                                                NOT PRECEDENTIAL
                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                  No. 17-1223
                                 _____________

        DAVID L. ARCHER, on his own behalf and on behalf of his child D.A.;
        DANIKA LA'DAWN AYERS, on her own behalf and on her child J.M.;
STEPHANIE PARKER, on her own behalf and on behalf of her children M.M. and S.P.;
  SEAN PASSNO, on his own behalf; RACHEL RIDDLE, on her own behalf and on
behalf of her child J.M.; MICHAEL SMITH, on his own behalf; KEITH THOMAS, and;
YOLANDA THOMAS, on their own behalves and on behalf of their children R.R., M.T.
  D.D., and M.T.; BETTY EDWARDS; VIRGEN GARAIS; NOVERTIE VARGAS;
     KATHY D. HARRIS; JOSE MONTALVO; LA-TWANYA RICHARDSON;
          KEVIN BYERS; LENAIDA JACKMAN; D. MARCUS DURHAM;
          ANDREA HAWKINS; ANTHONY CROSBY; LAKEISHA SMITH;
          SANDRA COLEMAN; DORTHEA ALAM; SHANNON GARCIA;
         CORRITA DANIELS; JOYCE ACEVEDO; CHRISTINA GREAVES;
HUMBERTO BARREA; CARLOS SERRANO; CATHERINE BLOUSE-GONZALEZ;
           BEVERLY AWKWARD; INGRID PEDROZA; SEAN HOLMES;
          LONISHA MORGAN; ROSA FIGUEROA; KIMBERLY R. SHAW;
               MARISOL RODRIGUEZ-MATOS; NIURKA CANALES;
          GUADALUPE ROSETE; JERMARI MURPHY; RACHEL RIVERA;
       TRINETTE WILLIAMS; MELINDA SMAW; AMAYRIS HERNANDEZ;
       YAJAIRA ALICEA; HEATHER TRACEY; HERIBERTO GARCIA, JR.;
          MCKENNA RODRIQUEZ; NILSA ARROYO; DENISE DURHAM;
            DELAREASE SMITH; BEASLEY BROWN; JAMES WILSON;
   SHAKIRA BROWN; TRACY TINSLEY; ONAYA BARTON; KAREEM ODEN,
                                                      Appellants

                                        v.

      YORK CITY SCHOOL DISTRICT; MARGIE ORR; JAMES MORGAN;
            MICHAEL MILLER; JANE HINES; SANDIE WALKER;
       MEMBERS OF THE BOARD OF DIRECTORS FOR THE SCHOOL
   DISTRICT OF THE CITY OF YORK, in their official and individual capacities;
 ERIC B. HOLMES; DEBORAH WORTHAM; MINDY WANTZ; VALERIE PERRY
                          _______________

                  On Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                                  (D.C. No. 1-13-cv-02826)
                           District Judge: Hon. John E. Jones, III
                                      _______________

                        Submitted Under Third Circuit LAR 34.1(a)
                                   September 11, 2017

           Before: CHAGARES, JORDAN, and NYGAARD, Circuit Judges.

                           (Opinion Filed: September 27, 2017)
                                    _______________

                                        OPINION*
                                     _______________

JORDAN, Circuit Judge.

       This case arises from the decision of the Board of Directors (“the Board”) for the

York City School District (“the District”) to close the New Hope Academy Charter

School (“New Hope”) by voting to not renew New Hope’s charter. New Hope itself

appealed the nonrenewal decision to the Pennsylvania State Charter School Appeal

Board, which upheld the nonrenewal. New Hope then appealed to the Pennsylvania

Commonwealth Court, which also upheld the decision. After that litigation ended, a

group of students from New Hope and parents acting on behalf of minor students (“the

Plaintiffs”) filed this case in the United States District Court for the Middle District of

Pennsylvania, challenging the nonrenewal decision as a violation of the Fourteenth

Amendment’s Equal Protection clause and claiming that five members of the Board, the

District itself, and multiple employees of the District (collectively “the Defendants”)

       *
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.

                                              2
conspired to carry out that constitutional violation. The District Court granted summary

judgment to the Defendants, and the Plaintiffs have appealed. Because there was a

rational basis for the decision to not renew New Hope’s charter, we will affirm.

I.     FACTUAL BACKGROUND1

       New Hope was first granted a charter for the 2007-08 school year. It was operated

by Isiah Anderson, who owned the management company with which New Hope

contracted to oversee its operations. Anderson also owned the building New Hope rented

and the Alternative Education for Disruptive Youth (“AEDY”) program to which New

Hope’s students were sent. Despite his several interlocking interests in New Hope,

Anderson never filed a Statement of Financial Interest disclosing them, as may have been

called for by Pennsylvania’s Public Official and Employee Ethics Act (“Ethics Act”), 65

Pa. Cons. Stat. Ann. § 1104. During New Hope’s operation, the school’s trustees

approved the contracts with Anderson’s companies, but there is no record of those

contracts having been subject to an open and public review of proposals, which is

required by the Ethics Act, 65 Pa. Cons. Stat. Ann. § 1103(f), nor is there a record of

New Hope’s trustees having engaged in any discussion or negotiation of the contracts.

The failure of a director of a nonprofit to act in the nonprofit’s best interest is a violation

of Pennsylvania’s Nonprofit Corporation Law. 15 Pa. Cons. Stat. Ann. § 5712(a).




       1
         Because this is an appeal from a grant of summary judgment against the
Plaintiffs, we recount the facts in the light most favorable to them and draw all reasonable
inferences in their favor. Doe v. Cty. of Centre, 242 F.3d 437, 446 (3d Cir. 2001).

                                               3
       After multiple amendments and renewals, in December 2011, New Hope

requested that its charter be renewed for five years. The Board sent a notice to New

Hope indicating that it did not intend to renew New Hope’s charter. It stated its

preliminary reasons for nonrenewal and gave New Hope an opportunity to respond. The

Board then held seven nights of hearings and reviewed a significant number of

documents, including ones related to New Hope’s test scores. New Hope asked to have

its performance reviewed according to Pennsylvania’s Value-Added Assessment System,

an index that goes by the acronym “PVAAS” – just one of several acronym-laden

academic measures that surfaces in this case. PVAAS was not included as part of

Pennsylvania’s evaluation of teaching professionals until the 2013-2014 school year,

after New Hope’s charter was not renewed. The Board therefore relied on the

Pennsylvania System of School Assessment (“PSSA”) scores, which “is a standards-

based, criterion-referenced assessment” that measures “student and school performance

related to the attainment of proficiency of the academic standards.” (App. at 561.) At the

time, PSSA was also an essential part of calculating a school’s Annual Yearly Progress

(AYP), which was a measurement required by the federal No Child Left Behind Act. So

the Board looked at New Hope’s PSSA scores and its failure to achieve AYP in deciding

whether to renew its charter, but did not look at the PVAAS scores. According to Board

members, the decision not to rely on PVAAS was because that was not an accepted

metric at the time and because it is not a measure of student achievement. In addition,

New Hope’s charter specified that academic progress would be evaluated using PSSA

proficiency.

                                             4
       New Hope’s percentage of students scoring proficient or better on the PSSA

during the five years of its charter was, for reading, 36.6% in 2008, 32.6% in 2009,

32.5% in 2010, 34.7% in 2011, and 37% in 2012. For math, the percentages were 19.9%

in 2008, 22.4% in 2009, 31.5% in 2010, 32.3% in 2011, and 35% in 2012. In 2011, the

last year before New Hope’s review, the most comparable charter school in the same

district, Helen Thackston Charter School (“Thackston”), achieved 41.9% proficiency in

reading and 55% proficiency in math. In addition, unlike New Hope, Thackston was able

to achieve AYP during at least one year. In line with that disparity in test scores, New

Hope received a “Building Level Academic Score” of only 46.8 out of 100, while

Thackston was able to achieve 57.5 out of 100. The School District’s non-charter schools

also suffered from serious deficiencies, but they still outperformed New Hope every year

that New Hope was in operation.

       Relying on PSSA and the annual AYP calculation, and finding the relationship

between New Hope and Isiah Anderson to involve ethical violations, the Board voted not

to renew New Hope’s charter. After that vote, the District issued an exhaustive 78-page

adjudication concluding that New Hope’s charter should not be renewed. New Hope

appealed that decision to the Pennsylvania State Charter School Appeal Board (“the

Appeal Board”), which denied the appeal. The Appeal Board issued a 51-page opinion

concluding that New Hope materially violated the terms of its written charter and, in

some cases, the law when it failed to meet academic standards, to follow its admission

and enrollment policy, to comply with laws regarding placement in AEDY programs, to

provide timely truancy and student attendance information, and to comply with ethics

                                             5
laws. After the Appeal Board denied the appeal, New Hope filed a petition for review in

the Pennsylvania Commonwealth Court. A panel of that court concluded that “New

Hope’s charter was properly denied for failure to meet state academic performance

requirements” and therefore the Appeal Board’s decision was correct. (App. at 443.)

The court also agreed with the Appeal Board that New Hope violated Pennsylvania’s

Ethics Act and Pennsylvania’s Nonprofit Corporation Law, but it did not address New

Hope’s enrollment policy, its placement of students in AEDY programs, or its failure to

provide timely reports of student attendance information.

      In the 2013-14 school year, Thackston sought renewal of its charter for the

following school year. In accordance with its charter and the newly created compilation

of metrics called the “School Performance Profile,” PVAAS was used as one method for

evaluating Thackston’s academic performance. Although Thackston likewise suffered

from some academic shortcomings, the District permitted Thackston to correct identified

deficiencies before deciding whether to renew its charter. And, even considering those

deficiencies, Thackston still outperformed the district high school. After meeting with

Thackston’s representatives, the District decided not to initiate nonrenewal proceedings

against Thackston. As a result, Thackston was never subjected to the rigorous

nonrenewal review process New Hope underwent. Thackston’s charter was ultimately

renewed with conditions.

II.   PROCEDURAL BACKGROUND

      The Plaintiffs brought this suit claiming that the more searching scrutiny New

Hope received from the District violated the Equal Protection clause, and that members

                                            6
of the Board and the District’s administration conspired with the District to carry out that

violation.2 The Defendants moved for summary judgment and, after an exhaustive

analysis, the District Court concluded that Thackston and New Hope were not similarly

situated because “Thackston students … vastly outperform[ed] New Hope students”

academically, (App. at 28), and because of “the highly concentrated governance structure

at New Hope under Isiah Anderson[.]” (App. at 29.) The Court further concluded that,

even if the schools were similarly situated, those same distinctions provided a rational

basis for the District to treat them differently. As a result, the District Court held that

New Hope’s equal protection claim could not be sustained as a matter of law and

therefore summary judgment against the Plaintiffs was in order on that claim. Without an

underlying equal protection violation, New Hope likewise could not sustain its claim of a

conspiracy, and the Court entered summary judgment on that claim as well.

       In its opinion, the District Court also addressed the Plaintiffs’ assertion that there

were inconsistencies in the Defendants’ evidence and the further claim that the

Defendants had spoilated evidence. The Court carefully reviewed each discrepancy

highlighted by the Plaintiffs and decided that the discrepancies, “even if taken in the light

most favorable to Plaintiffs, are simply not enough to overcome Defendants’ rational

basis for the nonrenewal of New Hope’s charter[.]” (App. at 31.) In addition, the Court

rejected the Plaintiffs’ argument that the discrepancies amounted to deliberate falsehoods.

The claim of spoliation was based on the District’s deletion of an email account of a


       2
        The Plaintiffs initially brought several other claims, but they were dismissed at
the pleading stage and the Plaintiffs do not challenge those rulings on appeal.
                                               7
former assistant superintendent who left the District more than a year before litigation

began. The District Court concluded that there were insufficient facts to infer that there

had been intentional destruction of evidence, as the deletion was in accordance with the

District’s policy and occurred well before the threat of litigation existed. There was not a

sufficient factual basis for concluding that a duty to preserve arose prior to the District’s

deletion of the account. Therefore, the discrepancies in the factual record and the

deletion of the email account did not change the outcome of the summary judgment

decision.

       This appeal followed.

III.   DISCUSSION3

       The Plaintiffs challenge every step of the District Court’s decision. First, they

take issue with the District Court’s conclusion that they did not make out an equal

protection claim. Second, they argue that they did in fact make out a conspiracy claim.

Third, they maintain that the District Court erred in concluding that the Defendants had

not presented false testimony. Fourth, they dispute the District Court’s conclusion that

the Defendants were not responsible for the spoliation of evidence. Finally, they argue


       3
         The District Court had jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C.
§ 1343. We have jurisdiction pursuant to 28 U.S.C. § 1291.
        Defendants did not challenge the Plaintiffs’ prudential standing. Although that
standing is questionable, because the Defendants did not raise the issue, and because it is
clear that the Plaintiffs nonetheless cannot prevail on the merits, we need not address the
issue here. See Ditri v. Coldwell Banker Residential Affiliates, Inc., 954 F.2d 869, 872
(3d Cir. 1992) (“We find it unnecessary to decide the so-called standing issue which
would, at best, only involve prudential standing … because we are satisfied that
plaintiffs’ allegations are, nevertheless, insufficient[.]”).

                                              8
that the District Court erred by permitting the Defendants to present new facts and

evidence via their summary judgment reply brief. We address each of those arguments in

turn.4

         A.     Equal Protection Claim

         First, the Plaintiffs brought a “class of one” equal protection claim, which requires

proving that New Hope was “intentionally treated differently from others similarly

situated by the defendant and that there was no rational basis for such treatment.”

Phillips v. Cty. of Allegheny, 515 F.3d 224, 243 (3d Cir. 2008); see also Vill. of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000). According to the Plaintiffs, New Hope

and Thackston were similarly situated charter schools that the Defendants treated

differently, even though there was no rational basis for doing so.5 The Defendants point

to the disparity in test scores and the differences in governance structure to demonstrate

that the schools were not similarly situated and argue that, even if they were, there was a


         4
        “Our review of a district court’s grant or denial of summary judgment is
plenary.” Zaloga v. Borough of Moosic, 841 F.3d 170, 174 n.3 (3d Cir. 2016). We apply
the same standard that the district court applied, Johnson v. City of Philadelphia, 837
F.3d 343, 349 n.30 (3d Cir. 2016), and will affirm only if “there is no genuine dispute as
to any material fact” and the defendants are “entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
         5
         The Plaintiffs also argue that they were treated differently from Crispus Attucks,
another charter school in the District. But Crispus Attucks uses a different curriculum in
order to serve a different type of student – those who had formerly dropped out of high
school. Therefore, New Hope and Crispus Attucks are not similarly situated and the
school cannot be used as a comparator. See Startzell v. City of Philadelphia, 533 F.3d
183, 203 (3d Cir. 2008) (“Persons [or entities] are similarly situated under the Equal
Protection Clause when they are alike ‘in all relevant aspects.’” (quoting Nordlinger v.
Hahn, 505 U.S. 1, 10 (1992))).

                                               9
rational basis for treating them differently. There is no factual dispute that Thackston’s

test scores were better than the District’s high school, and there is no dispute that New

Hope’s test scores were worse.6 The significant disparity in academic scores is alone

sufficient to provide a rational basis for treating the two schools differently.7 Because

that conclusion is dispositive, we need go no further. The Plaintiffs simply cannot




       6
         Although the Plaintiffs spend a great deal of time arguing that the District should
have considered New Hope’s satisfactory PVAAS scores rather than its PSSA scores, the
Plaintiffs make no allegation that its PVAAS scores exceeded those of the District’s high
school or Thackston. Instead, the Plaintiffs point to the Board’s refusal to consider the
PVAAS scores as an instance of the Board treating New Hope differently, since it
considered PVAAS scores for Thackston. But, at the time of New Hope’s review,
PVAAS scores were not an accepted metric by the Pennsylvania Department of
Education, and New Hope’s charter specifically referred to PSSA scores as the academic
measure to be used, while Thackston’s specifically permitted the use of PVAAS scores.
       7
         The Plaintiffs argue that test scores were not a proper basis on which to deny
renewal of a charter. That was one basis for New Hope’s appeal to the Pennsylvania
Commonwealth Court, and that court decided the matter. New Hope Acad. Charter Sch.
v. Sch. Dist. of City of York, 89 A.3d 731 (Pa. Commw. Ct. 2014). It held that “the
Charter School Law permits a school district to deny renewal of a charter school’s charter
for failure to meet student academic performance standards.” Id. at 736. It further held
that the law permits a school district to make that decision based on a “[c]omparison of a
charter school’s academic performance to its local school district[.]” Id. at 740. It also
said that using PSSA scores to do so was proper. Id. at 738. Therefore, to the extent the
Plaintiffs argue that test scores were not a proper basis for the nonrenewal decision, we
reject that argument and rely upon the Pennsylvania court’s interpretation of
Pennsylvania law.
        Furthermore, even if test scores were not a permissible rational basis for
nonrenewal, New Hope’s violations of Pennsylvania’s Ethics Act and Nonprofit Law
certainly would be. See id. at 740-41 (finding substantial evidence that New Hope
violated “the Ethics Act and the Nonprofit Law in it[s] contracts with its founder”).
There is no factual dispute that New Hope failed to engage in an open bidding process
when awarding contracts and instead awarded contracts to companies owned by Isiah
Anderson, the man who was also New Hope’s administrator.

                                             10
support an equal protection claim under the requirements for proving discrimination

based on a “class of one” theory.

       B.     Conspiracy Claim

       The Plaintiffs also challenge the District Court’s grant of summary judgment on

their claim that the Defendants conspired to interfere with civil rights, which they

concede is dependent on their equal protection claim. Because we will affirm the grant of

summary judgment on the Plaintiff’s equal protection claim, we will also affirm the grant

of summary judgment on the conspiracy claim. See Bray v. Alexandria Women’s Health

Clinic, 506 U.S. 263, 275-76 (1993) (refusing to find a conspiracy where the actions

taken did not implicate a protected right).

       C.     Remaining Challenges

       The Plaintiffs argue that there are inconsistencies and falsehoods in the

Defendants’ evidence that must be weighed by a jury and that, therefore, summary

judgment was improper. But those inconsistencies and falsehoods would not change the

outcome of the case and consequently are not “material facts” that preclude summary

judgment. See Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 197 (3d Cir. 1994)

(“Facts that could alter the outcome are ‘material facts[.]’” (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986))).

       The Plaintiffs also claim that the Defendants destroyed evidence when the District

deleted its former assistant superintendent’s email account after she left the District. We

review a District Court’s decision on sanctions for spoliation of evidence for an abuse of

discretion. Bull v. United Parcel Serv., Inc., 665 F.3d 68, 73 (3d Cir. 2012). “Spoliation

                                              11
occurs where: [1] the evidence was in the party’s control; [2] the evidence is relevant to

the claims or defenses in the case; [3] there has been actual suppression or withholding of

evidence; and, [4] the duty to preserve the evidence was reasonably foreseeable to the

party.” Id. The District Court concluded that the third requirement was not satisfied

because the email account was deleted pursuant to the District’s general policies, not to

suppress or withhold evidence. We cannot say that the Court abused its discretion in

reaching that conclusion when there is no evidence to show that the District intentionally

deleted the account of the assistant superintendent to destroy evidence, or that the email

account would have contained any relevant evidence at all. Given that test scores are the

linchpin of the Defendants’ defense, and there is no argument that the assistant

superintendent would have had any involvement in the statistical results produced by a

state-wide, state-administered academic test, the spoliation argument is particularly weak,

and, for the reasons given by the District Court, fails.

       Finally, the Plaintiffs argue that the Defendants wrongly presented new evidence

in their reply brief before the District Court, including an expert report. But the Plaintiffs

did not move to strike the disputed portions of that reply brief, nor did they otherwise

challenge it, so we will not review the argument on appeal. See Gass v. V.I. Tel. Corp.,

311 F.3d 237, 246 (3d Cir. 2002) (“It is well established that failure to raise an issue in

the district court constitutes a waiver of the argument.” (alteration omitted) (quoting Med.

Protective Co. v. Watkins, 198 F.3d 100, 105-06 n.3 (3d Cir. 1999))).

IV.    CONCLUSION

       For the foregoing reasons, we will affirm.

                                              12
