Postmortem: Redistricting battle in Lower Merion

A week ago, the Supreme Court declined to hear Students Doe v. Lower Merion School District, ending the legal debate over the Lower Merion School Board’s redistricting plan. Several black students alleged that the new plan made them the victims of racial discrimination.

LMSD is divided into zones corresponding to two high schools: Lower Merion and Harriton. Lower Merion is actually situated within the Harriton zone, meaning that students within walking distance of Lower Merion had been allowed choose to attend either school.

With the new zoning, the "Students Doe" lost the ability to attend Lower Merion High School. They claimed that it was the result of racial discrimination because they lived in a neighborhood that, while mostly white, had a much-higher-than-average black population.

The district’s plan had been to equalize enrollment at the two schools. Though they had a number of stated goals, none of them included race. They did admit, however, that race was one of many factors used in considering how the new zones would be placed. This was done with the stated purpose of reducing "racial isolation" at Harriton High School. In his official decision, district Judge Michael Baylson ruled that:

"The task of running a populous township’s school system composed of two high schools, two middle schools, and six elementary schools, is not one in which a federal district judge should interfere unless there is an overriding constitutional issue. Nevertheless, discrimination against any individual because of race or any other protected classification is illegal, and a judge has a high responsibility to act once proof of discrimination has been presented. This case requires the Court to balance these competing interests in deciding whether the redistricting of a geographic area due to its racial makeup violates the Equal Protection Clause and requires judicial action contrary to the school district’s assignment plan."

In the striking of this balance, the concept of judicial scrutiny comes into play. There are three levels of scrutiny, each one applying to a different type of discrimination case and each one requiring more evidence than the last that the measure being reviewed is necessary. Though the school district argued that it was not appropriate, Baylson applied strict scrutiny, the highest of the three levels. In ruling that the new zones passed strict scrutiny, Baylson decided that the redistricting was ‘narrowly tailored’ to achieve a ‘compelling governmental interest’ while restricting the freedom of the affected students as little as possible.

The judge stated that “Although Congress and the Supreme Court have unequivocally prohibited public officials from discriminating on the basis of individual racial classifications in distributing benefits or burdens, neither has determined that adverse impact alone is unconstitutional.” That is to say, the students in question may be burdened by the district’s decision, but they have not proved that they were burdened specifically because they were black, so it's not clear that discrimination has taken place. The district argued that it would have adopted this plan whether or not the racial data had been available.

Either way, it is not unconstitutional to take race into account while making a decision of this sort. In the landmark case Hirabayashi v. United States the Supreme Court ruled that, while “Distinctions between persons based solely upon their ancestry ‘are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality,” it is not unconstitutional to use race as a factor in making state decisions. In this case, this issue at stake was the legality of the Japanese internment camps during WWII. It was ruled that, due to the danger of “espionage and sabotage,” the measures passed strict scrutiny. It would appear that the LMSD redistrict is the same issue, on a smaller scale, from a different angle.

When the district court ruled against them, the students took their case to the appeals court, which also ruled against them. The Supreme Court upheld the decision of the appeals court and declined to hear Students Doe v. Lower Merion School District on the grounds that it was not different enough from previous cases to require additional review. The previous case to which it is most similar is Parents Involved in Community Schools v. Seattle School District No. 1, in which the Supreme Court ruled that the Seattle School District’s plan did not pass strict scrutiny because it used racial data only to achieve racial balance. Lower Merion argued that strict scrutiny did not apply in its own case because “school officials considered race incidentally and in a non-individualized way.” The district judge, however, ruled that “Although all governmental uses of race are subject to strict scrutiny, not all are invalidated by it.” The Lower Merion's case seems to be one of the latter types. The court accepted the school district’s defense that its redistricting measures passed strict scrutiny on the grounds that they merely “considered race incidentally and in a non-individualized way.” If race had been of central importance in their decision, the result might have been different.

The students involved released a statement expressing their disappointment with the Supreme Court’s decision. However, they also expressed pride in their accomplishments. The press release below is worded in the third person:

They have brought to light the fact that the Lower Merion School Board's redistricting process was driven largely by racial considerations, and that this happened in private, behind closed doors, all while the District was denying that it was going on. They have brought to light the fact that the District has manipulated its own policies on things like school walk zones in a way that disadvantages some of the citizens while bestowing advantages on others. If nothing else, Students Doe and their families are hopeful that these proceedings will cause the District to be more open, transparent, and honest going forward, and that the District will act in the collective best interest of all its students irrespective of their race.

While  Baylson’s factual findings (linked below) do not seem to corroborate the statement that the district’s decisions were driven largely by racial considerations, the feelings of the students are understandable. The debate over the legality of the redistricting has ended, but we can expect it to give way to a much more challenging debate over the ethicality of this sort of measure.


Related links:

The District Court Judge Baylson’s opinion

Judge Baylson’s factual findings

A brief submitted in favor of the LMSD

A brief submitted in favor of the Students Doe

The 2006 Supreme Court ruling on Parents Involved v. Seattle School District