option because of its effect on the East Ascension minorities. Lewis

does not argue that the Board’s decision to assign Duplessis to East Ascension

was so abnormal that racial discrimination must have been a motivating factor.

The District map indicates that the Duplessis attendance zone is geographically

contiguous with the larger East Ascension attendance zone, and none of the

attendance zones is so oddly shaped that it facially indicates any inappropriate

gerrymandering. In fact, Lewis does not even argue that the Board ought to

have adopted the Prairieville option over the Duplessis option, or that the Board

had any other choice than the Duplessis option that would have solved the

overcrowding issue at all of the schools. In essence, it appears that Lewis would

like the Board to redraw all of the attendance zones in the entire District to

balance the at-risk children among the three high schools, which would be

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contrary to the Board’s undisputed goal of reassigning no more students than

absolutely necessary. Lewis has not created a genuine issue of fact for trial

regarding the Board’s motive because he utterly failed to connect the Board’s

awareness of the racial demographics at East Ascension with the Board’s

decision to assign additional at-risk students to East Ascension.

The majority makes much of the evidence that Lewis presented that

suggests the Board was aware of the race of individual students when it re-zoned

the schools. Specifically, the majority focuses on the deposition testimony of

several Board members that they had a desire to maintain unitary status and

to preclude increasing the percentage of minority students at East Ascension.

The majority also points to a statement on the Board’s web site that the Board

was “simply trying to balance the demograph[ics] of East Ascension.” However,

this evidence does not even speak to whether the Board acted with an intent to

discriminate through the disproportionate placement of at-risk students in

schools attended predominantly by minorities. Thus, this evidence is insufficient

to raise questions about the level of scrutiny that applies.

B. Lewis’s Claim Fails Under Rational Basis Review

We need not apply strict scrutiny because Lewis presented insufficient

evidence that the Board acted with discriminatory purpose or had a

discriminatory motive when it assigned at-risk students to the East Ascension

feeder system. Accordingly, we should examine the Board’s decision to

determine whether the Board had a rational basis for assigning the students to

East Ascension. See Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). Under rational

basis review, “a classification must be upheld against equal protection challenge

if there is any reasonably conceivable state of facts that could provide a rational

basis for the classification,” and the burden is on the challenger to “negative

every conceivable basis which might support [the classification].” Heller v. Doe,

509 U.S. 312, 320–21 (1993) (citations and internal quotation marks omitted).

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Lewis has presented no evidence or argument that the Board did not have

a rational basis for assigning at-risk students to attend East Ascension. Indeed,

my review of the record indicates that Option 2f may have in fact been the most

practical option. The “Prairieville Option” and “Option 3” are the only plans

considered by the Board that would have resulted in a lower percentage of at-

risk students assigned to East Ascension. Evidence in the record indicates that

under the “Prairieville Option,” the percentage of at-risk students in East

Ascension was projected to be 46 percent by 2012, 11 percent lower than the

projection under Option 2f. But under this option, the enrollment at East

Ascension would increase from approximately 1,200 students to over 2,000

students, far more students than either of the other two high schools. Under

Option 3, the at-risk percentage would be 55 percent by 2012, just two percent

lower than the projected at-risk percentage under Option 2f. And according to

the enrollment projections for Option 3, Dutchtown would still have far more

students than East Ascension, which would not alleviate the overcrowding issue

at Dutchtown.

Because Lewis has not met his burden to prove that the Board had no

rational basis to assign additional at-risk students to East Ascension, I would

affirm the district court’s grant of summary judgment in favor of the Board.

III. Awareness of Consequences, Option 2f, and Parents Involved

The majority criticizes the “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” as being “at least in tension

with the Supreme Court’s decision in Parents Involved.” Maj. Op. at 11. The

majority’s attempt to relate the instant case to Parents Involved is troubling for

several reasons. Critically, any claims Lewis may have had related to assigning

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students to schools based on race are not before us. Thus, the notion of racial

balancing need not, and should not, enter into our analysis.

Further, the holding in Parents Involved pertained only to plans that

expressly use race to determine which school a student will attend and thus does

not speak to the matter before us. The plurality opinion makes clear that the

plans in Parents Involved used “explicit racial classifications” and that “other

means for achieving greater racial diversity in schools . . . implicate different

considerations.” See 551 U.S. at 745; cf. Equity in Athletics, Inc. v. Dep’t of

Educ., 639 F.3d 91, 104 (4th Cir. 2011) (stating that Parents Involved pertained

to strict scrutiny analysis of race-based school assignments and “has little

bearing” on a case subject to a lesser degree of scrutiny). In Parents Involved,

school districts . . . adopted student assignment plans that rely upon

race to determine which public schools certain children may attend.

The Seattle school district classifies children as white or nonwhite;

the Jefferson County school district as black or “other.” In Seattle,

this racial classification is used to allocate slots in oversubscribed

high schools. In Jefferson County, it is used to make certain

elementary school assignments and to rule on transfer requests. In

each case, the school district relies upon an individual student’s race

in assigning that student to a particular school, so that the racial

balance at the school falls within a predetermined range based on

the racial composition of the school district as a whole. Parents of

students denied assignment to particular schools under these plans

solely because of their race brought suit, contending that allocating

children to different public schools on the basis of race violated the

Fourteenth Amendment guarantee of equal protection.

551 U.S. at 709–11. Thus, the plans in Parents Involved used race as a deciding

factor in determining which school a student would attend, whereas Option 2f

is facially race neutral and bases the determination of where children will attend

school on where they live, not on their race. This is not a Parents Involved case.

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Moreover, the Court in Parents Involved did not, as the majority suggests,

broadly hold that “preserving the district’s unitary status by means of racially-

based assignments, albeit a ‘benign’ racial motive, was nevertheless

constitutionally impermissible.” See Maj. Op. at 11. The holding in Parents

Involved is far narrower than the majority’s description indicates. The plans at

issue in Parents Involved were deemed unconstitutional because they were not

sufficiently narrowly tailored to withstand strict scrutiny. See Parents Involved,

551 U.S. at 735; id. at 786–87 (Kennedy, J., concurring). The Court faulted the

plans for their broad-brush, binary concept of race, as well as the failure to give

“serious, good faith consideration of workable race-neutral alternatives,” as

narrow tailoring requires. See id. at 735 (internal quotation marks and citation

omitted); see also Fisher v. Univ. of Tex. at Austin, 631 F.3d 213, 246 (5th Cir.

2011) (“Parents Involved was primarily a critique of the school districts’ extreme

approach that used binary racial categories to classify schoolchildren.” (internal

quotation marks and citation omitted)).

Justice Kennedy, who provided the fifth vote in the five-to-four Parents

Involved decision, specifically disagreed with the “all-too-unyielding insistence

that race cannot be a factor in instances when . . . it may be taken into account.”

Parents Involved, 551 U.S. at 787 (Kennedy, J., concurring). According to

Justice Kennedy:

In the administration of public schools by the state and local

authorities it is permissible to consider the racial makeup of schools

and to adopt general policies to encourage a diverse student body,

one aspect of which is its racial composition. If school authorities

are concerned that the student-body compositions of certain schools

interfere with the objective of offering an equal educational

opportunity to all of their students, they are free to devise

race-conscious measures to address the problem in a general way

and without treating each student in different fashion solely on the

basis of a systematic, individual typing by race.

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Id. at 788–89 (Kennedy, J., concurring) (citation omitted); see also Fisher, 631

F.3d at 246 (“The Court [in Parents Involved] did not hold that a Grutter-like

system would be impermissible even after race-neutral alternatives have been

exhausted . . . . To the contrary, Justice Kennedy . . . wrote separately to clarify

that a more nuanced, individual evaluation . . . . informed by Grutter would be

permissible . . . .” (internal quotation marks and citation omitted)); Hart v. Cmty.

Sch. Bd. of Brooklyn, 536 F. Supp. 2d 274, 282 (E.D.N.Y. 2008) (“The deciding

opinion of Justice Kennedy [in Parents Involved] . . . allows for the use of race as

one admission factor among others.”). In addition, Justice Breyer’s dissent, in

which Justices Stevens, Souter, and Ginsburg joined, indicates the facially race-

conscious plans at issue both served the compelling interest of “promoting or

preserving greater racial ‘integration’ of public schools” and were narrowly

tailored to achieve that end. See Parents Involved, 551 U.S. at 837–38 (Breyer,

J., dissenting). Thus, at least five justices in Parents Involved endorsed the view

that promoting diversity in elementary and secondary schools may be a

compelling governmental interest. Consequently, it is clear that the Court in

Parents Involved did not broadly condemn all student assignment plans that

facially account for race, let alone prohibit all decisionmaking that merely takes

place in light of some awareness of racial impact.

As I discussed above, the majority appears to suggest that Option 2f does

classify students by race, thereby presumably bringing it closer to the ambit of

Parents Involved. Importing the background analysis of the expected impact of

the plan into the plan itself, however, is wholly inappropriate.8 The fact remains

8

The Jones concurrence’s insistence that Option 2f is facially race conscious because

the geographical categories it employs are proxies for race appears to be a similarly

problematic attempt to bring this case within the reach of Parents Involved. See Jones

Concurrence at 8 (“If the Ascension Parish Board used geographic lines as a proxy for racial

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that—unlike the plans in Parents Involved—Option 2f does not provide any

mechanism to assign a student to a particular school based on that student’s

race. That individual students may have been classified for the purpose of

assessing the effect of student assignment plans on demographics is something

very different from actually assigning individual students to particular schools

on the basis of their race. The majority’s attempt to define Option 2f in a

manner divorced from what it actually says and does has potentially far-

reaching consequences and moves toward an inappropriately high level of

scrutiny whenever there is some consideration—or perhaps merely

awareness—of the effects actions have on racial composition. However, as

Justice Kennedy notes:

School boards may pursue the goal of bringing together students of

diverse backgrounds and races through other means, including

strategic site selection of new schools; drawing attendance zones

with general recognition of the demographics of neighborhoods;

allocating resources for special programs; recruiting students and

faculty in a targeted fashion; and tracking enrollments,

performance, and other statistics by race. These mechanisms are

race conscious but do not lead to different treatment based on a

classification that tells each student he or she is to be defined by

race, so it is unlikely any of them would demand strict scrutiny to

be found permissible. Executive and legislative branches, which for

generations now have considered these types of policies and

procedures, should be permitted to employ them with candor and

with confidence that a constitutional violation does not occur

whenever a decisionmaker considers the impact a given approach

might have on students of different races. Assigning to each student

a personal designation according to a crude system of individual

balancing to ‘maintain unitary status,’ the plan is explicitly race-based, and the Board’s

actions fly in the face of Parents Involved and require strict scrutiny review.”); Parents

Involved, 551 U.S. at 745 (plurality opinion) (describing Parents Involved as a case involving

“explicit racial classifications”).

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racial classifications is quite a different matter; and the legal

analysis changes accordingly.

Parents Involved, 551 U.S. at 789 (Kennedy, J., concurring) (emphasis added)

(internal quotation marks and citations omitted).

By blurring the line between awareness of the consequences of Option 2f

and how Option 2f actually assigns students to schools, the majority opinion

seems to be taking a step toward requiring that strict scrutiny apply to any

action in which effects on race were known or considered. Such a push toward

strict scrutiny, however, is contrary to the law. See Hunt, 526 U.S. at 546 (“A

facially neutral law . . . warrants strict scrutiny only if it can be proved that the

law was motivated by a racial purpose or object, or if it is unexplainable on

grounds other than race.” (internal quotation marks and citations omitted));

Feeney, 442 U.S. at 279 (“Discriminatory purpose, however, implies more than

intent as volition or intent as awareness of consequences. It implies that the

decisionmaker . . . selected or reaffirmed a particular course of action at least in

part because of, not merely in spite of, its adverse effects upon an identifiable

group.” (footnote, internal quotation marks, and citation omitted)); see also

Parents Involved, 551 U.S. at 789 (Kennedy, J., concurring); Friends of Lake

View Sch. Dist. Inc. No. 25 v. Beebe, 578 F.3d 753, 761–63 (8th Cir. 2009)

(applying a rational basis analysis to uphold a facially race-neutral law despite

an alleged awareness of the act’s disproportionate impact on minorities).

Consequently, I disagree with both the reliance on Parents Involved, as well as

the suggestion that Option 2f classifies students by race.

_________

The district court properly concluded that Lewis’s claim—that the Board

engaged in unconstitutional discrimination when it re-assigned additional at-

risk students to East Ascension and its feeder schools—is assessed under a

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rational basis analysis. Because Lewis has not demonstrated that the Board

acted irrationally by adopting Option 2f, I would affirm the district court’s

judgment in favor of the Board.

46