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Case
2:09-cv-02095-MMB Document
17
Filed
07/10/2009
Page
1 of 4
UNITED STATES DISTRICT COURT
FOR THE
EASTERN DISTRICT
OF
PENNSYL VANIA
Student
Doe
1
by
and
through
his
Parents/Guardians
Does
1
and
2,
et.
al.
Plaintiffs
Civil
Action
No. 09-2095
V.
The
School
District
of
Lower Merion
Defendant
PLAINTIFFS' REPLY BRIEF
TO
DEFENDANT'S MEMORANDUM
OFLAW IN
SUPPORT
OF
DEFENDANT'S OPPOSITION
TO
PLAINTIFFS' MOTION
FOR
PRELIMINARY INJUNCTION 
Plaintiffs,
Students
Doe
1
through
9,
now
filethepresentReply
Brief
in
order
to
respond
to
certain
factual
inaccuracies,
and arguments, raised
in
defendant, The School
District
of
Lower
Merion'sMemorandum
of
Law
in Support
of
its Opposition
to
Plaintiffs
Motion for
PreliminaryInjunction.Lower Merion's
Memorandum
contains four(4) factual
inaccuracies
that
need
to
be
corrected. First,
Lower
Merion indicates
on
page
4 of
itsMemorandum
that
the Community
Values used
as
a
basis
for
the
various
redistricting plans
were arrived
at
prior
to
the School
Board adopting
its
Non-Negotiables.
This
is
not
correct,
the CommunityValueswere
actuallyarrived
at
after the
SchoolBoardadopted
its
Non-Negotiables.See
Paragraphs
30
through 36
of
the
Civil
Rights
Complaint
filed on
May
14,2009.
Second,
Lower
Merion
asserts
on
page
8 of
its
Memorandum
that
it instituted
an
option
program
as
part
of
its
Redistricting Plan
whereby
students
who
were
districted
to
Lower
Merion
High School
could choose
to
attend Harriton
High School.
This "option
programll is
not
a new
 
Case 2:09-cv-02095-MMB Document
17
Filed
07/10/2009
Page
2
of4
program,
children districted
to
Lower Merion High School
have
had the
option
to
attend
HarritonHigh
School
for
years.
Third, Lower Merion incorrectly
asserts
throughout
its
Memorandum
that
the pending
Motion
for
Preliminary
Injunction
seeksto
enjointhe
entire Redistricting Plan adopted
on
January
12,
2009.
In
fact, Lower Merion premises
a
number
of
arguments
in
its
Memorandum
on
this
assumption.
Students
Doe
do
not
seek
to
enjoin
the
entire Redistricting
Plan.
As
the proposed
Order
filed
with
the
pending Motion
for
Preliminary
Injunction
makes
clear, Students
Doe
only
seek
to
enjoin that portion ofthe
Redistricting
Plan
that pertains
to
children
residing
in
the
neighborhoodbounded
by
Athens
A
venue,
Wynnewood
Road. County
LineRoad, and
Cricket Avenue
in
South
Ardmore,
Pennsylvania.
According
to
Lower
Merion's
Answers
to
Interrogatories,
onlyeighteen
(18)
children
would
be
subject
to
theinjunctionduring
the
2009-2010schoolyear.
See
Lower
Merion's Answer
to
Interrogatory
No.
1
which
is
appended hereto
as Exhibit
II
A."
Ofcourse
this
number
would climbin subsequent school years
as
the
grandfathering
provisions
in
the Redistricting
Plan
phased
out.Lower
Merion's
final
inaccuracy
is
made
in
conjunction
with its laches
argument.
Essentially,
Lower Merion
contends
that
Students
Doe
waited
too
long
to
seek
equitable
relief
because
they
choose
to
conduct
extensive
pre-suit
investigation
under the Pennsylvania
Right
to
Know
Act.
See
LowerMerion's
Memorandum
of
Law
at
pages
12
and
13.
Lower
Merion
assertsthat it responded
to
Students
Doe
Right
to
Know
Request on
or
before
March
3,
2009.
Id.
at
page
12.
Lower
Merion cites
New
Dana
Per:fumes
Corp.
v.
The Disney
Store.
Inc.,
131
F. Supp.2d616
(M.D.
Pa.
2001),
andOrson
v.
Miramax
Film
Corp.,
836F. Supp. 309
(E.D. Pa.
1993)
in
support
of
its
position.
2 
 
Case 2:09-cv-02095-MMB Document
17
Filed
07/10/2009
Page
3 of 4
This
is
not a case
where
Students
Doe
rested
on
their rights.
The
undersigned counsel hada professional responsibility under the
Rules
of
Professional Conduct
and
Rule
11
of
the FederalRules
of
Civil
Procedure
to
conduct a
thorough
investigation prior
to
filing
suit.
Unfortunately,all
of
the
key
documents
were in the
possession
of
Lower Merion,
and the
only way
to
get them
was
through filing a Right
to
Know
RequestStudents
Doe served
a
Right toKnow
Request
on
Lower
Merion
in
late
February 2009.Although it
is
true that
Lower
Merion
responded to
said
Request
on
March
3,
2009,
almost all
of
the initial responses that it
provided sought
an
extension
to
March
25,
2009, to
provide moresubstantive infonnation. A
true
and
correct
copy
of
Lower
Merion's
March 3, 2009,
Response
is
appended hereto
as
Exhibit
"B."
The
undersigned counsel
had to
review
thousands
of
pages
of
documents in March, April,
and
May
of2009,
before
filing
suit.The
case law cited
is
simply inapplicable
to
the situation
presented. New
Dana Perfumes
Corp.
is
a trade mark infringement
case,
and
the
opinion clearly indicates that
said
area
of
thelaw
hasits
own rules that
govern
when legal
action must
be taken. See
New Dana
Perfumes
~
131
F.
Supp.2d at
630.
Orson
presents a situation
where
no
pre-Complaint investigation
was
necessary. That
was
simply
notthe
situation herein where massive investigation
of
anopposing party's documents
needed totake
place.
Another one
of
Lower
Merion's
arguments needs
to
be addressed
as
well.
Lower Merionasserts in its Memorandum that
Students
Doe will
suffer
no
harm
if
the
Preliminary Injunction isnot granted because they will
be
attending a
new,
"state of the
art" high school
with
all
of
theamenities.
See
Lower Merion's
Memorandum
of Law at page
12.
It
mustbe
recognized that this
is
a modem day variant
of
the
separate,
but
equal,
argument that the United States SupremeCourt rejected over fifty
(50)
years
ago
in Brown
v.
Board
of
Education.
347 U.S. 483
(1954). In
3 
of 00

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