Frances Spurlock v. David Fox

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0135p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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FRANCES SPURLOCK; JEFFREY SPURLOCK, on X

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behalf of their minor daughter, themselves,

and all others similarly situated; KEITH -

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No. 12-5978

CALDWELL; CARROLL LEWIS; TENNESSEE

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Plaintiffs-Appellants, -

ALLIANCE FOR PROGRESS,

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v.

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Defendants-Appellees. -

DAVID A. FOX et al.,

N

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 3:09-cv-00756—Kevin H. Sharp, District Judge.

Argued: April 24, 2013

Decided and Filed: May 10, 2013

Before: GILMAN, ROGERS, and SUTTON, Circuit Judges.

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COUNSEL

ARGUED: Michael Lottman, Kingston Springs, Tennessee, for Appellants. Allison L.

Bussell, DEPARTMENT OF LAW OF THE METROPOLITAN GOVERNMENT OF

NASHVILLE AND DAVIDSON COUNTY, Nashville, Tennessee, for Appellees.

ON BRIEF: Michael Lottman, Kingston Springs, Tennessee, Larry Woods, Allen

Woods, WOODS & WOODS, Nashville, Tennessee, for Appellants. Allison L. Bussell,

Christopher M. Lackey, DEPARTMENT OF LAW OF THE METROPOLITAN

GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Nashville,

Tennessee, John W. Borkowski, HOGAN LOVELLS US LLP, South Bend, Indiana, for

Appellees.

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No. 12-5978 Spurlock et al. v. Fox et al. Page 2

_________________

OPINION

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RONALD LEE GILMAN, Circuit Judge. This is a class-action lawsuit alleging

racial resegregation in the Nashville public school system. In July 2008, the

Metropolitan Nashville Board of Public Education (the Board) adopted a new student-

assignment plan generally referred to as the Rezoning Plan. The Rezoning Plan

modified the student-assignment plan that had been in place since the Metropolitan

Nashville Public Schools District (the District) achieved unitary status (i.e., became

desegregated) in 1998. One of the modifications effected by the Rezoning Plan was to

eliminate the so-called mandatory noncontiguous transfer zones, meaning that the

existing system whereby students in racially isolated geographical zones were bused to

racially diverse schools in noncontiguous zones was replaced by a system in which the

same students were given a choice of either attending the schools in their own

neighborhood or being bused to schools in the same noncontiguous zone as before, but

not necessarily to the same school previously attended.

The parents and the grandmother, respectively, of two black children sued the

Board on behalf of their children and all black students in the District whose school

assignments were adversely affected by the elimination of the mandatory noncontiguous

transfer zones. They allege that the Rezoning Plan eliminated the desirable practice of

being bused to a good, racially diverse school and replaced it with two inferior choices:

staying in a bad, racially isolated neighborhood school or being bused to a bad, racially

diverse school. This, they claim, has led to resegregation in violation of the students’

rights under the Equal Protection Clause of the United States Constitution. The district

court ruled in favor of the Board after an 11-day bench trial. For the reasons set forth

below, we AFFIRM the judgment of the district court.

No. 12-5978 Spurlock et al. v. Fox et al. Page 3

I. BACKGROUND

A. Factual background

The following facts are taken primarily from the district court’s Findings of Fact

and Conclusions of Law as filed in Spurlock v. Metropolitan Government of Nashville,

No. 3:09–cv–00756, 2012 WL 3064251 (M.D. Tenn. July 27, 2012). Nashville has a

long history of officially enforced school segregation. Following the Supreme Court’s

landmark decisions in Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I)

(holding that segregating schoolchildren by race is unconstitutional), and Brown v.

Board of Education, 349 U.S. 294, 301 (1955) (Brown II) (imposing on local school

boards in segregated districts the affirmative duty to “effectuate a transition to a racially

nondiscriminatory school system”), Nashville, like many other previously segregated

school districts, was ordered to desegregate. This was finally accomplished in 1998

when, pursuant to a settlement in Kelley v. Metropolitan Board of Education, No. 3:55-

2094, the District achieved unitary status.

Unitary status means that a school district has abandoned the “dual” status of

“intentional segregation of students by race” and “has been brought into compliance with

the command of the Constitution.” Freeman v. Pitts, 503 U.S. 467, 487 (1992) (internal

quotation marks omitted). It signifies, in other words, that a district has “eliminated the

vestiges of prior segregation to the greatest extent practicable” with respect to legally

imposed segregation, although it does not mean that, as a factual matter, all district

schools contain a racially diverse mix of students. See Parents Involved in Cmty. Schs.

v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 701, 715-16, 720-21 (2007). In fact, many

school districts that are no longer segregated de jure remain segregated de facto due to

private preferences reflected in housing patterns, and Nashville’s District is no

exception. See Spurlock, 2012 WL 3064251, at *16-17 (setting forth data showing that,

both before and after the implementation of the Rezoning Plan, a number of

neighborhoods and schools in Nashville were over 80-percent black and a few over 90-

percent black). Once a school district has achieved unitary status, however, it is no

No. 12-5978 Spurlock et al. v. Fox et al. Page 4

longer under an affirmative “duty to remedy imbalance that is caused by demographic

factors.” Freeman, 503 U.S. at 494.

After achieving unitary status, the District operated under a plan whereby

students were assigned to schools largely on the basis of geography. Nashville’s school

system was organized into 11 (later changed to 12) “clusters,” one cluster for each

comprehensive high school. The cluster system provided for stable “feeder” patterns,

meaning that students in the relatively large number of elementary schools in each

cluster would be “fed” into a smaller number of middle schools in the same cluster, and

middle-school students in turn would be funneled into the single comprehensive high

school in the cluster.

Most clusters were geographically contiguous. Some, however, included

noncontiguous zones—that is, areas that were considered part of the cluster even though

they were not adjacent to the rest of it. Students from a cluster’s noncontiguous zones,

like students from elsewhere in the cluster, were assigned to the comprehensive high

school in the cluster, and the District provided them with free school-bus transportation

for that purpose. The noncontiguous zones included the poor and predominantly black

Pearl-Cohn Cluster, which was linked to the comparatively well-off and racially diverse

Hillwood Cluster. Nashville operated under this student-assignment plan from 1998 to

2008.

The old student-assignment plan was not without its disadvantages. One problem

that had long worried Nashville’s political leaders, including several mayors and the

Metro City Council, was the under-utilization of various schools throughout the District.

Some schools attracted a large number of students and were utilized above capacity,

while other schools were relatively empty and operated at levels well below what their

infrastructure and resources would allow. This problem grew worse after the failure of

a September 2005 referendum to increase school funding.

The District has a history of attempting to address its under-utilization problem.

In 2006, the District contracted with the Council of Great City Schools, an association

of the nation’s 66 largest urban school districts, to study zoning patterns and make

No. 12-5978 Spurlock et al. v. Fox et al. Page 5

recommendations to the Board. A team from the Council was sent to Nashville for this

purpose but, as the trial transcript indicates, the team “fell apart” before making any

recommendations. Similarly, a task force appointed by the Board to look into potential

rezoning and the closing of some schools in order to address the under-utilization

problem “walked away” from the task after a few meetings because the issue was too

politically contentious.

The school-utilization issue came up again in 2007, when the anticipated opening

of the Cane Ridge High School in 2008 provided an impetus for the Board to tackle the

challenge. In May 2007, Larry Collier, then the District’s Director of Student

Assignment Services, made a presentation to the Board about the desirability of

optimizing facility utilization, maximizing student choice, reducing transportation costs,

and enhancing the involvement of families in their children’s education. The

presentation also posed the question of whether the noncontiguous zones were necessary.

Collier drafted a rezoning plan over the summer and presented it to the Board in

the fall of 2007. Under the proposed plan, elementary- and middle-school students

living in the Pearl-Cohn Cluster would no longer be bused to the distant Hillwood

Cluster schools, but would instead be zoned to attend the schools closer to their own

homes. High-school students from the Pearl-Cohn Cluster, however, would continue to

attend Hillwood High School for the time being. Collier’s plan was considered by the

Board but ultimately withdrawn. Instead, the Metropolitan Nashville Public Schools

(MNPS) implemented a scaled-back plan that left the old student-assignment system

largely intact but added a cluster to accommodate the new Cane Ridge High School.

In January 2008, the Board created a Community Task Force for Student

Assignment (the Task Force) with a mission to come up with a new, comprehensive

student-assignment plan for the District. The Task Force initially consisted of twelve

appointed members. Of these, one was appointed by each of the nine Board members

(including the Chair), one by the Mayor of Nashville, one by the MNPS Director, and

one current Board member was placed on the Task Force as a second appointee of Board

Chair Marsha Warden. Mark North, the Board member appointed by Warden, chaired

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the Task Force. The members appointed by the MNPS Director and the Mayor later

withdrew for reasons not specified by the district court or in the parties’ briefs. This left

the Task Force with ten members, consisting of five blacks and five whites (including

North). (The words “black” and “white” as used throughout this opinion are

synonymous with “African-American” and “Caucasian,” respectively.)

The Board vested the Task Force with the goal “to develop a plan that promotes

excellent academic and scholastic opportunities for every school-age resident of

Davidson County” (the county that is coextensive with the city of Nashville). It also

gave the Task Force a list of nonexclusive factors to consider—namely, “building

under-utilization and overcrowding,” “choice options for students and parents,”

“diversity” (defined as “the benefit of different perspectives and backgrounds to the

student, the classroom, the school, and the school system as a whole”), “enhanced

academic achievement,” “enhanced opportunities for extracurricular activities,” “fiscal

responsibility,” “more parental involvement,” “benefits of neighborhood schools,”

“stability and certainty for students and parents evaluating their options,” and “potential

unintended consequences.” Several materials were provided for the Task Force to

consider in developing a new student-assignment plan, including a history of student-

assignment issues in Nashville, the 1998 student-assignment plan, the Collier plan that

was proposed and withdrawn in 2007, the scaled-back plan that had been adopted in

2007, demographic data, an article by two professors at Vanderbilt University analyzing

the policy of neighborhood schooling in Nashville, and the Supreme Court’s opinions

in Keyes v. School District No. 1, 413 U.S. 189 (1973), and Parents Involved in

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

The Task Force began its work promptly in early January 2008. It held weekly

meetings lasting two to four hours each, all open to the public, and it also held separate

brainstorming sessions. The Task Force initially focused on the Pearl-Cohn and

Hillwood Clusters because “they embodied virtually all the issues in the Task Force’s

charge, e.g., building utilization, transportation costs, diversity, and school

performance.” Spurlock, 2012 WL 3064251, at *8. Task Force members considered and

No. 12-5978 Spurlock et al. v. Fox et al. Page 7

debated all of the materials provided to them. They also personally took bus rides with

schoolchildren going from noncontiguous zones to their assigned schools.

During its deliberations, the Task Force requested and received demographic data

from the District staff, including student-enrollment numbers by race and socioeconomic

status. The data also showed what the demographic and socioeconomic picture would

look like if various proposals were adopted. Task Force members, including Chairman

North, testified that they requested such data because racial and socioeconomic diversity

was one of the factors that they had been asked to consider.

Task Force members, both black and white, testified favorably regarding the

Task Force’s own diversity—both racial diversity and the diversity of backgrounds and

views. They testified that they individually did not harbor any racial prejudices and did

not think that any other member harbored such prejudices either, and the plaintiffs do

not point to any testimony or evidence to the contrary.

The Task Force ultimately achieved unanimous agreement on a set of

recommendations that it initially presented to the Board at the end of May 2008. These

recommendations—which, with certain revisions, would be adopted by the Board in July

of that year as the final Rezoning Plan—left intact the basic structure of the old student-

assignment plan whereby a student’s geographical area of residence determined his or

her school assignment. The Rezoning Plan did, however, alter the zoning designation

of certain geographic areas and schools, propose school-specific recommendations, and

close a number of schools.

Most importantly for the purposes of the present case, the Rezoning Plan changed

the old noncontiguous zones to “choice zones.” Under the new system, students in the

former noncontiguous zones would not be required to attend a school in a geographically

distant neighborhood. They would instead have a choice of either attending a school in

their own neighborhood or being bused to a more distant school in the same cluster

where they had formerly attended school, with free transportation provided by the

District. But the new schools designated for students in noncontiguous zones were not

necessarily the same individual schools designated under the old plan.

No. 12-5978 Spurlock et al. v. Fox et al. Page 8

According to the Task Force, the new outside schools designated for

noncontiguous-zone students were those that had the capacity to take in more students

and stood to gain more from a diverse student body. The plaintiffs, however, have a

different view of the matter. They claim that the newly designated schools were inferior

to the schools to which they had been bused under the old plan. This inferior option,

they allege, effectively directed the overwhelmingly black student population in

noncontiguous zones away from the racially diverse schools in higher-income

neighborhoods and toward the racially isolated schools in their own poverty-stricken

neighborhoods.

The other significant modification effected by the Rezoning Plan was to increase

the funding and resources allocated to schools in the poorer areas. Specifically, the

Rezoning Plan called for more advanced-placement and honors course offerings, lower

student-teacher and student-counselor ratios, enhanced pay for teachers, increased

technology offerings, additional social workers, and full-time career and college

counselors for schools in low-income and racially isolated neighborhoods.

These measures were designed to increase the utilization of low-income

neighborhood schools—which, in the case of schools located in the Pearl-Cohn Cluster,

were described in the Plan as “grossly underutilized”—by enhancing their quality and

attractiveness. The same goal was also pursued through geographic rezoning. For

example, the Rezoning Plan placed the relatively high-income Hope Gardens

neighborhood, as well as affluent areas in Germantown and Downtown Nashville, into

the Pearl-Cohn Cluster.

When North presented the Task Force’s draft Rezoning Plan to the Board in May

2008, Board members asked questions and requested more details regarding certain

aspects of the Plan, but were overall favorably disposed. Subsequently the Board sought

and received community input on the proposed Plan. It held community meetings at

East Literature Magnet School in East Nashville, Fall-Hamilton Elementary School in

South Nashville, Hillwood High School in West Nashville, and John Early Middle

School in North Nashville. The Board also scheduled meetings throughout June to

No. 12-5978 Spurlock et al. v. Fox et al. Page 9

present the draft Rezoning Plan to and receive feedback from various interested groups

and persons—including the Interdenominational Ministers’ Fellowship, the National

Association for the Advancement of Colored People (NAACP), the Parents Advisory

Council, the Comité de Padres Latinos (the Committee of Latino Parents), the

Metropolitan Nashville Education Association Teachers’ Union, the Service Employees

International Union, the Mayor’s Office, and the authors of the Vanderbilt study.

Meanwhile, the Task Force met again to address some of the concerns expressed

by the Board and the community. It provided more details on the additional resources

recommended for the Pearl-Cohn Cluster, prepared a budget indicating where the

additional resources would come from, and, in response to a request by a representative

of the NAACP, added more advanced-placement and honors courses for the poorer

schools. The Task Force also worked out the details of the zoned-option choice. Having

made these modifications, the Task Force voted unanimously in favor of recommending

the revised Rezoning Plan to the Board.

The Task Force presented the revised Rezoning Plan to the Board in early July

2008. North reiterated that “the most important thing is that every school be a good

one.” Others, however, spoke in favor of deferring the Rezoning Plan’s implementation.

Marilyn Robinson, President of the NAACP branch in Nashville, recommended that the

Rezoning Plan be delayed because the Board could not guarantee additional resources

for the poorer schools and because the Plan would create separate-but-equal schools by

“warehousing students” in the Pearl-Cohn Cluster. Board member Ed Kindall similarly

contended that the Rezoning Plan would increase racial and socioeconomic isolation

without making meaningful progress on facility utilization and academic performance.

Chairperson Warden then spoke out in defense of the Rezoning Plan, describing the

history of gridlock on rezoning reform in Nashville and underscoring the Board’s

responsibility to vote on the Task Force’s reform measures. In the end, the Board voted

by a five-to-four margin not to delay a vote on the Rezoning Plan. The five-member

majority consisted of one black and four whites; the four minority members were all

black.

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Debate then focused on whether to vote for or against the Rezoning Plan itself.

Two Board members spoke in favor of the Plan, emphasizing the Task Force’s diversity,

apolitical nature, and unanimity. They also cautioned against adopting modified or

alternative proposals that had been submitted on the spot by other Board members and

had not been subject to prior deliberation. Another Board member recommended that

the Board adopt the Rezoning Plan except for the provisions affecting the Pearl-Cohn,

Hillsboro, and Hillwood Clusters. In the end, the Board voted five to four to adopt the

Task Force’s Rezoning Plan without modifications. The vote on the merits broke down

along the same lines as the vote to delay.

The Rezoning Plan went into effect starting with the 2009-10 academic year.

Although its long-term effects cannot be fully ascertained at the present time, the

available data does permit a provisional assessment of how the Rezoning Plan has

addressed several of its stated goals and concerns. With respect to facility under-

utilization, which provided the original impetus for the Task Force as well as for

previous rezoning efforts, the district court assembled the following data:

Facility Utilization in MNPS

2008-09 2009-10 2010-11 2011-12

Schools > 100% 38 31 35 40

capacity

Schools < 70% 28 22 19 21

capacity

Spurlock, 2012 WL 3064251, at *16.

As shown by the above table, the Rezoning Plan made some headway in reducing

the number of over-utilized schools during its first year of operation, but the number of

over-utilized schools had climbed back up to and beyond its pre-Plan levels by the 2011-

12 academic year. The number of under-utilized schools, however, has seen a sustained

decline of approximately 25 percent since the Rezoning Plan’s implementation. This

No. 12-5978 Spurlock et al. v. Fox et al. Page 11

indicates that the Rezoning Plan has made material progress on the issue that has been

at the forefront of reform efforts for a number of years.

On the academic-performance front, however, the data is far less encouraging.

Nashville public schools have a history of poor academic performance. The District

failed the No Child Left Behind benchmarks (which measure math and reading ability,

as well as graduation and attendance rates) four times between 2003 and 2007, despite

the fact that Tennessee’s benchmarks rank 46th out of the 50 states in difficulty. These

failures conferred on the District the dubious distinction of becoming one of the first two

school districts in Tennessee to achieve Corrective Action status under the No Child Left

Behind law, mandating state intervention to address the academic problems.

Post-Plan school-performance statistics set forth by the district court show no

marked improvement in academic performance in either the Hillwood or Pearl-Cohn

Clusters. And the achievement gap between the two clusters continues to persist. See

Spurlock, 2012 WL 3064251, at *17-21. For example, none of the schools in the largely

black Pearl-Cohn Cluster achieved a “good standing” indicator of annual progress in

2011, whereas all but two of the schools in the relatively diverse Hillwood Cluster were

in good standing in the same year. Id. at *19-20.

Finally, with respect to racial diversity, the picture is mixed. The district court

focused only on the enrollment of black students, and did not make the kind of findings

with respect to all races (including whites, Hispanics, Asian-Americans, and others) that

would enable a comprehensive assessment of the Rezoning Plan’s effects on racial

diversity. See Parents Involved, 551 U.S. at 723-24 (cautioning against a binary view

of race and a “limited notion of diversity” in the school-policy context). Nor are the

statistics emphasized on appeal by the parties particularly helpful because each party

cherry picks absolute numbers that suit its own purpose rather than showing the post-

Plan change in racial diversity that is the proper measure of the Plan’s effect.

Nevertheless, the following table compiled by the district court provides at least some

meaningful sense of the Plan’s effects, albeit only for the limited category of black

student enrollment:

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Percentage of Black Student Enrollment in Different Clusters in the District

2008-09 2009-10 2010-11 2011-12

District-wide 48.0 47.5 46.6 46.0

Antioch 47.5 46.3 41.6 40.8

Cane Ridge 41.0 44.1 44.1 43.2

Glencliff 28.4 28.6 28.7 27.9

Hillsboro 41.2 40.1 40.3 37.0

Hillwood 37.5 26.4 26.1 25.5

Hunters Lane 54.7 52.0 51.9 50.6

Maplewood 69.8 69.7 68.2 66.1

McGavock 36.1 35.2 36.6 36.2

Overton 27.9 24.3 23.0 21.5

Pearl-Cohn 79.4 80.5 80.5 80.9

Stratford 69.4 69.3 68.5 67.4

Whites Creek 76.1 79.0 78.3 78.3

Spurlock, 2012 WL 3064251, at *16.

As the foregoing table shows, the changes in the vast majority of the clusters are

too small or too inconsistent to signify a material trend toward racial isolation. There

is, however, a pronounced trend in the Hillwood Cluster, where black student enrollment

dropped from pre-Plan levels of 37.5 percent to 25.5 percent in the 2011-12 school year.

More detailed findings for the first post-Plan year show a decline in the percentage of

black student enrollment in all but one of the schools in the Hillwood Cluster, despite

the closure of the only two schools in the cluster that had a majority black student

population. See id. at *17. In all, 790 fewer black students were enrolled in the

Hillwood Cluster schools during the first year after the Rezoning Plan’s implementation.

Id. The decline in the number and percentage of black students attending the relatively

diverse and academically superior schools in the Hillwood Cluster is at the heart of the

present action.

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B. Procedural background

This action was initiated by Frances and Jeffrey Spurlock and by Carroll Lewis,

respectively the parents and the grandmother of two black children who ended up in

allegedly inferior schools after the Rezoning Plan was implemented. The overall

gravamen of the complaint is that the Rezoning Plan replaced the noncontiguous-zone

students’ assignment to a good school with a choice between two bad schools, thereby

steering black students away from racially diverse schools in relatively high-income

neighborhoods and toward racially isolated schools in low-income neighborhoods.

The Spurlocks’ daughter lived with her parents in the Pearl-Cohn Cluster, which

was classified as a noncontiguous zone for the Hillwood Cluster under the old student-

assignment plan. During the 2008-09 school year, Spurlock attended Bellevue Middle

School in the Hillwood Cluster, where she qualified for the honor roll and made a

racially diverse group of friends. After the Rezoning Plan went into effect, the District

informed Spurlock’s parents that she was no longer eligible to attend Bellevue, but could

instead attend either John Early Middle School in the Pearl-Cohn Cluster or H.G. Hill

Middle School in the Hillwood Cluster, both of which were academically inferior to

Bellevue. After a District representative misinformed Spurlock’s mother that the family

might have to pay for transportation to H.G. Hill out of its own pocket, the family

decided to send Spurlock to John Early. Spurlock’s experience at John Early was

nothing like that at Bellevue. She received no homework assignments, had to share

textbooks with a number of other students, and often cried on the way to and from school

because she was picked on by her peers.

The Lewis granddaughter also lived in the Pearl-Cohn Cluster. She attended

Martha Vaught Middle School in the Hillwood Cluster during the 2008-09 year. After

the Rezoning Plan went into effect, Lewis was no longer eligible to attend Martha

Vaught, but was given the option of attending Bellevue Middle School in the Hillwood

Cluster or John Early Middle School in the Pearl-Cohn Cluster. Bellevue is a good

school and the one that Spurlock had attended before the Rezoning Plan’s

implementation. Lewis’s grandmother nevertheless decided to send her to the under-

No. 12-5978 Spurlock et al. v. Fox et al. Page 14

resourced and academically weak John Early instead, apparently because the

grandmother was mistakenly led to believe that it was a magnet school.

Spurlock and Lewis, joined by the Tennessee Alliance for Progress, brought suit

in the district court against the Board and a number of related individuals and entities in

August 2009, alleging that the Rezoning Plan segregated students by race in violation

of the Equal Protection Clause of the United States Constitution. A temporary

restraining order was entered the very next day requiring the Board to (1) permit

Spurlock’s transfer to Bellevue Middle School, and (2) provide textbooks to all sixth-

grade students at John Early Middle School. The case was subsequently reassigned to

a different district judge, who held hearings for three weeks in November 2009 on a

motion for a preliminary injunction. But the court never ruled on the preliminary-

injunction motion, and the case was again reassigned after the second judge recused

himself.

In April 2012, the court certified a class action on behalf of “all

African-American students in the Metropolitan Nashville public school system whose

school assignment was affected by the elimination of mandatory noncontiguous transfer

zones in the 2008 re-zoning plan.” The court subsequently denied the Board’s

successive motions to dismiss and for summary judgment, and set the case for trial.

After an 11-day bench trial in May 2012, the court ruled in favor of the Board for the

reasons set forth in its 80-page Findings of Fact and Conclusions of Law. This appeal

followed.

II. ANALYSIS

A. The district court’s analysis and the claims on appeal

The district court analyzed the plaintiffs’ equal-protection claim in three steps.

First the court found that the Rezoning Plan did not facially classify students by race.

Spurlock, 2012 WL 3064251, at *24-25. Then it proceeded to examine the question of

de jure segregation, which requires proof of acts with a segregative purpose that actually

result in increased or continued segregation in the public schools. The district court

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found that there was a segregative effect, id. at *35, and that the segregative effect

resulted from the implementation of the Rezoning Plan, id. at *31-33. But the court

nevertheless rejected the de jure segregation claim because it found that the plaintiffs

had failed to prove that the Board intended to segregate students by race. Id. at *35-43.

Finally, the district court held that the Rezoning Plan passes muster under the deferential

rational-basis standard because the Plan is rationally related to legitimate governmental

interests. Id. at *43-44.

On appeal, the plaintiffs challenge all three steps of the district court’s analysis.

They first claim that the Rezoning Plan classifies students on the basis of race. Then

they argue that the district court erred in finding no intent to segregate. Finally, they

contend that even if there were no racial classifications nor an intent to segregate, the

Rezoning Plan would still be invalid because it cannot survive rational-basis review.

The Board, by contrast, defends all three parts of the district court’s decision.

Alternatively, the Board argues that the district court’s decision may be upheld on the

basis that the Plan did not have an overall segregative effect.

B. Standard of review

We review the district court’s legal conclusions de novo and its factual findings

following a bench trial under the clear-error standard. Kalamazoo River Study Grp. v.

Rockwell Int’l Corp., 355 F.3d 574, 589 (6th Cir. 2004). Clear error will be found only

if we are “left with the definite and firm conviction that a mistake has been committed.”

United States v. Canipe, 569 F.3d 597, 600 (6th Cir. 2009).

C. Explicit racial classification

The plaintiffs’ first argument is that the Rezoning Plan classifies students on the

basis of race. Their argument relies on the Supreme Court’s opinion in Parents Involved

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

that a unitary school district’s decision to classify students by race and to rely on that

classification in determining school assignments is subject to strict scrutiny. Id. at 720-

23. The application of strict scrutiny means that an explicit racial classification will be

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upheld only if it is “narrowly tailored to achieve a compelling government interest.” Id.

at 720 (internal quotation marks omitted). Applying these principles, the Court struck

down as unconstitutional the school policies in Seattle and Louisville that used a

student’s racial classification (defined as “white” or “nonwhite” in Seattle and “black”

or “other” in Louisville) as an important stand-alone factor in determining school

assignments and that used a predetermined range of racial enrollment percentages to

adjust the racial “balance” in individual schools. Id. at 709-17.

Parents Involved has no factual similarity to the present case. The plaintiffs have

been unable to cite any provision of the Rezoning Plan that classifies students by race

or that uses race as a factor in school assignment because there is no such provision.

Instead, the Plan classifies students on the basis of geography. The only factor that

determines a student’s school choices is his or her place of residence, regardless of race.

And there is no provision in the Plan that requires a specific “balance” of racial groups

in each school or each cluster. So the answer to the question of whether the Plan

classifies students by race is a clear “no.”

But the plaintiffs resist this simple reading of the Rezoning Plan and urge us to

hold that the Plan employs a racial classification because its drafters “made use of

detailed racial and ethnic data throughout the process of development.” The plaintiffs

point out that the Task Force obtained data on the racial breakdown of students attending

different schools under the old student-assignment plan, as well as projections of student

enrollment by race in the event that various modifications were adopted. They contend

that obtaining this data and including some of it in the Rezoning Plan shows that the Plan

classifies students by race.

We find the plaintiffs’ argument unpersuasive. Racial classification requires

more than the consideration of racial data. If consideration of racial data were alone

sufficient to trigger strict scrutiny, then legislators and other policymakers would be

required to blind themselves to the demographic realities of their jurisdictions and the

potential demographic consequences of their decisions. The import of the plaintiffs’

argument, in other words, is to impose a duty of ignorance on the part of public officials.

No. 12-5978 Spurlock et al. v. Fox et al. Page 17

Such a requirement would be counterproductive. It would also be impossible to enforce

because there is no practical way to monitor and supervise the data that policymakers are

permitted to consider.

Not surprisingly, the plaintiffs’ argument finds no support in the law. The

Supreme Court in Parents Involved made clear that its prohibition of racial

classifications “ha[s] nothing to do” with the use of racial demographic data in

policymaking, so long as the policy itself does not classify people by race. See 551 U.S.

at 745 (“But the examples the dissent mentions—for example, a provision of the No

Child Left Behind Act of 2001 that requires States to set measurable objectives to track

the achievement of students from major racial and ethnic groups,

20 U.S.C. § 6311(b)(2)(C)(v) (2000 ed., Supp. IV)—have nothing to do with the

pertinent issues in these cases.”). Justice Kennedy’s controlling concurrence put the

matter even more directly:

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 racial

classifications is quite a different matter; and the legal analysis changes

accordingly.

Id. at 789 (Kennedy, J., concurring) (internal citations omitted). See also Doe ex rel.

Doe v. Lower Merion Sch. Dist., 665 F.3d 524, 548 (3d Cir. 2011) (“The consideration

or awareness of race while developing or selecting a policy, however, is not in and of

itself a racial classification. . . . Designing a policy ‘with racial factors in mind’ does not

No. 12-5978 Spurlock et al. v. Fox et al. Page 18

constitute a racial classification if the policy is facially neutral and is administered in a

race-neutral fashion.”).

In short, the requirement that legislative classifications be color-blind does not

demand demographic ignorance during the policymaking process. One searches in vain

for a single pronouncement from any Justice of the Supreme Court, even in dissent, that

goes so far as to conclude that the consideration of racial demographic data during the

policymaking process amounts to racial classification.

Nor is the Fifth Circuit’s per curiam decision in Lewis v. Ascension Parish

School Board, 662 F.3d 343 (5th Cir. 2011), to the contrary. In that case, the court of

appeals overturned the district court’s grant of summary judgment in favor of the school

board “[b]ecause factual questions exist as to whether [the challenged policy] had both

a racially discriminatory motive and a disparate impact.” 662 F.3d at 352. This is

clearly a holding with respect to the issue of de jure segregation, not racial classification.

The court nowhere opined that the consideration of demographic data alone amounts to

a classification by race.

To be fair, however, certain confusing pronouncements in the Lewis per curiam

opinion appear to suggest the contrary. See, e.g., id. at 350 (“Indeed, it is unclear how

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

without classifying individual students by race.”) (emphases in original). But, as the

concurring-and-dissenting opinion in Lewis pointed out, this statement lacks clarity. See

id. at 361 (King, J., concurring in part and dissenting in part). After all, if the court

majority had truly believed that there was racial classification at play, it would have

ordered the district court on remand to subject the challenged policy to strict scrutiny,

which it did not do. In any event, to the extent that certain statements in Lewis conflict

with Supreme Court precedent, the latter obviously prevails.

The plaintiffs next argue that we should pierce the veil of the Rezoning Plan’s

ostensible facial neutrality because “[t]he reality is that[,] if anything, streets and

addresses in the district’s plan serve as surrogates for race.” This argument is not

No. 12-5978 Spurlock et al. v. Fox et al. Page 19

elaborated on, and the only evidence cited to support it is a general citation to the Plan

itself, without any specific references.

But to accept the general claim that geography-based school-assignment policies

are unconstitutional because they are really nothing more than race-based policies in

disguise would mean that any neighborhood-school policy adopted in a community with

racially identifiable housing patterns is unconstitutional. Such a far-reaching implication

has been repeatedly disavowed by both the Supreme Court and this circuit. See Freeman

v. Pitts, 503 U.S. 467, 495 (1992) (“Where resegregation is a product not of state action

but of private choices, it does not have constitutional implications. It is beyond the

authority and beyond the practical ability of the federal courts to try to counteract these

kinds of continuous and massive demographic shifts. To attempt such results would

require ongoing and never-ending supervision by the courts of school districts simply

because they were once de jure segregated.”); accord Parents Involved, 551 U.S. at 721,

736-37; see also Nat’l Ass’n for the Advancement of Colored People v. Lansing Bd. of

Educ., 559 F.2d 1042, 1049 (6th Cir. 1977) (“As a matter of general principle, assigning

school children to schools in their neighborhoods does not offend the constitution.

Racial imbalance in the schools does not, in itself, establish a constitutional violation.

The Constitution imposes no duty on school officials to correct segregative conditions

resulting from factors over which they have no control, such as residential patterns, and

the failure to anticipate the effect on racial composition of the schools of adherence to

a neighborhood school policy does not signify that a school board has created a dual

system, absent a showing of segregative intent.”) (internal citations omitted).

In short, the Rezoning Plan employs no racial classifications in determining a

student’s school assignment. This conclusion is clear from the face of the Rezoning

Plan, and the plaintiffs make no claim that the Plan as actually implemented differs from

the Plan as set forth on paper.

No. 12-5978 Spurlock et al. v. Fox et al. Page 20

D. De jure segregation

We next turn to the issue of de jure segregation. To prevail on such a claim, a

plaintiff must show “(1) action or inaction by public officials (2) with a segregative

purpose (3) which actually results in increased or continued segregation in the public

schools.” Lansing Bd. of Educ., 559 F.2d at 1046; see also Keyes v. Sch. Dist. No. 1, 413

U.S. 189, 205 (1973) (listing the “essential elements of de jure segregation” as “a current

condition of segregation resulting from intentional state action”). The district court

found that the plaintiffs had succeeded in proving state action resulting in racial

segregation, but that their case collapsed because of a failure to prove segregative intent.

Spurlock, 2012 WL 3064251, at *43. This latter finding is contested by the plaintiffs on

appeal. We must review this claim of error in light of the Supreme Court’s directive that

“the trial court’s decision on the ultimate question of discriminatory intent represents a

finding of fact of the sort accorded great deference on appeal.” Hernandez v. New York,

500 U.S. 352, 364 (1991).

In analyzing the issue of discriminatory intent, the Supreme Court’s opinion in

Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252

(1977), is instructive. The Court in Arlington Heights reaffirmed that “official action

will not be held unconstitutional solely because it results in a racially disproportionate

impact,” and that “[p]roof of racially discriminatory intent or purpose is required to show

a violation of the Equal Protection Clause.” 429 U.S. at 264-65. It then went on to

identify the following factors as important “evidentiary source[s]” to consider in the

intent inquiry: “[t]he historical background of the decision[,] . . . particularly if it reveals

a series of official actions taken for invidious purposes”; “[t]he specific sequence of

events leading up the challenged decision”; “[d]epartures from the normal procedural

sequence”; “[s]ubstantive departures[,] . . . particularly if the factors usually considered

important by the decisionmaker strongly favor a decision contrary to the one reached”;

and the “legislative or administrative history[,] . . . especially where there are

contemporary statements by members of the decisionmaking body, minutes of its

meetings, or reports.” Id. at 267-68. The foregoing factors are overlapping and not

No. 12-5978 Spurlock et al. v. Fox et al. Page 21

exhaustive, id. at 268, and “[t]he inquiry is practical,” Pers. Adm’r of Mass. v. Feeney,

442 U.S. 256, 279 n.24 (1979).

We have carefully reviewed the district court’s application of the Arlington

Heights factors to the present case, see Spurlock, 2012 WL 3064251, at *38-43, and find

no error, much less clear error. The following evidence supports the district court’s

finding that there was no segregative intent at play:

• The Rezoning Plan and the process leading to it were the

culmination of longstanding official efforts to address the under-

utilization problem that had plagued the Nashville public schools

for years. And the Plan meaningfully addressed this problem

with at least modest success. The present case therefore

represents the opposite of a “[s]ubstantive departure[]” where

“the factors usually considered important by the decisionmaker

strongly favor a decision contrary to the one reached,” Arlington

Heights, 429 U.S. at 267. Rather, the Rezoning Plan shows a

substantive continuity of concerns where the factor long

considered central by the District strongly favors the result

reached.

• The procedure used to arrive at the Rezoning Plan was

well-defined, well-regulated, and transparent. Namely, a Task

Force representing a diversity of racial, intellectual, and

experiential backgrounds was appointed by representatives of

various constituencies; its members were free of racial prejudice;

its tasks and priorities were clearly and transparently defined; its

deliberations were conducted in the open; its process of

decisionmaking relied on substantive debates, listening to the

concerns of various interested parties, and consulting

authoritative Supreme Court opinions; it met with various groups

ranging from business interests to community activists; and it

was responsive to feedback from various constituencies,

including a modification of the Plan in response to suggestions by

the NAACP.

• The plaintiffs criticize the fact that the Task Force “was

chaired, and very much led, by then-school Board member Mark

North, who was appointed by then-chairperson of the Board

Marsha Warden and who became a committed advocate of the

resulting plan,” and that “all the group’s decisions were required

to be made on a unanimous basis.” But this criticism does

nothing to prove segregative intent. Similarly, the cursory

No. 12-5978 Spurlock et al. v. Fox et al. Page 22

allegation that “minutes or other records apparently were not

maintained of the task force’s deliberations and straw votes” is

inconsequential in view of the fact that all regular Task Force

meetings were open to the public. Nor is there any persuasive

force to the plaintiffs’ contention that using the Task Force

procedure represents a“[d]eparture[] from the normal procedural

sequence” where certain witnesses could recall only one prior

instance (in the mid-1990s) of a similar procedure having been

used by the Board. There is nothing abnormal or pernicious

about the political appointment of apolitical bodies to address

significant public-policy concerns. In the federal context, such

bodies have included the 9/11 Commission, the Iraq Study

Group, and the Financial Crisis Inquiry Commission, to mention

only a few well-known examples. Moreover, if the use of the

Task Force had been in any way suspicious, one would expect

that community voices would have been raised against it at the

inception, which the plaintiffs have not alleged.

• Apparently aware of the difficulty of poking holes in the

Task Force procedure, and of the absence of any evidence

showing that any of the Task Force members harbored

discriminatory intentions, the plaintiffs claim that “the intent of

the members of the School District’s Task Force is immaterial”

and that we should instead focus solely on the Board. To be sure,

the Board was the body that ultimately decided to adopt and

implement the Rezoning Plan, and its intentions are therefore

relevant (and will be discussed below). But given the degree of

authority and autonomy afforded the Task Force, and the district

court’s uncontested finding that “the Board essentially

rubber-stamped the Task Force’s work product,” Spurlock, 2012

WL 3064251, at *43, the Task Force members’ intentions are in

fact far from “immaterial.”

Nothwitstanding the foregoing indicia of proper intent, the plaintiffs press two

arguments in support of their contention that the Rezoning Plan was intended to

segregate students by race. They argue, first, that the racial demographic data

considered by the Task Force and set forth in the Plan indicates an intent to segregate,

and, second, that the disparate impact of the Plan on black students is so pervasive that

it cannot be explained by anything other than racial animus. We find neither argument

persuasive.

No. 12-5978 Spurlock et al. v. Fox et al. Page 23

The claim that considering demographic data amounts to segregative intent flies

in the face of the Supreme Court’s holding that “disparate impact and foreseeable

consequences, without more, do not establish a constitutional violation.” Columbus Bd.

of Educ. v. Penick, 443 U.S. 449, 464 (1979). As the Court explained in Personnel

Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979),

“[d]iscriminatory purpose” . . . 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.

Id. at 279 (internal citations omitted).

The plaintiffs attempt to circumvent this unfavorable precedent by arguing that

“this case is not about ‘awareness’ or ‘consciousness’ of racial information, but about

embracing and relying on such information and updated projections of same at every

step of the plan-drafting process.” The distinction urged by the plaintiffs, however, is

unconvincing. If what is meant by “embracing and relying” is that policymakers can be

aware of certain demographic facts but cannot affirmatively solicit or use them during

the policymaking process, such a rule would prove unenforceable because, in the

absence of any explicit racial classification or proof of discriminatory intent, the line

between “awareness” and “embracing” is almost impossible to draw.

Moreover, such line-drawing would accomplish nothing. The Supreme Court,

as previously discussed, has acknowledged that demographic data is used in a variety of

legislative and policymaking contexts, and it has made clear that the use of such data,

without more, does not offend the Constitution. See Parents Involved in Cmty. Schs. v.

Seattle Sch. Dist. No. 1, 551 U.S. 701, 745 (2007); id. at 789 (Kennedy, J., concurring).

See also United States v. Hays, 515 U.S. 737, 745 (1995) (“The record does contain

evidence tending to show that the legislature was aware of the racial composition of

District 5, and of Lincoln Parish. We [have] recognized . . . , however, 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

No. 12-5978 Spurlock et al. v. Fox et al. Page 24

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

discrimination.”) (emphases in original) (quotation marks omitted). So we squarely

reject the purported ban on “embracing” demographic data because it would impose a

counterproductive duty of ignorance on the part of public officials and would require

judges to undertake impracticable inquiries.

In the present case, there is no proof to justify the inference that the Task Force

obtained racial demographic data in furtherance of an intent to segregate the Nashville

school system. The evidence cited by the plaintiffs instead suggests that the Task Force

members’ intent in considering racial data was to understand the demographic

consequences of various potential reforms so as to adopt measures that would have the

least possible effect on increasing racial isolation and exacerbating the racial

achievement gap.

And that is exactly what they attempted to do. For example, the Rezoning Plan

contains a number of measures specifically designed to address the myriad problems in

the racially isolated and socioeconomically deprived Pearl-Cohn Cluster—including

more advanced-placement and honors course offerings, lower student-teacher and

student-counselor ratios, enhanced pay for teachers, increased technology offerings, the

addition of social workers and full-time career and college counselors, and the merging

of relatively high-income areas into the Pearl-Cohn Cluster. Such measures, which were

designed to improve the Pearl-Cohn Cluster schools and increase their utilization,

undermine the plaintiffs’ claim of racial animus. See Doe ex rel. Doe v. Lower Merion

Sch. Dist., 665 F.3d 524, 553 (3d Cir. 2011) (refusing to find discriminatory intent where

certain statements by school-board officials “may indicate awareness or consciousness

of race,” but “[i]nstead of being adopted for the purpose of discrimination, the statements

indicate, if anything, that Board members and Administrators adopted [the] Plan [at

issue] in an attempt not to discriminate on the basis of race”) (emphasis in original).

The plaintiffs also emphasize the testimony of NAACP member Thomas Searcy

during the preliminary-injunction hearings. Searcy testified that when he challenged

North by arguing that the Plan would increase racial isolation in certain clusters, “his

No. 12-5978 Spurlock et al. v. Fox et al. Page 25

reply essentially was that that was a small price to pay for what ultimately was going to

be an improvement in the schools; i.e., the schools, though more segregated, would be

better.” Even assuming that these were in fact North’s words, this testimony does not

help the plaintiffs. It simply shows that North, while aware that the Plan might increase

racial isolation, thought that the benefits of improved academic performance outweighed

the potential negative consequences. This is simply a candid expression of a

policymaker’s cost-benefit judgment. It shows, at most, that North decided in favor of

the Plan “in spite of” its effect on racial isolation, not “because of” such an effect. See

Feeney, 442 U.S. at 279. In light of the firmly established principle that awareness of

a disparate impact does not prove an intent to segregate, Searcy’s testimony about

North’s alleged remark is not determinative.

Moreover, unlike other cases where courts have found segregative intent, there

is no evidence in the present case that racial demographic data was used to create race-

based loopholes and exceptions in an otherwise geographically based scheme. Cf.

Columbus Bd. of Educ., 443 U.S. at 461-62, 461 n.8 (noting that black teachers were

assigned only to those schools with substantial black student populations and that

exceptions were made to an otherwise geographically based neighborhood-school policy

to allow white students to avoid predominantly black schools); Nat’l Ass’n for the

Advancement of Colored People v. Lansing Bd. of Educ., 559 F.2d 1042, 1050-52 (6th

Cir. 1977) (noting that the neighborhood-school policy was subject to a loophole in the

form of a “special transfer policy” due to “emotional need,” which was used to allow

white students living in black neighborhoods to avoid attending predominantly black

schools, and that “the Board of Education pursued a practice of disproportionate

assignment of minority teachers and administrators to predominantly black schools”).

In sum, the inferences that can be drawn from the Task Force’s consideration of

demographic data undercut, rather than support, a finding of segregative intent.

Finally, the plaintiffs ask us to draw an inference of discriminatory intent from

the bare fact of the Rezoning Plan’s disparate impact on black students. But disparate

impact standing alone, as previously discussed, does not establish a constitutional

No. 12-5978 Spurlock et al. v. Fox et al. Page 26

violation. Feeney, 442 U.S. at 272-73; Vill. of Arlington Heights v. Metro. Hous. Dev.

Corp., 429 U.S. 252, 264-65 (1977); Washington v. Davis, 426 U.S. 229, 242 (1976).

The plaintiffs correctly note, however, that evidence of a policy’s disparate impact may

be probative in determining whether the policymaker harbored a discriminatory intent.

See Arlington Heights, 429 U.S. at 266 (“Determining whether invidious discriminatory

purpose was a motivating factor demands a sensitive inquiry into such circumstantial and

direct evidence of intent as may be available. The impact of the official action, whether

it bears more heavily on one race than another, may provide an important starting

point.”) (internal citation and quotation marks omitted); Washington v. Davis, 426 U.S.

at 242 (“Disproportionate impact is not irrelevant, but it is not the sole touchstone of an

invidious racial discrimination forbidden by the Constitution.”); accord Feeney, 442

U.S. at 274.

Evidence of disparate impact, although relevant, is rarely dispositive. This

circuit at one time operated under the rule that “[a] presumption of segregative purpose

arises when plaintiffs establish that the natural, probable, and foreseeable result of public

officials’ action or inaction was an increase or perpetuation of public school

segregation.” Oliver v. Mich. State Bd. of Educ., 508 F.2d 178, 182 (6th Cir. 1974). But

the Supreme Court has specifically rejected the Oliver presumption. See Dayton Bd. of

Educ. v. Brinkman, 443 U.S. 526, 536 n.9 (1979) (referring to Oliver and explaining that

“[w]e have never held that as a general proposition the foreseeability of segregative

consequences makes out a prima facie case of purposeful racial discrimination and shifts

the burden of producing evidence to the defendants if they are to escape judgment; and

even more clearly there is no warrant in our cases for holding that such foreseeability

routinely shifts the burden of persuasion to the defendants”).

The Supreme Court’s decision in Arlington Heights fleshed out the proper role

of disparate-impact evidence with regard to the intent inquiry:

Sometimes a clear pattern, unexplainable on grounds other than race,

emerges from the effect of the state action even when the governing

legislation appears neutral on its face. Yick Wo v. Hopkins, 118 U.S. 356

(1886); Gomillion v. Lightfoot, 364 U.S. 339 (1960). The evidentiary

No. 12-5978 Spurlock et al. v. Fox et al. Page 27

inquiry is then relatively easy. But such cases are rare. Absent a pattern

as stark as that in Gomillion or Yick Wo, impact alone is not

determinative, and the Court must look to other evidence.

429 U.S. at 266 (some internal citations omitted). Applying these principles, our task

is to determine whether the present case belongs with Yick Wo and Gomillion in that rare

category where the clear pattern of disparate impact cannot be explained except by

reference to discriminatory intent, or whether it fits the usual mold where disparate

impact alone cannot justify an inference of intent.

Yick Wo involved San Francisco ordinances governing the regulation of

laundries. The undisputed evidence showed that the ordinances were enforced

exclusively against Chinese laundry operators and never against whites, even though

there was no difference in the two groups’ compliance with legal requirements. 118 U.S.

at 374. No reason was proffered for the discriminatory enforcement. Id. The Supreme

Court held that the lopsided enforcement “is a denial of the equal protection of the laws,

and a violation of the fourteenth amendment of the constitution.” Id.

In Gomillion, the complaint alleged that the Alabama legislature transformed “the

shape of Tuskegee from a square to an uncouth twenty-eight-sided figure,” which served

to “remove from the city all save four or five of its 400 Negro voters while not removing

a single white voter or resident.” 364 U.S. at 340-41. The Supreme Court held that the

complaint stated a claim for the violation of the right to vote under the Fifteenth

Amendment. Id. at 347-48. Justice Whittaker concurred in the result, opining that “the

decision should be rested not on the Fifteenth Amendment, but rather on the Equal

Protection Clause of the Fourteenth Amendment to the Constitution.” Id. at 349

(Whittaker, J., concurring).

The present case bears no resemblance to either Yick Wo or Gomillion. Here, the

negative impact of the Rezoning Plan is not so overwhelmingly or suspiciously

concentrated upon black citizens as to leave no room for an inference other than

segregative intent. To the contrary, the Plan contains numerous provisions specifically

benefitting the schools in underprivileged neighborhoods heavily populated by blacks.

No. 12-5978 Spurlock et al. v. Fox et al. Page 28

The district court’s uncontested findings further show that there was a significant drop

in the percentage of black student enrollment in only one out of twelve geographic

clusters, and even there black student enrollment remained at over 25 percent.

Moreover, the defendants in the present case, unlike those in Yick Wo and

Gomillion, have offered a number of plausible nondiscriminatory explanations for their

reform efforts, chief among them tackling the school under-utilization problem. The

other Arlington Heights factors also point away from a finding of segregative intent. So

the present case does not come close to being the rare one where segregative intent is

shown by disparate impact alone.

Rather, the present case is more like Personnel Administrator of Massachusetts

v. Feeney, 442 U.S. 256 (1979), which involved an equal-protection challenge to a

Massachusetts statute establishing a hiring preference for veterans. The statute

“benefit[ted] an overwhelmingly male class,” id. at 269, an effect so obvious a priori

that the legislators’ foreknowledge of the statute’s disparate impact could not be denied,

id. at 278. Nevertheless, the Supreme Court refused to find an intent to discriminate

against women, holding that the statute was intended to benefit veterans, not men, and

that it was adopted “in spite of” its disparate impact on women, not “because of” such

an impact. Id. at 279-80. The present case is analogous in that the Rezoning Plan was

intended to ameliorate the school under-utilization problem, not to benefit whites. And

to the extent that the Board might have known of the possibility of a disparate impact (a

possibility that, unlike in Feeney, was by no means inevitable), there is no proof that the

Rezoning Plan was adopted “because of” its disparate impact on blacks rather than “in

spite” of such an impact.

In sum, the overwhelming weight of the evidence supports the district court’s

finding that the Rezoning Plan was not adopted or implemented with a segregative

intent. The plaintiffs have therefore failed to satisfy the segregative-intent element of

a de jure segregation claim. We thus have no occasion to address the Board’s alternative

argument for affirmance on the basis that the Plan’s segregative effect was too marginal

to be legally cognizable.

No. 12-5978 Spurlock et al. v. Fox et al. Page 29

E. Rational-basis review

Because the Rezoning Plan does not classify students by race and was not

adopted with a segregative intent, the Plan is subject to rational-basis review. See, e.g.,

Doe ex rel. Doe v. Lower Merion Sch. Dist., 665 F.3d 524, 556 (3d Cir. 2011). Under

this standard, “legislation is presumed to be valid and will be sustained if the

classification drawn by the statute is rationally related to a legitimate state interest.” City

of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). “When social or

economic legislation is at issue, the Equal Protection Clause allows the States wide

latitude, and the Constitution presumes that even improvident decisions will eventually

be rectified by the democratic processes.” Id. (internal citations omitted). Rational-basis

review is “highly deferential” and will result in a holding of unconstitutionality “only

in rare or exceptional circumstances.” Doe v. Mich. Dep’t of State Police, 490 F.3d 491,

501 (6th Cir. 2007).

In the present case, the Board contends that a number of legitimate state interests

are served by the Rezoning Plan. We need address only one—namely, school under-

utilization. As discussed above, under-utilization had long been a concern in the

District, with many schools operating at levels below what their resources and

infrastructure would permit, while other schools were overflowing. The Board’s interest

in remedying this problem and attaining a more efficient allocation of educational

resources indisputably qualifies as a legitimate state interest. And the Rezoning Plan

meaningfully addressed the under-utilization problem by, among other things, adjusting

school-zone boundaries, redesignating certain schools, recommending school-specific

reforms, and allocating more resources to areas with under-utilized schools. These

measures not only rationally relate to the under-utilization problem; they actually solved

the problem in a significant portion of the underutilized schools. This is more than

enough to show that the Rezoning Plan passes constitutional muster.

Our conclusion that the Rezoning Plan is constitutional, however, should not be

understood to be a judicial endorsement of its “success.” As the district court found, the

Plan’s much-touted neighborhood-school concept “may have thin support in the

No. 12-5978 Spurlock et al. v. Fox et al. Page 30

academic literature.” Spurlock, 2012 WL 3064251, at *44. That equivocal finding is

not surprising. After all, the notion that children from underprivileged neighborhoods

are somehow better off staying in their woefully deprived neighborhood schools—so

woefully deprived that the students at John Early Middle School in the Pearl-Cohn

Cluster had to share textbooks—instead of attending manifestly superior outside schools,

is counterintuitive.

Nor is there any indication in the record that the Rezoning Plan has done much

to alleviate problems other than school under-utilization, despite the Rezoning Plan’s

efforts to direct more resources into the racially isolated schools in the District. The

racial achievement gap apparently exists much as before. Nor has overall academic

performance materially changed. Nashville public-school students as a whole were

doing poorly before the Plan and continue to do poorly after the Plan. Finally, the effect

on racial and socioeconomic diversity, although not dramatic in one direction or the

other, appears to have drifted in the direction of increasing isolation.

In the aggregate, then, the Plan seems to have achieved a modest measure of

success in improving school utilization while modestly increasing racial isolation.

Whether that incremental step forward was worth the incremental step backward is a

debatable question. But “the Fourteenth Amendment cannot be made a refuge from ill-

advised laws,” and “[t]he calculus of effects, the manner in which a particular law

reverberates in a society, is a legislative and not a judicial responsibility.” Pers. Adm’r

of Mass. v. Feeney, 442 U.S. 256, 281, 272 (1979) (ellipsis and quotation marks

omitted). In the absence of any constitutional infirmity, it is not the province of the

courts to dictate and supervise local school policy.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district

court.