PHILADELPHIA – A group of plaintiffs has appealed the denial of a preliminary injunction in their class action litigation, which claimed their children were denied admission to criteria-based schools due to the District’s discriminatory policies centered on race, to the U.S. Court of Appeals for the Third Circuit.
Sherice Sargent, Fallon Girini and Michele Sheridan (individually, as next friend to their minor children and on behalf of those similarly-situated) first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on April 19 versus The School District of Philadelphia, its Superintendent William R. Hite, its Board of Education, its Board Members Joyce Wilkerson, Leticia Egea-Hinton, Julia Danzy, Mallory Fix Lopez, Maria McColgan, Lisa Salley and Reginald Streater, its Director of Diversity, Equity and Inclusion Sabriya Jubilee, and Chief of Student Support Services Karyn Lynch, all of Philadelphia.
“While discriminatory racial preferences might find favor in modern academia, they find no comfort in the Constitution. But this has not stopped the School District of Philadelphia from adopting a blatantly unconstitutional race-based system for admission to its criteria-based public schools. In 2021, in the name of ‘antiracism’ and ‘equity,’ the school district announced that, starting with the 2022–23 school year, it was changing its selection process for criteria-based schools from a race-neutral process to a racially discriminatory process. The School District did so despite 62 percent of the students attending those schools identifying as Black or Latino and no schools having a white majority,” the suit said.
“Before 2021, admissions to these select schools was highly individualized with the principal of each school having the final say on admission. But the School District was concerned about the racial distribution this system generated, even though the schools were already quite diverse with no school having a white majority. The School District believed some select schools, in particular a science and technology school, had an underrepresentation of non-Black students (in other words ‘too Black’) and that non-Black and non-Latino students were ‘overrepresented’ in other schools (in other words ‘not Black enough.’) So it overhauled the admissions process to these schools in a conscious and intentional effort to rebalance the racial makeup of the student body.”
The suit continued that the District did so by “moving from a highly-individualized and criteria-based complaint process to a gerrymandered lottery system where Black and Latino students were given preferential treatment” – specifically, while all students participate in the lottery, students who reside in certain “underrepresented ZIP codes” are given preference for admission over students “who do not reside in those ZIP codes.”
“The plaintiffs are parents of students who have applied or will apply to the School District’s criteria-based schools and who have been or will be harmed by the School District’s discriminatory practices. They seek a preliminary and permanent injunction to restrain the school district from using a racial discriminatory system for admission to criteria-based schools,” the suit stated.
The named plaintiffs each had a child who was denied admission to a criteria-based school, despite having sterling credentials, allegedly due to the policies complained of in the litigation.
On May 10, the plaintiffs filed a follow-up motion to certify the class in their lawsuit.
“These questions affect all class members because each of them is subject to the School District’s new selection criteria for access to special-enrollment schools. Each of them faces the prospect of applying to a school with the grades and attendance records that would have ensured a strong candidacy – and yet being turned away because of the School District’s racial-balancing efforts. Each class member will ‘suffer the same injury’ on account of the School District’s policies, and that is all that needed to satisfy Rule 23(a)(2)’s commonality requirement,” per the certification motion, in part.
Along with the filing of an amended complaint on June 3, the plaintiffs concurrently filed a motion for a preliminary injunction against the defendants.
“The plaintiffs are likely to succeed on their claims that the defendants enacted these changes for the illegal and unconstitutional purpose of achieving racial balancing at the city’s elite magnet schools, by reducing Asian and White enrollments at schools such as Masterman and Carver, while simultaneously reducing Black enrollment at schools such as Carver and Parkway. The plaintiffs are also likely to succeed on their claim that the change in admissions policies lacks a rational relation to a legitimate state interest, as racial balancing is not a legitimate state interest, and the arbitrary admissions preferences conferred on the residents of six chosen zip codes in North Philadelphia is unsupportable even under rational-basis review,” according to the injunction motion.
“The plaintiffs will suffer irreparable harm absent a preliminary injunction from this Court. Their children are suffering grievous and irreparable harms from the school district’s decision to replace merits-based admissions with a lottery-with-zip-code-preferences system, and the public interest is harmed by the lowering of academic standards at the city’s elite magnet schools. And any harms that might befall other individuals from an injunction are more than outweighed by the patent illegality of the defendants’ actions, the indisputable irreparable harms that will affect the plaintiffs and their children, and the harms to the public interest from the erosion of academic standards.”
The defendants motioned to dismiss the case on June 29.
“This Court should dismiss the amended complaint because the School District used a race-neutral high school admissions process that is rationally related to the legitimate government interest of providing educational opportunities to all qualified Philadelphia students. The amended complaint itself demonstrates, through citation to several exhibits, that the admissions process was race neutral and did not consider racial classification,” the dismissal motion stated.
“The amended complaint repeatedly asserts the legal conclusion that the admissions process is ‘racially discriminatory,’ but it fails to allege any facts that would allow the Court to draw a reasonable inference that the admissions process discriminates on the basis of race. Instead, on the basis of plaintiffs’ alleged facts, which directly point to a race-neutral admissions process, this Court must apply ‘rational basis’ review to the School District’s admissions process.”
The defendants said that “a race-neutral process is subject to rational basis review unless the factual allegations establish that both (a) it was adopted for a racially discriminatory purpose and (b) it has caused a racially discriminatory impact”, but that the amended complaint “alleges no facts that would support either of these requirements.”
“Even if plaintiffs had alleged sufficient facts to require the application of strict scrutiny, the amended complaint fails to allege facts to support a conclusion that the admissions process would not survive strict scrutiny,” the dismissal motion continued.
“The amended complaint also fails to state any claim against the eleven individual defendants because (1) the amended complaint confirms that the School District – not any individual – adopted the admissions process and (2) plaintiffs have not alleged that any individual defendant had personal involvement in the development, adoption, or implementation of the admissions process.”
U.S. District Court for the Eastern District of Pennsylvania Judge Chad F. Kenney denied the plaintiffs’ motion for a preliminary injunction in a memorandum opinion handed down on Aug. 8.
Kenney found that the plaintiffs’ claims were not shown to have a likelihood of eventually being successful in court.
“This Court finds that plaintiffs have failed to show reasonable probability of eventual success on the merits. Specifically, this Court finds that the plaintiffs have failed to show that there is a reasonable probability that the changes to the 2021–2022 admissions process for the School District’s criteria-based schools were motivated by a racially discriminatory purpose, and thus, this Court cannot conclude that there is a reasonable probability such policy changes would be evaluated under strict scrutiny,” Kenney stated.
“Plaintiffs have failed to show that there is a reasonable probability that the changes to the admissions process for the criteria-based schools would fail under a rational basis review; and finally, even if these policy changes were subject to strict scrutiny review, plaintiffs have failed to show a reasonable probability of eventual success on the merits because they have not shown any evidence that the changes to the admissions policy have had a racially discriminatory impact.”
Kenney added there was “no dispute that the changes to the 2021–2022 admissions process to the School District’s criteria-based schools are facially neutral or that the admissions process is being administered in a race neutral fashion, and there is, likewise, no dispute that, presently, there is no evidence before the Court that the changes to the admissions process are resulting in a racially discriminatory impact.”
“There is, thus, no indication from the record that plaintiffs will be able to prove the changes to the admissions policy for the 2021–2022 admissions process for the School District’s criteria-based schools were instituted for a racially-discriminatory purpose or with racially-discriminatory intent. Accordingly, there is no evidence on which this Court could find that there is a reasonable probability that the changes to admissions policies to the criteria-based schools will be reviewed under strict scrutiny,” Kenney said.
UPDATE
Plaintiffs Sargent, Sheridan and Joshua Meyer chose to make an interlocutory appeal of Kenney’s denial of their requested preliminary junction, to the federal appellate bench on Aug. 11.
“Plaintiffs Sherice Sargent, Michele Sheridan, and Joshua Meyer appeal to the United States Court of Appeals for the Third Circuit from the order denying the plaintiffs’ motion for preliminary injunction, entered on Aug. 8, 2022,” their appeal notice read.
For counts of violating Title VI of the Civil Rights Act of 1964, violating the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and violating Sections 26 and 29 of the Pennsylvania Constitution, the plaintiffs are seeking the following reliefs:
• Certification of the class described in Paragraph 58;
• A declaration that the defendants are violating 42 U.S.C. Section 1983, Title VI, the Equal Protection Clause, and Article I, Sections 26 and 29 of the Pennsylvania Constitution by establishing, maintaining, and using racially discriminatory standards for selection and admission to the school district’s criteria-based schools;
• Awarding the plaintiffs and the class members nominal, compensatory and punitive damages;
• Costs and attorneys’ fees under 42 U.S.C. Section 1988 and awarding all other relief that the Court deems just, proper or equitable.
The plaintiffs are represented by Gene P. Hamilton of America First Legal Foundation in Washington, D.C., Jonathan F. Mitchell of Mitchell Law in Austin, Texas, plus James J. Fitzpatrick III and Walter Stephen Zimolong of Zimolong, LLC in Villanova.
The defendants are represented by William K. Kennedy and Renee N. Smith of Montgomery McCracken Walker & Rhoads, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-01509
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com