SHERICE SARGENT, individually, as next friend of her minor child v. School District of Philadelphia

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 24-3112
___________
SHERICE SARGENT, individually, as next friend of her
minor child, and on behalf of those similarly situated;
FALLON GIRINI, individually, as next friend of her minor
child, and on behalf of those similarly situated; MICHELE
SHERIDAN, individually, as next friend of her minor child,
and on behalf of those similarly situated; JOSHUA MEYER,
individually, as next friend of his minor child, and on behalf
of those similarly situated
v.
SCHOOL DISTRICT OF PHILADELPHIA;
SUPERINTENDENT, SCHOOL DISTRICT OF
PHILADELPHIA; BOARD OF EDUCATION, THE
SCHOOL DISTRICT OF PHILADELPHIA; JOYCE
WILKERSON; LETICIA EGEA HINTON; JULIA DANZY;
MALLORY FIX LOPEZ; MARIA MCCOLGAN; LISA
SALLEY; REGINALD STREATER; CECILIA
THOMPSON, each in their official capacities as members of
the Board of Education of the School District of Philadelphia;
SABRIYA JUBILEE, in her official capacity as Director of
Diversity, Equity, and Inclusion for the School District of
Philadelphia; KARYN LYNCH, in her official capacity as
Chief of Student Support Services for the School District of

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Philadelphia
Sherice Sargent, Michele
Sheridan, Joshua Meyer,
Appellants
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:22-cv-01509)
District Judge: Hon. Chad F. Kenney
Argued September 9, 2025
Before: HARDIMAN, KRAUSE, and FREEMAN, Circuit
Judges.
(Filed: February 2, 2026)
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Three parents of Philadelphia students appeal the
District Court’s summary judgment rejecting their Equal
Protection challenge to the School District’s 2022 Admissions
Policy for four selective high schools. Citing the Supreme
Court’s decision in Village of Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S. 252

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(1977), the District Court held that no reasonable factfinder
could find that the Admissions Policy had either a racially
discriminatory purpose or impact. So it applied rational basis
review and upheld the Policy. Viewing the record in the light
most favorable to the parents, there is sufficient evidence for a
reasonable factfinder to conclude that the Admissions Policy
had a discriminatory purpose and impact, requiring strict
scrutiny. We will therefore vacate and remand for a factfinder
to assess discriminatory purpose and impact.
I
The School District of Philadelphia has three types of
high schools: (1) neighborhood schools; (2) citywide schools;
and (3) criteria-based schools. Criteria-based schools are
selective and require city residents to apply for admission. The
four most competitive criteria-based schools are the Academy
at Palumbo, George Washington Carver High School of
Engineering and Science, Central High School, and Julia R.
Masterman High School. This appeal involves the Admissions
Policy’s effect on applicants to those four schools.
A
Before the School District implemented the 2022
Admissions Policy, each criteria-based school had
individualized admissions teams and standards tied to grades,
punctuality, and—depending on the school—additional
requirements like letters of recommendation, writing samples,
or interviews. The schools also required applicants to take the
Pennsylvania System of School Assessment (PSSA), but that
standardized test was suspended by the Commonwealth of
Pennsylvania during the COVID-19 pandemic. Applicants
needed A’s and B’s “with the possible exception of one C in

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[a] major subject on report cards,” and three of the four schools
required “[e]xemplary” or “[e]xcellent attendance and
punctuality.”1 Sargent v. Sch. Dist. of Phila., 2024 WL
4476555, at *5 (E.D. Pa. Oct. 11, 2024). Masterman High
School also required algebra and foreign language classes.
Final admissions decisions were typically made in a
decentralized manner by the admissions team or principal of
each school. Students who did not meet the minimum
qualifications sometimes were admitted because of “[o]ther
factors” like legacy admissions, App. 230, or patronage
practices based on “who you know and who you don’t know,”
App. 311.
In 2017, the Pew Charitable Trusts released a report
analyzing the School District’s criteria-based school system
and its admissions process. According to the School District,
the Pew Report identified flaws in its admissions policy. One
of those flaws was that certain geographic areas were
underrepresented at the criteria-based schools.2 But the School
1 Applicants to the fourth school, Carver, needed to meet a 95%
attendance requirement.
2 Long after the 2017 Pew Report—and after the Admissions
Policy had been implemented—the School District’s Office of
Research and Evaluation expressed similar findings in a
February 2022 report. That report concluded that some zip
codes sent “very large percentages” of students to Palumbo,
Carver, Central, and Masterman while others sent only “very
small percentages.” App. 1433. It added that the “discrepancy
in geographic access may be an indicator of inequities in
student access to the opportunities offered by these schools.”
Id.

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District took no action on the Pew Report for three years.
On June 15, 2020—three weeks after the death of
George Floyd—the School District issued an “Anti-Racism
Declaration.” Superintendent Dr. William Hite wrote:
[I]t is imperative that we take a laser focus on
acknowledging and dismantling systems of
racial inequity. For us, this goes deeper and far
beyond focusing on individual acts of prejudice
and discrimination, but refers to uprooting
policies, deconstructing processes, and
eradicating practices that create systems of
privilege and power for one racial group over
another . . . . We must be bold and courageous,
willing to do the necessary work to acknowledge
and disrupt racist ideologies and behaviors
within our own lives in an effort to dismantle
racism within our school system . . . . [R]ace is
the social construction that set the foundation
and built the infrastructure for the United States
we know today. Racism is the root of all other
forms of injustice and provides the nourishment
needed for other systems of oppression to
thrive . . . . As we move forward with this
charge, we will do so together, with intention and
deep purpose, centering our work through the
lens of racial equity . . . . No justice, no peace!
App. 679 (emphases added).
Karyn Lynch, the School District’s Chief of Student
Support Services, confirmed that the School District responded
to the death of George Floyd by examining all processes,

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procedures, and practices to ensure “equity.” App. 309. This
examination was called an “equity lens review.” App. 310. The
equity lens was “a tool” that the Chief of Equity for the School
District, Dr. Sabriya Jubilee, used to assess “to what degree a
particular policy or action [raised] equit[y] issues or concerns.”
App. 502. Dr. Jubilee and her office reviewed all School
District policies, including the admissions processes for the
four schools at issue, through this “equity lens.”
The School District’s and its officials’ references to
equity provide context for how that term was used. For
example, the School District’s “Living Glossary” defines
“educational equity” as “raising the achievement of all
students, while eliminating the racial predictability and
disproportionality of which student groups occupy the highest
and lowest achievement categories.” App. 680. And when
asked whether there is a difference between viewing something
through the lens of “equity” and “racial equity,” Dr. Hite
responded, “I don’t believe so, no.” App. 418. Likewise, Board
of Education Member Mallory Fix-Lopez, confirmed that
“equity does include race.” App. 1180.
Less than six months after the Anti-Racism Declaration,
on December 10, 2020, the Board of Education released its
“Goals & Guardrails,” a policy document describing the
principles that guide the Board’s educational mission.
“Guardrail 4” declared that, going forward, “students’ potential
will not be limited by practices that perpetuate systemic racism
and hinder student achievement.” App. 1421. And under
Guardrail 4, Indicator 4.1 announced:
Among 8th grade students who are qualified to
attend Special Admission High [S]chools, the
percentage who are Black/African American or

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Hispanic/Latinx will grow from 33.8% in August
2020 to at least 52.0% (making progress towards
being proportional to [the] population as a
whole) by August 2026.
Id. (emphasis added).
Prepared remarks for the January 14, 2021 Board of
Education meeting provide additional context for the School
District’s Goals and Guardrails. It was “typical” for the School
District to provide and/or collaborate with certain board
members on scripts for presentations given at such meetings.
App. 1178. At the outset, the January 14th remarks
“acknowledge[d] that systemic racism is real and alive in [the
School] District.” App. 759. To that end, the portion of the
remarks ascribed to Board Member Mallory Fix-Lopez read:
“We must work to dismantle the practices that result in
different outcomes for our students. We must focus on equity
in everything we do.” Id. The portion attributed to Board
Member Leticia Egea-Hinton promised that the Goals and
Guardrails would “serve as a framework for the work of the
Superintendent and the District.” App. 760. That portion of the
remarks also promised that in 2021 the public would “see the
District begin to implement plans to reach [those] goals.” App.
762.
The School District kept that promise. In October 2021,
the day before the admissions window opened for the 2022 to
2023 school year, it announced its new Admissions Policy,
which brought significant changes to the application process
for Palumbo, Carver, Central, and Masterman. The School
District’s announcement read:

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This past year, in alignment with our
commitment toward antiracism and equity, as
outlined in the Board of Education’s Goals and
Guardrails, the school selection process
underwent an initial equity review . . . . As a
result of the initial review, the District will be
implementing several important changes to this
year’s process.
App. 1313.
The Admissions Policy scrapped the prior approach in
favor of a centralized process with new admissions criteria for
the four schools. Those changes included: (1) continuing the
pandemic-induced suspension of standardized testing;
(2) eliminating recommendation letters and interviews; and
(3) introducing a 90-minute mandatory essay exam (MI Write)
scored by a computer program (thereby eliminating all
previous school-specific writing sample requirements). At the
same time, the Admissions Policy changed the standards for
grades (now requiring all A’s and B’s instead of allowing
exceptions for a stray C) and punctuality (replacing the
“excellent” or “exemplary” attendance standards previously
used at three of the schools with a 95% attendance rate to
qualify for all four schools).
Most significantly for this appeal, the Admissions
Policy introduced six preferred zip codes. Students who
resided in those six zip codes did not receive a mere thumb on
the scale in their favor; they received a “golden ticket” of sorts,
with “qualified applicants”—i.e., those who met the School
District’s new criteria—admitted automatically to any of the
four most coveted schools to which they applied. Meanwhile,
students who met the new criteria but did not reside in the six

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zip codes were subject to a lottery and thus had to hope for the
best for the remaining available seats. The new system also
effectively abolished a previous practice of the School District:
no longer could students who had attended some of the schools
as seventh or eighth graders continue there as ninth graders if
they maintained satisfactory grades. Those students needed to
reapply.
Five of the six zip codes—19121, 19132, 19133, 19134,
and 19140—had a majority Black and Hispanic population.
Their Black and Hispanic populations were 78.7%, 95.1%,
94.4%, 64.7%, and 92.3%, respectively. Meanwhile, their
Asian populations were 3.5%, 1.15%, 3.5%, 1.6%, and 1.7%.
And their white populations were 15.4%, 2.5%, 3.6%, 30.3%,
and 4.3%. The sixth zip code, 19135, had a plurality of white
residents (44.7%) and the remainder of its population was
20.9% Black, 24.2% Hispanic, and 5.7% Asian.
B
The School District moved for summary judgment in
the District Court. In support of its motion, the School District
submitted the declaration of Dr. Tonya Wolford, the Chief of
District Evaluation, Research, and Accountability. Dr.
Wolford described her “heav[y] involve[ment] in the creation”
of the Goals and Guardrails document, which, according to her,
“was not intended to and did not [] impact” the admissions
process. App. 127. Her office also determined which zip codes
would receive preferred status under the 2022 Admissions
Policy. Dr. Wolford said her office “examined which zip codes
had the lowest representation of [ninth] grade students at
Palumbo, Carver, Central, and Masterman.” App. 128. She
averred that she “did not consider” the racial demographics of
the zip codes or “any factor other than the number of students

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enrolled at [the] four schools in prior years.” Id. According to
Dr. Wolford, “race was not a factor and was not considered
when recommending which zip codes were to receive priority
during the school selection process.” Id.
In deposition testimony, other officials painted a
different picture of the School District’s intent in implementing
the new Admissions Policy. While Dr. Wolford spoke about
how her office selected the specific zip codes that received
preference under the Policy, these other officials discussed why
the School District pursued a zip code preference in the first
place. Karyn Lynch, the Chief of Student Support Services,
asserted that the zip code preference was added to the
Admissions Policy after the School District concluded that the
prior system was “bias[ed].” App. 230. And the Chief of
Equity, Dr. Jubilee, stated that being “colorblind” is “not a
good thing,” App. 617, and that “[r]ace is a factor, but it is not
an isolated factor” in decisions “toward equity,” App. 653. She
acknowledged that race could be considered in admissions if
“the goal is to be racially equitable.” App. 650. When asked if
her office became aware of the racial makeup of the six zip
codes at some point, Dr. Jubilee responded, “[r]ace is always a
part of the conversation.” App. 642.
Dr. Jubilee reaffirmed that sentiment, stating: “I [have
already] said that any time we’re talking about any measure of
th[e] effort [to update admissions criteria], race is always a
consideration.” Id. When asked if she had ever become aware
that there were a disproportionately high number of Asian
students at one of the schools, Dr. Jubilee replied: “As we were
going through my involvement in [the] school selection
process, at some point I had an understanding of different
demographics across a number of continuums.” App. 520.

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For his part, Dr. Hite confirmed that, as Superintendent,
he was aware of “systems” within the School District that led
to racial inequity and that one such system was
“disproportionality.” App. 393. According to Dr. Hite,
disproportionality occurs when a racial group’s percentage as
part of a subgroup is not proportional to that group’s
percentage in the overall population. Dr. Hite also opined that
“white students maintain[] privilege over” Black and Latino
students within the School District. App. 413. Dr. Jubilee
likewise confirmed that “[a]ny time there’s disproportionality,
equity is a concern.” App. 525.
This deposition testimony of Ms. Lynch, Dr. Jubilee,
and Dr. Hite also echoed earlier public statements by School
District officials. At a December 2021 meeting of the Council
of the City of Philadelphia Committee on Education, Ms.
Lynch and Dr. Jubilee spoke in favor of the Admissions Policy.
Dr. Jubilee declared: “Through the school selection process,
we have the opportunity to redesign a process that from
inception to current practice has only truly benefited a small
group of stakeholders, many of whom do not reflect the
majority demographic of our School District or City.” App.
743.
Dr. Jubilee also opined that “[e]quity and equality are
not synonymous.” App. 744. “Equity,” she said, “is about
fairness and the mission to achieve balance.” Id. Ms. Lynch
added that, “[a]s a result” of the national conversation about
racism, “we committed to examining all of our processes,
procedures[,] and practices to ensure equity.” App. 1531. “For
more than a year,” she continued, “the School District obtained
feedback about the school selection process and listened to
individuals and representatives of groups to inform the
improvements to the school selection process.” Id.

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At that same December 2021 Committee meeting,
Appellant Sherice Sargent spoke against the Admissions
Policy. She explained her frustration with how quickly the
changes unfolded, blindsiding parents. She pointed out that,
because the changes were adopted wholesale in the middle of
the school year, parents had to make quick decisions based on
the new policy while managing COVID-19-related disruptions
to their children’s education. Sargent criticized the School
District for overhauling the process all at once (rather than
adopting a phased implementation) and not permitting
exceptions for eighth graders (like her daughter) who had
relied on the old admissions process in planning for their
futures.
Councilmember David Oh also criticized the School
District: “[T]his [policy] was announced the day before a
seven-week window open[ed] for applications to these criteria-
based admissions schools. And people were reeling from the
fact that an entirely new process had been put in without their
knowledge, without their opportunity to discuss or to have
experts weigh in on it.” App. 1446. Councilmember Helen
Gym added: “[The announcement of the Admissions Policy]
created chaos and uncertainty, fear and suspicion . . . . I think
that there was no question that there was no significant public
input.” App. 1451.
Finally, Dr. Joshua Wilson, an expert in the use of
automated scoring and automated writing evaluation tools,
expressed his disagreement with the Admissions Policy’s
reliance on the MI Write tool. He commended the School
District for its efforts to use a more objective tool to score
writing samples, but he opined that the MI Write tool was
inappropriate for high-stakes admissions decisions. That tool,
according to Dr. Wilson, was “deliberately designed not to

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evaluate content.” App. 1479. Instead, it “only evaluate[d] the
quality of the writing.” Id. Nonetheless, to qualify for Central
or Masterman, students needed to score 22 out of 30. For
Palumbo and Carver, the qualifying score was 17 out of 30. Dr.
Wilson “[knew] of no research that validate[d]” whether these
scores were “predictive of future success in those respective
schools.” App. 1481–82. At the conclusion of the meeting, the
Committee took no action.
In the meantime, as the Admissions Policy had taken
effect in October 2021, the School District began applying it to
applications submitted for the upcoming 2022 to 2023 school
year.
II
Appellants Sherice Sargent, Michele Sheridan, and
Joshua Meyer are parents of children who participated in the
2022 Admissions Process for the criteria-based schools. Each
of their children resided outside the six preferred zip codes and
met the new criteria but were not admitted to their first-choice
schools.
The parents, in their own rights, as next friends of their
minor children, and on behalf of those similarly situated, sued
the School District, the Board of Education, and related
individuals in their official capacities.3 They alleged that the
School District “chang[ed] its selection process for criteria-
3 The individual Defendants include: William Hite, Joyce
Wilkerson, Leticia Egea-Hinton, Julia Danzy, Mallory Fix-
Lopez, Maria McColgan, Lisa Salley, Reginald Streater,
Cecilia Thompson, Sabriya Jubilee, and Karyn Lynch.

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based schools from a race-neutral process to a racially
discriminatory process.” App. 1786. And they claimed that the
School District did so “by moving from a highly individualized
and criteria-based process to a gerrymandered lottery system
where [B]lack and Latino students were given preferential
treatment.” App. 1787.
The amended complaint included claims under 42
U.S.C. § 1983 for violations of Title VI of the Civil Rights Act
of 1964, 42 U.S.C. § 2000d, and the Equal Protection Clause
of the Fourteenth Amendment, U.S. Const. amend. XIV, § 1,
and state-law claims for violations of Article I, Sections 26 and
29 of the Pennsylvania Constitution.4 Though they initially
4 Title VI’s prohibition against discrimination is coextensive
with the Equal Protection Clause. See Doe ex rel. Doe v. Lower
Merion Sch. Dist., 665 F.3d 524, 557 (3d Cir. 2011). For our
purposes, the state constitutional provisions are, too. See, e.g.,
Commonwealth v. Albert, 758 A.2d 1149, 1151 (Pa. 2000)
(“[T]he equal protection provisions of the Pennsylvania
Constitution are analyzed under the same standards” as the
federal Equal Protection Clause) (citation modified)). But see
Allegheny Reprod. Health Ctr. v. Pa. Dep’t of Hum. Servs., 309
A.3d 808, 945 (Pa. 2024) (holding that “Section 26 of our
Charter affords broader protections than the federal Equal
Protection Clause”).
Appellants have standing. An injury resulting from
governmental racial discrimination provides a basis for
standing “only to those persons who are [] denied equal
treatment” by the challenged conduct. Lower Merion, 665 F.3d
at 542 (citation modified). One form of injury is being forced
to compete in a race-based system that may disadvantage the
plaintiff. See id. (quoting Parents Involved in Cmty. Schs. v.

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sought an injunction, they now seek only damages.
At the close of discovery, the District Court granted the
School District’s summary judgment motion. Sargent, 2024
WL 4476555, at *19. Because Plaintiffs were challenging “a
facially neutral law or policy that is applied evenhandedly,” id.
at *9 (citation omitted), for strict scrutiny to apply, they needed
to show that the policy had a racially discriminatory purpose
and impact, Doe ex rel. Doe v. Lower Merion Sch. Dist., 665
F.3d 524, 543 (3d Cir. 2011); see also Antonelli v. New Jersey,
419 F.3d 267, 274 (3d Cir. 2005). The Court held that no
reasonable factfinder could find either discriminatory purpose
or impact. Sargent, 2024 WL 4476555, at *10, *16. It therefore
applied rational basis review and held that the Admissions
Policy was rationally related to the legitimate interest in
“increasing access for all qualified children to some of the
City’s best schools.” Id. at *19.
In determining that no reasonable jury could find that
the School District acted with a discriminatory purpose, the
District Court made four conclusions central to its holding. Id.
at *14. First, the Court concluded that the statements made by
Dr. Hite, Dr. Jubilee, and Ms. Lynch neither revealed a
discriminatory purpose nor were they sufficiently linked to the
Admissions Policy. Id. at *16. Second, the Court held that
nothing in the Anti-Racism Declaration could lead one to
reasonably conclude that the School District implemented the
changes for a discriminatory purpose. Id. Third, the Court
Seattle Sch. Dist. No. 1., 551 U.S. 701, 719 (2007)). Sargent,
Sheridan, and Meyer allege that the Policy set up a race-based
system that harmed their children by depriving them of
admission to their preferred schools.

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noted that statements at the City Council meeting by Dr.
Jubilee and Ms. Lynch revealed only “a desire to correct racial
biases that manifested in the previous school selection
process.” Id. at *17. Lastly, the Court dismissed the idea that
the zip codes were a proxy for race, citing, inter alia, Dr. Hite’s
and Dr. Jubilee’s denials that they considered race in selecting
the zip codes. See id. at *16. The Court determined instead that
the zip codes were selected because those geographic areas had
sent the lowest percentage of students to the schools in the past.
Id. at *18.
The District Court also held that the Admissions Policy
did not have a discriminatory impact. In doing so, the Court
relied heavily on a recent decision of the United States Court
of Appeals for the Fourth Circuit, Coalition for TJ v. Fairfax
County School Board, 68 F.4th 864 (4th Cir. 2023), cert.
denied, --- S. Ct. ---, 2024 WL 674659 (Feb. 20, 2024).
Consistent with that case, the District Court explained that
Plaintiffs’ data showed only the difference in the student
body’s racial composition “before-and-after” the changed
policy without accounting for how successful each racial group
was in receiving admissions offers. Sargent, 2024 WL
4476555, at *13. A “simplistic” before-and-after approach,
according to the District Court, would create a de facto
“immutable quota,” whereby any change from a prior year’s
demographics would raise constitutional alarm bells. Id.
(quoting Coal. for TJ, 68 F.4th at 881). The Court also noted
that Plaintiffs’ data were incomplete because they failed to
address how many students of each race applied to the schools
during that application cycle and whether the success rates of
applicants by race changed after the implementation of the

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Policy. Id. at *13–14.
Sargent, Sheridan, and Meyer timely appealed.5
III
The Fourteenth Amendment provides that no State shall
“deny to any person within its jurisdiction the equal protection
of the laws.” U.S. Const. amend. XIV, § 1. The “core purpose”
of the Equal Protection Clause is to eliminate “all
governmentally imposed discrimination based on race.”
Students for Fair Admissions, Inc. v. President & Fellows of
Harvard Coll., 600 U.S. 181, 206 (2023) (SFFA). “Eliminating
racial discrimination means eliminating all of it.” Id.
There are three categories of racially discriminatory
state action: (1) facially discriminatory policies containing
racial classifications, see id.; (2) facially neutral policies that
5 The District Court had jurisdiction under 28 U.S.C. § 1331.
We have jurisdiction under 28 U.S.C. § 1291. Our review is de
novo. Faush v. Tuesday Morning, Inc., 808 F.3d 208, 215 (3d
Cir. 2015). To prevail on summary judgment, the moving party
must show that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). All facts must be viewed in the “light
most favorable to the non-moving party” with “all reasonable
inferences drawn in that party’s favor.” McKinney v. Univ. of
Pittsburgh, 915 F.3d 956, 960 (3d Cir. 2019) (citation
modified). We do not “weigh the evidence or assess its truth
but simply determine[] whether or not there is a genuine issue
for trial.” Antonelli, 419 F.3d at 272 (citing Anderson v. Liberty
Lobby, 477 U.S. 242, 249 (1986)).

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are applied differently on the basis of race, see Yick Wo v.
Hopkins, 118 U.S. 356, 373 (1886); and (3) facially neutral
policies that are applied evenhandedly but have a racially
discriminatory purpose and impact, see Lower Merion, 665
F.3d at 543; Antonelli, 419 F.3d at 274. We agree with the
parties and the District Court that the challenged Admissions
Policy implicates only the third category.
In Arlington Heights, the Supreme Court clarified that
state action cannot be unconstitutional solely because of its
disproportionate impact on members of different racial groups.
429 U.S. at 264–65. The Court explained that “[p]roof of
racially discriminatory intent or purpose is required to show a
violation of the Equal Protection Clause.” Id. at 265 (emphasis
added). But it also observed that a policy’s disproportionate or
discriminatory impact might provide circumstantial evidence
of state actors’ discriminatory purpose, along with other
indicators like the policy’s historical background and the
legislative or administrative history. Id. at 266–68.
Our Court, like some other Courts of Appeals, has read
Arlington Heights’s discussion of purpose and impact as a
conjunctive test requiring challengers to prove both
discriminatory purpose and impact to trigger strict scrutiny6 of
6 We read Lower Merion to foreclose us from considering
whether evidence of discriminatory purpose, by itself, can
trigger strict scrutiny. But we acknowledge a circuit split on
this issue and add two observations.
First, we note that the Supreme Court’s focus in this context
has been on intent. In a recent dissent from the denial of
certiorari, Justice Alito, joined by Justice Thomas, criticized
lower courts for “mistakenly treat[ing] evidence of disparate

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impact as a necessary element of an equal-protection claim”
even though the Supreme Court had “never said as much.” Bos.
Parent Coal. for Acad. Excellence Corp. v. Sch. Comm. for
Bos., 604 U.S. ---, 145 S. Ct. 15, 17 (2024). In Arlington
Heights, the Court made clear that impact “may provide an
important starting point” to assess whether there is a hidden
discriminatory purpose behind a facially neutral policy. 429
U.S. at 266. But it discussed disparate impact as one potential
indicator of discriminatory purpose. See Arlington Heights,
429 U.S. at 268 (“The foregoing summary [of indicia
(including disparate impact)] identifies, without purporting to
be exhaustive, subjects of proper inquiry in determining
whether racially discriminatory intent existed.”). And in the
decades since Arlington Heights, including quite recently, the
Supreme Court has repeatedly described that inquiry as one
about purpose. See, e.g., United States v. Skrmetti, 605 U.S.
495, 516 (2025) (“But where a law’s classifications are neither
covertly nor overtly based on sex . . . we do not subject the law
to heightened review unless it was motivated by an invidious
discriminatory purpose.”); Miller v. Johnson, 515 U.S. 900,
913 (1995) (“[S]tatutes are subject to strict scrutiny . . . when,
though race neutral on their face, they are motivated by a racial
purpose.”).
Second, these pronouncements of the high court echo our
dictum in Lower Merion: “‘When there is a proof that a
discriminatory purpose has been a motivating factor in the
decision’ . . . courts should apply strict scrutiny.” 665 F.3d at
551 (quoting Arlington Heights, 429 U.S. at 265–66). See also
Pryor v. Nat’l Coll. Athletic Ass’n, 288 F.3d 548, 562 (3d Cir.
2002) (“Once a plaintiff establishes a discriminatory purpose
based on race, the decisionmaker must come forward and try

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a policy that is facially neutral and applied evenhandedly. See,
e.g., Lower Merion, 665 F.3d at 549; Antonelli, 419 F.3d at
274; Coal. for TJ, 68 F.4th at 879; Bos. Parent Coal. for Acad.
Excellence Corp. v. Sch. Comm. for Bos., 89 F.4th 46, 56–57
(1st Cir. 2023); Chinese Am. Citizens All. of Greater N.Y. v.
Adams, 116 F.4th 161, 165 (2d Cir. 2024); Lewis v. Ascension
Par. Sch. Bd., 806 F.3d 344, 359 (5th Cir. 2015). But not all
have. See, e.g., United States v. Viveros-Chavez, 114 F.4th 618,
622 (7th Cir. 2024) (“[A] facially neutral law fails
constitutional muster ‘if there is proof that a discriminatory
purpose has been a motivating factor’ in its enactment.”
(quoting Arlington Heights, 429 U.S. at 267)); Stevenson v.
Blytheville Sch. Dist. #5, 800 F.3d 955, 970 (8th Cir. 2015)
(“An allegation of disproportionate impact is only relevant to
the extent that it reflects a discriminatory purpose.” (citation
modified)).
In its pathmarking 2023 decision in Students for Fair
Admissions, Inc. v. President & Fellows of Harvard College,
the Supreme Court held two universities’ race-conscious
admissions policies unconstitutional. 600 U.S. at 231. One
school used race as a “determinative tip,” id. at 195, and the
other considered it a “plus” factor, id. at 196. Applying strict
scrutiny to the racially discriminatory policy,7 the Court
to show that the policy or rule at issue survives strict
scrutiny.”).
7 In SFFA, the Supreme Court noted that in only two other
contexts had it found a race-based interest sufficiently
compelling to satisfy strict scrutiny. 600 U.S. at 207. First,
“remediating specific, identified instances of past
discrimination that violated the Constitution or a statute,” and

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rejected interests such as “better educating [] students through
diversity” and “enhancing appreciation, respect, and empathy,
cross-racial understanding, and breaking down stereotypes” as
insufficiently compelling. Id. at 214. The Court also held that
the universities had failed to “articulate a meaningful
connection between the means they employ[ed] and the goals
they pursue[d]” so the policies were not narrowly tailored. Id.
at 215. In the zero-sum competitive admissions processes at
issue in SFFA, amorphous “diversity” goals did not pass
constitutional muster. Id. at 214, 218–19.
The Court’s opinion in SFFA was an extension of its
prior statements that it is “patently unconstitutional” for a
public school to seek “some specified percentage of a
particular group merely because of its race or ethnic origin,”
Grutter v. Bollinger, 539 U.S. 306, 329–30 (2003) (citation
modified), and that racial balancing, such as aiming to “attain[]
a level of diversity within the schools that approximates the
district’s overall demographics” is an illegitimate objective,
Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551
U.S. 701, 727 (2007) (plurality opinion) (citation modified).
Though the Court had tolerated limited race-conscious
admissions policies in the past, see, e.g., Regents of Univ. of
Cal. v. Bakke, 438 U.S. 265, 320 (1978) (opinion of Powell,
J.); Grutter, 539 U.S. at 343, no longer was it “willing to
dispense temporarily with the Constitution’s unambiguous
guarantee of equal protection.” SFFA, 600 U.S. at 212. The
Court expressly rejected the goal of proportionality and
cautioned that, going forward, schools “may not simply
establish through application essays or other means the regime
second, “avoiding imminent and serious risks to human safety
in prisons.” Id.

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22
we hold unlawful today.” Id. at 230. Because “[w]hat cannot
be done directly cannot be done indirectly,” id. (quoting
Cummings v. Missouri, 71 U.S. 277, 325 (1867)), when a
discriminatory purpose has been a motivating factor in a state
actor’s decision to enact a facially neutral policy that produces
a discriminatory impact, judicial deference is no longer
justified. See Arlington Heights, 429 U.S. at 265–66. “‘The
Constitution deals with substance, not shadows,’ and the
prohibition against racial discrimination is ‘levelled at the
thing, not the name.’” SFFA, 600 U.S. at 230 (quoting
Cummings, 71 U.S. at 325).
With these principles to guide our assessment of the
zero-sum, competitive Admissions Policy at issue in this
appeal, we hold that a reasonable factfinder could decide that:
(1) the School District acted with a discriminatory purpose in
adopting the Policy; and (2) the Policy had a discriminatory
impact. Because there are genuine disputes of material fact on
each issue, we will vacate the District Court’s order granting
summary judgment.
A
Start with the purpose prong. State action is taken with
“a discriminatory purpose” when the decisionmaker adopted
the challenged action at least partially to benefit or burden an
identifiable group. Lower Merion, 665 F.3d at 548. The
decisionmaker must have “selected or reaffirmed a particular
course of action at least in part ‘because of,’ not merely ‘in
spite of,’ the action’s beneficial or adverse effects” on certain
groups. Id. at 551 (quoting Pers. Adm’r of Mass. v. Feeney, 442
U.S. 256, 279 (1979)). State actors’ “mere awareness” of the
racial effects of a policy is not actionable. Lower Merion, 665
F.3d at 548. But when the evidence shows that a discriminatory

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purpose has been a motivating factor in the decision and there
is also a discriminatory impact, as required by our precedents,
judicial deference is no longer justified. Id. at 549, 551 & n.42.8
To determine whether a discriminatory purpose was a
motivating factor, we undertake a “sensitive inquiry” into all
“circumstantial and direct evidence of intent.” Arlington
Heights, 429 U.S. at 266. Direct evidence is rare.
Circumstantial evidence is more common and might include:
(1) whether the official action has a racially disproportionate
impact, including “whether it bears more heavily on one race
than another”; (2) the historical background of the decision;
and (3) the legislative or administrative history of the decision.
Id. at 266–68 (quoting Washington v. Davis, 426 U.S. 229, 242
(1976)).
Appellants argue that summary judgment was improper
because, when viewing the record in the light most favorable
to them, a reasonable factfinder could find that the School
District implemented the Admissions Policy to alter the racial
composition of the student body at the four schools. They cite:
8 A defendant may avoid liability for the action if it proves “that
the same decision would have resulted even had the
impermissible purpose not been considered.” Arlington
Heights, 429 U.S. at 270 n.21. In such cases, the plaintiffs can
“no longer fairly [] attribute the injury complained of to
improper consideration of a discriminatory purpose.” Id. The
School District does not raise this defense here, so our
discussion at this stage of the litigation concerns only whether
there is sufficient evidence in the record for a reasonable
factfinder to determine that a discriminatory purpose was at
least a motivating factor in the adoption of the Admissions
Policy.

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24
(1) the Anti-Racism Declaration announcing the School
District’s intent to “uproot[]” its policies and “center[] [its]
work through the lens of racial equity,” App. 679; (2) the
School District’s Goals and Guardrails document, including
the goal in Indicator 4.1 that the percentage of qualified Black
or Hispanic students “will grow” from 33.8 percent to “at least”
52 percent, “making progress towards being proportional to
[the] population as a whole,” App. 1421; and (3) the school
officials’ declarations, deposition testimony, and statements at
the December 2021 City Council Committee Hearing.
The School District counters that the “evidence,
including testimony and [School] District documents,
uniformly showed that the 2022 Admissions Process was race-
neutral and motivated by legitimate goals, such as increasing
objectivity and improving access for qualified students from
underrepresented geographic areas.” School District Br. 25.
The School District maintains that the Admissions Policy was
adopted to promote standardization in the processes, enhance
objectivity and fairness, and increase access to education. And
it cites the Pew Report as evidence that the preferred zip codes
were selected merely because of “historically low enrollment
rates” in those areas. School District Br. 7.
As we have explained, the historical context in which
the policy was adopted along with the legislative or
administrative history of its adoption can provide
circumstantial evidence of discriminatory intent. Lower
Merion, 665 F.3d at 552. The “specific sequence of events
leading up to the challenged decision also may shed some light
on the decisionmaker’s purposes.” Arlington Heights, 429 U.S.
at 267. In particular, departures from the normal process of
adopting and implementing a policy might provide evidence
that the actions were taken for improper purposes. See id.

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Reports or contemporary statements by members of the
decisionmaking body are particularly relevant. Id. at 268.
The School District’s actions in this case did not occur
in a vacuum. Just three weeks after George Floyd’s death
sparked a national conversation about racism, the School
District shared its Anti-Racism Declaration, which vowed to
scrutinize all its work “through the lens of racial equity.” App.
679. Less than six months later, the Board released the Goals
and Guardrails document, announcing its intention to increase
the percentage of Black or Hispanic applicants who met
admissions criteria from 33.8 percent to at least 52 percent of
the overall total by August 2026. That growth, the document
stated, would “mak[e] progress” towards achieving a pool of
“qualified” students that is “proportional to [the] population as
a whole.” App. 1421. And in early 2021, a month after the
release of its Goals and Guardrails document, Board members
assured the public it would see new policies implemented that
year to further those goals. The School District followed
through on that commitment when it announced the new
Admissions Policy in October 2021. In its announcement, the
School District explained that it had adopted the Admissions
Policy “[a]s a result of” the equity lens review of all its policies.
App. 1313. And in a possible departure from normal processes,
the Admissions Policy was announced the day before the
application opened, and it took effect immediately, with “little
input” from the public. App. 1700.
These statements and actions, taken together in context,
could support a finding that the School District adopted the
Admissions Policy to achieve racial proportionality. The
record also could support the conclusion that the zip code
preference was a proxy for race because it benefitted members
of certain racial groups more than others. Dr. Jubilee herself

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26
confirmed that “the [z]ip code preference was equity.” App.
616. Five of the six zip codes have a majority Black and
Hispanic population with disproportionately low Asian and (in
some zip codes) disproportionately low white populations. So
the “golden ticket” of automatic admission was more likely to
be awarded to Black and Hispanic students who lived in the
preferred zip codes. Cf. Rice v. Cayetano, 528 U.S. 495, 514
(2000) (invalidating a state constitutional amendment that used
ancestry as a proxy for race to limit voting rights); Griggs v.
Duke Power Co., 401 U.S. 424, 431–32 (1971) (holding that a
high school diploma requirement was an “artificial, arbitrary,
and unnecessary barrier[] to employment” that “operate[d]
invidiously to discriminate on the basis of [race]”).
In sum, viewing the evidence and all reasonable
inferences therefrom in the light most favorable to Appellants,
a reasonable factfinder could find that the School District
adopted the Admissions Policy to change the racial makeup of
the four most selective schools. Altering the schools’ racial
makeup would increase the representation of Black and
Hispanic students while decreasing white and Asian students’
representation in a zero-sum admissions game. See SFFA, 600
U.S. at 272 (Thomas, J., concurring) (highlighting the zero-
sum nature of the admissions process).
No doubt, some evidence—such as the Pew Report and
the Wolford Declaration—supports the School District’s stated
rationales of increasing geographic diversity and decreasing
subjectivity in the admissions process. But the District Court’s
conclusion that the “evidence uniformly demonstrate[d] that
the changes to the admissions process were not motivated by a
racially discriminatory purpose,” Sargent, 2024 WL 4476555,
at *15 (emphasis added), is belied by the record. In focusing
on the evidence of how the School District went about

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27
implementing the Admissions Policy, the District Court did not
adequately consider the evidence of why the School District
implemented the Policy in the first place, including the School
District’s stated goals, the historical context behind the
“equity” aims, and statements made by School District
officials. So while a factfinder could agree with the District
Court’s reading of the record and find a discriminatory purpose
lacking, we cannot determine as a matter of law that no
reasonable factfinder could infer a discriminatory purpose. The
District Court erred in holding otherwise.
B
Having determined that one could reasonably find a
discriminatory purpose, we turn next to consider impact.
“[D]iscriminatory impact must be shown to establish an equal
protection violation because ‘plaintiffs must show that they
have been injured as a result’ of the governmental action to
ensure that courts ‘can impose a meaningful remedy.’” Lower
Merion, 665 F.3d at 549–50 (quoting Garza v. Cnty. of Los
Angeles, 918 F.2d 763, 771 (9th Cir. 1990)). Here, a reasonable
factfinder could conclude that the Admissions Policy had a
discriminatory impact.
Appellants provide data on the raw number of students
accepted by race (without accounting for the number of
students by race who applied) before and after the
implementation of the Admissions Policy. Their data show that
admissions offers to Asian students decreased at three of the
four schools and offers to white students decreased at all four.
Meanwhile, admissions offers to Black and Hispanic students
increased significantly at three of the four schools.
The School District counters that the data “merely lists

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28
the year-to-year racial composition of students receiving offers
the year before and the year of the 2022 Admissions Process”
without comparing “the success rates of students” who were
deemed “qualified” under the new admissions criteria “by race
and ethnicity.” School District Br. 34. To show the race-neutral
impact of its Admissions Policy, the School District has
provided its own data. Citing Dr. Wolford’s declaration, the
School District notes that the success rates by race were “nearly
identical” because the proportion of admitted students by race
was approximately equivalent to the proportion of “qualified
applicants” by race, showing a neutral effect across racial
groups. School District Br. 41. For example, for the 2021 to
2022 school year, 38 percent of “qualified applicants” to
Palumbo were Asian and 39 percent of admitted students were
Asian. App. 145. So the School District contends there was no
discriminatory impact because the student body composition
(by race) tracked the percentage of “qualified applicants” (by
race).
The School District’s presentation of the success rates
lacks context. The Admissions Policy also changed the
relevant qualifications, so a “qualified applicant”9 did not have
9 In one respect, the School District raised standards. The
Admissions Policy required students to have all A’s and B’s
when a stray C had previously been acceptable. But the
standards declined in other ways, including the lack of
standardized testing and the introduction of an automated
writing sample tool that did not assess content. And the School
District did away with letters of recommendation, traditional
writing samples, and interview requirements. So to qualify
under the Admissions Policy, a student in a preferred zip code
only had to pass the automated writing assessment and meet

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the same meaning in 2021 and 2022. Moreover, the percentage
of “qualified applicants” (by race) in the pool changed
significantly from 2021 to 2022, and qualifying for admission
alone resulted in automatic admission in a preferred zip code.
The data in the Wolford Declaration show that the Admissions
Policy yielded some striking differences in the “qualified
applicant” pools for each of the schools between 2021 and
2022:
• Palumbo. The percentage of qualified applicants who
were Black more than doubled from 11 percent to 24
percent and the percentage of qualified applicants who
were Hispanic did likewise from 6 percent to 15 percent.
The percentage of qualified applicants who were Asian
or white declined from 38 percent to 28 percent and
from 40 percent to 26 percent, respectively.
• Carver. The percentage of qualified applicants who
were Black increased from 16 percent to 29 percent and
the percentage of qualified applicants who were
Hispanic doubled from 6 percent to 12 percent. The
percentage of qualified applicants who were Asian and
white decreased from 35 percent to 31 percent and 36
percent to 21 percent, respectively.
• Central. The percentage of qualified applicants who
were Black doubled from 11 percent to 22 percent and
the percentage of qualified applicants who were
Hispanic increased from 6 percent to 13 percent. The
percentage of qualified applicants who were Asian and
white decreased from 38 percent to 32 percent and from
attendance and grade requirements like those that had been
required before.

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39 percent to 26 percent, respectively.
• Masterman. The percentage of qualified applicants who
were Black increased slightly from 11 percent to 12
percent and the percentage of qualified applicants who
were Hispanic increased from 5 percent to 8 percent.
Qualified applicants who were Asian also saw a mild
increase from 37 percent to 39 percent. The percentage
of qualified applicants who were white declined from
39 percent to 35 percent.
See App. 145.
The notable changes in the “qualified applicant” pool
discussed above track the School District’s stated aims in its
Goals and Guardrails document. Recall the School District
announced in Indicator 4.1 that the percentage of eighth grade
students qualified for the criteria-based schools who are
“Black/African American or Hispanic/Latinx will grow from
33.8% in August 2020 to at least 52.0% (making progress
towards being proportional to [the] population as a whole by
August 2026).” App. 1421. In the year at issue, the School
District increased the percentage of “qualified applicants” who
were Black or Hispanic at each of the four schools.
Based on these increases and the fact that being
“qualified” resulted in automatic admission for students in
preferred zip codes, a reasonable factfinder could conclude that
the School District was well on its way to achieving racially
proportional representation in the four most competitive public
high schools. And that it did so by both changing the
admissions criteria and giving preference to students in zip
codes where Asian Americans were “woefully
underrepresented,” meaning that the benefits of the Policy—

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i.e., automatic admission—were almost certain to redound to
the benefit of students who were not Asian American. Reply
Br. 2. The School District does not dispute that the zip code
preference accomplished its stated goal of increasing the
number of enrolled students from those areas.
Yet the School District argues, and the District Court
held, that Appellants’ data do not suffice at the summary
judgment stage under either our precedents or two of our sister
courts’ analytical framework. We disagree. Our precedents,
despite involving facially neutral but evenhandedly applied
policies like this one, are otherwise factually inapposite. And
we cannot abide the First and Fourth Circuit’s flawed disparate
impact analyses.
1
Consider first our precedents. In Antonelli, we evaluated
a facially neutral fire department entry exam adopted after New
Jersey was subject to a consent decree requiring “affirmative
action to increase the proportion of African-American and
Hispanic personnel.” 419 F.3d at 270–71. A group of mostly
white applicants who failed the exam alleged that it was
racially discriminatory in violation of the Equal Protection
Clause. Id. at 272. But the appellants there “ha[d] not provided
any evidence that [the relevant portion of the exam] had a
discriminatory impact on white candidates.” Id. at 276. And the
mean scores and passing rates were “remarkably similar for
African-American, Hispanic[,] and white applicants.” Id.
Because of that lack of evidence, we held that there was no
discriminatory impact. Id.
Next, in Lower Merion, we assessed the
constitutionality of a public-school redistricting plan intended

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32
to equalize student enrollment at two high schools. 665 F.3d at
539. The district court entered judgment for the school district
after a bench trial, and we affirmed, holding that the plan
comported with the Equal Protection Clause. Id. at 557. To
show discriminatory impact, the challengers had to “show that
similarly situated individuals of a different race were treated
differently.” Id. at 550. And because all students within the
rezoned area were treated the same, there was no
discriminatory impact. Id. That is, all students within the
rezoned area were assigned to the same high school as each
other, regardless of race, and all students outside the rezoned
area were assigned to the same high school as each other,
regardless of race. Id. Based on the district court’s factual
findings after a bench trial, we concluded there was no
discriminatory impact and applied rational basis review to the
policy. See id. at 539–40, 550.
The School District contends that here, like in Lower
Merion, all students within the preferred zip codes received
preferential treatment, regardless of race, while all students
outside the preferred zip codes were also treated equally in the
lottery. That analogy misses the mark for several reasons. For
starters, the Lower Merion case went to trial and the trier of
fact made its own factual findings on discriminatory purpose
and impact. 665 F.3d at 539. Our remand order today requires
factfinding on discriminatory purpose and impact. 665 F.3d at
539. Second, the school admissions context—a zero-sum game
in which the admission of one student means the rejection of
another—is fundamentally different from redistricting a
public-school zone. Criteria-based high school admissions,
especially for schools like Palumbo, Carver, Central, and
Masterman, resemble the competitive college admissions
processes at issue in SFFA. For every student admitted because

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of a potentially racially discriminatory policy, another is
rejected. Third, in Lower Merion, the school district had
decided to redistrict for nondiscriminatory reasons before it
evaluated proposed plans and adopted one with only incidental
racial effects. 665 F.3d at 530. Here, conversely, Appellants
alleged the Admissions Policy was adopted because the School
District wanted to alter the racial makeup of the schools.
Finally, it is unclear whether Lower Merion’s permissive
attitude towards race-conscious policies and diversity goals
survived SFFA. Compare Lower Merion, 665 F.3d at 547–48
(explaining that the district court had wrongly “conflated [use
of] race as a factor with [a] discriminatory purpose” (citation
modified)), with SFFA, 600 U.S. at 202–03, 231 (holding that
using race as a factor in admissions is racially discriminatory
in violation of the Equal Protection Clause).
Contrary to the School District’s assertion, the correct
inquiry is not whether everyone inside the preferred zip code
is treated equally. With a facially neutral and evenly applied
policy like this one, all students residing within the zip codes
will receive the same treatment. The correct inquiry is whether
the antecedent decision to implement the Admissions Policy
itself—including the zip code preference—had a
discriminatory effect on applicants. We ask whether the Policy
“bears more heavily on one race than another.” Arlington
Heights, 429 U.S. at 266. For the reasons we have explained, a
reasonable factfinder could conclude that it does. As we have
noted, the Asian American representation in each of the
preferred zip codes was disproportionately low—ranging from
only 1.15 percent to 5.7 percent—in contrast to 10 percent in
the School District as a whole.
In sum, this case does not involve a remedial consent
decree as in Antonelli or a rezoning plan that treated all

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34
students equally as in Lower Merion. Instead, if the factfinder
determines that it was adopted for a discriminatory purpose,
this Policy would be more like the policies the Supreme Court
addressed in SFFA (and its prior cases Grutter and Bakke) that
intentionally gave preferences to some racial groups over
others in a competitive admissions process, all in pursuit of a
student body that matched administrators’ notions of diversity,
proportionality, or proper racial balance. See, e.g., SFFA, 600
U.S. at 214; Grutter, 539 U.S. at 330; Bakke; 438 U.S. at 311;
see also Parents Involved, 551 U.S. at 726 (plurality opinion)
(“In design and operation, the plans [that had assigned K-12
students to public schools, in part on the basis of race] are
directed only to racial balance, pure and simple, an objective
this Court has repeatedly condemned as illegitimate.”). The
only legally significant difference we can identify between this
case and SFFA is that the admissions policies at issue in SFFA
were not facially neutral. SFFA, 600 U.S. at 195–97. The
policies there explicitly stated the race-based motivations of
the defendants whereas here, under Arlington Heights, the
court must conduct a more searching inquiry. If the factfinder
concludes that the School District’s facially neutral policy here
was enacted for the same, race-based reasons the Supreme
Court rejected in SFFA, the court must also look to that line of
cases for guidance, as we do, because “what cannot be done
directly cannot be done indirectly.” SFFA, 600 U.S. at 230
(citation modified).
2
Our sister courts have recently addressed cases
involving similar competitive high school admissions policies.
See Coal. for TJ, 68 F.4th at 872–75; Bos. Parent Coal., 89
F.4th at 51–55; Chinese Am. Citizens All., 116 F.4th at 164–68.
For example, the admissions policy at issue in Coalition for TJ,

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35
on which the District Court most heavily relied, allocated seats
at one of the nation’s best public schools—Thomas Jefferson
High School for Science and Technology in Alexandria,
Virginia—to students from each middle school in the school
district. 68 F.4th at 875. Despite that facially neutral
classification, Asian American challengers alleged that the
new policy was intended to, and did, hinder their chances for
admission. Id. at 871. The Fourth Circuit rejected the
challengers’ attempt to compare the number and proportion of
Asian American students admitted to Thomas Jefferson before
and after the policy was implemented. Id. at 880–81. It held
that courts could not rely on that kind of data. Id. Doing so
would “turn the previous status quo into an immutable quota,”
such that schools could never change their policies without fear
of “constitutional attack.” Id. at 881 (citation modified).
In directing entry of summary judgment in the school
board’s favor, the Fourth Circuit said the district court should
have instead compared the “success rate” of Asian Americans
against other groups. Id. at 881. And because Asian American
students still had “greater success” in securing admission to
Thomas Jefferson than other racial groups—despite receiving
fewer offers than the year before—the court found no
discriminatory impact. Id. at 887. Even in the face of evidence
of discriminatory intent and a measurable effect on enrollment,
so long as the allegedly disfavored racial group remained more
successful than other racial groups, the Fourth Circuit held that
it need only apply rational basis review. Id.
We are unpersuaded by the Fourth Circuit’s reasoning
in Coalition for TJ. In dissent, Judge Rushing rejected the
majority’s conclusion that using “before-and-after” data would
turn “the previous status quo into an immutable quota.” Id. at
905 (Rushing, J., dissenting) (citation modified). To her it was

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36
obvious—as it is to us—that these concerns were unfounded
because challengers must always prove racially discriminatory
intent, not just impact. Id. No facially neutral policy will be
held unconstitutional solely because of its disproportionate
impact, as the Supreme Court first made clear in 1976. See
Davis, 426 U.S. at 242 (“Disproportionate impact is not
irrelevant, but it is not the sole touchstone of an invidious racial
discrimination forbidden by the Constitution.”). Judge Rushing
saw no reason why evidence of a measurable change derived
from a straightforward “before-and-after” analysis of
enrollment rates by race would not suffice to show
discriminatory impact. Coal. for TJ, 68 F.4th at 904–05.
Neither do we.10
In Boston Parent Coalition, the First Circuit echoed the
Fourth Circuit’s reasoning in Coalition for TJ. 89 F.4th at 57–
58. There, a coalition acting on behalf of parents of Asian and
white students challenged the Boston school system’s
admissions policy that gave priority enrollment to certain zip
10 On the other hand, simple “before-and-after” data may not
suffice to satisfy a factfinder of discriminatory impact in every
case, particularly if that data shows only a de minimis or
statistically insignificant change. While we recognize that such
questions are usually ones for the factfinder, not every “before-
and-after” change, no matter how small, will necessarily
establish a discriminatory impact. If discriminatory impact
were always satisfied, it would compress our Lower Merion
framework into a de facto one-part test about discriminatory
purpose alone—and would thus contravene our binding
precedent. See supra n.6 (discussing Lower Merion’s holding
that both purpose and impact are required to trigger strict
scrutiny).

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37
codes. Bos. Parent Coal., 89 F.4th at 53. The court
acknowledged that the school district “expected” its new
admissions policy to reduce the percentage of white and Asian
students in certain selective schools. Id. at 57. But it held that
the policy did not have a discriminatory impact because white
and Asian students remained “stark[ly] over-represent[ed]”—
i.e., disproportionately successful in receiving admission, even
if less so than before—after its implementation. Id. at 58.
Our disagreement with the First and Fourth Circuits is
not without support. The Supreme Court itself looked to a form
of before-and-after data when it struck down the universities’
race conscious admissions programs in SFFA. There,
“Harvard’s consideration of race ha[d] led to an 11.1%
decrease in the number of Asian Americans admitted” and its
“policy of considering applicants’ race . . . overall result[ed] in
fewer Asian American and white students being admitted.”
SFFA, 600 U.S. at 218.11 Neither the Equal Protection Clause
nor our precedent requires more complex inquiries.
Though the Supreme Court declined to hear both
Coalition for TJ and Boston Parent Coalition, Justice Alito,
joined by Justice Thomas, dissented from the denial of
certiorari in each case. Coal. for TJ v. Fairfax Cnty. Sch. Bd.,
--- S. Ct. ---, 2024 WL 674659, at *5 (Feb. 20, 2024) (Alito, J.,
dissenting from denial of certiorari); Bos. Parent Coal. for
Acad. Excellence Corp. v. Sch. Comm. for Bos., 604 U.S. ---,
11 Although the Supreme Court’s discussion of similar data in
SFFA was in service of its conclusion that the admissions
policies there failed strict scrutiny, 600 U.S. at 213, 218, we
see no reason why data showing that a race-based policy fails
strict scrutiny could not also help show that the policy is race-
based in the first place.

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38
145 S. Ct. 15, 18 (2024) (Alito, J., dissenting from denial of
certiorari). And in a separate statement respecting the denial of
certiorari in Boston Parent Coalition, Justice Gorsuch
explained that he shared many of Justice Alito’s concerns. Bos.
Parent Coal., 145 S. Ct. at 15 (Gorsuch, J., statement
respecting the denial of certiorari).
Calling the Fourth Circuit’s reasoning “indefensible,”
Justice Alito described its holding as “in essence, [] that
intentional racial discrimination is constitutional so long as it
is not too severe.” Coal. for TJ, 2024 WL 674659, at *1. He
deemed the Fourth Circuit’s analysis a “patently incorrect and
dangerous understanding” of disparate impact. Id. Justice Alito
maintained that all a party must show for disparate impact “is
that an admission[s] policy reduced one racial group’s chance
of admission and increased another racial group’s chance of
admission.” Bos. Parent Coal., 145 S. Ct. at 17. He also
expressed concern that the admissions policy at Thomas
Jefferson had “been trumpeted to potential replicators as a
blueprint for evading SFFA,” Coal. for TJ, 2024 WL 674659,
at *5, and that the Fourth Circuit’s “reasoning offer[ed] a
roadmap for other federal courts to provide cover,” id. at *5
n.9.
We share Justice Alito’s concerns. In SFFA, the
Supreme Court clarified that race-based government action is
tolerable only in extraordinary cases. 600 U.S. at 207–08. And
in just the past two years, three Justices have expressed
concerns about using convoluted disparate impact analyses to
dilute the Equal Protection Clause’s force in cases like this one.
For these reasons, we respectfully disagree with the First and
Fourth Circuits’ approaches to the discriminatory impact
inquiry and reject their framework. We will not sanction new
exceptions to the Equal Protection Clause’s mandate simply

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39
because a court determines one racial group is, in its view,
sufficiently successful. See SFFA, 600 U.S. at 229 (2023)
(rejecting the notion of “a judiciary that picks winners and
losers based on the color of their skin”); Feeney, 442 U.S. at
277 (“Invidious discrimination does not become less so
because the discrimination accomplished is of a lesser
magnitude.”).
In our view, the Second Circuit has taken a sounder
approach than the First and Fourth Circuits. In Chinese
American Citizens Alliance, New York City had changed the
admissions policy for its most competitive high schools,
reserving a greater proportion of seats for students based “on
the economic status of the student applicant’s community as a
whole, rather than on an individual basis.” 116 F.4th at 164.
The court held that the plaintiffs did not need to show
aggregate discriminatory impact against any one racial group;
instead, “a valid equal protection claim can be based on a
showing that any individual has been negatively affected or
harmed by that discriminatory law or policy based on race,
even if there is no disparate impact to members of that racial
class in the aggregate.” Id. at 173 (emphasis added). The
Second Circuit explained that the “discriminatory impact”
prong of the analysis could be satisfied by an individualized
inquiry into whether the plaintiffs had been harmed by a policy
that was enacted with a discriminatory purpose. Id.
To be sure, aggregate disparate impact might still be
strong evidence of a constitutional violation, but the Second
Circuit explained it was not a prerequisite. Id. at 171–72. “It is
axiomatic that ‘[a]t the heart of the Constitution’s guarantee of
equal protection lies the simple command that the Government
must treat citizens as individuals, not as simply components of
a racial, religious, sexual or national class.’” Id. at 173 (quoting

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40
Miller v. Johnson, 515 U.S. 900, 911 (1995)) (citation
modified).
We join the Second Circuit in holding that, while
evidence of an aggregate discriminatory impact may satisfy the
“discriminatory impact” inquiry, it is not the only permissible
form of proof. Appellants must show that “similarly situated
individuals of a different race were treated differently.” Lower
Merion, 665 F.3d at 550. To determine whether they have met
this burden, the District Court may look to the aggregate
disparate impact data the parties have provided. Statistically
significant changes in so-called “before-and-after” data are
relevant, including, but not limited to, year-over-year changes
to enrollment by race, “qualified applicants” by race, and
success rates by race. But on remand, the District Court at trial
may also look to whether any plaintiff has shown that he or she
“has been negatively affected or harmed by [the]
discriminatory law or policy based on race.” Chinese Am.
Citizens All., 116 F.4th at 173; see also Cooper v. Harris, 581
U.S. 285, 319 (2017) (“[I]n no area of our equal protection law
have we forced plaintiffs to submit one particular form of proof
to prevail.”); Gratz v. Bollinger, 539 U.S. 244, 262 (2003)
(describing the injury there as “the denial of equal treatment
resulting from the imposition of the barrier, not the ultimate
ability to obtain the benefit.”). While the form of proof
necessary to show that the Admissions Policy caused a reduced
likelihood of admission on an individual or aggregate basis
may vary, the District Court must ensure that the
discriminatory impact is real and identifiable because
discriminatory purpose without an actual injury is insufficient
to trigger strict scrutiny under our caselaw. Cf. Chinese Am.
Citizens All., 116 F.4th at 176–77 (explaining that the “unequal
treatment” of Asian Americans students by excluding them

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41
from reserved seats was the injury demonstrating
discriminatory impact).
***
Based on the data in the record—including admissions
offers year-over-year, the changes in the “qualified applicant”
pool resulting from the new criteria, and the demographics of
the chosen zip codes—a reasonable factfinder could infer that
the 2022 Admissions Policy increased Black and Hispanic
students’ chances of admission to Palumbo, Carver, Central,
and Masterman while decreasing Asian and white students’
chances. We therefore hold that the record supports, though it
does not compel, a finding that the Admissions Policy had both
the purpose and effect of discriminating on the basis of race in
violation of the Equal Protection Clause of the Fourteenth
Amendment to the Constitution.12
IV
The Supreme Court recently clarified that the core
purpose of the Equal Protection Clause is “doing away with all
governmentally imposed discrimination based on race.” SFFA,
600 U.S. at 206 (citation modified). And “[e]liminating racial
discrimination means eliminating all of it.” Id. “[T]he
guarantee of equal protection cannot mean one thing when
applied to one individual and something else when applied to
a person of another color.” Id. (quoting Bakke, 438 U.S. at 289–
12 That is, a factfinder may ultimately determine that the Policy
did not have a discriminatory purpose or impact and thus that
strict scrutiny does not apply. We also express no opinion on
whether the Policy would survive strict scrutiny. See SFFA,
600 U.S. at 206–07; see also supra n.7.

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42
90 (opinion of Powell, J.)).
The Philadelphia School District’s Anti-Racism
Declaration aspired to “center[] [its] work through the lens of
racial equity.” App. 679. To that end, it tried to “mak[e]
progress towards” achieving a student body racial composition
proportional to the broader population. App. 1421. After
conducting an “equity lens review” of its policies, it adopted
the 2022 Admissions Policy. App. 1313. That Policy changed
the admissions qualifications and gave preference to six zip
codes with disproportionately high Black and Hispanic
populations relative to their white and/or Asian American
populations. School District officials made public and private
statements—both before and after the enactment of the
Admissions Policy—that could support a finding that the
Policy was intended to alter (and did alter) the racial makeup
of the schools. So a reasonable factfinder could conclude that
the School District acted with a discriminatory purpose.
A reasonable factfinder could also determine that the
Admissions Policy had a discriminatory impact. The data
here—though imperfect—reveal potentially significant
changes in the racial composition of the “qualified applicant”
pool and the student body from 2021 to 2022. And the record
shows that the benefits of the zip code policy were more likely
to flow to individuals of certain races than others, consistent
with the School District’s push for proportional representation
at its most competitive high schools.
For those reasons, we will vacate and remand for further
proceedings consistent with this opinion.

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43
Jonathan F. Mitchell [Argued]
Mitchell Law
Walter S. Zimolong, III
James J. Fitzpatrick, III
Zimolong
Reed D. Rubinstein
Ian Prior
America First Legal Foundation
Counsel for Appellants
William K. Kennedy, II
Montgomery McCracken Walker & Rhoads
John W. Borkowski [Argued]
Aleksandra O. Rushing
Husch Blackwell
Hannah M. Girer-Rosenkrantz
Lynn R. Rauch
School District of Philadelphia
Office of General Counsel
Renee N. Smith
Jackson Lewis
Counsel for Appellees
Allison Scharfstein [Argued]
Molly M. Cain

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44
Donya Khadem
Michaele N. Turnage Young
NAACP Legal Defense & Educational Fund
Counsel for Amici Curiae American Civil Liberties
Union Foundation, American Civil Liberties Union of
Pennsylvania, Advocates for Trans Equality, Asian
Americans Advancing Justice-AAJC, Asian American
Legal Defense & Educational Fund; Equal Justice
Society, LatinoJustice PRLDEF, NAACP Legal Defense
& Educational Fund, Inc., National Women’s Law
Center, and National Partnership for Women &
Families, in support of Appellees

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