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




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                              November 3, 2011

                                 No. 09-30971                    Lyle W. Cayce
                                                                      Clerk

DARRIN KENNY LEWIS, SR., Individually and as Natural Tutor of His
Minor Children, A and B,

                                          Plaintiff-Appellant
v.


ASCENSION PARISH SCHOOL BOARD,

                                          Defendant-Appellee



                  Appeal from the United States District Court
                      for the Middle District of Louisiana


Before JONES, Chief Judge, and KING and HAYNES, Circuit Judges.
PER CURIAM:
        In this equal protection case, Darrin Lewis appeals from a grant of
summary judgment in favor of the Ascension Parish School Board in Louisiana.
The district court rejected Lewis’s claim that the School Board’s student
assignment plan, formulated to address school population changes while
“maintaining the district’s unitary status,” was impermissibly race-based and
discriminatory against minority elementary, middle, and high school students
zoned for East Ascension High School. We affirm in part, reverse in part and
remand. Under the state of this record, we cannot determine whether the
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                                         No. 09-30971
district’s plan must be subjected to strict or rational basis scrutiny. Further
factual development is required.
                                         Background
        The Ascension Parish School District operates four high schools in
Southeast Louisiana—Donaldsonville High School on the west bank of the
Mississippi River,1 and East Ascension High School, Dutchtown High School,
and St. Amant High School on the east bank. Since at least 1972, the District
has assigned students to these schools through an attendance-zone-based “feeder
plan,” whereby specified elementary schools “feed” into specified middle schools,
which in turn “feed” into one of the high schools. This organization allows
students to matriculate together to middle school and high school.
        In 2004, a federal district court dismissed the District’s longstanding
desegregation case and declared the District unitary after finding that all
vestiges of the prior compulsory dual school system had been eliminated to the
extent practicable.2 The District was thereafter able to assign students within
the school district as necessary pursuant to its authority under Louisiana
Revised Statute § 17:81, but the District maintained its pre-unitary status feeder
plan.
        In 2006, the enrollment of Dutchtown Middle School, a Dutchtown High
School feeder school, rose to over 1,000 students and caused severe
overcrowding. No other East Bank middle school had more than 730 students
enrolled. Consequently, the District’s “Growth Impact Committee” was charged
with developing a plan that would “address the growth with minimal impact on
residents;” “ensure equal facilities and instructional quality for all children;”
“attain enrollment maximums” established for the elementary, middle, and high


        1
            Student assignments to Donaldsonville High School are not at issue in this appeal.
        2
            See Charles v. Ascension Parish Sch. Bd., Civil Action No. 65-3257 (M.D. La.).

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                                       No. 09-30971
school levels; and “maintain unitary status.” Superintendent Donald Songy and
district staff also began exploring various re-zoning options. According to
Superintendent Songy, the District sought to move approximately 450 students
from Dutchtown Middle School, and thus out of Dutchtown High School’s feeder
zone, to other East Bank schools with capacity for growth.
       Scott Duplechein, the “demographics application specialist” with the
District’s Construction and Planning Department, originally prepared three
alternative plans—Options 1, 2, and 3—using enrollment data from the
District’s “Edulog” software. According to Superintendent Songy, Edulog was
used to “geographically code all students actually enrolled in the school system
based on their physical residential addresses and to project the statistical effects
of various rezoning options.” From input during public hearings held by the
Growth Impact Committee, the District also considered Options 2c, 2d, 2e,
2f—variations on Option 2—and a “Prairieville Option,”3 all of which were
formulated based upon Edulog data provided by Duplechein. Ultimately, the
Ascension Parish School Board, which governs the District, narrowed its
consideration down to Options 1, 2, 2f, and 3.
       Summarizing Duplechein’s proposals, Superintendent Songy put together
a document entitled “Statistical Analysis of Options 1, 2, 2f and 3" and presented
it to the School Board for consideration. The document listed the current
enrollment, percentage of African-American students, and percentage of at-risk
students at each school in the district, then projected the enrollment, percentage




       3
        School Board member and Growth Impact Committee chairman Troy Gautreau gave
a PowerPoint presentation to members of the public some time in 2007, detailing a “Duplessis
Feeder Option” and a “Prairieville Feeder Option.” According to Superintendent Songy, the
“Duplessis Feeder Option” referred to Option 2 and the “Prairieville Feeder Option” referred
to Option 3. Later, the District simultaneously considered both a “Prairieville Option” and an
“Option 3," so it appears that Gautreau’s “Prairieville Feeder Option” and the subsequently-
considered “Prairieville Option” refer to two different plans.

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                                       No. 09-30971
of African-American students, and percentage of at-risk students at each school
under each of the four options.4 These data were generated from Edulog.
       At its January 15, 2008 meeting, School Board member Troy Gautreau
discussed the School Board’s redistricting efforts and, according to the meeting
minutes, told the School Board and audience that “the criteria most concentrated
on was [sic] maintaining our current unitary status with the Department of
Justice and moving the least amount of kids as possible.” The School Board
thereafter voted to adopt Option 2f. Option 2f moved Duplessis Primary from
the Dutchtown feeder zone to the East Ascension feeder zone, assigned two
brand new primary schools to each of the high school feeder zones, and re-drew
attendance zones so that students from the Dutchtown feeder zone and the St.
Amant feeder zone were moved to the East Ascension feeder zone.
                                  Procedural History
       Shortly after the adoption of Option 2f, Appellant Lewis, the father of two
black schoolchildren assigned to East Ascension’s feeder zone both pre- and post-
Option 2f, filed this suit against the Appellee School Board in Louisiana state
court. Individually and on behalf of children “A” and “B,” Lewis brought, inter
alia, a 42 U.S.C. § 1983 action for violations of his children’s Fourteenth
Amendment rights to equal protection.5 Lewis claimed that the School Board’s




       4
         Before narrowing its options to 1, 2, 2f, and 3, the District had similarly compiled a
document listing the projected minority and at-risk student percentages in each feeder zone
under Options 2c, 2d, 2e, 2f, 3, and the Prairieville Option. Gautreau’s presentation of the
Duplessis and Prairieville Options (i.e., original Options 2 and 3), which emphasized
“[m]aintain[ing] our Unitary Status with the Department of Justice,” also compared each
plan’s projected effect on the percentages of black and white students and the percentages of
at-risk students who would attend each affected school.


       5
         Lewis’s real property value diminution, Voting Rights Act, First Amendment free
association, Title IX, and state law tort claims are not at issue in this appeal.

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                                        No. 09-30971
“actions since the construction of Dutchtown High School6 and in the adoption
of Plan 2f were taken to ensure that East Ascension High School [and its feeder
schools] would maintain a disproportionately large non-white minority
population, leaving the remaining two East Bank schools as predominantly
white.” He further alleged that, because Option 2f placed a disproportionate
number of at-risk students7 in the East Ascension feeder zone, Option 2f “would
ensure that the non-white minority students at East Ascension High School [and
in its feeder system] would not, now and in the future, be afforded educational
opportunities equal to those available to the students at either Dutchtown High
School or St. Amant High School.”8 Lewis does not suggest that at-risk students
are a suspect class for equal protection purposes. His claim is that minority
students are being discriminated against based upon their race by a
disproportionate influx of at-risk students into their schools.
       The School Board removed the action to federal court and filed a motion
to dismiss or for summary judgment. Lewis responded but did not cross-move
for summary judgment. The district court adopted the magistrate judge’s Report

       6
        Before Option 2f, the feeder plan was last modified in 2002, when Dutchtown High
School opened to address population growth in the Dutchtown area of East Ascension Parish.
       7
        “At-risk” students are those who are eligible for free or reduced-price lunch due to
disadvantaged socioeconomic status.
       8
         Lewis supports this claim with evidence that children who attend schools with high
levels of low income students are at risk of low achievement regardless of their academic
potential. As confirmation, he points to the School Performance Score data of each of the three
feeder systems and notes that the schools in East Ascension’s feeder zone, whose student
populations have the highest levels of at-risk students, consistently score much lower than the
schools in St. Amant’s and Dutchtown’s feeder zones. The magistrate judge dismissed these
data as covering the years 2000-2007, but pre-Option 2f evidence that schools with high
percentages of at-risk students suffered academically is relevant to the contention that Lewis’s
children will be damaged as a result of Option 2f’s concentration of at-risk students in the East
Ascension feeder zone. We need not and do not here find that higher percentages of at-risk
students negatively impact the learning experience of the remaining students or the school
environment as a whole. We recognize that there are high-achieving low-income students and
low-achieving high-income students. We conclude only that Lewis has so stated and provided
a plausible basis for considering this claim.

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and Recommendation to grant the motion.           Relevant to this appeal, the
magistrate judge found that Lewis lacked standing to pursue claims on behalf
of child A but did have standing as to child B. Further, the court found that,
though Lewis’s § 1983 claims based upon Option 2f’s implementation were
timely, his claims based upon the 2002 modification of the District’s feeder plan9
were prescribed. Finally, the court refused to apply strict scrutiny to the
District’s adoption of Option 2f. The court found the plan facially race neutral
and that Lewis had not presented competent evidence of discriminatory motive
by the School Board or disparate impact resulting from Option 2f.              The
magistrate judge determined that Option 2f satisfied rational basis review
because the District had a legitimate government interest in alleviating school
overcrowding. Lewis appeals.
                               Standard of Review
      The operative pleading was styled a “Motion to Dismiss and/or for
Summary Judgment.”          The district court considered evidence outside the
pleadings in granting the School Board’s motion and treated it as a motion for
summary judgment. “This court reviews the summary judgment de novo,
applying the same standards as the district court.” DePree v. Saunders, 588 F.3d
282, 286 (5th Cir. 2009) (citation omitted). Summary judgment is appropriate
if “the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c).
“On review of a grant of summary judgment, all facts and inferences must be
construed in the light most favorable to the non-movant.” E.E.O.C. v. Agro
Distrib., LLC, 555 F.3d 462, 469 (5th Cir. 2009) (citation omitted).




      9
          Supra, n.6.

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                                  No. 09-30971
                                  Discussion
        We address each appealed issue—standing as to child A, prescription of
Lewis’s claims based upon the 2002 feeder plan modification, and whether
Option 2f violates the Fourteenth Amendment’s equal protection clause—in
turn.
        A.    Standing
        The magistrate judge held that Lewis lacked standing to pursue claims on
behalf of child A because, while Lewis produced a judgment and letters of
tutorship indicating that he was confirmed as child A’s natural tutor on June 2,
2009, he presented no evidence that he was child A’s tutor at the time suit was
filed on March 14, 2008.
        We note that child A indisputably has standing as the party affected by
the alleged wrongful redistricting. See Lujan v. Defenders of Wildlife, 504 U.S.
555, 571, 112 S. Ct. 2130, 2142 n.5 (1992). The problem is that child A, as a
minor, lacks capacity to sue under Article 683 of the Louisiana Code of Civil
Procedure. La. Code Civ. Pro. 683 (“An unemancipated minor does not have the
procedural capacity to sue.”). Unlike standing, the lack of which cannot be
waived or cured, capacity to sue can be cured. Fed. Rule Civ. Pro. 17(c). See 6A
WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE (2010) § 1570, at
676 (“Defects in the appointment of a guardian under Rule 17(c) are not
jurisdictional . . . especially when timely objection to the defective appointment
would have permitted the mistake to be cured.”); Cf. Scott v. Jack’s Cookie Co.,
413 So. 2d 1334 (La. App. 1982) (remanded to allow parent to cure capacity
defect). Because we remand on other grounds, we vacate the district court’s
ruling on this matter and remand for consideration by the district court in the
first instance as to whether to permit Lewis to cure his defective allegations of
capacity. No one disputes that Lewis has standing (and capacity) to pursue
equal protection claims on behalf of child B.

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      B.       Prescription of 2002 Feeder Plan Modification Claim
      The magistrate judge found that Lewis’s equal protection claims based
upon the School Board’s 2002 modification of its feeder plan were prescribed
under the one-year statute of limitations applicable to § 1983 claims in
Louisiana.10 The court rejected Lewis’s “continuing violation” theory, noting the
requirement that Lewis show a “series of related acts, one or more of which falls
within the limitations period.” The court found that Lewis had presented no
evidence that Option 2f, which fell within the limitations period, was related to
the 2002 modification of the District’s feeder system such that the latter claims
survived prescription.
      On appeal, Lewis has abandoned his continuing violation argument.
Instead, he argues that he was not, nor should he have been, aware of the facts
necessary to assert his claim based on the 2002 modification until public
hearings were held in the summer or early fall of 2007. This argument is waived
because it was not presented to the magistrate judge, see Cupit v. Whitley,
28 F.3d 532, 535 n.5 (5th Cir. 1994), and, alternatively, it fails on the merits.
Lewis asserts that not until the 2007 hearings were data provided to the public
regarding the 2002 modification’s allocation of minorities and at-risk students
to the East Ascension feeder zone.             Nothing in the record supports that
proposition.      The district court correctly held that the 2002 feeder plan
modification claims are time-barred.
      C.       Option 2f Equal Protection Claim
      To assess the constitutionality of the district's Option 2f districting, one
must first understand Lewis's challenge to the plan. This opinion and the
dissent agree that Lewis alleges minority students in the East Ascension feeder
system were denied equal opportunity by the assignment of a disproportionate


      10
           See Bourdais v. New Orleans City, 485 F.3d 294, 298 (5th Cir. 2007).

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number of at-risk students to that system.11                Such assignments allegedly
resulted in a denial of equal educational opportunities to children in East
Ascension comparable to those available in the Dutchtown or St. Amant high
schools. Lewis also contends that Option 2f is automatically subject to strict
scrutiny because it employs racial classifications and, alternatively, that he
produced sufficient evidence that the Board had a discriminatory motive in
assigning a disproportionate number of at-risk students to East Ascension, with
corresponding evidence of disparate results.
       In assessing Fourteenth Amendment equal protection challenges, the
Supreme Court holds that “[a]ll racial classifications imposed by the government
‘must be analyzed by a reviewing court under strict scrutiny.’” Grutter v.
Bollinger, 539 U.S. 306, 326, 123 S. Ct. 2325, 2337 (2003) (quoting Adarand
Constructors, Inc., v. Pena, 515 U.S. 200, 227, 115 S. Ct. 2097, 2113 (1995). This
is because a “racial classification, regardless of purported motivation, is
presumptively invalid and can be upheld only upon an extraordinary
justification.” Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 272, 99 S. Ct. 2282,
2292 (1979) (citations omitted). Strict scrutiny also applies to government action
that is “ostensibly neutral,” but only if the neutral law has a “disproportionately
adverse effect” that “can be traced to a discriminatory purpose.” Id. at 272,
99 S. Ct. at 2292–93 (citations omitted).
       If the government is found to have acted with a discriminatory purpose ,
strict scrutiny review places the burden on the government to prove that its
actions are narrowly tailored to achieve a compelling government interest. See
Gratz v. Bollinger, 539 U.S. 244, 270, 123 S. Ct. 2411, 2427 (2003). Absent a
discriminatory purpose, its action is reviewed under the rational basis test.

       11
          Chief Judge Jones's special concurrence contends that Lewis has also maintained a
claim for "racial balancing" of the attendance zones based on the district's intent to preserve
the same "demographics" in each feeder system that existed when the district was declared
unitary. The other panel members disagree that this argument is preserved.

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                                 No. 09-30971
      The magistrate judge here found that because Option 2f is “race neutral”
on its face, the critical questions are (1) whether the school board intended to
discriminate racially and (2) whether the plan had racially disparate effects.
Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040 (1976). In this context, an
allegation that the Board knew there would be a disproportionate impact in the
re-zoning is “only relevant to the extent that it ‘reflects a discriminatory
purpose.’” Ricketts v. City of Columbia, 36 F.3d 775, 781 (8th Cir. 1994),
(quoting Davis, 426 US at 239). A discriminatory purpose, however, requires
more than a mere “awareness of consequences.” Feeney, 442 U.S. at 279,
99 S. Ct. at 2296.
      Immediately following her recognition of these general principles, the
magistrate judge referred to evidence in the record that the Board members and
administrators all acted under the apprehension that “the reassignment option
chosen could not upset the unitary status of those high schools.” The magistrate
judge goes on:
      Thus, it appears that, although the race of reassigned students was
      one of the factors considered when Option 2f was adopted, that
      factor was considered in an effort at maintaining the racial balance
      already existing among the schools in East Ascension Parish and in
      maintaining the school district's unitary status, not as part of a
      racially discriminatory motive designed to allocate a
      ‘disproportionate number’ of African-American students to the East
      Ascension school zone. (Emphasis added).

      The court accordingly rejected the application of strict scrutiny to Option
2f because it "does not explicitly employ racial classifications" and the plan
assigns students to schools based on their "geographical location."
      We find the court's analysis troubling for two reasons. First, it is unclear
how, on the record before us, the court could make a factual finding as a matter
of law about the Board's lack of discriminatory purpose. Second, the court's
assumption that it might be justifiable to use racially-based decisions for the

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                                        No. 09-30971
"benign" purpose of maintaining post-unitary "racial balance" among the schools
in the system is at least in tension with the Supreme Court's decision in Parents
Involved in Community Schools v. Seattle Sch. Dist. No. 1, 551 US 701,
127 S. Ct. 2738 (2007).12 In Parents Involved, the Court required strict scrutiny
review for a racially-based student assignment decision in a Kentucky school
district that had been declared unitary. The Court held that preserving the
district's unitary status by means of racially-based assignments, albeit a
"benign" racial motive, was nevertheless constitutionally impermissible. Parents
Involved, 551 U.S. at 721, 127 S. Ct. at 2752. We need not parse Parents
Involved further here, as we conclude that the following evidence created a
genuine issue of material fact whether the Board acted with a racially
discriminatory motive.
       Superintendent Songy compiled, and the School Board considered,
documentation detailing the percentage of black students that would be enrolled
at each East Bank school under Option 2f. The data were generated from
software that coded each enrolled student in order to predict the “statistical
effects” of Option 2f’s boundary adjustments. Indeed, it is unclear how a student
assignment plan could calculate the percentage of black students at each school
without classifying individual students by race. The School Board insists that
the Statistical Analysis underlying Option 2f—submitted by Lewis in opposition
to summary judgment—does not constitute Option 2f itself. But to accept that
self-serving, summary allegation would be to allow a school district to skew

       12
          To support its conclusion, the court actually relies on cases that all predate the
Parents Involved decision. Anderson ex rel. Dowd v. City of Boston, 375 F.3d 71 (1st Cir. 2004).
See also McDaniel v. Barressi, 402 U.S. 39, 41, 91 S. Ct. 1287, 1288 (1971); Tometz v. Bd. of
Ed. Waukegan City Sch. Dist. No. 61, 39 Ill.2d 593, 597–98, 237 N.E.2d 498, 501 (1968);
Offermann v. Nitkowski, 378 F.2d 22, 24 (2d Cir. 1967); Deal v. Cincinnati Bd. of Ed., 369 F.2d
55, 61 (6th Cir. 1966); Springfield Sch. Comm. v. Barksdale, 348 F.2d 261, 266 (1st Cir. 1965);
Penn. Human Relations Comm’n v. Chester Sch. Dist., 427 Pa. 157, 164, 233 A.2d 290, 294
(1967); Booker v. Bd. of Ed. of Plainfield, Union Cty., 45 N.J. 161, 170–71, 212 A.2d 1, 6 (1965);
Jackson v. Pasadena City Sch. Dist., 59 Cal.2d 876, 881–82, 382 P.2d 878, 881–82 (1963).

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                                        No. 09-30971
reality simply by selectively including documents in the record and labeling only
those documents its “plan.”13 We decline to so elevate form over substance,
especially where we are obliged to construe all facts in the light most favorable
to Lewis and reject conclusory allegations in support of a motion for summary
judgment. See Brock v. Chevron U.S.A., Inc., 976 F.2d 969, 970 (5th Cir. 1992).
       The following testimony also suggests that the District relied upon the
race of the individual students residing in different geographic locations when
it re-zoned its schools:
       1.     Deposition of Superintendent Donald Songy - “We had to
              make sure that in doing this, we did not, by this move,
              increase the minority, the black percentage at East Ascension
              High School . . . in all the plans we developed, we made sure
              that the move of the students did not increase that
              percentage.”

       2.     Deposition of School Board Member Ed Price - “[O]ur
              demographer started looking at the numbers, we wanted to
              see how we could best relieve overcrowding at Dutchtown
              High School and, of course, we looked at the majority and the
              minorities and see where we could best pull kids away in
              order to achieve that without basically upsetting the populace
              to where we could put more, you know, minority kids and
              majority kids and things like that.”

       3.     Deposition of School Board Member Jody Elisar - “ . . . when
              Troy [Gautreau] came up to me, he said, well, what about if
              we go south of I-10 into the Pelican Point area. I said, Troy,
              I understand we’re trying to get numbers that are sending
              white people to East Ascension because that’s what he wanted
              to talk about. . . . He said, well, can I just run the numbers
              with Scott [Duplechein]. I said, absolutely. But I knew in



       13
         That is precisely what the District has done here. The School Board states that
“Option 2f consists of a flow chart setting out the feeder plan, a set of written descriptions of
the attendance zone lines by street boundaries, and a set of maps showing the geographical
boundaries of the attendance zones” and directs this court to the School Board’s record exhibit
K, which conveniently excludes the document displaying the statistical analysis of Option 2f.

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                                  No. 09-30971
            Pelican Point that there were a lot of African-Americans . . .
            .”

      4.    Deposition of School Board Member Catherine Davis -“Q: . .
            . the percentage of black[s] . . . at certain schools? Was that
            an issue? . . . A: Had to be because there were different plans.
            Q: So that was really the only difference between the plans,
            really, was the percentages of - - A: Well, that would make up
            the plans, right? Q: Right. It was where these minorities
            were going . . . correct? A: The plan showed where students
            went. Q: And those students had labels attached to them
            such as - - A: Unfortunately, yes.”

      5.    Deposition of School Board Member Harold Jarreau - “Q:
            Now, you said it’s important for you to see the black, white
            minority ratios, yes? A: You have to try and - - you have to try
            and consider those numbers when you make the move, yeah.”
      In addition to the referenced deposition testimony and affidavits from the
Superintendent and School Board members, the record contains an excerpt from
the District’s website, posted on November 9, 2007, but later removed, to provide
the public with re-districting information. In it, the School Board indicated that
“Students who are currently in the Dutchtown High School feeder line may be
bused to the East Ascension High School feeder line to alter the racial balance.
. . . We are simply trying to balance the demograph[ics] of East Ascension.”
      Notwithstanding this body of evidence, the magistrate judge found that
“only” 339 students, in a district population of 18,000, were affected by Option
2f. In light of the testimony, this seems to be a group identifiable and identified
principally on racial grounds (whether minority or not) for assignment to
particular schools.
      There are also material questions whether strict scrutiny must apply
because evidence viewed in the light most favorable to Lewis supports Lewis’s
contention that Option 2f was discriminatory in effect.




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                                       No. 09-30971
       The magistrate judge determined that Option 2f neither has nor will result
in a disparate impact on the basis of race. The court’s findings were based on a
statistical analysis of Option 2f’s impact on the three East Bank high schools.14
Lewis, however, also alleges a disparate impact upon the East Ascension feeder
system. The evidence shows that Option 2f effected an increase from 46% to 49%
in the East Ascension feeder system’s percentage of the total number of minority
students in the District, while the Dutchtown feeder system’s percentage
decreased from 37% to 33%, and the St. Amant feeder system’s percentage
remained at 18%. The East Ascension feeder system’s percentage of the total
number of at-risk students in the District rose from 40% to 43%, while the
Dutchtown feeder system’s percentage decreased from 27% to 25%, and the St.
Amant feeder system’s percentage remained at 32%. These effects occurred even
though only 29% of the East Bank student population was enrolled in the East
Ascension feeder system, compared to 37% in the Dutchtown feeder system and
34% in the St. Amant feeder system.




       14
          After Option 2f’s implementation, during the 2008–09 school year, East Ascension
High School shifted from 41% minority students to 42.2% (and from 34.9% black students to
33.9%), Dutchtown High School shifted from 23.3% minority students to 24.1% (and from
19.6% black students to 20.1%), and St. Amant High School shifted from 11.9% minority
students to 14.1% (and from 10.3% black students to 12.6%). Thus, Option 2f effected
approximately a 1 to 3 percentage increase in minority population at each of the three high
schools, with the largest percentage increase at St. Amant, and a decrease in the percentage
of black students at East Ascension. As before Option 2f, East Ascension continued to have
approximately twice the percentage of minority students as Dutchtown and three times the
percentage of minority students as St. Amant. These percentages seem to reflect the success
of the Board’s effort to maintain each school’s pre-existing racial balance.

       After Option 2f, East Ascension High School shifted from 40% at-risk students to 44%,
Dutchtown High School shifted from 18% at-risk students to 20%, and St. Amant High School
shifted from 24% at-risk students to 28%, a 2 to 4 percentage increase at each of the three
schools with East Ascension and St. Amant experiencing the same percentage increase. As
was the case before Option 2f, East Ascension continued to have slightly more than twice the
percentage of at-risk students as Dutchtown and slightly less than twice the percentage of at-
risk students as St. Amant.

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                                       No. 09-30971
       Importantly, the only school that Option 2f realigned to a different feeder
zone, Duplessis Primary, was projected to shift from 38% at-risk in the 2007–08
school year to 43% at-risk in the 2008–09 school year, thereby becoming a Title
I-designated school.15 Option 2f moved Duplessis Primary from Dutchtown’s
feeder zone to East Ascension’s feeder zone, thereby ensuring that all of the
schools in the East Ascension feeder zone would continue to be Title I-designated
and that none of the schools in Dutchtown’s feeder zone would be so designated.
These statistics provide some support for Lewis’s contention that Option 2f
disproportionately funneled minorities and at-risk students into the East
Ascension feeder zone, thereby discriminating against minorities whose
educational environments suffer from disadvantages allegedly attributable to
high levels of at-risk children.
       Because factual questions exist as to whether Option 2f had both a racially
discriminatory motive and a disparate impact, and the court misapprehended
the significance of the evidence before it, the court erred in awarding summary
judgment under a rational basis test.
                                       Conclusion
       No doubt the district had a responsibility to address overcrowding in
Dutchtown High School. It could not, however, do so by assigning individual
students among the schools based upon disadvantaging one race over another
in the assignment of at-risk students, even if the motive in doing so is the
“benign” motive of “maintaining unitary status.” The standard of review,
whether strict scrutiny or rational basis, turns on the factual questions of
discriminatory motive and impact. Therefore, the judgment of the district court
is AFFIRMED insofar as it found Lewis’s claim against the 2002 Feeder


       15
         Schools with a Title I designation are those in which low-income children (i.e., “at-
risk”) make up at least 40% of the enrollment. These schools are eligible for certain federal
funds.

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                                 No. 09-30971
Modification plan barred by prescription; otherwise, the judgment, including its
denial of “standing” for Lewis as to Child A, is REVERSED and REMANDED,
AFFIRMED in PART, REVERSED and REMANDED in PART, for further
proceedings.




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                                  No. 09-30971
EDITH H. JONES, Chief Judge, concurring:
      While I concur in the majority opinion, I believe that Appellant Lewis
pursues an additional equal protection claim that we must consider.            He
challenges the school district's racial gerrymandering of attendance zones to
maintain almost the exact racial balance that prevailed in the schools before the
district was declared unitary. Indeed, the district court seems to have accepted
that this "benign" motive for racial assignments is legally acceptable because the
district judge evaluated it on the standard of rational basis review. Without
expressing an opinion on what a fully developed evidentiary record might show,
I believe we ought to confirm that race-based student assignments undertaken
"to preserve unitary status," like other racially motivated government actions,
presumptively violate the equal protection clause. Then we must remand this
issue for trial.
A. Lewis preserved the "racial gerrymandering" argument.
      My colleagues limit Lewis's claim to that portrayed in the majority
opinion, a claim contesting the disproportionate assignment of at-risk students
to the East Ascension feeder system by means of race conscious redistricting.
But Lewis also clearly asserted that, by itself, "race was a factor in the creation
of the new high school districts." That is, he contended that race-based zoning,
even if "facially neutral" and independent of its effects, is unconstitutional. His
brief states the issue "whether the District court erred in...concluding...despite
competent evidence presented...that race was a factor, that Defendant did not
have the requisite intent and that a disproportionate impact did not occur . . . ."
Lewis asserted that the Board's "actions since...the adoption of Plan 2f were
taken to ensure that East Ascension High School [and its feeder system] would
maintain a disproportionately large non-white minority population, leaving the
remaining two East Bank schools as predominantly white."
      I disagree that vague statements made at oral argument waived this
claim. Judge King's opinion asserts, for example, that waiver arises from the
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                                  No. 09-30971
assertion that Lewis's claim does not rest on "the number/percentage of minority
students being transferred [to] East Ascension," and the district court
"incorrectly assumed that Plaintiff based his cause of action on an increase in
the minority population at EAHS."        Statements like these simply clarify,
correctly, that the appellant does not believe a magic number or percentage of
minority students is per se violative of equal protection. What matters is the
government's intentional use of racial classifications. Lewis states flatly later
in his reply brief that "the actions of racial balancing by the [District] are
unconstitutional." This is an issue we cannot avoid.
        Finally, it seems to me conclusive that the District's brief describes at
length why, in its view, Lewis's claim is not governed by the Parents Involved
decision of the Supreme Court. The interpretation of Parents Involved is the
crux of Lewis's contention that the racial balancing of the feeder school lines
serving East Ascension is unconstitutional. This is an issue we cannot avoid.
B.      It is unconstitutional to engage in "racial balancing" in post-
        unitary status schools for the purpose of maintaining pre-unitary
        status ratios of minority and non-minority students.

        I preface these comments with a disclaimer that we do not know, at this
stage of litigation, that the Board members and administrators who testified
that they were concerned with preserving the district's unitary status actually
revised the district lines in a racially conscious way to maintain pre-unitary
percentages of minority and non-minority students in the schools. We know,
however, that such a racial balance was the outcome of the process. A trial on
the merits would determine the degree of correspondence between the Board's
intent and the result achieved.
        The essential problem with the Board's argument is the contention, shared
by the magistrate judge and the district court, that maintaining the "racial
balance" extant when unitary status was declared is NOT an unconstitutional


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                                   No. 09-30971
use of race and thus may be analyzed under the rational basis standard for equal
protection claims. A further problem is the misperception that when the desired
racial balance is achieved by geographical lines, rather than assignment of
specific students of certain races, the action is "facially neutral" and thus also
subject to no more than rational basis scrutiny. These errors must be corrected.
      In Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701,
127 S. Ct. 2738 (2007), the Supreme Court required strict scrutiny review of a
race-based student assignment decision in a Kentucky school district that had
been declared unitary.      The Court held that the district's unitary status
conferred no discretion, much less an obligation, on the district to continue to
assign individual students based on racial criteria. Id. at 721, 127 S. Ct. at 2752.
It seems clear following Parents Involved that, if the Board deliberately aimed
at racial balancing as a device to maintain unitary status, this motivation must
be tested under strict scrutiny.
      The Board distinguishes Parents Involved on three bases. First, it relies
on cases which all predate Parents Involved, (see n.__supra in majority opinion),
and principally analogizes to Anderson ex rel. Dowd v. City of Boston, 375 F.3d
71 (1st Cir. 2004). In Anderson, however, the post-unitary district plan removed
any racial consideration in school attendance in favor of a 100% "walk zone"
preference and adhered to racial diversity merely as a desideratum.
Fortuitously, the district's entirely race-neutral plan was estimated to result in
approximately the same population diversity in the schools as had existed in a
race-conscious, and unconstitutional, Old Plan. Anderson, 375 F.3d at 85. The
Anderson court found the New Plan facially race-neutral for these reasons,
noting that it would not "hesitate to apply strict scrutiny review" if the plan had
employed "racial classifications for the distribution of benefits...." Id.
      Here, in contrast to Anderson, it is arguable that the Ascension Parish
district required its statisticians to draft attendance zone boundaries that would

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                                 No. 09-30971
preserve a precise racial balance among the high schools. The boundaries are
only race-neutral because streets are not people. Streets, though, may well be
racial proxies because the district or its agents apparently knew and used the
racial composition of the people living on those streets to pursue racial
balancing.
      Appellee next distinguishes Parents Involved as involving only individual
student assignments. The magistrate judge concurs: "By contrast, Option 2f,
on its face, does not indicate that Dutchtown students were reassigned to the
East Ascension school zone based upon their race. Instead, the reassignment
was based upon the geographical location of their residences."         That the
boundaries are "facially race-neutral," however, does not necessarily insulate
them from strict scrutiny review. In cases challenging legislative redistricting,
the use of racial data to formulate districts can evidence discrimination. See,
e.g., Bush v. Vera, 517 U.S. 952, 968, 116 S. Ct. 1941, 1953, 1958 (1996). To
allow a school district to use geography as a virtually admitted proxy for race,
and then claim that strict scrutiny is inapplicable because "Option 2f designated
geographical lines for student assignment with no mention of race" is
inconsistent with the Supreme Court's holdings. See also Hunt v. Cromartie,
526 U.S. 541, 119 S. Ct. 1545 (1999). Moreover, the Court has condemned racial
balancing, however accomplished, when it is undertaken "to assure...some
specified percentage of a particular group merely because of its race or ethnic
origin." Grutter v. Bollinger, 539 U.S. 306, 329-30, 123 S. Ct. 2325, 2339 (2003)
(quoting Regents of U. of Cal. v. Bakke, 438 U.S. 265, 307, 98 S. Ct. 2733
(1978)(opinion of Powell, J.).
      The third, and most plausible, ground for distinguishing Parents Involved
is that Justice Kennedy, who provided the fifth vote for the judgment, refused
to accept the plurality opinion's rejection of all race-based classifications and
noted instead that school boards may pursue

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                                        No. 09-30971
       the goal of bringing together students of diverse backgrounds and
       races through other means, including strategic site selection of new
       schools; drawing attendance zones with general recognition of the
       demographics of neighborhoods . . . . These mechanisms are race
       conscious but do not lead to different treatment based on a
       classification that tells each student he or she is to be defined by
       race, so it is unlikely any of them would demand strict scrutiny to
       be found permissible. See Bush v. Vera . . . .

551 U.S. at 789, 127 S. Ct. at 2792 (Kennedy, J., concurring) (internal quotation
omitted). As one commentator put it, Justice Kennedy's controlling opinion
approves the possibility of a school board’s adopting generic measures to increase
racial diversity in primary and secondary schools. Michelle Renee Shamblin,
Silencing Chicken Little: Options for School Districts After Parents Involved,
69 La. L. Rev. 219 (2008).
       That Justice Kennedy adopted a middle-ground position does not render
irrelevant the factual issue raised here. The Justice suggests strict scrutiny
review would be "unlikely" if a school board adopts race-conscious boundary lines
in order to support diverse K-12 student populations. Parents Involved in Cmty.
Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 127 S. Ct. 2738 (2007). But the
district here does not argue that its re-zoning decisions had anything to do with
an interest in fostering diversity as envisioned by Justice Kennedy. He also cites
a plurality statement in Bush v. Vera expressing the view that, because electoral
district lines are "facially neutral," a "searching inquiry" is required to determine
whether strict scrutiny governs constitutional review. Id.1 These distinctions,
plus his dichotomy between "general" race-conscious measures and individual



       1
         One goal of Option 2f, eliminating overcrowding in the Dutchtown feeder system, is
race neutral, but the law "does not require a plaintiff to prove that the challenged action rested
solely on racially discriminatory purposes. Rarely can it be said that a legislature or
administrative body operating under a broad mandate made a decision motivated solely by a
single concern...." Village of Arlington Heights v. Metro. Hous. Dev. Corp., 428 U.S. 252, 265,
97 S. Ct. 555, 563 (1977).

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                                  No. 09-30971
racial stereotyping of students, emphasize the fact-intensive nature of the
inquiry that must be made here. Compare, Friends of Lake View Sch. Dist. v.
Beebe, 578 F.3d 753, 761 (8th Cir. 2009) (facially neutral school closing statute
judged by rational basis in absence of any allegations of racial motive).
      Perhaps most pertinent to this case, Justice Kennedy's concurrence adopts
the clear statement in Parents Involved that once a school district formerly
under a desegregation decree has been declared unitary, "[a]ny continued use of
race must be justified on some other basis," 551 U.S. at 721, 127 S. Ct. at 2752.
If the Ascension Parish Board used geographic lines as a proxy for racial
balancing to "maintain unitary status," the plan is explicitly race-based, and the
Board's actions fly in the face of Parents Involved and require strict scrutiny
review.
      For these reasons, I would vacate the district court's decision and remand
for a trial to determine whether the Board's redistricting effected racial
balancing impermissible under strict scrutiny review, even if it occurred for the
"benign" but wholly misguided purpose of maintaining the district's unitary
status.




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                                       No. 09-30971
KING, Circuit Judge, concurring in part and dissenting in part:
       In reversing the district court’s grant of summary judgment, the majority
creates a fact issue where none exists. Plaintiff Darrin Kenny Lewis’s only claim
on appeal is that the Ascension Parish School Board allocated a
disproportionately large number of at-risk students to East Ascension High
School and its feeder schools, which adversely impacted the education of
minority children at those predominately minority schools. Lewis, however,
failed to present any evidence that the Board intended to discriminate against
minority students by placing too many at-risk students in their schools. Because
Option 2f, the student assignment plan at issue in this appeal, is facially race
neutral and there is no evidence that the Board adopted Option 2f with the
intent to discriminate against minorities by targeting their schools with an
influx of at-risk students, Lewis’s claim was properly assessed under a rational
basis analysis. Lewis failed to present evidence that the Board acted arbitrarily
or irrationally, and thus I would affirm the judgment of the district court
dismissing Lewis’s claim. I respectfully dissent from the majority’s decision to
remand this case for further fact-finding on the Board’s intent in adopting
Option 2f and on whether Option 2f had a racially disparate impact.1
       Although the only relevant evidence of discriminatory intent would pertain
to the desire to discriminate against minorities by sending at-risk children to
their schools, the majority finds a fact issue regarding intent based on evidence
indicating (1) that the Board did not want to disturb the district’s unitary status
while addressing the problem of overcrowding and (2) that the Board was aware
of the effects Option 2f would likely have on racial demographics and the number
of at-risk students assigned to various schools within the district. The desire to


       1
         I agree with the majority’s handling of the issue regarding Lewis’s capacity to sue on
behalf of Child A. I also agree that Lewis’s claims related to the redistricting that occurred
in 2002 are barred by the statute of limitations.

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                                  No. 09-30971
maintain unitary status, however, speaks to the racial composition of schools
within the district, not the assignment of at-risk students to schools. Thus, this
evidence does not pertain to Lewis’s sole claim on appeal. Furthermore, the
Supreme Court has been absolutely clear that mere awareness of consequences
is insufficient to demonstrate discriminatory intent. Thus, the evidence relied
upon by the majority is either unrelated to Lewis’s claim or insufficient to
establish it.
      In reaching its decision, the majority engages in additional problematic
analysis that has potentially far-reaching consequences and threatens to require
the application of strict scrutiny to actions taken with a mere awareness of their
effects on racial demographics. The majority suggests that Option 2f classifies
students by race because a statistical analysis predicting the impact of Option
2f (and, for that matter, all the other options under consideration) tracked the
number of African American and at-risk students expected to attend various
schools within the district. However, under Option 2f, the determination of
which school a student will attend depends only on where the student lives—not
on the student’s race. Taking the race of individual students into account when
compiling statistics about the probable effects of Option 2f is something very
different from assigning individual students to particular schools based on their
race. This is a very important distinction, and it is one that the majority fails
to make.        The majority’s expansive take on what constitutes a racial
classification likely functions as a push toward the application of strict scrutiny
to any governmental action taken with an awareness of its consequences on
racial demographics—information often available to decisionmakers in many
contexts. Requiring the application of strict scrutiny in such a broad range of
circumstances, however, is at odds with Supreme Court precedent holding that
discriminatory intent must be shown for strict scrutiny to apply to facially race-



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                                  No. 09-30971
neutral acts and that mere awareness of consequences is not enough to
demonstrate discriminatory intent.
      Chief Judge Jones’s concurrence also asserts that Option 2f employs
explicit racial classifications, arguing that geography functions as a proxy for
race in Option 2f. Whether the Board used geography as a proxy for race,
however, is not related to what Option 2f says on its face.           An explicit
classification must be just that—explicit. Determining whether the Board
sought to classify students based on their race and did so using geographical
lines as pretext involves analysis of the Board’s intent and has no bearing on
Option 2f’s express terms. That Option 2f is facially race neutral is, in my view,
beyond dispute.
      The attempts of both the majority and concurring opinions to describe
Option 2f as employing explicit racial classifications seem to be geared toward
extending the reach of the Supreme Court’s decision in Parents Involved in
Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007), to
decisions involving the mere awareness of an act’s probable effects on racial
demographics. The majority and concurring opinions also seem to push for the
application of strict scrutiny to student assignment plans merely because
decisionmakers show some desire not to upset a school district’s unitary status.
However, if the court were to confine itself to the case before it, the case would
not provide an appropriate platform to further either of these ends.
      In Parents Involved, the Court held that student assignment plans using
express racial classifications were not sufficiently narrowly tailored to withstand
strict scrutiny. The holding in Parents Involved pertains only to plans using
explicit racial classifications, and Option 2f is facially race neutral.
Consequently, Parents Involved does not bear directly on the case before us, and
the suggestions to the contrary in the majority and concurring opinions



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                                       No. 09-30971
inappropriately seek to extend the reach of Parents Involved and the
applicability of strict scrutiny.
        To be clear, although in the district court Lewis at one time asserted a
claim that the Board impermissibly re-assigned too many minority students to
attend East Ascension and its feeder schools, he expressly waived that claim on
appeal. Nonetheless, the majority continues to rely on and discuss evidence
related to the Board’s desire not to disrupt the district’s unitary status. Lewis’s
only claim on appeal, however, relates to the placement of at-risk children in
schools and has nothing to do with altering or maintaining racial demographics,
whether to preserve unitary status or for any other reason.                        The only
discriminatory intent that matters in this appeal is the desire to engage in racial
discrimination through the placement of at-risk children in East Ascension and
its feeder schools. Thus, whether the Board intended to avoid significantly
altering the racial makeup of its schools is an issue we need not, and should not,
address.
I.      The Nature of Lewis’s Claim
        In his complaint, Lewis alleged that “the district lines drawn and adopted
by the defendant disproportionately pull African American students and
economically disadvantaged students from across the east bank and feed them
into East Ascension High School.” Fairly read, Lewis’s complaint challenged two
aspects of Option 2f. First, Lewis claimed that the Board impermissibly re-
assigned too many minority students to attend East Ascension High School
(“East Ascension” or “EAHS”),2 and second, he claimed that the Board allocated
a disproportionately large number of at-risk students to East Ascension and its



        2
          Lewis’s complaint alleged that “[the Board’s] actions . . . were taken to ensure that
[East Ascension] would become predominantly African American, leaving the remaining two
(2) east bank high schools as predominantly white” and that “race was a factor in [the Board’s]
adoption of Option 2f.”

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                                        No. 09-30971
feeder schools, which adversely impacted the education of minority children
attending East Ascension, including his children.3
       On appeal, Lewis clarified, and in fact insisted, that his claim rests solely
on the second aspect of Option 2f. In his opening brief,4 his reply brief, and at
oral argument,5 Lewis contended that at-risk students adversely impact the
educational environment at East Ascension, which in turn disparately impacts
minority students because East Ascension has the largest proportion of minority
students of the three high schools on the east bank. As Lewis himself appears
to recognize, the decision to send a student to one school rather than another
because of the student’s race is distinct from the decision to send at-risk students
to a certain school because of the high percentage of minority students at that
school. He expressly told this court that his claim rests on the second decision,

       3
         Lewis alleged that the Board “was aware that the disproportionately large numbers
of economically disadvantaged/‘at risk’ students being allocated to East Ascension High School,
and the even larger economically disadvantaged/‘at risk’ populations at the feeder schools
within the East Ascension High School feeder system would ensure that the non-white
minority students at East Ascension High School would not, now and in the future, be afforded
educational opportunities equal to those available to the students at either Dutchtown High
School or St. Amant High School.”
       4
           “The Plaintiff contends that the vastly disproportionate number of minorities
assigned to attend EAHS is the ‘suspect class’ which is being treated unequally. The cause
of this unequal treatment is the placing of an even higher proportion of ‘at risk’ students into
the EAHS school system through the adoption and enactment of Option 2f . . . .” Appellant’s
Br. at 30–31.
       5
         Lewis’s counsel made the following statements during oral argument: (1)“What we’re
saying . . . is that when you take an abnormal number of ‘at risk’ students and congregate
them into a school situation, it has an adverse impact on the other students in that school”;
(2)“We say that what’s unjust is to congregate the mass of this challenge [the ‘at risk’ students]
into the feeder system and school system that also contains a majority of the minority
students”; and (3)“We feel that loading up or putting an abnormal number of ‘at risk’ students
into the same school and school system where the minorities are is a breach of their civil
rights.”
        When asked, Lewis’s counsel agreed his claim is that “this plan that’s been adopted
here takes the ‘at risk’ students and puts them in the EA feeder pattern and thereby
disadvantages minority students.” He also agreed that “[t]he aggrieved part[ies are] the
minority students, and they are aggrieved because [the Board] put the ‘at risk’ students with
them in a way that disadvantages minority students.”

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                                  No. 09-30971
and he no longer asserted any claim based on the first decision. In his opening
brief, Lewis began his discussion of the merits of his equal protection claim by
stating, “[t]he District Court first incorrectly assumed that Plaintiff based his
cause of action on an increase of the minority population at EAHS.” Appellant’s
Br. at 30. In his reply brief, Lewis stated:
      Once again, Appellant urges that the number/percentage of minority
      students is not the basis for the Appellant’s cause of action in this
      matter. The Appellant reasserts that its cause of action exists upon
      the number/percentage of “at-risk” students being transferred into
      East Ascension High School and its feeder system . . . . The transfer
      of this high number of “at-risk” students to the EAHS feeder system
      is the action causing injury to the Appellant, who is a minority at
      EAHS.

Appellant’s Reply Br. at 1–2 (emphasis added). Chief Judge Jones’s concurrence
asserts that Lewis’s claim related to gerrymandering or racial balancing is still
before us, indicating that Lewis’s statements on appeal merely “clarify, correctly,
that the appellant does not believe a magic number or percentage of minority
students is per se violative of equal protection.” Jones Concurrence at 2. To the
contrary, because Lewis stated that “the number/percentage of minority
students is not the basis for the Appellant’s cause of action in this matter,” we
can only fairly assume that Lewis meant exactly what he said:                 “the
number/percentage of minority students is not the basis for the Appellant’s
cause of action in this matter.” Thus, the majority opinion is correct when it
says that the only claim at issue is whether the Board violated the Lewis
children’s right to equal protection by assigning a disproportionate number of at-
risk students to East Ascension and its feeder schools.
II.   Assignment of At-Risk Students to East Ascension
      Having established that Lewis claims only that a disproportionate number
of at-risk children were assigned to East Ascension and its feeder schools under
Option 2f, I turn to the merits of that claim. Lewis’s only argument on appeal

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                                  No. 09-30971
with respect to the merits of his equal protection claim is that the district court
erred by failing to apply strict scrutiny to the Board’s adoption of Option 2f. He
contends that Option 2f is automatically subject to strict scrutiny because it
employs racial classifications and, alternatively, that he produced sufficient
evidence that the Board acted with a discriminatory motive in assigning a
disproportionate number of at-risk students to East Ascension. The district
court held that the Board’s decision was subject to rational basis review because
Option 2f is facially race neutral and Lewis had not carried his burden to present
evidence that the Board acted with a discriminatory purpose. I agree. We
should review the Board’s decision for a rational basis, and because Lewis
presented no evidence that the decision was arbitrary or irrational, I would
affirm the district court’s grant of summary judgment in favor of the Board.
      A.    Level of Scrutiny
      The touchstone in the analysis of any racial discrimination claim is a
determination of whether the government acted with “a racially discriminatory
intent or purpose.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429
U.S. 252, 265 (1977); see also Washington v. Davis, 426 U.S. 229, 239–40 (1976).
If the government has acted with such a purpose, we apply strict scrutiny and
examine whether the law is narrowly tailored to further a compelling
governmental interest. See Grutter v. Bollinger, 539 U.S. 306, 326–27 (2003).
If the government did not act with such a purpose, we review its decision for a
rational basis. Id.
      “No inquiry into legislative purpose is necessary when the racial
classification appears on the face of the statute,” Shaw v. Reno, 509 U.S. 630,
642 (1993), or when the law is “unexplainable on grounds other than race,”
Village of Arlington Heights, 429 U.S. at 266.         However, when a racial
classification does not appear on the face of the statute, we must conduct a more
searching inquiry into the intent of the lawmakers. Strict scrutiny will be

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                                   No. 09-30971
applied only if the plaintiff can demonstrate that the government acted with a
discriminatory motive. See Vill. of Arlington Heights, 429 U.S. at 266. Thus, at
the outset, we must determine whether we ought automatically to apply strict
scrutiny because Option 2f is facially race conscious, or whether we must
conduct a more searching inquiry into the Board’s intent.
      1.     Option 2f is Facially Race Neutral
      Option 2f is facially race neutral and not automatically subject to strict
scrutiny for two reasons. First, Lewis challenges only the aspect of Option 2f
that assigned additional at-risk students to East Ascension. The decision to
assign at-risk students to attend a particular school is race neutral on its face.
At-risk students are not a protected class, and the students categorized as at-
risk are not limited to a particular race or ethnicity. Option 2f also does not on
its face require at-risk students to attend a school with a particular racial
makeup.
      Second, even examining Option 2f as a whole, the student assignment plan
is race neutral. Option 2f is a school assignment plan that tells students where
they will attend school based on where their residence is located. Option 2f does
not on its face implicate the race of the students. Under Option 2f, if a new
family moves into the East Ascension attendance zone, the children will attend
East Ascension regardless of race or socio-economic class. Race is simply not a
factor in the assignment of students.
      Cases in which the Supreme Court has considered the validity of
legislative redistricting provide an apt analogy. The Court has consistently
stated that the redistricting of legislative districts is facially race neutral, and
that a more searching inquiry must be made into the intent of the redistricting
body before strict scrutiny will be applied. Bush v. Vera, 517 U.S. 952, 958
(1996) (plurality opinion) (“Electoral district lines are ‘facially race neutral,’ so
a more searching inquiry is necessary before strict scrutiny can be found

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                                  No. 09-30971
applicable in redistricting cases than in cases of ‘classifications based explicitly
on race.’” (citation omitted)); Hunt v. Cromartie, 526 U.S. 541, 547 (1999)
(“Districting legislation ordinarily, if not always, classifies tracts of land,
precincts, or census blocks and is race neutral on its face.”); Shaw, 509 U.S. at
646 (“A reapportionment statute typically does not classify persons at all; it
classifies tracts of land, or addresses.”). Moreover, the Court has indicated that
legislative districts may be drawn with an awareness of racial demographics
without triggering strict scrutiny. See Miller v. Johnson, 515 U.S. 900, 916
(1995) (“Redistricting legislatures will, for example, almost always be aware of
racial demographics; but it does not follow that race predominates in the
redistricting process.”); Shaw, 509 U.S. at 646 (“[R]edistricting differs from other
kinds of state decisionmaking in that the legislature always is aware of race
when it draws district lines, just as it is aware of age, economic status, religious
and political persuasion, and a variety of other demographic factors. That sort
of race consciousness does not lead inevitably to impermissible race
discrimination.”); Bush, 517 U.S. at 1001 (Thomas, J., concurring) (“We have
said that impermissible racial classifications do not follow inevitably from a
legislature’s mere awareness of racial demographics.”).
      Despite the fact that Option 2f does not even mention race on its face, the
majority seems to suggest that Option 2f employs racial classifications. See Maj.
Op. at 14 (stating that the students affected by Option 2f “seem[] to be a group
identifiable and identified principally on racial grounds (whether minority or
not) for assignment to particular schools”). To do this, the majority points to a
chart that details the demographic projections under each of the plans
considered by the Board (the “Statistical Analysis”) and suggests that this
analysis should be considered part of Option 2f. See Maj. Op. at 12 (“The School
Board insists that the Statistical Analysis underlying Option 2f—submitted by
Lewis in opposition to summary judgment—does not constitute Option 2f itself.

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                                  No. 09-30971
But to accept that self-serving, summary allegation would be to allow a school
district to skew reality simply by selectively including documents in the record
and labeling only those documents its ‘plan.’”). This chart, which is not part of
Option 2f, provides the total expected enrollment for each plan in each school
and lists the percentage of African American students and the percentage of
students that are expected to receive a free or reduced price lunch (i.e., at-risk
students). If Option 2f facially classified students based on race, however, strict
scrutiny would automatically apply. The majority does not hold that this is the
case and leaves the level of scrutiny to be determined by the district court.
      Nonetheless, the majority states that “it is unclear how a student
assignment plan could calculate the percentage of black students at each school
without classifying individual students by race.” Maj. Op. at 12. In making this
statement, the majority appears to condemn the Board for even creating such a
chart. But the document does no more than show that the Board was aware of
the demographic implications of each plan, and the Supreme Court has never
held that a mere awareness of a student’s race is automatically subject to strict
scrutiny, much less unconstitutional. Cf. Shaw, 509 U.S. at 646; Pers. Adm’r of
Mass. v. Feeney, 442 U.S. 256, 279 (1979) (“‘Discriminatory purpose’ . . . implies
more than intent as volition or intent as awareness of consequences.”). A
compilation of demographic information, even racial demographic information,
does not by itself suggest a racial classification or a facially race-conscious
decision.
      Instead, to subject its decision to strict scrutiny, the government must use
that demographic information to take action affecting the plaintiff. In every
case in which the Court has applied strict scrutiny to a “racial classification,” a
racial preference or classification appeared on the face of the government
decision and required that action be taken with respect to an individual based
on the classification. See Parents Involved, 551 U.S. at 720 (school district used

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                                  No. 09-30971
race to determine whether students would be assigned to their school of choice);
Johnson v. California, 543 U.S. 499, 502–05 (2005) (state prison used race to
determine where inmates would be housed); Gratz v. Bollinger, 539 U.S. 244,
254, 270 (2003) (university awarded admissions “points” to minority applicants);
Grutter, 539 U.S. at 314, 326 (law school used applicant’s race as one factor in
admissions process); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 205
(1995) (government gave contractors a financial incentive to hire minority
subcontractors); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 477–78,
493–94 (1989) (city mandated that a certain percentage of construction contracts
would be awarded only to minority contractors); Wygant v. Jackson Bd. of Educ.,
476 U.S. 267, 271, 273–74 (1986) (school laid off nonminority teachers to achieve
racial balance between faculty and students); Regents of Univ. of Cal. v. Bakke,
438 U.S. 265, 272–73, 290, 357 (1978) (medical school set aside a specified
number of spots in the entering class for minority students only); see also Walker
v. City of Mesquite, 169 F.3d 973, 980–81 (5th Cir. 1999) (declaring invalid city’s
decision to build public housing units in “predominantly white areas”); Raso v.
Lago, 135 F.3d 11, 16 (1st Cir. 1998) (“The term [racial classification] normally
refers to a governmental standard, preferentially favorable to one race or
another, for the distribution of benefits.” (emphasis added)). None of these cases
stands for the proposition that the government’s awareness of race, and the
racial demographics of neighborhoods or schools, is a racial classification
automatically subject to strict scrutiny.
      The Statistical Analysis does not on its face suggest that the Board
actually used the document to decide which plan to adopt or that the Board
considered race when it undertook to redistrict the attendance zones. For that
conclusion, the majority must look to other evidence in the record, such as the
deposition testimony of various Board members. Maj. Op. at 12–13. Because
Option 2f is facially race neutral, we must review the record to determine

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whether Lewis presented sufficient evidence that the Board acted with a
discriminatory motive when it adopted Option 2f.
      Before examining the intent of the Board, I note briefly that Chief Judge
Jones’s concurrence goes one step further than the majority opinion to
mischaracterize the nature of Option 2f. The concurrence suggests that, in
assessing whether Option 2f is facially neutral, it is proper to look behind the
face of Option 2f and assess whether any way in which the plan expressly
classifies students is actually a proxy for race. See, e.g., Jones Concurrence at
3–4 (“A further problem is the misperception that when the desired racial
balance is achieved by geographical lines, rather than assignment of specific
students of certain races, the action is ‘facially neutral’ . . . .”); id. at 5 (“The
boundaries are only race-neutral because streets are not people. Streets, though,
may well be racial proxies because the district or its agents apparently knew and
used the racial composition of the people living on those streets to pursue racial
balancing.”); id. at 2 (“What matters is the government’s intentional use of racial
classifications.”). However, it seems inescapable that a “facial” or “explicit”
category would have to be expressed on the face of Option 2f. The inquiry
regarding the level of scrutiny does not end with an examination of the face of
Option 2f, but the inquiry regarding the explicit classifications Option 2f
employs does. Examination of the intent behind the adoption of Option 2f
involves a separate analysis.
      2.     Lewis Has Not Shown that the Board Had a Discriminatory Motive
             in Assigning At-Risk Students to East Ascension
      Although Option 2f is facially race neutral, it nevertheless may be subject
to strict scrutiny if the Board adopted the plan with a discriminatory purpose.
See Vill. of Arlington Heights, 429 U.S. at 265–66. The majority focuses its
attention on whether Lewis presented sufficient evidence that the Board acted
with discriminatory motive in re-assigning students based on the race of those


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                                   No. 09-30971
students. As I have repeated, Lewis does not challenge that aspect of Option 2f.
The only relevant issue is whether the Board acted with a discriminatory
purpose or motive when it assigned additional at-risk students to East
Ascension.
      In Village of Arlington Heights, the Supreme Court set forth a now-
familiar test by which we are to determine whether “there is a proof that a
discriminatory purpose has been a motivating factor in [a facially neutral
government decision].” Id. at 265–66. The Court held that disproportionate
impact is but one factor which a plaintiff can use to support a finding of
discriminatory purpose. Id. at 265; see also Washington, 426 U.S. at 242. The
plaintiff must also prove that the disproportionate impact is traceable to a
discriminatory purpose. Washington, 426 U.S. at 242 (“Standing alone,
[disproportionate impact] does not trigger the rule . . . that racial classifications
are to be subjected to the strictest scrutiny . . . .” (citation omitted)); see also
Sonnier v. Quarterman, 476 F.3d 349, 368 (5th Cir. 2007) (“Even if a neutral law
has a disproportionately adverse impact, it is unconstitutional under the Equal
Protection Clause only if that impact can be traced to a discriminatory purpose.”
(internal quotation marks, alteration, and citation omitted)). The Supreme
Court identified the following additional factors as relevant in determining
whether purposeful discrimination animated a particular action:
      (1) whether a clear pattern of discrimination emerges from the effect
      of the state action; (2) the historical background of the decision,
      which may take into account any history of discrimination by the
      decisionmaking body; (3) the specific sequence of events leading up
      [to] the challenged decision, including departures from normal
      procedures; and (4) the legislative or administrative history of the
      state action, including contemporary statements by decisionmakers.
Allstate Ins. Co. v. Abbott, 495 F.3d 151, 160 (5th Cir. 2007) (citing Vill. of
Arlington Heights, 429 U.S. at 266–68).



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                                        No. 09-30971
       The crux of Lewis’s argument that the Board acted with discriminatory
intent is that the assignment of additional at-risk students under Option 2f had
a disproportionate impact on the minority students attending East Ascension.
Lewis offers the following statistics to support his claim that Option 2f had a
disproportionate impact on minority students. Prior to the redistricting under
Option 2f, approximately 43 percent of the students enrolled at East Ascension
were “at risk.” At Dutchtown High School (“Dutchtown”) the at-risk population
was approximately 19 percent, and at St. Amant High School (“St. Amant”) the
at-risk population was approximately 24 percent.6 Without any redistricting, the
Board projected that those numbers would rise to 61 percent, 27 percent, and 36
percent, respectively, by the beginning of the 2012 school year. Under Option
2f, the Board projected that the percentage of at-risk students at East Ascension
would decrease slightly for the first year that the redistricting was in effect and
rise more slowly than without redistricting. By the 2012 school year, East
Ascension was projected to have 57 percent at-risk students under Option 2f,
Dutchtown was projected to have 26 percent, and St. Amant was projected to
have 36 percent. In addition, the proportion of minority students at East
Ascension was projected to be lower under Option 2f than without any
redistricting—47 percent by 2012 under Option 2f compared to 51 percent under
the then-current plan.
       After examining these statistics and the rest of the record, I am frankly
perplexed at Lewis’s contention that Option 2f disproportionately impacted East


       6
          The record contains two charts with demographic information regarding each plan.
Because we must construe the evidence in the light most favorable to Lewis at this stage, I
refer to the chart showing the greatest percentage of at-risk students. I also note that these
percentages are slightly different from those referred to in the majority’s opinion. See Maj. Op.
at 14 n.14. The majority appears to analyze the demographic shift, or lack thereof, after the
implementation of Option 2f. Because we are concerned with the Board’s intent in adopting
Option 2f, the more appropriate evidence on this point is the information the Board was
actually presented with before it made its decision.

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                                         No. 09-30971
Ascension. It is true that East Ascension received more at-risk students under
Option 2f, but East Ascension was going to receive more students under any
redistricting plan. The undisputed evidence suggests that East Ascension was
under-enrolled at the time of the redistricting and was the high school in the
best position to relieve the overcrowding in the Dutchtown feeder system. Thus,
additional students were going to attend East Ascension regardless of whether
those students were “at risk,” minority, or non-minority students. And under
Option 2f, the proportion of at-risk students with respect to the entire student
population actually decreased compared to the projected at-risk enrollment had
the Board taken no redistricting action.
       Even if Lewis could demonstrate that the assignment of at-risk students
to East Ascension under Option 2f had a disproportionate impact, he has not
demonstrated that the Board acted with a discriminatory purpose. Lewis makes
little effort to demonstrate discriminatory intent under any of the Village of
Arlington Heights factors. Instead, he simply argues that the Board must have
acted with a discriminatory intent because it was aware of the racial
demographics when it assigned additional at-risk students to attend East
Ascension. But discriminatory intent “implies more than intent as volition or
intent as awareness of consequences.” Feeney, 442 U.S. at 279. “It implies that
the decisionmaker . . . selected or reaffirmed a particular course of action at least
in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an
identifiable group.” Id. Lewis must therefore demonstrate that the Board
adopted Option 2f because of its disproportionate impact, not merely that the
Board was aware of its impact.
       Lewis argues that the addition of two “Title I”7 elementary schools to the
East Ascension feeder system is evidence of discriminatory intent because the

       7
         A “Title I” school is a school that is eligible to receive additional federal funds due to
the large proportion of low-income or “at risk” students.

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                                 No. 09-30971
Board did not add the schools to the Dutchtown or St. Amant feeder systems.
The two schools to which Lewis refers are Duplessis Elementary and Pecan
Grove Elementary. Pecan Grove is a new school, and the record contains no
evidence that the at-risk students who will attend Pecan Grove did not
previously attend another East Ascension elementary school. However, it is
undisputed that Duplessis was transferred from Dutchtown to East Ascension
under Option 2f. Lewis presented evidence that the Board considered at least
one redistricting option under which Duplessis would remain assigned to
Dutchtown and Prairieville, a new elementary school that was not projected to
be a Title I school, would be assigned to East Ascension instead of Dutchtown.
The record suggests that the Board was well aware that the Duplessis option
would cause a high number of at-risk children to be assigned to East Ascension
and that at least one Board member expressed concern about the transfer.
      While the record indicates that the Board members were aware of the
impact that the Duplessis option, which became Option 2f, would have on the
students at East Ascension, there is no evidence that the Board chose the
Duplessis option because of its effect on the East Ascension minorities. Lewis
does not argue that the Board’s decision to assign Duplessis to East Ascension
was so abnormal that racial discrimination must have been a motivating factor.
The District map indicates that the Duplessis attendance zone is geographically
contiguous with the larger East Ascension attendance zone, and none of the
attendance zones is so oddly shaped that it facially indicates any inappropriate
gerrymandering. In fact, Lewis does not even argue that the Board ought to
have adopted the Prairieville option over the Duplessis option, or that the Board
had any other choice than the Duplessis option that would have solved the
overcrowding issue at all of the schools. In essence, it appears that Lewis would
like the Board to redraw all of the attendance zones in the entire District to
balance the at-risk children among the three high schools, which would be

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                                  No. 09-30971
contrary to the Board’s undisputed goal of reassigning no more students than
absolutely necessary. Lewis has not created a genuine issue of fact for trial
regarding the Board’s motive because he utterly failed to connect the Board’s
awareness of the racial demographics at East Ascension with the Board’s
decision to assign additional at-risk students to East Ascension.
      The majority makes much of the evidence that Lewis presented that
suggests the Board was aware of the race of individual students when it re-zoned
the schools. Specifically, the majority focuses on the deposition testimony of
several Board members that they had a desire to maintain unitary status and
to preclude increasing the percentage of minority students at East Ascension.
The majority also points to a statement on the Board’s web site that the Board
was “simply trying to balance the demograph[ics] of East Ascension.” However,
this evidence does not even speak to whether the Board acted with an intent to
discriminate through the disproportionate placement of at-risk students in
schools attended predominantly by minorities. Thus, this evidence is insufficient
to raise questions about the level of scrutiny that applies.
      B.    Lewis’s Claim Fails Under Rational Basis Review
      We need not apply strict scrutiny because Lewis presented insufficient
evidence that the Board acted with discriminatory purpose or had a
discriminatory motive when it assigned at-risk students to the East Ascension
feeder system.     Accordingly, we should examine the Board’s decision to
determine whether the Board had a rational basis for assigning the students to
East Ascension. See Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). Under rational
basis review, “a classification must be upheld against equal protection challenge
if there is any reasonably conceivable state of facts that could provide a rational
basis for the classification,” and the burden is on the challenger to “negative
every conceivable basis which might support [the classification].” Heller v. Doe,
509 U.S. 312, 320–21 (1993) (citations and internal quotation marks omitted).

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                                  No. 09-30971
       Lewis has presented no evidence or argument that the Board did not have
a rational basis for assigning at-risk students to attend East Ascension. Indeed,
my review of the record indicates that Option 2f may have in fact been the most
practical option. The “Prairieville Option” and “Option 3” are the only plans
considered by the Board that would have resulted in a lower percentage of at-
risk students assigned to East Ascension. Evidence in the record indicates that
under the “Prairieville Option,” the percentage of at-risk students in East
Ascension was projected to be 46 percent by 2012, 11 percent lower than the
projection under Option 2f. But under this option, the enrollment at East
Ascension would increase from approximately 1,200 students to over 2,000
students, far more students than either of the other two high schools. Under
Option 3, the at-risk percentage would be 55 percent by 2012, just two percent
lower than the projected at-risk percentage under Option 2f. And according to
the enrollment projections for Option 3, Dutchtown would still have far more
students than East Ascension, which would not alleviate the overcrowding issue
at Dutchtown.
       Because Lewis has not met his burden to prove that the Board had no
rational basis to assign additional at-risk students to East Ascension, I would
affirm the district court’s grant of summary judgment in favor of the Board.
III.   Awareness of Consequences, Option 2f, and Parents Involved
       The majority criticizes the “assumption that it might be justifiable to use
racially-based decisions for the ‘benign’ purpose of maintaining post-unitary
‘racial balance’ among the schools in the system” as being “at least in tension
with the Supreme Court’s decision in Parents Involved.” Maj. Op. at 11. The
majority’s attempt to relate the instant case to Parents Involved is troubling for
several reasons. Critically, any claims Lewis may have had related to assigning



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                                  No. 09-30971
students to schools based on race are not before us. Thus, the notion of racial
balancing need not, and should not, enter into our analysis.
      Further, the holding in Parents Involved pertained only to plans that
expressly use race to determine which school a student will attend and thus does
not speak to the matter before us. The plurality opinion makes clear that the
plans in Parents Involved used “explicit racial classifications” and that “other
means for achieving greater racial diversity in schools . . . implicate different
considerations.” See 551 U.S. at 745; cf. Equity in Athletics, Inc. v. Dep’t of
Educ., 639 F.3d 91, 104 (4th Cir. 2011) (stating that Parents Involved pertained
to strict scrutiny analysis of race-based school assignments and “has little
bearing” on a case subject to a lesser degree of scrutiny). In Parents Involved,
      school districts . . . adopted student assignment plans that rely upon
      race to determine which public schools certain children may attend.
      The Seattle school district classifies children as white or nonwhite;
      the Jefferson County school district as black or “other.” In Seattle,
      this racial classification is used to allocate slots in oversubscribed
      high schools. In Jefferson County, it is used to make certain
      elementary school assignments and to rule on transfer requests. In
      each case, the school district relies upon an individual student’s race
      in assigning that student to a particular school, so that the racial
      balance at the school falls within a predetermined range based on
      the racial composition of the school district as a whole. Parents of
      students denied assignment to particular schools under these plans
      solely because of their race brought suit, contending that allocating
      children to different public schools on the basis of race violated the
      Fourteenth Amendment guarantee of equal protection.

551 U.S. at 709–11. Thus, the plans in Parents Involved used race as a deciding
factor in determining which school a student would attend, whereas Option 2f
is facially race neutral and bases the determination of where children will attend
school on where they live, not on their race. This is not a Parents Involved case.




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                                  No. 09-30971
      Moreover, the Court in Parents Involved did not, as the majority suggests,
broadly hold that “preserving the district’s unitary status by means of racially-
based assignments, albeit a ‘benign’ racial motive, was nevertheless
constitutionally impermissible.” See Maj. Op. at 11. The holding in Parents
Involved is far narrower than the majority’s description indicates. The plans at
issue in Parents Involved were deemed unconstitutional because they were not
sufficiently narrowly tailored to withstand strict scrutiny. See Parents Involved,
551 U.S. at 735; id. at 786–87 (Kennedy, J., concurring). The Court faulted the
plans for their broad-brush, binary concept of race, as well as the failure to give
“serious, good faith consideration of workable race-neutral alternatives,” as
narrow tailoring requires. See id. at 735 (internal quotation marks and citation
omitted); see also Fisher v. Univ. of Tex. at Austin, 631 F.3d 213, 246 (5th Cir.
2011) (“Parents Involved was primarily a critique of the school districts’ extreme
approach that used binary racial categories to classify schoolchildren.” (internal
quotation marks and citation omitted)).
      Justice Kennedy, who provided the fifth vote in the five-to-four Parents
Involved decision, specifically disagreed with the “all-too-unyielding insistence
that race cannot be a factor in instances when . . . it may be taken into account.”
Parents Involved, 551 U.S. at 787 (Kennedy, J., concurring). According to
Justice Kennedy:
      In the administration of public schools by the state and local
      authorities it is permissible to consider the racial makeup of schools
      and to adopt general policies to encourage a diverse student body,
      one aspect of which is its racial composition. If school authorities
      are concerned that the student-body compositions of certain schools
      interfere with the objective of offering an equal educational
      opportunity to all of their students, they are free to devise
      race-conscious measures to address the problem in a general way
      and without treating each student in different fashion solely on the
      basis of a systematic, individual typing by race.

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                                      No. 09-30971


Id. at 788–89 (Kennedy, J., concurring) (citation omitted); see also Fisher, 631
F.3d at 246 (“The Court [in Parents Involved] did not hold that a Grutter-like
system would be impermissible even after race-neutral alternatives have been
exhausted . . . . To the contrary, Justice Kennedy . . . wrote separately to clarify
that a more nuanced, individual evaluation . . . . informed by Grutter would be
permissible . . . .” (internal quotation marks and citation omitted)); Hart v. Cmty.
Sch. Bd. of Brooklyn, 536 F. Supp. 2d 274, 282 (E.D.N.Y. 2008) (“The deciding
opinion of Justice Kennedy [in Parents Involved] . . . allows for the use of race as
one admission factor among others.”). In addition, Justice Breyer’s dissent, in
which Justices Stevens, Souter, and Ginsburg joined, indicates the facially race-
conscious plans at issue both served the compelling interest of “promoting or
preserving greater racial ‘integration’ of public schools” and were narrowly
tailored to achieve that end. See Parents Involved, 551 U.S. at 837–38 (Breyer,
J., dissenting). Thus, at least five justices in Parents Involved endorsed the view
that promoting diversity in elementary and secondary schools may be a
compelling governmental interest. Consequently, it is clear that the Court in
Parents Involved did not broadly condemn all student assignment plans that
facially account for race, let alone prohibit all decisionmaking that merely takes
place in light of some awareness of racial impact.
       As I discussed above, the majority appears to suggest that Option 2f does
classify students by race, thereby presumably bringing it closer to the ambit of
Parents Involved. Importing the background analysis of the expected impact of
the plan into the plan itself, however, is wholly inappropriate.8 The fact remains

       8
        The Jones concurrence’s insistence that Option 2f is facially race conscious because
the geographical categories it employs are proxies for race appears to be a similarly
problematic attempt to bring this case within the reach of Parents Involved. See Jones
Concurrence at 8 (“If the Ascension Parish Board used geographic lines as a proxy for racial

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                                        No. 09-30971

that—unlike the plans in Parents Involved—Option 2f does not provide any
mechanism to assign a student to a particular school based on that student’s
race. That individual students may have been classified for the purpose of
assessing the effect of student assignment plans on demographics is something
very different from actually assigning individual students to particular schools
on the basis of their race. The majority’s attempt to define Option 2f in a
manner divorced from what it actually says and does has potentially far-
reaching consequences and moves toward an inappropriately high level of
scrutiny    whenever      there    is    some     consideration—or       perhaps     merely
awareness—of the effects actions have on racial composition. However, as
Justice Kennedy notes:
       School boards may pursue the goal of bringing together students of
       diverse backgrounds and races through other means, including
       strategic site selection of new schools; drawing attendance zones
       with general recognition of the demographics of neighborhoods;
       allocating resources for special programs; recruiting students and
       faculty in a targeted fashion; and tracking enrollments,
       performance, and other statistics by race. These mechanisms are
       race conscious but do not lead to different treatment based on a
       classification that tells each student he or she is to be defined by
       race, so it is unlikely any of them would demand strict scrutiny to
       be found permissible. Executive and legislative branches, which for
       generations now have considered these types of policies and
       procedures, should be permitted to employ them with candor and
       with confidence that a constitutional violation does not occur
       whenever a decisionmaker considers the impact a given approach
       might have on students of different races. Assigning to each student
       a personal designation according to a crude system of individual




balancing to ‘maintain unitary status,’ the plan is explicitly race-based, and the Board’s
actions fly in the face of Parents Involved and require strict scrutiny review.”); Parents
Involved, 551 U.S. at 745 (plurality opinion) (describing Parents Involved as a case involving
“explicit racial classifications”).

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                                   No. 09-30971

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

Parents Involved, 551 U.S. at 789 (Kennedy, J., concurring) (emphasis added)
(internal quotation marks and citations omitted).
      By blurring the line between awareness of the consequences of Option 2f
and how Option 2f actually assigns students to schools, the majority opinion
seems to be taking a step toward requiring that strict scrutiny apply to any
action in which effects on race were known or considered. Such a push toward
strict scrutiny, however, is contrary to the law. See Hunt, 526 U.S. at 546 (“A
facially neutral law . . . warrants strict scrutiny only if it can be proved that the
law was motivated by a racial purpose or object, or if it is unexplainable on
grounds other than race.” (internal quotation marks and citations omitted));
Feeney, 442 U.S. at 279 (“Discriminatory purpose, however, implies more than
intent as volition or intent as awareness of consequences. It implies that the
decisionmaker . . . selected or reaffirmed a particular course of action at least in
part because of, not merely in spite of, its adverse effects upon an identifiable
group.” (footnote, internal quotation marks, and citation omitted)); see also
Parents Involved, 551 U.S. at 789 (Kennedy, J., concurring); Friends of Lake
View Sch. Dist. Inc. No. 25 v. Beebe, 578 F.3d 753, 761–63 (8th Cir. 2009)
(applying a rational basis analysis to uphold a facially race-neutral law despite
an alleged awareness of the act’s disproportionate impact on minorities).
Consequently, I disagree with both the reliance on Parents Involved, as well as
the suggestion that Option 2f classifies students by race.
                                     _________
      The district court properly concluded that Lewis’s claim—that the Board
engaged in unconstitutional discrimination when it re-assigned additional at-
risk students to East Ascension and its feeder schools—is assessed under a

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  Case: 09-30971   Document: 00511654276     Page: 46   Date Filed: 11/03/2011




                                  No. 09-30971

rational basis analysis. Because Lewis has not demonstrated that the Board
acted irrationally by adopting Option 2f, I would affirm the district court’s
judgment in favor of the Board.




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