LDF ACLU Amicus Brief 1-12-11

8/8/2019 LDF ACLU Amicus Brief 1-12-11

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No.10-3824

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

STUDENT DOE 1 et al.,

Plaintiffs-Appellants,

v.

LOWER MERION SCHOOL DISTRICT,

Defendant-Appellee.

_________

Appeal from the United States District Courtfor the Eastern District of Pennsylvania

Civ. No. 09-2095

_________

BRIEF OF AMICI CURIAE

NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC.,

LAWYERS COMMITTEE FOR CIVIL RIGHTS UNDER LAW, AND

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

URGING AFFIRMANCE ON ALTERNATIVE GROUNDS

_________

JOSHUA CIVIN *

NAACPLEGAL DEFENSE &

EDUCATIONAL FUND,INC.

1444 I Street, NW, 10th Floor

Washington, DC 20005

(202) 682-1300

* Counsel of Record

January 12, 2011

JOHN PAYTON

Director-Counsel

DEBO P.ADEGBILE

DAMON T.HEWITT

KIMBERLY LIU



99 Hudson St., 16th Floor

New York, NY 10013

(212) 965-2200

Counsel for the Amici Curiae

Case: 10-3824 Document: 003110407516 Page: 1 Date Filed: 01/12/2011


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Of Counsel:

DENNIS D.PARKER

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

125 Broad Street

New York, NY 10004

(212) 549-2500

WITOLD J.WALCZAK

ACLU OF PENNSYLVANIA

(PA I.D. No. 62976)

313 Atwood Street

Pittsburgh, PA 15213

(412) 681-7864

JOHN C.BRITTAIN

Professor of Law

DAVID A.CLARKE SCHOOL OF LAW

UNIVERSITY OF THE DISTRICT OF

COLUMBIA

4200 Connecticut Avenue, NW


(832) 687-3007

(institutional affiliation listed for

identification purposes only)

DEREK W.BLACK

Associate Professor of Law

HOWARD UNIVERSITY SCHOOL OF

LAW

2900 Van Ness St., NW

Washington, D.C. 20008

(202) 806-8163(institutional affiliation listed for


JON M.GREENBAUM

BRENDA SHUM

LAWYERSCOMMITTEE FOR CIVIL

RIGHTS UNDER LAW

1401NEW YORK AVENUE,NW,

SUITE 400

WASHINGTON,DC20005

(202)662-8600



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CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1 and Local Rule 26.1.1,

Amici Curiae NAACP Legal Defense & Educational Fund, Inc. (LDF), the

Lawyers Committee for Civil Rights Under Law (Lawyers Committee), and the

American Civil Liberties Union Foundation (ACLU), file the following statement

of disclosure: Each amici is a non-profit 501(c)(3) corporation, is not a publically

held company that issues stock, and has no parent corporation.

s/ Kimberly Liu

Kimberly Liu

NAACP Legal Defense &

Educational Fund, Inc.99 Hudson Street, 16th Floor

New York, New York 10013

(212) 965-2200

January 12, 2011 Counsel for Amici Curiae



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i

TABLE OF CONTENTS

Table of Authorities ................................................................................................. ii

Interests of the Amici................................................................................................1

Introduction and Summary of the Argument............................................................2

Argument...................................................................................................................6

I. Justice Kennedys Parents Involved concurrence provides the

controlling standard of constitutional review for this case.............................6

A. Under Parents Involved, race-consciousness in the drawing of

school attendance zones is presumptively valid ..................................7

B. This presumption of validity furthers the equal educational

opportunity mandate ofBrown v. Board of Education ..................... 14

II. Justice Kennedys controlling concurrence encompasses principles set

forth in prior authority of the Supreme Court and this Court...................... 18

A. Nothing in Parents Involved prevents application of strict

scrutiny where there is evidence of segregative intent ..................... 20

B. Arlington Heights does not require strict scrutiny simply

because a school district considers neighborhood racial

demographics..................................................................................... 22

III. The District Courts findings provide no clear ground to disregard

Parents Involveds presumption of validity, but a remand could be

prudent to allow the District Court to clarify the facts in light of the

proper legal standard.................................................................................... 26

Conclusion ............................................................................................................. 30



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ii

TABLE OF AUTHORITIES

Cases

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)......................................21

American Civil Rights Foundation v. Berkeley Unified School District,

172 Cal. App. 4th 207 (Cal. Ct. App. 2009) .................................................. 16-17

Board of Education of Oklahoma City Public Schools v. Dowell, 498

U.S. 237 (1991) ....................................................................................................18

Brown v. Board of Education, 347 U.S. 483 (1954)........................................passim

Bush v. Vera, 517 U.S. 952 (1996) .................................................................... 23-24

Citizens for Better Education v. Goose Creek Consolidated Independent

School District, 719 S.W.2d 350 (Tex. App. 1986)....................................... 11-12

City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) ....................................14

Columbus Board of Education v. Penick, 443 U.S. 449 (1979) ..............................21

Doe 1 v. Lower Merion School District, 689 F. Supp. 2d 742 (E.D. Pa.

2010).......................................................................................................................9

Easley v. Cromartie, 532 U.S. 234 (2001)...............................................................24

Gratz v. Bollinger, 539 U.S. 244 (2003)..................................................................21

Grutter v. Bollinger, 539 U.S. 306 (2003).......................................................passim

Johnson v. California, 543 U.S. 499 (2005) ............................................................14

Keyes v. School District No. 1, 413 U.S. 189 (1973) ..............................................22

Keyes v. School District No. 1, 313 F. Supp. 61 (D. Colo. 1970) ...........................22

Marks v. United States, 430 U.S. 188 (1977) ......................................................9, 10

Miller v. Johnson, 515 U.S. 900 (1995).............................................................23, 24

Panetti v. Quarterman, 551 U.S. 930 (2007).............................................................9



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iii

Parents Involved in Community Schools v. Seattle School District No. 1,

551 U.S. 701 (2007) .....................................................................................passim

Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979)....25, 26

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833

(1992)....................................................................................................................10

Planned Parenthood of Southeastern Pennsylvania v. Casey, 947 F.2d 682

(3d Cir. 1991) .......................................................................................................10

Pryor v. NCAA, 288 F.3d 548 (3rd Cir. 2002).............................................19, 25, 26

Rappa v. New Castle County, 18 F.3d 1043 (3d Cir. 1994) ....................................10

Shaw v. Reno, 509 U.S. 630 (1993) .........................................................................23

Smith v. University of Washington, Law School, 233 F.3d 1188 (9th Cir.

2000).....................................................................................................................10

Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971).............24

Tometz v. Board of Education, 237 N.E. 2d 498 (Ill. 1968).............................. 11-12

Village of Arlington Heights v. Metropolitan Housing Development Corp.,429 U.S. 252 (1977) .....................................................................................passim

Statutes and Constitutional Provisions

No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat.

1425 ......................................................................................................................14

Cal. Const., art. 1, 31, subdiv. (a) ................................................................... 16-17

Other Authorities

Douglas S. Massey & Mary J. Fischer, The Effect of Childhood

Segregation on Minority Academic Performance in Selective

Colleges, 29 Ethnic & Racial Stud. 1 (2006) .......................................................17



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iv

National Academy of Education, Race-Conscious Policies for

Assigning Students to Schools: Social Science Research and the

Supreme Court Cases (2007) ...............................................................................17

NAACP Legal Defense & Educational Fund, Inc. & The Civil Rights

Project, Still Looking to the Future: Voluntary K-12 Integration, A

Manual for Parents, Educators, & Advocates (2008)..........................................16

Elizabeth Stearns, Long-Term Correlates of High School Racial

Composition, 112 Teachers Coll. Rec. 1654 (2010) ............................................17

Transcript of Oral Argument, Ricci v. DeStefano, 129 S. Ct. 2658

(2009) (No. 07-1428)............................................................................................12

Linda R. Tropp & Mary A. Prenovost, The Role of Intergroup Contact

in Predicting Childrens Interethnic Attitudes in Intergroup

Attitudes and Relations in Childhood Through Adulthood236 (Sheri

R. Levy & Melanie Killen eds., 2008) .................................................................17



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INTERESTS OF THE AMICI

Amici are the NAACP Legal Defense & Educational Fund, Inc. (LDF), the

Lawyers Committee for Civil Rights Under Law (Lawyers Committee), and the

American Civil Liberties Union Foundation (ACLU). Pursuant to Federal Rule of

Appellate Procedure 29(a), all parties have consented to the filing of this amicus

brief. No counsel for any party had a role in authoring this brief.

LDF is a non-profit legal organization that has litigated numerous landmark

cases over the past six decades to dismantle racial segregation and ensure equal

educational opportunity for all students, including the cases leading up to and

including Brown v. Board of Education, 347 U.S. 483 (1954). In addition, LDF

has played and continues to play a critical role in litigation and advocacy to ensure

diversity and reduce racial isolation in primary, secondary, and higher education.

See, e.g., Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701

(2007); Grutter v. Bollinger, 539 U.S. 306 (2003).

The Lawyers Committee is a tax-exempt, nonprofit civil rights organization

that was founded in 1963 by the leaders of the American bar at the request of

President John F. Kennedy to help defend the civil rights of minorities and the

poor. Throughout its history, the Lawyers Committee has been involved in cases

examining the proper scope of coverage afforded to civil rights laws, including



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laws related to equal educational opportunity. The Lawyers Committee also

engages in litigation and public policy advocacy to ensure diversity in education.

The ACLU is a nationwide, nonprofit, nonpartisan organization with more

than 550,000 members dedicated to the principles of liberty and equality embodied

in the Constitution and this nations civil rights laws. In support of these

principles, the ACLU has appeared in numerous cases involving educational

diversity and the reduction of racial and ethnic isolation both as direct counsel and

amicus curiae including Parents Involved, 551 U.S. 701, and Grutter, 539 U.S.

306. The ACLU of Pennsylvania is a state affiliate of the national ACLU, with

more than 16,000 members.

INTRODUCTION AND SUMMARY OF THE ARGUMENT

There are two key facts in this case: First, the student assignment plan

adopted by Lower Merion School District (hereinafter the School District) is

facially race-neutral because it does not allocate benefits or burdens based on

explicit racial classifications of individual students. Rather, students are assigned

to the School Districts two high schoolsboth ranked among the best in the

nationbased on the geographic attendance zone in which they live. Second, this

student assignment plan resulted from a process that was race-conscious. School

District staff drew attendance zones based in part on consideration of the racial



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demographics of affected neighborhoods, and the School Board approved the

resulting plan, including the rezoning of students from South Ardmorea

neighborhood with a large but not exclusively African-American populationto

attend Harriton High School, which previously had low African-American

enrollment. Significantly, however, all students in each attendance zone receive

the same high school assignment, regardless of their individual racial background.

Amici accept that the District Courts factual findings on each of these issues

were correct. A50-A55, A69-A72.1 But its opinion was marred by a fundamental

legal error: its assumption that strict scrutiny was automatically triggered by the

School Districts mere consideration of neighborhood racial demographics.

A67; accordA80. The District Court failed to appreciate that Justice Kennedys

pivotal concurrence in Parents Involved in Community Schools v. Seattle School

District No. 1, 551 U.S. 701 (2007), establishes the governing legal standard of

constitutional review. School authorities consideration of neighborhood racial

demographics at the aggregate level when drawing school attendance zones is

precisely the type of non-individualized, race-conscious decision-making that

Justice Kennedy expressly identified as presumptively valid and, thus, unlikely

. . . [to] demand strict scrutiny to be found permissible. Id. at 789 (Kennedy, J.,

concurring in part and concurring in the judgment). Because Justice Kennedys

1Amici cite to the appendix to appellants brief as A__.



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Parents Involvedconcurrence is controlling on this point, it was inappropriate for

the District Court to apply a separate legal analysis based on Village of Arlington

Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), and its

progeny. In fact, the principles set forth inArlington Heights are incorporated into

Parents Involveds governing standard.

Regardless of the outcome of this case, amicis overriding interest is to urge

this Court to give effect to Justice Kennedys controlling concurrence in Parents

Involved. To do otherwise would unnecessarily restrict school districts, parents,

and advocates from working to redeem the promise of high-quality, racially

inclusive schools for all studentsa commitment unanimously embraced by the

Supreme Court inBrown v. Board of Education, 347 U.S. 483 (1954).

Justice Kennedys concurrence in Parents Involved draws heavily upon

Brown. He recognized that [t]his Nation has a moral and ethical obligation to

fulfill its historic commitment to creating an integrated society that ensures equal

opportunity for all of its children. Parents Involved,551 U.S. at 797 (Kennedy,

J., concurring in part and concurring in the judgment). Yet, in many American

communities, the problem of de facto resegregation in schooling makes it

challenging to fulfill this obligation. Id. at 788. As Justice Kennedy emphasized,

the Constitution does not tie the hands of school authorities who are concerned

that the student-body compositions of certain schools interfere with [Browns]



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objective of offering an equal educational opportunity to all of their students. Id.

at 788. Rather, school authorities are free to devise race-conscious measures to

address the problem in a general way . . . [such as] drawing attendance zones with

general recognition of the demographics of neighborhoods. Id. at 788-89.

As in this case, school attendance boundaries consistently are matters of

intense debate because they have very practical effects on the lives of families and

their children. Appellants have raised serious educational and civic concerns that

merited close attention by the School District, its decision-makers, and the

community at large.2

But the contested nature of the public debate does not

automatically trigger the most rigorous level of constitutional review. To the

contrary, under Parents Involved,strict scrutiny is not applicable unless a plaintiff

demonstrates distinctive circumstancessuch as a segregative purposethat

provide grounds for overcoming the presumptive validity of non-individualized

race-consciousness in drawing school attendance zones. It is this threshold legal

inquiry that the District Court overlooked.

The District Courts judgment in favor of the School District could be

affirmed on this alternative basis: Parents Involveds presumption of validity

applies, so there is no need for this Court to reach the question of whether the

District Court correctly upheld the constitutionality of the School Districts plan on

2Amici file this brief to clarify the legal principles at issue and take no

position regarding the School Districts actions in matters unrelated to this case.



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the ground that it satisfied strict scrutiny. Nevertheless, this Court, in the interest

of prudence, may wish to remand for the District Court to clarify certain

inconsistencies in its factual findings under the proper legal standard.

ARGUMENT

I. Justice Kennedys Parents Involvedconcurrence provides the

controlling standard of constitutional review for this case.

Appellants contend that Parents Involved compels application of strict

scrutiny whenever there is any consideration of race in school authorities

decision-making, see Appellants Br. 36-39, 40-41, but the District Court properly

concluded that the Supreme Courts decision require[s] this Court to apply strict

scrutiny to student assignment plans only if they are based on individual racial

classifications, A72 (emphasis added). The District Court failed to recognize,

however, that Justice Kennedys Parents Involved concurrence also provides a

different controlling standard of review for this case: It establishes a presumption

of validity where, as here, a court reviews the constitutionality of non-

individualized race-consciousness in the drawing of school attendance zones. This

approach provides school districts with a limited degree of latitude to pursue

Browns objective of racially inclusive, high-quality education.



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A. Under Parents Involved, race-consciousness in the drawing ofschool attendance zones is presumptively valid.

In Parents Involved, the salient feature of the student assignment plans

adopted by the school districts of Seattle, Washington, and Jefferson County,

Kentucky, was consideration of individual students race as one factor in

determining whether to approve their requests for assignments to particular

schools. 551 U.S. at 711-13, 715-17 (plurality opinion). The threshold question

was whether voluntary integration plans that utilized such individualized racial

classifications trigger strict scrutiny. The Justices sharply disagreed over the

answer to this question under the circumstances at issue in Parents Involved. But a

majority supported the view that strict scrutiny is unlikely to be triggered where, as

here, a school district draws attendance zones with general recognition of the racial

demographics of its neighborhoods at the aggregate level, but does not assign any

individual student to a particular school based explicitly on his or her racial

background.

1. In Parents Involved, the Chief Justice and the four Justices who joined

the material portion of his plurality opinion agreed that strict scrutiny had to be

applied because Seattle and Jefferson County classif[ied] students by race and

rel[ied] upon that classification in making school assignments. Id. at 711.

Applying this heightened standard of review, these five Justices further agreed that



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the school districts plans were not sufficiently narrowly tailored. Id. at 726; see

also id. at 783-84 (Kennedy, J., concurring in part and concurring in the judgment).

Justice Kennedy, however, was unwilling to go so far as to require strict

scrutiny for all race-conscious decision-making by school districts. He expressly

distinguished the individualized racial classifications utilized in Seattles and

Jefferson Countys student assignment plans from mechanisms [that] 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. Id. at 789 (Kennedy, J.,

concurring in part and concurring in the judgment). Of particular relevance to this

case, in defining the latter category, Justice Kennedy listed several examples of

mechanisms routinely used by school districts seeking to promote racial

integration, including drawing attendance zones with general recognition of the

demographics of neighborhoods. Id.3

This distinction is significant because it determines the appropriate standard

of constitutional review for the student assignment plan now before this Court.

Justice Kennedy thought it unlikely that drawing attendance zones with general

recognition of neighborhood racial demographics, or any of the other race-

conscious mechanisms that he enumerated, would demand strict scrutiny to be

3The four other examples identified by Justice Kennedy were: (1) strategic

site selection of new schools; (2) allocating resources for special programs; (3)

recruiting students and faculty in a targeted fashion; and (4) tracking

enrollments, performance, and other statistics by race. Id.



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found permissible. Id. at 789. Rather, these race-conscious mechanisms warrant

what amounts to a presumption of validity:

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 a different fashion solely on the basis

of a systematic, individual typing by race.

Id. at 788-89 (emphasis added). By contrast, [a]ssigning 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. Because of the presumptive invalidity of a States use

of racial classifications to differentiate its treatment of individuals, strict scrutiny

automatically applies. Id. at 793.

2. The District Court in this case declined to analyze Justice Kennedys

concurrence under the prevailing approach for interpreting fragmented Supreme

Court decisions. Marks v. United States, 430 U.S. 188, 193 (1977); accord Panetti

v. Quarterman, 551 U.S. 930, 949 (2007). The District Court therefore failed to

recognize that Justice Kennedys presumption of validity is controlling because it

garnered the votes of the four dissenting Justices. A92; Doe 1 v. Lower Merion

Sch. Dist., 689 F. Supp. 2d 742, 751 (E.D. Pa. 2010).

Applying Marks, this Court has held that [w]here a Justice or Justices

concurring in the judgment . . . articulates a legal standard which, when applied,



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will necessarily produce results with which a majority of the Court from that case

would agree, that standard is the law of the land. Planned Parenthood of

Southeastern Pa. v. Casey, 947 F.2d 682, 693 (3d Cir. 1991), revd in part on other

grounds, 505 U.S. 833 (1992); see also Smith v. Univ. of Wash., Law Sch., 233

F.3d 1188, 1199-1200 (9th Cir. 2000) (concluding that the opinion of a single

Justice, which would have been joined by four other Justices, results in a

controlling legal standard). In Casey, this Court noted that four Justices of the

then-existing Supreme Court would apply strict scrutiny review to abortion

restrictions, and four would apply a less restrictive standard of review. 947 F.2d at

694-96. The controlling legal standard was therefore Justice OConnors middle

positionthat strict scrutiny was warranted when the restriction placed an undue

burden on a womans right to an abortion. Id. at 697; see also Rappa v. New

Castle County, 18 F.3d 1043, 1057 (3d Cir. 1994) (explaining this Courts decision

in Casey).

A similar split occurred in Parents Involved, but with Justice Kennedy as the

determinative vote. Whereas the Chief Justice and the three other Justices who

joined this portion of his plurality opinion took a restrictive approach to voluntary

integration plans, the four dissenting Justices agreed with Justice Kennedy that

race-conscious measures that do not utilize individual racial classifications are

presumptively valid. Parents Involved, 551 U.S. at 837 (Breyer, J., dissenting).



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Indeed, the dissenting Justices would have gone further and applied a more

permissive analysis to a much broader array of measures that seek racially

inclusive educational goals, including the Seattle and Jefferson County plans at

issue in Parents Involved. Id. at 834, 837. Thus, a majority of the Court in

Parents Involved supported Justice Kennedys analysis of general race-conscious

policymaking by school authorities that does not allocate burdens or benefits based

on individualized racial classifications; accordingly, his opinion on that subject

controls.

3. Not only did Justice Kennedys presumption of validity win the votes of

the four dissenters, but the Chief Justices plurality opinion did not rule out this

approach to the circumstances at issue here. Seeid. at 738-39 (plurality opinion).

Responding to the dissenters arguments against applying strict scrutiny, the Chief

Justice highlighted the same distinction that Justice Kennedy drew between the

individualized racial classifications utilized by Seattle and Jefferson County, on the

one hand, and race-consciousness in drawing school attendance boundaries, on

the other; the latter, in the Chief Justices view, presented an issue well beyond

the scope of the question presented. Id. at 738.

Moreover, the Chief Justice expressly distinguished two cases in which state

courts in Illinois and Texas, respectively, applied rational-basis review to uphold

race-consciousness in drawing school attendance boundaries. Id. at 738-39; see



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Tometz v. Bd. of Educ., 237 N.E.2d 498, 499, 502-503 (Ill. 1968) (upholding as

reasonable Illinoiss requirement that school boards take into consideration

reduction of de facto racial segregation when drawing school attendance

boundaries); Citizens for Better Educ. v. Goose Creek Consol. Indep. Sch. Dist.,

719 S.W.2d 350, 352 (Tex. App. 1986) (upholding a school districts attendance

zone plan, designed in part to achieve ethnic balance between its two high

schools, on the ground that [s]chool authorities are traditionally given broad

discretionary powers to formulate and implement educational policy and may

properly decide to ensure to their students the value of an integrated school

experience). The Chief Justice concluded that Tometz and Citizens for Better

Education provided an improper standard for evaluating [the] express racial

classifications utilized by Jefferson County and Seattle, but he did not suggest that

a more relaxed standard of review was inappropriate for the type of non-

individualized race-consciousness that was upheld in those two cases and that is at

issue here. Parents Involved, 551 U.S. at 738 (plurality opinion).4

4The Chief Justice subsequently suggested his support for Justice

Kennedys approach even more clearly. During oral argument in Ricci v.

DeStefano, the Chief Justice stated his view that both the plurality and theconcurrence in Parents Involvedaccepted the fact that race conscious action such

as school siting or drawing district lines . . . is okay, but discriminating in

particular assignments is not. Transcript of Oral Argument at 54, Ricci v.

DeStefano, 129 S. Ct. 2658 (2009) (No. 07-1428). To be clear, while Parents

Involved requires strict scrutiny review of student assignment plans that utilize

individualized racial classifications, Justice Kennedy refused to rule out this



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A presumption of validity for non-individualized race consciousness is also

the only legal principle consistent with the Supreme Courts repeated insistence in

Parents Involvedand other cases that government actors must give serious, good-

faith consideration to facially race-neutral alternatives before adopting measures

thatallocate benefits or burdens based on individualized racial classifications. See

id. at 744 (plurality opinion); id. at 783-84, 789-90 (Kennedy, J., concurring in part

and concurring in the judgment); see also Grutter, 539 U.S. at 339 (Narrow

tailoring does, however, require serious, good faith consideration of workable race-

neutral alternatives. . . .).

Under the Supreme Courts jurisprudence, a student assignment mechanism

or any other measure that does not rely on individualized racial classifications is at

least facially race-neutral. Parents Involved, 551 U.S. at 735 (plurality opinion).

If such facially race-neutral mechanisms triggered strict scrutiny simply because

they were adopted in pursuit of a race-conscious goal, the well-established narrow-

tailoring analysis would be internally inconsistent and impossible to satisfy. The

very act of giving good-faith consideration to facially race-neutral alternatives

approach in all circumstances. In his view, such classifications could satisfy strict

scrutiny with more nuanced, individual evaluation of school needs and student

characteristics than was utilized by Seattle or Jefferson County. Parents Involved,

551 U.S. at 790 (Kennedy, J., concurring in part and concurring in the judgment).

In any event, no such individualized racial classifications are at issue here.



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requires school authorities to evaluate whether those alternatives are effective at

achieving the intended race-conscious goal. See Grutter, 539 U.S. at 339-40.5

B. This presumption of validity furthers the equal educational

opportunity mandate ofBrown v. Board of Education.

Parents Involveds controlling distinction between individualized racial

classifications and non-individualized race-consciousness is not a distinction that

simply makes no difference. Cf. Appellants Br. 39. In Justice Kennedys view,

the dangers presented by the latter are not as pressing. Parents Involved, 551

U.S. at 797 (Kennedy, J., concurring in part and concurring in the judgment).

Thus, Justice Kennedy deemed non-individualized race-consciousness a preferable

approach in pursuit of Browns objective of high-quality, racially inclusive

education for all students.

1. Individualized racial classifications trigger strict scrutiny because they

raise special fears that they are motivated by an invidious purpose. Johnson v.

California, 543 U.S. 499, 505 (2005). As Justice Kennedy explained, such

classifications command people to march in different directions based on racial

5Moreover, if strict scrutiny applies to all facially race-neutral measures that

are designed in part to further race-conscious objectives, it could jeopardize

government action, for example, to address achievement gaps between AfricanAmericans and other students. See No Child Left Behind Act of 2001, Pub. L. No.

107-110, 115 Stat. 1425 (codified as amended in scattered sections of 20 U.S.C.).

Even Justices who have largely rejected any use of race to confer or deny

individual benefits have not gone so far as to bar facially race-neutral measures to

dismantle structural barriers to equal opportunity. See, e.g., City of Richmond v.

J.A. Croson Co., 488 U.S. 469, 526 (1989) (Scalia, J., concurring in the judgment).



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typologies and can lead to corrosive discourse, where race serves not as an

element of our diverse heritage but instead as a bargaining chip in the political

process. Parents Involved, 551 U.S. at 797 (Kennedy, J., concurring in part and

concurring in the judgment). By contrast, [r]ace-conscious measures that do not

rely on differential treatment based on individual classifications are less

problematic because the same ends are achieved by more indirect means. Id.

2. Equally significant, Parents Involveds binding presumption of validity

for non-individualized race-consciousness provides school authorities a limited

degree of latitude to further the objectives ofBrown. Justice Kennedy recognized

that our nation has made great progress in the fifty-plus years since the Supreme

Courts landmark decision. Even so, flaws and injustices . . . remain, including

the increasing problem of de facto resegregation, and impede realization of

Browns objective of equal educational opportunity. Id. at 787, 788. Although

[t]he enduring hope is that race should not matter; the reality is that too often it

does in determining whether students have access to high-quality schools and

classrooms. Id. at 787.

Moreover, asBrown proclaimed and Parents Involvedreaffirmed, one of the

most important lessons that [t]he Nations schools strive to teach [is] that our

strength comes from people of different races, creeds, and cultures uniting in

commitment to the freedom of all. Id. at 782. But teach[ing] that principle is



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more difficult if schools do not have classrooms that reflect the racial makeup of

the surrounding community. Id.

The challenges are particularly salient in communities with strong patterns

of residential segregation. Due to a variety of factorssome influenced by

government, some notneighborhoods in our communities do not reflect the

diversity of our Nation as a whole. Id. at 798; accordA53. Recognizing these

trends, school authorities have voluntarily employed a variety of integration

methods to help realizeBrowns promise of equal educational opportunity. To the

extent that the School District adopted a student assignment plan that took

neighborhood racial demographics into account, it is not alone. See NAACP Legal

Defense & Educational Fund, Inc. & The Civil Rights Project, Still Looking to the

Future: Voluntary K-12 Integration, A Manual for Parents, Educators, &

Advocates (2008) (describing examples from across the country of facially race-

neutral student assignment plans intended to achieve integration).6

6For instance, the Berkeley, California Unified School District aims to

reduce racial isolation by considering, when making student assignments, a

diversity index of the attendance zone in which the student residesdetermined by

the zones average household income, average educational attainment, and racialdemographics. See Am. Civil Rights Found. v. Berkeley Unified Sch. Dist., 172

Cal. App. 4th 207, 212-15 (Cal. Ct. App. 2009). In the face of a state

constitutional challenge, that plan was upheld precisely because it did not use

individualized racial classifications. See id. at 211 (We find that educators who

include a general recognition of the demographics of neighborhoods in student

assignments, without classifying a student by his or her race, do not discriminate



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Recent research confirms that students from all racial backgrounds benefit

from efforts to produce integrated educational settings. See, e.g., National

Academy of Education, Race-Conscious Policies for Assigning Students to

Schools: Social Science Research and the Supreme Court Cases (2007).7

Indeed,

the nations future depends upon leaders trained through wide exposure to the

ideas and mores of students as diverse as this Nation of many peoples. Grutter,

539 U.S. at 324 (internal quotations and citations omitted).

3. It is precisely for these reasons that Justice Kennedy declined to join fully

the Chief Justices plurality opinion: To the extent the plurality opinion suggests

the Constitution mandates that state and local school authorities must accept the

status quo of racial isolation in schools, it is, in my view, profoundly mistaken.

Parents Involved, 551 U.S. at 788 (Kennedy, J., concurring in part and concurring

against, nor grant preferential treatment to, any individual or group on the basis of

race. (quoting Cal. Const., art. 1, 31, subdiv. (a))).7

For instance, when compared to their more segregated peers, students who

attend integrated schools have higher comfort levels with members of other racial

groups, an increased sense of civic engagement, reduced prejudices, and a greater

desire and ability to live and work in multiracial settings. See, e.g., Elizabeth

Stearns,Long-Term Correlates of High School Racial Composition, Teachers Coll.

Rec. 1654, 1669-71 (2010); Linda R. Tropp & Mary A. Prenovost, The Role of Intergroup Contact in Predicting Childrens Interethnic Attitudes, in Intergroup

Attitudes and Relations in Childhood Through Adulthood236, 245 (Sheri R. Levy

& Melanie Killen eds., 2008). An integrated learning environment also better

prepares students to attend and succeed in college. See, e.g., Douglas S. Massey &

Mary J. Fischer, The Effect of Childhood Segregation on Minority Academic

Performance at Selective Colleges, 29 Ethnic & Racial Stud. 1, 3-4, 20-22 (2006).



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in the judgment). As Justice Kennedy recognized, if strict scrutiny invariably

applies even to mechanisms that are race-conscious in the aggregate but do not

classify individual students by race, many school districts would be deterred from

taking any voluntary action to redeemBrowns promise:

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.

Id. at 789.

Thus, Parents Involveds presumption of validity helps ensure that [t]hose

entrusted with directing our public schools can bring to bear the creativity of

experts, parents, administrators, and other concerned citizens to continu[e] the

important work of bringing together students of different racial, ethnic, and

economic backgrounds. Id. at 798; cf.Bd. of Educ. of Okla. City Pub. Schs. v.

Dowell, 498 U.S. 237, 248 (1991) (Local control over the education of children

allows citizens to participate in decisionmaking, and allows innovation so that

school programs can fit local needs.).

II. Justice Kennedys controlling concurrence encompasses principles set

forth in prior authority of the Supreme Court and this Court .

Instead of following the controlling framework set forth in Parents Involved,

the District Court assumed that strict scrutiny is compelled by the Supreme Courts

holding thirty years earlier in Arlington Heights, 429 U.S. 252, as well as this



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Courts application of Arlington Heights five years before Parents Involved in

Pryor v. NCAA, 288 F.3d 548 (3rd Cir. 2002). A76-A80. Although the District

Court expressed doubts about how to apply Arlington Heights and Pryor to this

case, A78 n.7, A80 n.8, it ultimately determined that they warranted an analysis

separate from that in Parents Involved. A76-A80. After conducting this analysis,

the District Court decided to apply strict scrutiny based on the mere fact that the

School District considered neighborhood racial demographics, among other

factors, when it rezoned students from South Ardmore to attend Harriton High

School. A92; see also A67, A79-A80.

The District Court not only misinterpreted Arlington Heights and its

progeny, but it also misunderstood the relationship between Parents Involvedand

prior cases regarding race-conscious government decision-making. Sensitive to

concerns such as those raised by appellants in this case, Justice Kennedys

concurrence does not rule out strict scrutiny for all non-individualized race-

conscious decision-making by school authorities. But this rigorous review is

warranted only if a plaintiff demonstrates special circumstancessuch as

segregative intentthat warrant overcoming the presumption of validity; mere

consciousness of neighborhood racial demographics is alone insufficient. Parents

Involved, 551 U.S. at 789 (Kennedy, J., concurring in part and concurring in

judgment). This approach fully encompasses the principles that the Supreme Court



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set forth in Arlington Heights for ferreting out when government actions are

motivated by segregative intent or an otherwise invidious discriminatory purpose.

A. Nothing inParents Involvedprevents application of strict scrutinywhere there is evidence of segregative intent.

Justice Kennedys controlling concurrence made clear that the presumption

of validity applies only when school districts pursue the objective of offering an

equal educational opportunity to all of their students. Id. at 788. Thus, Parents

Involveddoes not disturb the well-established principle that strict scrutiny applies

if a plaintiff demonstrates that a school district intentionally took non-

individualized, race-conscious actions for the purpose of segregating students, or

otherwise discriminatorily denying them access to educational opportunity, based

on their race. This principle flows directly fromBrown, where the Court held that

segregative intentper se is constitutionally suspect. 347 U.S. at 493, 495.

FollowingBrown, subsequent decisions leading up to and including Parents

Involved have reaffirmed that an intention to foster racial integration is not

similarly suspect under the Equal Protection Clause. Rather, as Justice Kennedy

made clear in Parents Involved,a school districts race-conscious decision-making

with the intent to ensure that its classrooms . . . reflect the racial makeup of the

surrounding community can help further Browns objective of equal educational

opportunity. 551 U.S. at 782, 788 (Kennedy, J., concurring in part and concurring



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in the judgment).8

By contrast, school authorities actions that take race into

consideration for the discriminatory purpose of segregating students or denying

educational opportunity based on their race are contrary to, and undermine,

Browns objective. See id. at 835 (Breyer, J. dissenting) (distinguishing between

school district actions that keep the races apart and those that bring them

together).9

Thus, even when school authorities draw attendance zones or take other

actions that are facially race-neutral (in that no government decision allocates

benefits or burdens based on individualized racial classifications), those actions

should be subject to strict scrutiny if they are shown to have been motivated by a

segregative purpose. See, e.g., Columbus Bd. of Educ. v. Penick, 443 U.S. 449,

455, 461-63 (1979) (upholding a finding of unconstitutional segregation where a

8Indeed, Justice Kennedy departed from the Chief Justices plurality opinion

and joined the four dissenters to provide majority support for the view that, to the

extent that strict scrutiny is triggered by a school districts actions, it has a

compelling interest in avoiding racial isolation and achiev[ing] a diverse

student population. Id. at 797-98; see also id. at 865 (Breyer, J., dissenting).9

Appellants invoke cases, such as Gratz v. Bollinger, 539 U.S. 244 (2003),

andAdarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). Cf. Appellants Br.

40-41, 43-44. These cases are inapposite. As in Parents Involved, the reason whythe Supreme Court applied strict scrutiny in those cases was that they involved the

allocation of benefits or burdens based on an individualized racial classification.

See Gratz, 539 U.S. at 270;Adarand, 515 U.S. at 224. The Court did not suggest

that strict scrutiny was warranted simply because a governmental entity acted in

furtherance of the goal of promoting equal opportunity in education, employment,

or other contexts. A72-A80.



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school board racially gerrymandered attendance zones to create segregated

schools); Keyes v. Sch. Dist. No. 1, 413 U.S. 189, 191-92, 201-02, 204-05 (1973),

affg in relevant partKeyes v. Sch. Dist. No. 1, 313 F. Supp. 61, 64-65 (D. Colo.

1970) (finding that the manipulation of student attendance zones and school sites

created or maintained segregated schools in violation of the Constitution). But

[n]othing in these cases is meant to discourage school boards from . . .

promoting the values of an integrated school experience. Keyes,413 U.S. at 242

(Powell, J., concurring in part, dissenting in part).

B. Arlington Heights does not require strict scrutiny simply becausea school district considers neighborhood racial demographics.

The District Court incorrectly assumed that, underArlington Heights and its

Third Circuit progeny, a school district triggers strict scrutiny by shifting a

neighborhood to a different school attendance zone, based in part on consideration

of the neighborhoods racial demographics at the aggregate leveleven where, as

here, there is no finding of segregative intent or any other invidious discriminatory

purpose. A79-A80.

1. In Arlington Heights, the Supreme Courtprovided guidance for how to

go about unearthing whether a facially race-neutral government action is, in fact,

motivated by segregative intent or an otherwise invidious discriminatory purpose

and, thus, triggers strict scrutiny. 429 U.S. at 265-68. As the Court explained, a

sensitive inquiry is required, which may take into account such circumstantial



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23

and direct evidence of intent as may be available, including evidence of

unjustified disparate impact. Id. at 266. Under that standard, however, the Court

concluded that the plaintiffs inArlington Heights failed to prove that the Villages

decision to prohibit construction of low- and moderate-income housing was

motivated by an invidious discriminatory purpose. Id. at 270-71. Even though the

Village was aware that its decision had a clear disparate effect on racial minorities,

it was not unexplainable on grounds other than race. Id. at 266.

The Supreme Court elaborated on the unexplainable on grounds other than

race standard set forth in Arlington Heights in a line of cases reviewing the

constitutionality of state legislative efforts to expand political opportunities for

racial minorities through the creation of majority-minority electoral districts. In

these cases, the Supreme Court has consistently made clear that, under Arlington

Heights, not all race-conscious government decision-making is equivalent to

impermissible racial discrimination that triggers strict scrutiny. Shaw v. Reno,

509 U.S. 630, 646 (1993); see also id. at 643-44 (citing Arlington Heights, 429

U.S. at 266); Miller v. Johnson, 515 U.S. 900, 913-14 (1995) (citing Arlington

Heights, 429 U.S. at 266); see also id. at 916. Justice Kennedys concurrence in

Parents Involved expressly invoked this line of cases by quoting the plurality

opinion in Bush v. Vera, 517 U.S. 952 (1996), for the proposition that strict

scrutiny does not reflexively apply merely because redistricting is performed with



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24

consciousness of race. Parents Involved, 551 U.S. at 789 (Kennedy, J.,

concurring in part and concurring in the judgment) (quoting Vera, 517 U.S. at 958

(plurality opinion)).

Justice Kennedys reliance on Vera confirms thatArlington Heights does not

mandate a framework for determining whether strict scrutiny applies that is distinct

from that articulated in Parents Involved. Like state legislatures or local zoning

authorities, school authorities will . . . almost always be aware of racial

demographics in the communities they serve, especially in light of patterns of

housing segregation that persist in many parts of this nation. See Miller, 515 U.S.

at 916; see also Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 20-21

(1971) (describing the reciprocal influence of school location and neighborhood

racial composition). But general consciousness of community racial

demographics, or even consideration of racial balance, is insufficient, standing

alone, to trigger strict scrutiny. Easley v. Cromartie, 532 U.S. 234, 253 (2001);

Miller, 515 U.S. at 916.

As clarified by the subsequent line of electoral redistricting cases, Arlington

Heights is fully consistent with the approach drawn from the Columbus and Keyes

line of cases, discussed supra at 21-22, for determining whether special

circumstances warrant overcoming the presumptive validity of non-individualized



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25

race-conscious decision-making by school authorities.10

Absent an individualized

racial classification,Arlington Heights counsels that the trigger for strict scrutiny is

evidence of segregative intent or an otherwise invidious discriminatory purpose

rather than the impact of a government actors mere consciousness of race. 429

U.S. at 264-66.11

If the District Courts contrary interpretation ofArlington

Heights were correct, Justice Kennedys binding presumption of validity for non-

individualized race-consciousness effectively would be nullified.

2. For the same reason that the District Court erred in interpretingArlington

Heights, it also misapplied Pryor, 288 F.3d 548. Pryor is the only Third Circuit

precedent cited by the District Court and appellants to support application of strict

scrutiny in this case. A76-A78, A80; Appellants Br. 41-43. The District Court

misunderstood Pryorasholding that if race-consciousness per se is a motivating

factor in a school districts decision-making, strict scrutiny is triggered. A77, A80.

In fact, Pryor held, consistent with Arlington Heights, that only an invidious

discriminatory purpose triggers strict scrutiny. Pryor, 288 F.3d at 562-63

(quotingArlington Heights, 429 U.S. at 266).

10

Of course, [c]ontext matters when reviewing race-based governmentalaction under the Equal Protection Clause, Grutter, 539 U.S. at 327, and principles

drawn from zoning and electoral redistricting cases cannot be directly translated to

address challenges to school attendance zones.11

Notably, however, facially race-neutral measures do trigger strict scrutiny

where they are an obvious pretext for racial discrimination. Pers. Admr of

Mass. v. Feeney, 442 U.S. 256, 272 (1979).



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26

In Pryor, the plaintiffs survived a motion to dismiss because their complaint

alleged that the NCAA adopted facially race-neutral eligibility standards at least in

part for the discriminatory purpose of reducing the number of black athletes who

could qualify for scholarships, and not merely in spite of the resulting

disproportionate reduction in scholarships awarded to black athletes. Id. at 562

(citing Pers. Admr of Mass. v. Feeney, 442 U.S. 256, 279 (1979)); see also id. at

567. In contrast to the integrative goals of the types of non-individualized race-

conscious decision-making endorsed by Justice Kennedy in his Parents Involved

concurrence, the purpose alleged by the plaintiffs in Pryorwas segregative insofar

as it limited eligibility for aspiring college athletes based on their individual racial

backgrounds.

III. The District Courts findings provide no clear ground to disregard

Parents Involveds presumption of validity, but a remand could be

prudent to allow the District Court to clarify the facts in light of the

proper legal standard.

Amicis primary concern is to expose the District Courts errors in

interpreting Parents Involved. In light of these errors, it could be prudent for this

Court to remand so the parties may argue and the District Court may consider, in

the first instance, whether its factual and legal determinations warrant clarification

under the proper constitutional standard of review set forth in Parents Involved. A

remand could be particularly helpful in light of certain inconsistencies in the

District Courts findings.



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27

Nevertheless, the District Courts existing findings provide no clear basis for

rejecting the presumption of validity that, under Parents Involved, applies to the

School Districts plan for redrawing school attendance zones. This presumption

provides an alternative basis to affirm the judgment below. If the Court takes this

approach, it need not reach the question of whether the District Court correctly

concluded that the School Districts plan satisfied strict scrutiny because it was

narrowly tailored to serve a compelling interest.12

Under Parents Involved, the undisputed fact that the School District never

employed individualized racial classifications in its redistricting process is critical

in establishing a presumption that the process was constitutionally valid and

therefore strict scrutiny should not apply. A69, A72. As the District Court found,

students were not identified or accorded differential treatment on a racial basis.

Any racial considerations were made on a general, aggregate level, and students

12It should be noted, however, that in its application of strict scrutiny, the

District Court clearly erred in cursorily treating the School Districts reliance on

criteria, such as equal-sized student populations and walkability, as compelling

interests. A67, A80-A91. These criteria are not among the limited number of

compelling interests, including promoting diversity and reducing racial isolation in

primary and secondary education, that the Supreme Court has recognized. See

Parents Involved, 551 U.S. at 797-98 (Kennedy, J., concurring in part andconcurring in the judgment); see also id. at 865 (Breyer, J., dissenting). Nor

should they be so recognized. If they were elevated to the same level as judicially

recognized interests rooted in the Fourteenth Amendments antidiscrimination

mandate, it would be far easier for school districts to justifyand therefore thwart

efforts by amici and others to challengeintentional segregation and other

invidious discrimination.



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28

were assigned on the basis of their geographic residence rather than their race.13

The findings below are less clear, however, with respect to the question of

whether the School District considered neighborhood racial demographics in

furtherance ofBrowns objective of offering an equal educational opportunity to

all of their students. Parents Involved, 551 U.S. at 788 (Kennedy, J., concurring

in part and concurring in the judgment). As plaintiffs below, appellants had the

burden to prove otherwise.

The District Court expressly reject[ed] any allegations of invidious

discrimination or hostility toward African-American students by School District

staff and the School Board. A53, A79. Moreover, the District Court found that the

factors motivating the District Administration included reducing racial isolation

and its obvious desire for racial diversity in both high schools. A53; see also

A91. Prior to redistricting, low numbers of African Americans attended Harriton

High School. A13. As a result of the challenged student assignment plan, African-

American enrollment has increased at Harriton and therefore reduced racial

isolation at that schoolan outcome which should have beneficial educational

consequences for all students. A50; see Parents Involved, 551 U.S. at 787-88

(Kennedy, J., concurring in part and concurring in the judgment); Grutter, 539

13The District Court found that African Americans comprised, as of

September 2008, only 140 of the 308 students in kindergarten through grade 12

who lived in South Ardmore, the neighborhood whose rezoning to Harriton High

School precipitated this litigation. A10 n.2.



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29

U.S. at 330-33; supra at 17. Moreover, the School Districts attendance zone

changes did not involve reassignment of African-American students to schools

regarded as ineffective or inferior in the community. A81. To the contrary, the

School Districts two high schools are ranked as being among the best in the state,

if not the nation. A6.

The District Courts suggestion that the School District embraced racial

parity might raise concerns, if it were interpreted to mean that the District Court

was unsure whether the School District acted in pursuit of the educational interests

furthered by racially integrated educational environments. A3, A53-A54.

Although seeking racial parity for its own sake likely would not trigger the

presumption of validity, see Grutter, 539 U.S. at 330 (citation and quotation marks

omitted), seeking classrooms that reflect the racial makeup of the surrounding

community in order to achieve the benefits of integration is precisely the

approach that Parents Involved embraces. 551 U.S. at 782 (Kennedy, J.,

concurring in part and concurring in the judgment). This Court may conclude that

clarification of this issue by the District Court in light of the proper Parents

Involvedstandard would be beneficial to support its judgment.



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CONCLUSION

For the reasons set forth above, the judgment of the District Court should be

affirmed on alternative grounds or remanded for further consideration under the

applicable legal standard set forth in Parents Involved.

Dated: January 12, 2011 Respectfully submitted,

s/ Joshua Civin

JOHN PAYTON

DEBO P.ADEGBILEDAMON T.HEWITT

KIMBERLY LIU



99 Hudson St., 16th Floor

New York, NY 10013

(212) 965-2200

JOSHUA

CIVIN





(202) 682-1300

Counsel for the Amici Curiae

Of Counsel:

DENNIS D.PARKER

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

(212) 549-2500



38/42

31

WITOLD J.WALCZAK

ACLU OF PENNSYLVANIA

(PA I.D. No. 62976)

313 Atwood Street

Pittsburgh, PA 15213

(412) 681-7864

JOHN C.BRITTAIN

Professor of Law

DAVID A.CLARKE SCHOOL OF LAW

UNIVERSITY OF THE DISTRICT OF

COLUMBIA

4200 Connecticut Avenue, NW

Washington, DC 20008(832) 687-3007



DEREK W.BLACK

Associate Professor of Law

HOWARD UNIVERSITY SCHOOL OF

LAW

2900 Van Ness St., NW

Washington, D.C. 20008

(202) 806-8163



JON M.GREENBAUM

BRENDA SHUM

LAWYERSCOMMITTEE FOR CIVIL

RIGHTS UNDER LAW

1401 New York Avenue, NWSuite 400


(202) 662-8600



39/42

CERTIFICATE OF BAR MEMBERSHIP

PURSUANT TO L.A.R. 28.3(D)

Pursuant to Local Rule 28.3(d), I hereby certify that the following attorneys

are members in good standing of the bar of United States Court of Appeals for the

Third Circuit:

Debo P. Adegbile

Kimberly Liu


Educational Fund, Inc.

99 Hudson St., 16th FloorNew York, NY 10013

(212) 965-2200

Joshua Civin





(202) 682-1300

s/ Kimberly Liu

Kimberly Liu



99 Hudson Street, 16th Floor


(212) 965-2200

Counsel for Amici Curiae



40/42

2

CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C) and Local Rule

31.1(c), I certify that the foregoing Brief ofAmici Curiae complies with the type-

volume limitation of Federal Rule of Appellate Procedure 32(a)(7)(B) because it

contains 6,991 words, excluding the parts of the brief exempted by Federal Rule of

Appellate Procedure 32(a)(7)(B)(iii).

This brief also complies with the typeface requirements of Federal Rule of

Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of

Appellate Procedure 32(a)(6) because this brief has been prepared in a

proportionally spaced typeface using Microsoft Office Word 2003 in 14-point

Times New Roman font.

Furthermore, this brief complies with the electronic filing requirements of

Local Rule 31.1(c) because the text of this electronic brief is identical to the text of

the paper copies. I have also scanned the electronic brief using Symantec

Antivirus Endpoint Protection Version 11.06005.562, and no viruses have been

detected.

s/ Kimberly Liu

Kimberly LiuNAACP Legal Defense &




(212) 965-2200




41/42

3

CERTIFICATE OF SERVICE

I hereby certify that I filed the foregoing with the Clerk of the Court for the

United States Court of Appeals for the Third Circuit by using the appellate

CM/ECF system on January 12, 2011. I further certify that ten (10) paper copies,

identical to the brief filed electronically, was sent to the Clerks Office by Federal

Express.

The following attorneys of record who are registered CM/ECF users were

served by the appellate CM/ECF system:

David G. C. Arnold

Suite 106

920 Matsonford Road

West Conshohocken, PA 19428

Attorney for Appellants

Christopher M. Arfaa

Suite F-200

150 North Radnor Chester Road

Radnor, PA 19087

Attorney for Amicus Appellant

Judith E. Harris

Morgan, Lewis & Bokius LLP

1701 Market Street

Philadelphia, Pennsylvania 19103

Attorney for Appellee

Mark L. Gross

Erin H. Flynn

U.S. Department of Justice

Civil Rights Division

(Appellate Section)

Ben Franklin Station

P.O. Box 144403

Washington, D.C. 20044-4403

Attorney for Amicus Appellee



42/42

I also certify that some of the participants in the case are not registered

CM/ECF users. I have served the foregoing document by Federal Express to the

following non-CM/ECF participants:

Christina J.F. Grese, Esq.

Allison N. Suflas, Esq.

Morgan, Lewis & Bockius

1701 Market Street

Philadelphia, PA 19103-0000

Kenneth A. Roos, Esq.Megan E. Shafer, Esq.

Wisler, Pearlstine, Talone, Craig,

Garrity & Potash

484 Norristown Road, Suite 100

Blue Bell, PA 19422-0000

Attorneys for Appellee

s/ Kimberly Liu

Kimberly Liu





(212) 965-2200



LDF ACLU Amicus Brief 1-12-11

Documents

Transcript of LDF ACLU Amicus Brief 1-12-11