November 4, 2011
Acension Parish School Board, Redistricting, and Equal Protection: The Fifth Circuit Remands
In Lewis v. Acension Parish School Board, the Fifth Circuit's three judge panel issued as many opinions as there were judges, and remanded the case for further evidence development regarding whether the School Board intended to use racial classifications and whether its actions had a discriminatory effect, citing Washington v. Davis.
The factual background is a complicated one, but essentially the school district sought to both attain enrollment maximums and maintain unitary status, hiring a demographics application specialist who developed various options, conducting public hearings, and doing statistical analysis which included current and projected "enrollment, percentage of African-American students, and percentage of at-risk students at each school in the district" under the options. The board ultimately adopted the option known as "2f."
The plaintiff Lewis, according to the per curiam opinion, "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 trial court found the adopted 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. Applying a rational basis test, the trial court found there was a legitimate government interest in alleviating school overcrowding. The trial court presumably also found that the means chosen were rationally related, although the Fifth Circuit does not highlight this portion of the necessary analysis.
The per curiam Fifth Circuit opinion reverses this conclusion:
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 "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 (2007).
The per curiam opinion also noted that the question of whether the plaintiff Lewis had standing as to one of the two plaintiff children could be cured on remand.
Concurring, Chief Judge Edith Jones stressed that "race-based student assignments undertaken "to preserve unitary status," like other racially motivated government actions, presumptively violate the equal protection clause."
Concurring in part and dissenting in part Judge Carolyn King wrote at length after first reasserting that Lewis' claim concerned the effect on minority students of the transfer of at-risk students, quoting from the oral argument. Judge King agreed with the trial court that Option 2f is race-neutral and that there was no evidence of discriminatory intent. Judge King then noted that plaintiff Lewis presented no evidence or argument regarding a lack of rational basis and the judge's own "review of the record indicates that Option 2f may have in fact been the most practical option." Judge King then distinguished the factual scenerio from the one in Parents Involved.
While the judges did disagree about the applicable legal standard and its application, much of the disagreement amongst the judges concerned plaintiff Lewis' precise legal claim. Thus, it seems that remand is the most appropriate course. Although it also seems that this case may engender extensive litigation.
[image from the Ascension Parish School Board website via]
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