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Doe v LMSD - Factual Findings Memo Complete

Doe v LMSD - Factual Findings Memo Complete

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA STUDENT DOE 1, et al., v.

LOWER MERION SCHOOL DISTRICT : : : : : CIVIL ACTION

NO. 09-2095

MEMORANDUM ON FACTUAL FINDINGS Baylson, J. TABLE OF CONTENTS May 13, 2010

I. II. III.

Introduction and Summary.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Procedural Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Findings of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A. The District. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1. School Board. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2. Superintendent Dr. McGinley. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 3. School Administration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 4. Affected Area and North Ardmore. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 B. Plaintiffs.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 C. Redistricting Process .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 1. Decision to Redistrict.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 2. Redistricting Principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 a. Non–Negotiables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 b. Community Values. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 3. Early Redistricting Planning Stages.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 D. Proposed Redistricting Scenarios and Plans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 1. Pre–Proposed Plan 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 a. African–American Student Data. . . . . . . . . . . . . . . . . . . . . . . . . . 22 b. Elimination of Scenarios 1 and 4A. . . . . . . . . . . . . . . . . . . . . . . . 24 c. Awareness of Seattle. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 2. Proposed Plan 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 a. Likelihood of Randomized Student Assignment. . . . . . . . . . . . . . 27 b. General Diversity Data.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 c. Redistricting Press Release. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 d. Decisions to Not Present Diversity Data. . . . . . . . . . . . . . . . . . . . 29 1

E.

e. Race–Related Comments Regarding Proposed Plan 1. . . . . . . . . 30 f. Rejection of Proposed Plan 1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 3. Proposed Plan 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 a. Rejection of Proposed Plan 2.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 b. Race–Related Comments Regarding Proposed Plan 3. . . . . . . . . 34 i. Dr. McGinley’s and Lisa Pliskin’s Comments. . . . . . . . . 35 ii. David Ebby’s Comments. . . . . . . . . . . . . . . . . . . . . . . . . . 37 iii. Diane DiBonaventuro’s Comments. . . . . . . . . . . . . . . . . . 37 4. Proposed Plan 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 5. Proposed Plan 3R.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 a. Race–Related Comments Regarding Proposed Plan 3R. . . . . . . . 44 b. Diversity Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Adoption and Implementation of Proposed Plan 3R. . . . . . . . . . . . . . . . . . . . . . . 46 1. Board Members’ Reasons for Voting for or Against Plan 3R. . . . . . . . . . 47 a. Board Members Supporting Plan 3R. . . . . . . . . . . . . . . . . . . . . . . 47 b. Diane DiBonaventuro. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 c. David Ebby. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 2. High School Enrollment Data. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

IV. V. VI.

Factual Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Further Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Legal Issues To Be Briefed and Argued. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

I.

Introduction and Summary Plaintiffs Students Doe 1 through 9 (“Students”) are African–American students who live

in Lower Merion School District (“District”), which is located in Montgomery County, Pennsylvania. The Students, by and through Parents/Guardians Doe 1 through 10 (“Parents,” collectively with Students, “Plaintiffs”), allege that the District discriminated against them based on their race, by adopting a redistricting plan in January 2009 that took away their ability to choose to attend either of the District’s high schools, Harriton and Lower Merion, and required them to attend Harriton High School. On February 24, 2010, this Court denied the District’s

2

Motion for Summary Judgment. Doe v. Lower Merion Sch. Dist., —F. Supp. 2d.—, 2010 WL 701677 (E.D. Pa. Feb. 24, 2010). Beginning on April 8, 2010, this Court held a nine–day bench trial. (Docket Nos. 89–94, 97–104.) Following trial, the Court finds that race was one of several factors motivating the School Administration, as it developed and recommended redistricting plans. The Administration’s recommendation to the Board, to redistrict Plaintiffs to Harriton High School, was based largely on the fact that Plaintiffs’ neighborhood of residence has a heavy concentration of African–American students, and that Harriton had a significantly lower African–American student population than Lower Merion High School prior to redistricting. Like a leitmotif in a Wagner opera, a recurring theme with variations, the process of redistricting repeatedly embraced the goal of achieving racial parity between the two high schools. As Justice Holmes stated in Schenck v. United States, 249 U.S. 47, 52 (1919), “the character of every act depends on the circumstance in which it is done.” The circumstantial evidence introduced at trial leads, like a well–worn path through the woods, inescapably to the finding that race was a motivating factor for the Administration. The Board Members who voted to approve Plan 3R were not aware that racial considerations had played such a significant role within the Administration. Both Lower Merion and Harriton High Schools are excellent schools. Whether Plaintiffs are entitled to relief will turn in large part upon the interpretation of the Supreme Court’s decision in Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 723 (2007) (“Seattle”). This Memorandum sets forth the Court’s findings of fact pursuant to Federal Rule of Civil Procedure 52(a). Further briefing from the parties on the legal issues which stem from these findings of fact 3

will lead to a final judgment. II. Procedural Background The Court’s February 24, 2010 Memorandum denying the District’s Motion for Summary Judgment summarized the relevant factual and procedural background. See Doe, 2010 WL 701677, at *1–4. A concise summary of the relevant procedural background is provided below. On May 14, 2009, Plaintiffs filed a complaint alleging that the District’s adoption of a redistricting plan in January 2009 violates the Equal Protection Clause of the Fourteenth Amendment (Count I), 42 U.S.C. § 1981 (Count II), and Title VI of the Civil Rights Act, 42 U.S.C. § 2000d et seq. (Count III), all pursuant to 42 U.S.C. § 1983, by discriminating against the Students based on their race. (Docket No. 1.) The Court denied the District’s Motion to Dismiss, or in the Alternative, for a More Definite Statement. (Docket No. 7.) Plaintiffs then moved for preliminary injunctive relief restoring their choice to attend either high school, but subsequently agreed to withdraw this request. (Docket Nos. 5, 26.). On December 31, 2009, after the parties completed discovery, the District filed a Motion for Summary Judgment (Docket No. 32), which the Court denied on February 24, 2010, following oral argument, on the basis that there were numerous contested issues of genuine material fact, Doe, 2010 WL 701677, at *10-13. In February 2010, Richard Ilgenfritz, a reporter for Main Line Media News, and Philadelphia Newspapers, LLC, also filed Motions seeking to intervene and to be granted access to the judicial records, several of which had been filed under seal. (Docket Nos. 48, 51.) The Court granted Ilgenfritz’s and Philadelphia Newspapers, LLC’s motions and ordered counsel to make the briefs and exhibits available in the clerk’s office, and to substitute specific pages of 4

exhibits that redact Plaintiffs’ or third parties’ personal identifying information. (Docket No. 52.) In addition, the parties filed Proposed Findings of Fact and Law. (Docket Nos. 84–86.) Prior to trial, Plaintiffs and the District filed several Motions in Limine seeking to strike or to bar the admission of various exhibits and the testimony of several witnesses (Docket Nos. 65, 69, 71, & 73), and Plaintiffs filed a Motion to Proceed Pseudonymously (Docket No. 72). On April 5, 2010, the Court granted the latter Motion, but denied the Motions in Limine without prejudice. (Docket No. 88.) On May 3, 2010, following the close of testimony, the Court held oral argument on the parties’ proposed findings of fact. (Docket No. 111.) Subsequently, the District filed Amended Proposed Findings of Fact. (Docket No. 112.) III. Findings of Fact The principal factual question the Court must resolve is whether race was a motivating factor in the District’s January 2009 redistricting decision. The Supreme Court has made clear that “[d]etermining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266 (1977) (“Arlington Heights”) (emphasis added). In conducting this inquiry, this Court will examine the evidence presented during the bench trial and make factual determinations as to the District’s decision–making process, without the benefit of a written transcript. However, the digital audio recordings of the trial have been consulted. At trial, Plaintiffs presented twenty–six witnesses: eight Parents Doe; District Superintendent Dr. Christopher McGinley; six other members of the District’s Administration; 5

all nine District School Board Members; the District’s redistricting consultant, Dr. Ross Haber; a computer graphics artist, Dr. James B. Speer; an expert in applied mathematics, Dr. Pavel Greenfield; and a member from the community in which Plaintiffs live, Reverend Albert G. Davis, Jr. By agreement, the District’s counsel questioned these witnesses on all topics, even beyond the scope of direct examination, so that they did not have to be recalled as witnesses for the District. In addition, the District had two witnesses, Dr. Claudia Lyles and Dr. Robert Lee Jarvis, testify as to Dr. McGinley’s prior work on “combating the achievement gap,” which will be detailed in the next section. Except as noted below, the witnesses were generally credible. A. The District

The District operates six elementary schools (Belmont Hills, Cynwyd, Gladwyn, Merion, Penn Valley, and Penn Wynne), two middle schools (Bala Cynwyd and Welsh Valley), and two high schools (Harriton High School and Lower Merion High School). Both of the high schools are ranked as being among the best in the state, if not the nation. 1. School Board

Nine elected School Directors (“Board Members”) make up the Lower Merion Board of School Directors (“Board”), which has been vested with the authority to assign students to schools within Lower Merion. During the January 2009 redistricting process, the Board was composed of the following individuals: Diane DiBonaventuro, President of the Board from December 1, 2007, to December 1, 2008; Lisa Pliskin, President from December 1, 2008, to December 1, 2009; David Ebby, the current President; Linda Doucette–Ashman; Gary J. Friedlander; Susan Guthrie; H. Linda Kugel, Ted Lorenz; and Gerald Gene Novick. 2. Superintendent Dr. McGinley 6

Dr. Christopher McGinley has been the District’s Superintendent since June 2008, although he began attending some redistricting meetings in April 2008. His predecessor was Dr. Jamie P. Savedoff. Several of the Board Members testified that they had voted to hire Dr. McGinley because he was a “true educator” who was “student–focused” and personable, and because he had a wealth of experience and success in combating the minority student “achievement gap.” Various witnesses, including Dr. McGinley, Dr. Lyles, and Dr. Jarvis testified that the “achievement gap” refers to the observed and pervasive disparity in measurable educational achievement among groups of students. Research on the achievement gap across the nation, as well as specifically in the District, shows that African–American and Latino students as a whole perform significantly poorer than their White and Asian–American peers. “Combating the achievement gap,” therefore, refers to valid and appropriate educational policies aimed at minimizing and eradicating the achievement gap. Dr. Lyles and Dr. Jarvis testified that prior to working for the District, Dr. McGinley was Assistant Superintendent at Cheltenham Township in Montgomery, Pennsylvania, where he was a “pioneer” and “leader” in combating the achievement gap. In particular, Dr. McGinley helped implement initiatives to eliminate class tracking after second grade, and to use demonstrated performance, such as test scores and report cards, to place students, thereby taking away teacher subjectivity. Both initiatives resulted in a significant decrease in the achievement gap in Cheltenham schools. In addition to this work, Dr. McGinley helped form a partnership with the University of Pennsylvania to create the Delaware Valley Minority Student Achievement Consortium (“Consortium”), which is an organization dedicated to eliminating the achievement gap by educating educators on the subject, and studying techniques to combat, and the causes of, 7

this phenomenon. In addition to combating the achievement gap, Dr. McGinley and the Consortium have done work to minimize “racial isolation,” which is the isolation a student feels because he or she is one of only a few students of his or her particular background in the class. Witnesses including Dr. McGinley testified that racial isolation is not triggered by a particular “threshold” of students, or lack thereof, from a particular background in a given classroom, and is not necessarily affected by the number of minorities in a given school. Since being the District’s Superintendent, Dr. McGinley has put in place a “clustering” program whereby the District places students of a given minority background, who have agreed to participate in the program, together in language honors classes, with the goal of having the same percentage of minority students in each class as the percentage of the individuals of that minority background in the local community. This “clustering” program has been successful at increasing the number of minorities, and in particular, the numbers of African–American students, in language honors programs in the District. 3. School Administration

The District has an Administration, which includes the Superintendent and several “cabinet members” who have district–wide responsibilities. During the redistricting process, Dr. McGinley’s cabinet included the following individuals: Dr. Michael J. Kelly, Assistant Superintendent; Edward Andre, Director of Transportation; Scott A. Shafer, Business Manager; Pat Guinnane, Director of Human Resources; and Doug Young, Director of Public Relations. Plaintiffs called as witnesses a number of District Administrators who testified as to their role in putting together the various redistricting plans. Most of this testimony concerned programmatic, logistical, and transportation issues. For example, Dr. Kelly, the District’s 8

Assistant Superintendent testified at length about how during redistricting, the Administration was concerned about not increasing the number of buses, due to the increased fuel, storage, and employee costs that would result. In addition, Dr. McGinley testified that throughout redistricting, the Administration worried about how to transport students to the high schools given the limited number of buses, and that as a result, the Administration considered staggering school start times in order to reuse existing buses. Edward Andre, the District’s Director of Transportation, then testified that there were limitations on bus storage facilities, which prevented the District from increasing the number of buses. Although this testimony provided helpful background, it is not deserving of significant weight in the Court’s determination as to the motivations underlying the redistricting process. 4. Affected Area and North Ardmore

As Parents Doe 2, 3, 4, 5, 7, 8, and 9 confirmed in their testimony, all of Plaintiffs live in the District in what is known as “South Ardmore,” which is bounded by Athens Avenue, Lynnwood Road, County Line, and Cricket Avenue. This area has been referred to throughout this case as the “Affected Area.” In addition to the Affected Area, Ardmore contains an area referred to at trial as “North Ardmore”1 which is North of Cricket Avenue, and is bounded by East Lancaster Avenue, County Line Road, and just below College Lane. (Pls.’ Ex. 154, at ¶ 14.) Several witnesses, including numerous Board Members, testified that both the Affected

Although this Memorandum refers to the area described in the text as “North Ardmore,” at least three witnesses, Board Member David Ebby, Transportation Director Edward Andre, and Reverend Davis, testified that they consider this area, along with the Affected Area, as comprising a single neighborhood called “South Ardmore.” 9

1

Area and North Ardmore contain heavy concentrations of African–American families,2 and that the only other area of the district with a high concentration of African–American families is in Bryn Mawr.3 Decades earlier, students in the Affected Area and North Ardmore attended an elementary school in Ardmore, but that elementary school was torn down. Subsequently, students in the Affected Area and North Ardmore were split up and bused to five of the District’s elementary schools. In the 1990’s, in response to the Ardmore community’s call for a community school, the district redistricted these students to attend two elementary schools.4 In particular, students in the Affected Area were districted for Penn Valley Elementary School and Welsh Valley Middle School, and those in North Ardmore were districted for Penn Wynne Elementary School and Bala Cynwyd Middle School. Originally, students in both areas had the

Assistant Superintendent Michael Kelly submitted a declaration indicating that as of September 2008, the Affected Area had 308 students in kindergarten through to grade 12, of which 140 are White, 140 are African–American, 9 are Asian–American, and 18 are Hispanic–American. At this time, North Ardmore had 167 students in kindergarten through to grade 12, of which 32 are White, 107 are African–American, 12 are Asian–American, and 16 are Hispanic–American. (Pls.’ Ex. 154, at ¶¶ 13–14.) This conclusion is not contradicted by, and in fact, appears to be in line with, the testimony of Dr. Speer, who prepared graphical representations of the concentrations of all African–American in the different areas within Lower Merion, as reflected in census data from 2000. (See Pls.’ Exs. 192–193.) Dr. Speer testified that the highest concentration of African–American individuals in Lower Merion is in the Affected Area and North Ardmore, with the next highest concentration being in Bryn Mawr. The Court, however, finds that Dr. Speer’s testimony, though credible, and the exhibits that he prepared, are of limited significance, because he used data that predated the redistricting process by several years and that reflects the general population, without providing solely the data, or breaking down the data, to isolate the number of children who attend public school. Reverend Davis suggested in his testimony that there is reason to question whether race played a motivating factor in the District’s decisions to close the elementary school in Ardmore, and to redistrict students from Ardmore to Penn Valley and Penn Wynne Elementary Schools, rather than to a single elementary school. Because this case only presents the question of whether the January 2009 redistricting process was motivated by race, the Court will not examine the motivations underlying prior redistricting decisions. 10
4 3

2

choice to attend either Harriton High School or Lower Merion High School. After the January 2009 redistricting, the student assignments remained unchanged, except that students in the Affected Area were districted for Harriton, without the choice to attend Lower Merion High School. B. Plaintiffs

Parents Doe 2, 3, 4, 5, 7, 8, and 9 testified on behalf of themselves and their children, Students Doe 1 through 9.5 The Parents’ testimony confirms that with the exception of Student Doe 4, who elected to attend Harriton High for the 2009–2010 academic year, the Students attend Penn Valley Elementary School or Welsh Valley Middle School.6 All Students Doe are bused to their current schools, along with students of all races from the Affected Area. Several of the Students live within a mile of Lower Merion High School.7 The Parents Doe testified that they believed that the District adopted its January 2009 redistricting plan on the basis of race. Three of the Parents Doe clarified that they believe that their Ardmore neighborhood has been split such that the students in half of the neighborhood, including their children, no longer have a choice to attend either of the District’s high schools. In addition, three Parents Doe attended board meetings concerning redistricting, one of whom publicly stated at board meetings that he Parent Doe 10, the only Parent Doe who did not testify at trial, did not have any conversations with Board Members or members of the Administration concerning the redistricting process. (Def.’s Am. Proposed Findings of Fact ¶ 71.) In particular, five of the Students attend Penn Valley Elementary School, and three attend Welsh Valley Middle School. Parents Doe 1, 2, 7, 8, and 9 testified that they and their children, Students Doe 1, 2, 6, 7, 8, and 9, live within a mile of Lower Merion High School. Based on the approximate locations that the Parents Doe provided at trial, Michael Andre, the District’s Director of Transportation confirmed that at least three Students Doe live within a mile of Lower Merion High School. (See Pls.’ Ex. 129, at 3571 (map pinpointing exact mile measurements from Lower Merion High School to points in Ardmore).) 11
7 6 5

believed the plans were racially–motivated, and met with Dr. McGinley to discuss his concerns. C. Redistricting Process 1. Decision to Redistrict

In 1997, the District began a capital improvement program to modernize each of its ten schools. (Def.’s Ex. 11.) As of 2004, the community recognized that both Lower Merion High School and Harriton High School were outdated and required significant physical plant investments. (Def.’s Ex. 11, at 2759, 2761.) In May 2004, a forty–five member Community Advisory Committee (“CAC”) made up of school, community, and other interested individuals, examined how to modernize the high schools. (Def’s Ex. 11.) The CAC considered several plans: (1) creating one separate high school for only grade nine, and another for grades ten through twelve; (2) building a new, single high school of 2,500 students; (3) building two new high schools, keeping their present student populations of 900 and 1600 students in tact; and (4) building two new high schools, but balancing their student enrollment levels, with 1,250 students per school. (Def.’s Ex. 11, at 2760–63.) The CAC rejected the first three proposals. As for the first plan of having high schools for different grade levels, the CAC determined that no educational arguments strongly favored this proposal, and that the proposal would add another transition for students from ninth to tenth grade, while adversely affecting co–curricular activities. (Def.’s Ex. 11, at 2762.) The CAC then determined that having a single school of 2,500 students did not have the advantages of smaller schools, including the greater sense of community, better student–faculty relations, increased opportunities for co–curricular activities, and better educational outcomes. (Def.’s Ex. 11, at 2762.) In addition, a single District high school would not fit on either existing high school sites, would create significant traffic problems, would require increased busing of students to off–site 12

athletic fields, and would violate impervious coverage allowances. (Def.’s Ex. 11, at 2762.) As for having two unequally sized high schools, the CAC determined that this proposal did not address differences in the high schools’ educational offerings, evidence indicates that smaller schools produce better outcomes, and thus, having Lower Merion High School remain the larger high school would perpetuate existing traffic and parking problems at the site. (Def.’s Ex. 11, at 2762.) The CAC voted in favor of a plan to build two high schools of equal enrollment capacity. (Def.’s Ex. 11, at 2792–93.) The CAC concluded that this plan allowed students to benefit from the smallest possible schools, because small schools have the benefit of a stronger sense of community, better student–faculty interactions, and better educational outcomes. In addition, the CAC determined that this option provided students with the most equitable access to programs and facilities, because each school would offer the same range of courses, and would have its own co–curricular activities. The CAC then determined that equal–size schools make the best use of the existing school sites, and alleviated the current traffic and parking problems at Lower Merion High School, which force cars to seek parking in surrounding residential areas. (Def.’s Ex. 11, at 2792–93.) The Board accepted this recommendation; however, because the District had to keep the high schools at their existing locations, having no other possible sites, equalizing enrollment at the two high schools would require redistricting in order to eliminate the 700–student disparity between the high schools. (Def.’s Ex. 11, at 2759.) Prior to redistricting, forty–six African–American students attended Harriton, comprising 5.7 percent of Harriton’s total student population, and in the District as a whole, approximately ten percent of the high school students were African–American. Students who were districted to 13

attend Belmont Hills, Gladwyne, or Penn Valley Elementary Schools, including the Affected Area, would attend Welsh Valley Middle School, and then, with the exception of those who lived in the Narberth Borough of Belmont Hills, and the Haverford and Affected Area portions of Penn Valley, would go on to attend Harriton. (Pls.’ Ex. 1, at 0040.) Students districted to attend Cynwyd, Merion, and Penn Wynne Elementary Schools were districted to attend Bala Cynwyd Middle School, and would also attend Lower Merion High School, alongside students who lived in Narberth Borough, Haverford, and the Affected Area. (Pls.’ Ex. 1, at 0040.) All students districted to attend Lower Merion High School had the choice to attend either high school. Although Harriton had in place two magnet programs that aimed to attract more students, namely the International Baccalaureate (“IB”) program, and a program that allows students to take college–level classes at Penn State University, Lower Merion High School always had a substantially higher student enrollment than Harriton High School. Accordingly, the District was faced with the problem of increasing the overall student population at Harriton. In addition, Harriton is located away from the center of the student population, which is concentrated along the City Avenue corridor, the eastern–most boundary of Lower Merion Township, while Lower Merion High School is closer to the center of the student population. (Pls.’ Ex. 2, at 0280, 4, at 0187, & Def.’s Ex. 11, at 2784, 2759.) With the exception of areas within a mile of District schools that are designated as walk zones, all areas of the District, including the Affected Area, have always received bus service provided by the District. From as early as 1983, Lower Merion High School has had a historic walk zone; Harriton High School, however, does not have a walk zone, because the area around the school was deemed to be hazardous. Harriton is the only school in the District without a

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walk zone. 2. Redistricting Principles

The Board authorized the Administration to develop Proposed Plans for redistricting, and to choose plans for the Board to consider. Before the Administration did so, the Board decided to come up with a list of “Non–Negotiables” that must guide the redistricting process. a. Non–Negotiables

The Administration, which was comprised of many individuals who had worked for the District during the last redistricting in the 1990’s, recommended several Non–Negotiables to the Board, which included a recommendation to address the “distribution of minority students.” (Pls.’ Exs. 36, 37, & 39.) District Business Manager Scott Shafer testified that such language only intended to communicate that the Board could not have a policy respecting minority assignment, given that it is illegal to do so. Shafer’s testimony is not credible: Not only does it contradict the plain language of the Administration’s recommendations, but also, such testimony is belied by Pat Guinnane’s testimony that “someone” in the cabinet had the goal of addressing minority student assignments. In addition, outgoing Superintendent Savedoff wrote a report indicating that his “personal list of criteria that should be considered” included “racial balance and/or clustering plan based upon current research and community input.” (Pls.’ Ex. 35, at 2975.) Notwithstanding the fact that the Administration’s recommended race–related criterion, if adopted as a Non–Negotiable and followed, would have impermissibly allowed race to be a factor in redistricting, the Board did not accept the Administration’s recommendation. Instead, on April 21, 2008, the Board adopted the following “Non–Negotiables”: (1) “The enrollment of the two high schools and two middle schools will be equalized;” 15

(2) “Elementary students will be assigned so that the schools are at or under the school capacity;” (3) “The plan may not increase the number of buses required;” (4) “The class of 2010 will have the choice to either follow the redistricting plan or stay at the high school of their previous year” (i.e. the principle of “grandfathering”); and (5) “Redistricting decisions will be based upon current and expected future needs and not based on past practices.” (Pls.’ Ex. 5, at 4757–62.8) These Non–Negotiables do not reference race or minority student assignments. Each Non–Negotiable stated a valid, educational purpose that was legitimate and non–discriminatory, and Plaintiffs do not dispute this. Moreover, Board Member David Ebby credibly testified that Dr. Savedoff, for fear of “tie[ing] the hands of his successor” and out of a desire to avoid the “wasp’s nest” that redistricting presented, was “not at all” involved in the redistricting process, which several witnesses testified as beginning in the summer of 2008, when Dr. McGinley was Superintendent. Dr. Savedoff’s personal desire for redistricting to address minority student assignment, therefore, is not highly significant. b. Community Values

Beginning in May 2008, the District hired two outside consultants, Dr. Harris Sokolov and Ellen Petersen, who held a series of public forms and collected online surveys to compile a list of values identified by Lower Merion residents that should “inform” the redistricting process. (Pls.’ Ex. 144.) This process involved asking citizens to identify what features they liked about the District. (See Trial Tr. Apr. 26, 2010 (testimony of Susan Guthrie).) On July 11, 2008, Dr.

In referring to pages of the parties’ exhibits, the Court will only provide the last four digits of the bates numbers, rather than the lengthier, full bates numbers. 16

8

Sokolov and Petersen presented to the Board their report, which identified five “values–based principles” (“Community Values”), including “explore and cultivate whatever diversity–ethnic, social, economic, religious and racial—there is in Lower Merion.”9 (Pls.’ Ex. 144, at 0114–15.) The Board accepted Dr. Sokolov and Petersen’s report. (Pls.’ Ex. 158, 54:8–13.) During the trial, witnesses presented conflicting testimony respecting the role that the Community Values played in the redistricting process. Dr. McGinley and several Board Members testified that the Community Values, unlike the Non–Negotiables, were never mandates that had to be met by proposed redistricting plans, but that these values merely informed the redistricting process. These witnesses testified that many of the Community Values, including that respecting diversity, were meant to apply only at the implementation phase, after a redistricting plan had been selected by the Board. Nonetheless, Dr. McGinley and the Board conceded that they never indicated to the public that they would not honor the Community Values, and instead made several statements to one another and to the public indicating that the Community Values were taken into account in selecting proposed redistricting plans. (See, e.g., Pls.’ Exs. 1, 3, 60, 67, 89, 113, 145, 151, 164, & 170.) For example, at a public School Board meeting in October 2008, Dr. McGinley, in explaining the “process that we’ve been engaged in regarding redistricting,” and discussing the Community Values identified by Dr. Sokolov and Petersen’s report, stated that “the Administration and our consultant were also charged with the responsibility of looking at the

The remaining Community Values are as follows: (1) “Social networks are at the heart of where people live, and those networks expand as people grow older;” (2) “Lower Merion public schools are known for their excellence: academic as well as extracurricular;” (3) “Those who walk should continue to walk while the travel time for non–walkers should be minimized;” and (4) “Children learn best in environments when they are comfortable—socially as well as physically.” (Pls.’ Ex. 144, at 0114–15.) 17

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issue of diversity when we come up with a plan, to think about that as something that should guide our work and be something that we consider as we move forward.” (Pls.’ Ex. 162, at 2:7–8, 7:5–11.) At trial, Dr. McGinley explained that this statement only indicated that he was cognizant of the need for schools to welcome newcomers, and that he was only indicating that the Administration was not ignoring diversity. Nonetheless, Dr. Haber, who would later work with the District, testified that he was aware of, and used, the Community Values, and that he considered the diversity–related Community Value in coming up with proposed redistricting plans. The District cannot be faulted for soliciting the community’s input. Obviously, the Community Value respecting walkability and minimizing travel time to the school represents a valid, educational goal. In addition, the Board could not preclude discussions of race. By having a Community Value respecting diversity, the Board could properly consider the general concept of diversity. The testimony is disputed as to whether the diversity–related Community Value, to the extent that it included race, influenced the District’s Administration in making its proposals, and the Court will now turn to the redistricting process to determine how the Community Value of diversity was used, and in particular, whether racial diversity–related considerations motivated the District’s decision–making process. 3. Early Redistricting Planning Stages

The redistricting planning process then began in the summer of 2008 and ended on January 12, 2009, when Proposed Plan 3R was adopted. In June 2008, Board Members and Administrators met “to answer questions prior to scheduling [a] meeting with the public.” (Pls.’ Ex. 40, at 4628.) The meeting discussed the major “restrictions and limitations” governing the redistricting process, but also indicated that in “dealing with projections,” “[s]uggested 18

boundaries were presented,” and “considerations such as ‘neighborhoods’ [and] ‘ethnicity’ were discussed.” (Pls.’ Ex. 40, at 4629.) It is unclear to the Court what discussion respecting diversity the Board had, because none of the witnesses who testified could recall ethnicity being considered at the meeting in question. In June 2008, the School Board also hired Dr. Ross Haber, of Ross Haber Associates, Inc., to review and analyze District enrollment data, and to propose redistricting plans. (Pls.’ Ex. 1, at 0027, 2, at 0276.) Board Members testified that Dr. Haber was selected to be the District’s redistricting consultant, because he had proprietary Geographic Information Software (“GIS”) that allowed him to use student information maintained by the district—namely the students’ identification numbers, names, addresses, race, ethnicity, special needs status, and socioeconomic status, as measured by participation in free and reduced lunch programs—to create proposals for redistricting. (Pls.’ Exs. 41, at 4654, 143, & 185, at 72–74.) Dr. Haber worked with the Administration to create various redistricting plans, called Scenarios. D. Proposed Redistricting Scenarios and Plans

Over the course of redistricting, eight sets of Scenarios, of which some had additional variations, were prepared by Dr. Haber, and considered by the Administration. Of the Scenarios, the Administration chose four Proposed Plans (1, 2, 3, and 3R) to present to the Board at public Board meetings, where they were publicly discussed by the Board and members of the community, and after which public comments on each Plan were solicited. Only Plan 3R was voted upon by the Board. Although four Board Members were present at a July 23, 2008 meeting when Dr. Haber

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presented Scenarios to the Administration prior to the selection of Proposed Plan 1,10 the Scenarios were not presented to, or voted upon by, the whole Board, nor do the Board Members at the meeting recall the initial Scenarios that Dr. Haber presented to them. (Pls.’ Exs. 48, 49.) Accordingly, the Court has determined that the Scenarios are of minor importance to the determination of whether race was a motivating factor in the redistricting process. The Court, therefore, will focus its findings on the evidence respecting the Proposed Plans considered by the Board. The following chart provides a brief comparison of the Scenarios and Proposed Plans:
Scenario 1 (Pls.’ Ex. 6) Plan # — Scenario 2 (Pls.’ Ex. 7) — Scenario 3 Series (Pls.’ Ex. 7, 8) Plan 1 (Pls.’ Ex. 1) Pre-Plan 1 Scenario 4 (Pls.’ Ex. 10) — Scenario 4a (Pls.’ Ex. 11) — Scenario 5 (Pls.’ Ex. 12) — Scenario 7 Series (Pls.’ Ex. 2, 13-15) Plan 2 Scenario 8 (Pls.’ Ex. 3, 16, 17) Plan 3

Plan 3R (Pls.’ Ex. 4, 5)

Period of consideration Type of Diversity Data Provided AfricanAmerican only AfricanAmerican only

Pre-Plan 2

Pre-Plan 3

Post-Plan 3

AfricanAmerican only

AfricanAmerican only

General diversity data (race, ethnicity, socioeconomic disability)

AfricanAmerican only

General diversity data (race, ethnicity, socioeconomic disability)

General diversity data (race, ethnicity, socioeconomic disability)

Only projected general diversity data (race, ethnicity, socioeconomic disability)

Dr. McGinley’s notes indicate that Diane DiBonaventuro, Susan Guthrie, Linda Doucette–Ashman, and Lisa Pliskin were present at the July 23, 2008 meeting. (Pls.’ Ex. 49, at 1561.) 20

10

Scenario 1 (Pls.’ Ex. 6) Plan # —

Scenario 2 (Pls.’ Ex. 7) —

Scenario 3 Series (Pls.’ Ex. 7, 8) Plan 1 (Pls.’ Ex. 1) Harriton: 1108 Lower Merion: 1137

Scenario 4 (Pls.’ Ex. 10) —

Scenario 4a (Pls.’ Ex. 11) —

Scenario 5 (Pls.’ Ex. 12) —

Scenario 7 Series (Pls.’ Ex. 2, 13-15) Plan 2

Scenario 8 (Pls.’ Ex. 3, 16, 17) Plan 3

Plan 3R (Pls.’ Ex. 4, 5)

Total High School Projected Enrollment

Harriton: 1119 Lower Merion: 1269

Harriton: 1118 Lower Merion: 1270

Harriton: 1192 Lower Merion: 1196

Harriton: 1080 Lower Merion: 1194

Harriton: 1195 Lower Merion: 1193

Harriton: 1135 Lower Merion: 1139

Harriton: 1089 Lower Merion: 1185

Actual Enrollment as of December 2008: Harriton: 897 Lower Merion: 1401 (Pls.’ Ex. 155) 74

# African– American Students at Harriton % African– American Students at Harriton Areas Redistricted for Harriton

162

104

110

103

47

103

88

105

14.5%

9.3%

9.9%

8.6%

4.4%

8.6%

7.8%

9.6%

8.2% (with grandfather-ing)

-Penn Wynne North of Remington Rd (includes North Ardmore) - Penn Valley (includes Affected Area but excludes walk zone)

-Penn Wynne (includes North Ardmore) - Penn Valley (includes Affected Area)

- Penn Wynne (includes North Ardmore) - Penn Valley (excludes Ardmore)

- North Ardmore - Penn Valley (excludes Affected Area&Ha -verford) - Cynwyd

Includes (no full plan provided) - Penn Valley (excludes Affected Area & Lower Merion Walk Zone)

- Merion (portion) - Cynwyd (portion) -North Ardmore - Penn Valley (Affected Area,Hav -erford, Penn Valley)

- Penn Valley (includes Penn Valley, Haverford excludes Affected Area) - Penn Wynne (incl. N. Ardmore) - Narberth Borough of Belmont Hills - Merion (portion)

- Penn Valley (includes Affected Area but excludes walk zone) - Narberth Borough of Belmont Hills

- Penn Valley (includes Affected Area but excludes historic walk zone) - Narberth Borough of Belmont Hills

- North Ardmore? - Affected Area?

Y

Y

Y

Y

N

Y

Y

N

N

N

Y

N

N

N

Y

N

Y

Y

*Note: There is a disparity in the numbers for Scenario 3 and Plan 1. This chart uses the numbers for Plan 1.

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1.

Pre–Proposed Plan 1

Prior to selecting Proposed Plan 1, the Administration considered five scenarios, Scenarios 1 through 5, and modifications to Scenarios 2, 3, and 4. (Pls.’ Ex. 151, at 0064–65.) a. African–American Student Data

For Scenarios 1 through 5, the handouts Dr. Haber prepared for the Administration included only the number of African–American students, excluding any other racial or ethnic data, and data respecting socio–economic status and disability. (Pls.’ Exs. 6–8, 10, & 12.) Dr. Haber testified that although he was never directed to create or change a redistricting scenario based on its diversity outcomes, he must have provided only African–American data for Scenarios 1 through 5 because the Administration had expressed concerns respecting the African–American population. In addition, Dr. McGinley handwrote the projected African–American high school populations on his copies of the handouts for Scenarios 1, 2, and 3, further indicating that of the diversity data, only African–American student projections were considered. For Scenarios 3, 3a, 4, and 5, the African–American student projections appear under the heading of “racial balance.” (Pls.’ Ex. 8–10, 12.) In addition, there are numerous charts introduced into evidence that provide African–American high school population projections, without providing similar projections for other racial and ethnic groups. First, a chart dated August 26, 2008 that compared the pre–Proposed Plan 1 Scenarios being considered by the Administration, provided diversity data limited to the population estimates for African–American and socio–economically disadvantaged students. (Pls.’ Ex. 19, at 1719.) Dr. McGinley handwrote on his copy of the chart the population projections for other racial and ethnic groups, as well as the number of specials needs students, that are provided under Scenario 3. (Pls.’ Ex. 19, at 1719.) He also added a bracket next to the 22

numbers of African–American and socio–economic students for Scenario 4B with a notation reading “OK.” (Pls.’ Ex. 19, at 1719.) The next day, the chart was updated to include the full general diversity data under each Scenario.11 (Pls.’ Ex. 20.) Even though it was subsequently amended, the draft chart from August 26, 2008 provides another example of the Administration being provided African–American student projections to the exclusion of other types of racial data. Similarly, the only diversity data provided on a table comparing Scenarios 3, 3A, 4, and 4A is that of socio–economic and African–American projected enrollment. (Pls.’ Ex. 26, at 3921.) Next, a chart comparing Scenarios 7C, 7C–1, and 8 does not mention race except for noting that Scenario 7C–1 “[r]educes the size of the A[frican–]A[merican] student community at [Harriton] from 88 to 58.” (Pls.’ Ex. 27, at 3931.) The inclusion and consideration of African–American student data, to the exclusion of other types of diversity data (e.g. other races and ethnicities, socio–economics, or disability), reflect a specific concern about the African–American student population that started with Scenario 1 and continued throughout the redistricting process, even though subsequent Scenarios and Plans included broader diversity information. By including only African–American student data in the first five Scenarios considered during redistricting, the District, by way of Dr. Haber and the Administration, employed a “limited notion of diversity” similar to the plans criticized and ultimately held to be unconstitutional in Seattle. The Court will consider this issue further in

As the Court will explain below, the collection, preparation, and inclusion of general diversity data is not objectionable, and the Court does not find the updated chart to be entitled to any weight, or indicative of “nefarious and underhanded conduct,” as Plaintiffs contended at the oral argument following the bench trial. Accordingly, the Court also finds that subsequent documents comparing general diversity data for Scenarios 3 and 7C (Pls.’ Exs. 23, at 3805–06, 24, at 0328–29), and for Scenarios 3, 4A, 7A, and 7B (Pls.’ Ex. 149, at 2852–55), were routinely gathered, in part required by state law, and reflected information frequently and properly consulted by school officials and the community at large. 23

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determining its legal conclusions. b. Elimination of Scenarios 1 and 4A

Dr. McGinley and Dr. Haber conceded in their testimony that Scenario 1 was “eliminated due to inequitable racial balancing,” as Dr. Haber’s handout respecting Scenario 1 expressly states. (Pls.’ Ex. 6, at 3933 (emphasis removed).) At trial, Dr. McGinley testified that Ardmore has the “single largest concentration of African–Americans in the school district,” and that he was “worried about removing all African–Americans from a high school.” Scenario 1, however, was also eliminated for non–racial reasons: It would result in long travel times, and more importantly, it violated the cardinal redistricting principle of equalized high school populations, by projecting enrollment at Lower Merion High School that exceeded that high school’s student capacity by 15 students, and exceeded the enrollment of Harriton by 150 students. In developing Proposed Plan 1, the Administration narrowed down the choice to either Scenario 3, which redistricted North Ardmore for Harriton, and Scenario 4A, which is the only Scenario that the Administration ever considered that did not redistrict either North Ardmore or the Affected Area for Harriton. The Administration chose Scenario 3. A slide show presentation Dr. Haber subsequently prepared, includes in the reasons for not selecting Scenario 4A, the fact that it “[d]oes not support the community value of diversity as does other scenarios.” (Pls.’ Ex. 11, at 0164.) Although Dr. McGinley questioned the accuracy of Dr. Haber’s presentation at trial, Board Member David Ebby also confirmed that Dr. McGinley stated that “[e]verything is very similar” between Scenarios 3 and 4A, but that Scenario 3 had “more racial diversity.” Accordingly, two of the Scenarios, Scenarios 1 and 4A, were eliminated due to race. When this finding is coupled with the fact that the Administration had been given and considered only African–American student projections for Scenarios 1 through 5, there is ample 24

evidence indicating that racial balance, and in particular, the number of African–Americans projected to enroll at each high school, were taken into account by the Administration in selecting Proposed Plan 1. c. Awareness of Seattle

On August 13, 2008, Dr. McGinley emailed to himself a copy of a San Francisco Chronicle article entitled “Supreme Court: Schools Can’t Use Race to Assign Students,” which briefly discussed the Supreme Court’s decision in Seattle. (Pls.’ Ex. 54, at 2539.) Dr. McGinley testified that somebody had told him that there was a case about the use of race in redistricting, and that he found the article in question after quickly searching the internet for the case. Minutes after emailing himself the article, Dr. McGinley forwarded the article to Dr. Haber and asked, “How does our plan connect to this decision if we split Ardmore for high school?” (Pls.’ Ex. 54, at 2539.) At trial, Dr. McGinley explained that he sent the article to Dr. Haber, the redistricting consultant, to see if Dr. Haber was familiar with the decision, and both Dr. McGinley and Dr. Haber understood “split[ting] Ardmore for high school” as referring to the option of splitting an area of the district with a high concentration of African–Americans for high school. Dr. Haber responded by saying that although he is not a lawyer, his recollection was that in the state of New Jersey, “race is not an issue in formulating education decisions,” and that he read the Supreme Court’s decision as providing that “if someone brought suit that the decision for redistricting was made on the basis of race[,] the District would lose in court . . . if there were no other pressing needs to make the change.” (Pls.’ Ex. 54, at 2539; see also Pls.’ Ex. 56, at 2546.) Dr. Haber then stated, “If you would like[,] I can create a ‘color blind’ scenario.” (Pls.’ Ex. 54, at 2539.) Dr. McGinley testified that because he did not feel that Dr. Haber was the best person to speak with about the case, and because he thereafter decided to ask the District’s legal counsel 25

about the issue, he did not respond to Dr. Haber’s email. Dr. Haber testified that he in fact created “color blind” scenarios, which he understood to be “one[s] that disregarded diversity as far as ethnicity is concerned,” but does not recollect the Administration considering these scenarios. Although Plaintiffs contended at oral argument, following the bench trial, that this series of emails demonstrated that the District had “knowledge of its improper conduct,” the Court disagrees. The School District and Dr. McGinley cannot be criticized for researching and discussing a recent Supreme Court case concerning the use of race in redistricting. In doing so, Dr. McGinley exhibited a desire to be well–informed as to how to ensure that the redistricting process did not violate the law, and reflected a good faith effort to examine an issue that had been brought to Dr. McGinley’s attention.12 School administrators and districts should not be faulted for acquiring knowledge about guiding Supreme Court decisions, in order to understand the relevant constitutional limitations on decision–making. Nonetheless, the emails that followed demonstrate that Dr. McGinley was mindful that splitting Ardmore effectively redistricted a significant number of African–American students, and that the Seattle decision might have implications on the District’s redistricting process. In addition, the emails show that Dr. Haber considered redistricting plans that split Ardmore to not be “color–blind,” and that the Administration did not consider plans he viewed as being “color–blind,” which support an inference that race was considered. In order to examine the extent to which Dr. Haber’s views were shared by the School Administration and the School Board, the Court must look to other evidence respecting the redistricting process.

As the undersigned stated during the trial, and will discuss in more detail in the forthcoming conclusions of law, understanding Seattle is challenging for judges and lawyers, let alone for a professional educator. 26

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2.

Proposed Plan 1

On September 8, 2008, Proposed Plan 1 was presented at a public Board meeting. Proposed Plan 1 determined what high school each student in the District must attend, based on where the student lived in the District. Plan 1 required no redistricting at the elementary school level, and allowed students to remain with their cohorts from kindergarten through to grade 8; however, the plan redistricted all of Penn Wynne, including North Ardmore, and areas of Penn Valley, excluding the Affected Area, for Harriton High School. (Pls.’ Ex. 1, at 0033.) Students districted to attend Lower Merion High School under Proposed Plan 1 retained the option to attend Harriton High School in order to enroll in its IB program. In addition, Proposed Plan 1 had a grandfathering component, meaning that all current high school students were given the option to remain at the high school they presently attended. (Pls.’ Ex. 1, at 0049.) All students districted for Harriton, including North Ardmore, did not have the choice to attend either high school. Under Proposed Plan 1, Harriton High School had a projected enrollment of 110 African–American students, 9.9 percent of the projected total Harriton student population of 1193, almost a 100% increase from the 46 African–American students that made up 5.7 percent of the total student population at Harriton prior to redistricting. (Pls.’ Exs. 1, 140.) The percentage of African–American students at Harriton now mirrored the overall district–wide percentage of African–American high school students by approximating 10 percent. a. Likelihood of Randomized Student Assignment

At trial, Dr. Pavel Greenfield, an expert in applied mathematics with a background in statistics, testified on behalf of Plaintiffs. (Pls.’ Ex. 196.) Dr. Greenfield conducted a statistical analysis of Proposed Plans 1, 2, and 3, and concluded that there was a close to zero percent chance 27

that Proposed Plans 1 and 3 involved the randomized assignment of individual students, and a twenty percent chance that Proposed Plan 2 involved randomized individualized assignment. (Pls.’ Ex. 197.) Although Dr. Greenfield is qualified as an expert and credible, the Court places little significance upon his conclusions, because Dr. Greenfield did not take into account the fact that none of the Proposed Plans involved the assignment of individual children, as opposed to assignments based primarily on geography. Moreover, Dr. Greenfield conceded that he could not isolate race or any other factor as contributing to, or resulting in, the Proposed Plans that the Administration selected. b. General Diversity Data

The slide show presentation accompanying Proposed Plan 1 included a slide providing general diversity numbers, that being the student breakdowns according to race and ethnicity, socio–economics, and disability. There is nothing objectionable in the District’s decision to include a general diversity slide in Proposed Plan 1’s powerpoint presentation, especially when the community had expressed an interest in cultivating diversity, and diversity numbers can be of concern to educators in addressing the achievement gap. In addition, the Supreme Court’s decision in Seattle refrained from prohibiting educators from taking into account overall diversity, and Justice Kennedy’s concurring opinion suggests that schools may remain cognizant of racial diversity, id. at 789, and that “[d]iversity, depending on its meaning and definition, is a compelling education goal a school district may pursue,” id. at 783. c. Redistricting Press Release

On September 8, 2008, the same day of the public presentation of Proposed Plan 1, Dr. McGinley emailed Director of Communications, Doug Young, a copy of a draft Press Release, which included the following statement: “The plan also addresses community values related to 28

the preservation and cultivation of diversity. At the high school level, enrollments will reflect balance with regard to students or various ethnic, socio–economic, and special needs backgrounds.” (Pls.’ Ex. 60, at 9623.) Although this statement indicates that the Community Values, rather than merely informing the process, would be used as redistricting guidelines, and although Dr. McGinley decided not to remove these sentences from the draft upon sending the email to Doug Young, the sentences in question were removed from the press release, prior to the publication of the press release. (Pls.’ Ex. 61, at 4142.) The fact that these sentences were removed prior to publication could indicate that the statements were considered false, or that the District merely decided to remove such information. Absent specific evidence, the Court makes no finding as to why the sentences in question were subsequently deleted, and declines to consider the draft Press Release to be evidence demonstrating that the School Administration aimed for redistricting plans to achieve racial balance. d. Decisions to Not Present Diversity Data

Following the public presentation of Proposed Plan 1, the District posted a set of Frequently Asked Questions on its website. In response to a question asking whether the District was reviewing redistricting options that do not redistrict North Ardmore, the District posted Dr. Haber’s summaries of all such Scenarios considered prior to the selection of Proposed Plan 1 (Pls.’ Ex. 147),13 but did not include the statement at the bottom of each Scenario referencing the number of African–American students that would attend each high school. (Pls.’ Ex. 151, at

The District did not post Scenario 1, a plan that had been eliminated due to its effects on the racial composition of the high schools, as Dr. McGinley and Dr. Haber conceded; however, because that scenario redistricted North Ardmore, it fell outside the purview of the question posed to the Board. 29

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0064–65.) Doug Young, Director of Public Relations, removed such information at the request of Dr. McGinley, who sent Young an email saying that “[m]y gut feeling is that we include most of what Ross [Haber] wrote in . . . his report,” but “I would omit the ending sentence about diversity in each section.” (Pls.’ Ex. 65, at 9455.) Similarly, on Dr. McGinley’s copy of the slide show presentation explaining why Scenario 4A was not selected, he crossed through the slide presenting the general diversity data under the plan, with a note saying “Don’t present,” as well as a note next to the slide listing the reasons for not selecting Scenario 4A, including that it did not support the diversity–related Community Value, that reads, “Say don’t post.” (Pls.’ Ex. 102, at 1155.) Dr. McGinley’s two decisions to purge public information respecting redistricting of references to the racial diversity data provided to the Administration is troubling, because it suggests that the Administration either did not want the public to be fully informed about the diversity information the District had at its disposal, or did not want to mention the role that racial diversity data played in the redistricting process, or both. e. Race–Related Comments Regarding Proposed Plan 1

On September 19, 2008, Board Member Diane DiBonaventuro sent an email to Dr. McGinley emphasizing that during redistricting, the District should combat “the perception that Harriton is completely homogeneous” because it was attended by “filthy spoiled white kids.” (Pls.’ Ex. 64, at 5064.) Her email said that “[i]t is also important to state somewhere that the P[enn] W[ynne] community is not ‘bringing diversity’ to Harriton[;] it is maintaining the diversity.” (Pls.’ Ex. 64, at 5064.) DiBonaventuro’s comments merely speak to what DiBonaventuro viewed as the then–existent negative stereotype of Harriton High School, as she asserted during her trial 30

testimony, not to the need for redistricting to be done on the basis of race. This is confirmed by the text of her email, which explains that “[t]his isn’t the case,” and that the Board should begin “emphasizing” that it is not merely trying to increase Harriton’s racial diversity,” and “should be selling both our schools to the community.” (Pls.’ Ex. 64, at 5064.) As she explained at trial, DiBonaventuro believes that both of the District’s high schools provide high–quality education, and that the District should focus on emphasizing the great education each high school provides its students. In addition, Board Member David Ebby received an email from a citizen who expressed concern that “[t]here’s something very elitist about taking the most racially and economically diverse community . . . and shipping them . . so the rich community’[s] kids can have a diverse educational experience.” (Pls.’ Ex. 63, at 5235.) Ebby responded by saying that he “underst[ood] and appreciate[d]” the community member’s “disappointment and indeed anger at the proposal,” but that “it [wa]s inaccurate and unfair to insinuate that Dr. McGinley or . . . the Board are elitists,” and that “diversity is looked at in total,” and that Dr. McGinley “is not trying to use the diversity of the Penn Wynne elementary attendance area to benefit a homogenous group in the western end of the Township by making their school more diverse.” (Pls.’ Ex. 63, at 5233–34.) Rather than indicating that Ebby was motivated by race, his email indicates that he did not believe that either the Board or Dr. McGinley was motivated on the basis of race, particularly with respect to increasing the racial and economic diversity at Harriton. Ebby’s email also stressed the need to look at general diversity, rather than specific data, such as that relating only to African–American students. f. Rejection of Proposed Plan 1

During the public comments period, the Board received numerous criticisms of the plan, 31

including accusations by the North Ardmore community that race impermissibly played a role in the redistricting process. (Pls.’ Ex. 63.) The Board rejected Proposed Plan 1 primarily because it resulted in excessive travel times for students.14 Accordingly, the Administration and Dr. Haber attempted to create new ways to configure students who lived closer to Harriton, in order to expand Harriton’s projected enrollment. In addition, the District took note of the community’s desire for grandfathering, meaning that students already at a given high school could stay at that high school, in order to minimize educational disruptions in adjusting to a new high school. The Administration then considered the Scenario 7 series.15 The summary of the Scenario 7 series that Dr. Haber prepared, includes general diversity data (race/ethnicity, socio–economic, and disability). (Pls.’ Ex. 13.) Prior to the public presentation of Proposed Plan 2, Dr. McGinley sent the Board a Memorandum attaching Scenario 7C, a plan that would be modified to become Proposed Plan 2. (Pls.’ Ex. 67.) In this Memorandum, Dr. McGinley stated that “we have developed a proposal that is more consistent with the non–negotiables and the community values of the Sokoloff/Petersen report.” (Pls.’ Ex. 67, at 0366.) Unlike Plaintiffs, the Court does not interpret this statement as indicating that the Community Values were used as Guidelines for redistricting, or that Dr. McGinley in fact referred to the Community Value respecting diversity; rather, he made a general statement indicating that the Administration was considering a plan consistent with the Community Values, and testified at trial that in particular, he meant that the plan minimized travel times, which had been identified as the major impediment posed by

During the summer, the District tested out bus travel times under Proposed Plan 1. After the 2008 to 2009 school year began, the District again tested the bus travel times, this time finding that during the school year, bus travel times had increased significantly from the summer.
15

14

No Scenario 6 was presented to the Administration. 32

Proposed Plan 1. In short, Dr. McGinley’s statement is too ambiguous for the Court to adopt Plaintiffs’ construction. The Administration selected Scenario 7C–5 to be Proposed Plan 2, and presented it to the Board Members prior to its public presentation, along with the plan’s general diversity data. (Pls.’ Ex. 71, at 0557.) 3. Proposed Plan 2

On October 28, 2008, Proposed Plan 2 was presented at a public Board Meeting. (Pls.’ Ex. 2.) Like Proposed Plan 1, Proposed Plan 2 set forth what high school each student must attend, based on where each student lived in the District. Under Proposed Plan 2, the only students who retained a choice as to what high school to attend, were students districted to attend Lower Merion High School, who had the option to attend Harriton High School in order to enroll in Harriton’s IB program. See infra 57 n.26. Proposed Plan 2 again redistricted high school students in North Ardmore for Harriton High School, and also split up the areas districted for Penn Valley and Belmont Hills Elementary Schools, albeit not the Affected Area. The plan kept students with their elementary school peers for middle school, but separated the students at high school. The slide show presentation accompanying Proposed Plan 2 included the projected, general diversity numbers. Under Proposed Plan 2, out of a projected student population of 1135 at Harriton, 88 students, or 7.8 percent, would be African–American. (Pls.’ Ex. 2.) Thus, Proposed Plan 2 increased the total number and the percentage of African–American students, albeit not to the 10 percent level under Proposed Plan 1. a. Rejection of Proposed Plan 2

During the subsequent public comments period, complaints included accusations that 33

Proposed Plan 2 had a disparate impact on Asian–American students by increasing Harriton’s Asian–American student population by redistricting students in Shortridge.16 The Board brought Dr. Sokolov and Petersen back to reassess what factors were important to the community in redistricting. The Board understood the primary community concern expressed during this period to be that of educational continuity from kindergarten through high school, meaning that students who attend the same kindergarten, continue through to grade twelve, rather than having the group of students who attend one elementary school split up between the District’s two middle schools, or having the group of students who attend one middle school split up between Harriton and Lower Merion High Schools. (Pls.’ Ex. 3, at 0212.) In addition, the Board had identified the following three goals: (1) distance and access, (2) walkability, and (3) continuity. (Pls.’ Exs. 3, at 0212, 89, at 1175.) In light of these concerns, the District extended the timeline for redistricting in order to allow for fuller consideration of the community’s input, and to allow the community to express concerns about Proposed Plan 3 and any modifications to this plan. The District also scheduled additional public meetings to allow for further discussion concerning the priorities moving forward. (Pls.’ Ex. 89, at 1172.) The Administration then prepared Scenario 8, which became Proposed Plan 3. By the time that Scenario 8 was prepared, Dr. Haber’s role in redistricting had diminished substantially. All of the Board Members saw Scenario 8 prior to its public presentation as Proposed Plan 3. b. Race–Related Comments Regarding Proposed Plan 3

Prior to redistricting, Harriton High School had 50 Asian–American students (Pls.’ Ex. 140), making up 6.27 percent of Harriton’s total student population. Under Proposed Plan 2, Harriton High School had 77 Asian–American students (Pls.’ Ex. 2, at 0294), making up 6.78 percent of Harriton’s total projected student population. 34

16

Prior to the selection and public presentation of Proposed Plan 3, numerous Board Members and Dr. McGinley made race–related comments. The Court will consider these in turn. i. Dr. McGinley’s and Lisa Pliskin’s Comments

In considering new proposals for redistricting, Dr. McGinley sent a Memorandum to the Board indicating that a “Travel Equity Proposal” proposed by parents “creates a racially isolated group of African American Students at Harriton.” (Pls.’ Ex. 78, at 4097.) Although this comment indicates that once again, Dr. McGinley criticized a proposal on the basis of its effect on race, Dr. McGinley also provided valid, educational reasons for rejecting the proposal, namely that it “adds travel distance to several areas,” and “removes the walk zone for Welsh Valley.” (Pls.’ Ex. 78, at 4097.) In addition, while Scenario 8 was being refined and considered, Dr. McGinley and Board Members Lisa Pliskin17 and David Ebby made several references to race. First, on November 6, 2008, Pliskin emailed Dr. McGinley and said that she “may want to see what’s behind the diversity stats you have provided–how many in the chart come from clustered areas.” (Pls.’ Ex. 82, at 7831.) Pliskin’s testimony that she merely wanted to be prepared to answer questions from the public respecting the diversity data, such that she would not be “flat–footed” at subsequent Board meetings, is credible. As previously noted, the Court rejects Plaintiffs’ contention that

In addition to the statements detailed in this section, Lisa Pliskin also sent Dr. McGinley notes on the proposed FAQ section that would be posted on the District’s redistricting website. Her notes included the following question: “Any idea on whether the BC/WV scenario works on numbers (including the flexibility to have more at LM), diversity (taking into account that there is a minimum cohort for each group needed, not equal #s) and transportation (does it live within the no new buses rule?).” (Pls.’ Ex. 79, at 4068.) At trial, Pliskin asserted that the parenthetical following “diversity” had been misplaced because it would only make sense after “numbers,” because the only “minimum cohort” needed was for the Harriton population to be increased to the desired enrollment projection. 35

17

providing diversity data is itself evidence of discrimination. The record shows that the Board Members wanted to be made aware of the effects that various plans would have on diversity, in general, given that the community had expressed an interest in such information. Then, on November 20, 2008, Dr. McGinley sent Pliskin an email “venting frustration” respecting the redistricting process, and specifically stating that he was “concerned about the Ardmore side of the map,” and “the ‘history gotcha’ tied to the achievement gap tied to redistricting.” (Pls.’ Ex. 92, at 7773.) Dr. McGinley continued,“[W]ish there was a way to extend the option area into the [Affected Area] but doing so would not only mean another hundred at [Lower Merion High School] but many fewer A[frican–]A[merican] kids at [Harriton.]” (Pls.’ Ex. 92, at 7773.) Pliskin responded by saying, “You are not alone in trying to solve Ardmore. I look at it every day and I know others would like to resolve it as well . . . . Can we open 100 tuition paying spots and would folks take them in this economy . . . and what happened to no racial isolation?” (Pls.’ Ex. 92, at 7773; see also Pls.’ Ex. 86, at 7822.) At trial, Dr. McGinley testified that his statements merely indicated that he was trying to figure out how to use magnet programs to attract African–Americans, while Pliskin testified that she was concerned about the “geographic tension” that the Affected Area posed, given that it is located within walking distance of Lower Merion High School, but is also one of the closer areas that could be redistricted for Harriton. Pliskin maintained that “racial isolation was not a concern” of hers, although she also stated that the public had raised the concern of racial isolation, and that she wanted to make sure that the district had solutions in place to address the problem. Although Dr. McGinley and Pliskin were credible witnesses, there is no indication that they by any means intended to discriminate against African–American students, and they in fact had legitimate, educational goals, the comments described above nonetheless persuade the Court 36

that Dr. McGinley and various Board members also had an intent to increase the African–American population at Harriton. ii. David Ebby’s Comments

Board Member David Ebby, as DiBonaventuro had done before, sent Dr. McGinley and other Board Members an email indicating that “redistricting is an opportunity . . . to end the stereotyping of Harriton as an inferior school populated by elitists and racists.” (Pls.’ Ex. 90, at 4077.) As with DiBonaventuro’s similar comments, the Court does not find that Ebby’s comments respecting Harriton indicate a desire to redistrict on the basis of race, but rather, to combat a negative stereotype of Harriton, and to forward the aim of ensuring that the District’s two high schools are equally respected in the community. iii. Diane DiBonaventuro’s Comments

DiBonaventuro prepared a document indicating the problems she saw with Proposed Plan 2, and her alternative proposal of expanding the area in which students retained a choice of high school to include the Affected Area (Pls.’ Ex. 77), that she subsequently forwarded to Dr. McGinley (Pls.’ Ex. 80). DiBonaventuro noted that her proposal posed the problem of having “a larger population of minority students” at Lower Merion High School, although she noted that “expanding the choice to include the [Affected Area] may help a little.” (Pls.’ Ex. 77, at 0393.) DiBonaventuro’s notes indicate that she was cognizant of the effects that Proposed Plan 2 and her alternative proposal would have on each high school’s African–American student enrollment projections. Her testimony at trial confirmed that she “was trying to value or consider the Community Values in whatever plan [the Board] put forward, and where [she] could work that into the plan, [she] would. . . . That included racial diversity.” DiBonaventuro also sent Dr. McGinley an email entitled “African American students” that 37

dates from November 21, 2008, three days before the public presentation on Proposed Plan 3, in which she expressed that she was “struggling with the issue of where to place the [Affected Area] kids. The arguments are compelling for L[ower] M[erion], but [she] also worr[ied] about the kids that would become somewhat isolated at Harriton without a higher population.” (Pls.’ Ex. 93, at 1602.) As with her remarks respecting Proposed Plan 2 and her alternative proposal, she testified at trial that this comment indicated that race was a “minor factor” in her decision–making, and that she was concerned that students in the Affected Area, who could walk to Lower Merion High School, were being deprived of their opportunity to choose to attend that high school. 4. Proposed Plan 3

On November 24, 2008, Proposed Plan 3 was presented at a public Board Meeting. Consistent with the aim of maintaining educational continuity from kindergarten through to grade 12, Proposed Plan 3 employed a “3–1–1 Feeder Pattern” whereby the students that were districted for three elementary schools are assigned to attend a single middle school and a single high school. The 3–1–1 plan enables students to transition more easily from elementary school, to middle school and high school, because it permits teachers at the middle and high schools to become knowledgeable about what their students previously learned and to build upon that foundation. Under Proposed Plan 3, students districted for Cynwyd, Merion, and Penn Wynne Elementary Schools were assigned to Bala Cynwyd Middle School and Lower Merion High School, while students districted for Belmont Hills, Gladwyne, and Penn Valley were assigned to Welsh Valley Middle School and Harriton High School. (Pls.’ Ex. 3, at 0217.) The feeder patterns under Proposed Plan 3 assigned all students, irrespective of race or ethnicity. The only exception Proposed Plan 3 made to the 3–1–1 Feeder Pattern was to create an “abbreviated 38

L[ower] M[erion High School] walk zone” that had the choice of which high school to attend. (Pls.’ Ex. 3, at 0217.) The only other students who retained a choice of high school under Proposed Plan 3 were students districted to attend Lower Merion High School, but who wanted to attend Harriton High School in order to enroll in its IB program. The following map prepared by the District sets forth Proposed Plan 3:

39

As a result of Proposed Plan 3, students in the Affected Area, other areas districted for Penn Valley Elementary School (with the exception of the abbreviated walk zone), and the Narberth Borough of Belmont Hills, would no longer have a choice of high schools. In terms of travel time, students in the Affected Area travel eighteen to nineteen minutes on District buses to Harriton High School, which is half the distance and half the time of the longest bus ride in the District. Proposed Plan 3 also increased the percentage of African–American students at Harriton High School from 5.7 percent prior to redistricting, to 9.6 percent, by projecting that Harriton would have 105 African–American students and a total student population of 1089. (Pls.’ Ex. 3, at 0220.) As with Proposed Plan 1, the percentage of African–American students at Harriton under Proposed Plan 3 nearly mirrored the ten percent of African–American students attending public high schools in the district. Once again, the slide show presentation accompanying the plan included a slide setting forth the general diversity breakdowns under the plan. (Pls.’ Ex. 3, at 0220.) In the ensuing public comments period, members of the public expressed concern that Proposed Plan 3 had a disparate racial impact. During this period, community members proposed a “Plan 3R Plus” to Dr. McGinley that he criticized in an email to the Board as “chang[ing] the character of Harriton significantly.” (Pls.’ Ex. 114.) A copy of proposed Plan 3R Plus or a summary of its contents were not introduced into evidence during the bench trial. The Board, however understood the main concern that the community had with the plan was that of walkability, because Proposed Plan 3 only allowed a limited number of students to choose to walk to Lower Merion High School. The Board thus decided to expand the abbreviated walk zone to allow more students who live within walking distance of Lower Merion High School 40

but are redistricted for Harriton under Proposed Plan 3, to have the choice to attend Lower Merion. The revised Proposed Plan 3 became Proposed Plan 3R. There was little testimony as to communications among Board Members, or between the Board and the Administration, between the presentation of Plan 3 at the Board meeting on November 24, 2008, and the presentation of Plan 3R at the Board meeting on December 15, 2008, aside from Dr. McGinley’s copy of the slide show presentation explaining why Scenario 4A was not selected, and two emails in which DiBonaventuro asked Dr. McGinley questions about Proposed Plan 3. (Pls.’ Exs. 102, 104, & 109.) There was also little testimony as to communications among the Board, or between the Board and the Administration, from December 15, 2008 and January 12, 2009, when the vote took place on Plan 3R, aside from Dr. McGinley’s email on January 6, 2009 as to his objections to the community’s Proposed Plan 3R Plus. (Pls.’ Ex. 114.) There, however, was substantial testimony as to why the Administration changed from Proposed Plan 3 to Plan 3R. It is quite possible that during these periods, there were various meetings of the School Board, sometimes attended by Dr. McGinley, in executive sessions with counsel. The District has properly asserted a claim of privilege as to any communications between attorney and client which took place in the executive sessions, and Plaintiffs have not disputed the District’s claim. 5. Proposed Plan 3R

Proposed Plan 3R was presented at a public board meeting on December 15, 2008. (Pls.’ Ex. 4.) Like Proposed Plan 3, Proposed Plan 3R largely put in place the 3–1–1 Feeder Pattern under which students districted for Penn Valley Elementary School, including the Affected Area, were districted to attend Welsh Valley Middle School and Harriton High School.

41

The following map, prepared by the District, sets forth Proposed Plan 3R:

42

Proposed Plan 3R expanded the abbreviated walk zone in Proposed Plan 3 to the Lower Merion High School walk zone’s historical designations, which is at times one mile wide, and which includes areas districted for Penn Valley and Belmont Hills Elementary Schools.18 The historic Lower Merion walk zone neither includes the Affected Area nor has a high concentration of African–American families. As with Proposed Plan 3, the two sets of elementary school children who would be split up for high school are Penn Valley students and Belmont Hills students who reside in Narberth Borough, because those in the historic walk zone have the choice to attend either high school.19 Lisa Pliskin testified that the Board never discussed expanding the historic walk zone to include any part of the Affected Area, and none of the evidence presented to the Court indicates that the Board did so.20 In addition to expanding the walk zone around Lower Merion High School, Proposed Plan 3R also allowed all students districted for Lower Merion High School, as well as students in the historic walk zone, to have the choice to attend either Harriton High School or Lower Merion High School; however, students in the Affected Area and other areas districted for Harriton High School did not have a choice of high school. Plaintiffs argued that because of the expansion of the walk zone from Proposed Plan 3 to At trial, the historic Lower Merion walk zone was vaguely and briefly described; the historic walk zone was not contained in a writing introduced into evidence. Witnesses testified that this historic walk zone was in place since the late 1990s, and none of the witnesses testified as to how the boundaries of the historic walk zone were selected. The District’s student transportation guidelines provide that walk zones extend to a one mile radius from a high school. (Pls.’ Ex. 141.) The historic Lower Merion walk zone, however, does not extend to all of the area within a mile of Lower Merion School District (Pls.’ Ex. 129), which appears to contradict the District’s one–mile walk zone policy.
19 18

Narberth, however, was split up along the R5 Septa public railroad lines.

Testimony at trial provided that the historic walk zone encompasses two four–lane roadways and a set of railroad tracks. 43

20

Proposed Plan 3R did not include the Affected Area even though part of the Affected Area is within one mile of Lower Merion High School, the Court should conclude that the change was a “subterfuge.” There is insufficient evidence in the record to support this conclusion. Proposed Plan 3R also included grandfathering by allowing students who had already attended high school to stay at that high school. Dr. McGinley testified that because many students in the district had a choice of high schools, and because students were being grandfathered into the redistricting plan, it is impossible to know how many students will attend each high school in a given school year, not to mention, the diversity data for those high school students.21 a. Race–Related Comments Regarding Proposed Plan 3R

On the morning of January 12, 2009, the day of the Board vote on Proposed Plan 3R, Dr. McGinley sent Dr. Haber a recent Philly.com article on the redistricting process, to which Dr. Haber emailed back the following response: [t]he issue of race is still out front. I think it is important to emphasize that you hired a consultant who had no horse in this race and the charge was simply to balance the enrollments at the high school. . . . We not only considered race when considering diversity but also socio–economic status as well as special needs considerations. (Pls.’ Ex. 118, at 9764.) At trial, Dr. Haber explained that he wrote this email because “[r]ace was a factor throughout consideration of redistricting plans.” With respect to race, Dr. Haber testified that aside from one comment from the public following the presentation of Proposed Plan

Under all of the Plans, the student populations for Harriton High School and Lower Merion High School are based on projections and are necessarily imprecise, given that they did not take into account grandfathering and could not predict how many students districted for Lower Merion High School would elect to attend Harriton High School. Under Plans 1 and 2, students districted for Lower Merion High School could still elect to attend Harriton to enroll in its IB program, and under Plans 3 and 4, students within the designated walk zone retained a choice of high school. 44

21

2 that contended that the plan disproportionately affected Asian–American students, there was no discussion of diversity as to groups other than African–American students, because the African–American students were “more concentrated” geographically. Although Dr. Haber’s testimony provides further evidence that race played a role in the redistricting process, the Court does not place significant weight on Dr. Haber’s January 12, 2009 email, which appears to provide an unsolicited view on race that Dr. Haber offered at a time when he played a very minimal role, if at all, in the redistricting. b. Diversity Data

Unlike its predecessors, the powerpoint presentation accompanying Proposed Plan 3R did not include any diversity data (Pls.’ Ex. 4), and prior to the plan’s adoption and implementation, it was not clear what the African–American population would be at Harriton after Proposed Plan 3R. Dr. Haber, however, testified that by the time the Board had considered Proposed Plan 3, diversity had already been “taken care of,” which the Court interprets as meaning that the number of African–American students districted for Harriton High School would not change from Proposed Plan 3 to Proposed Plan 3R. In the early afternoon on January 12, 2009, hours before the Board’s Vote on Plan 3R, Dr. McGinley emailed the Board estimated projected enrollment numbers broken down by race and ethnicity, socio–economics, and disability. (Pls.’ Ex. 123.) Both Dr. McGinley and Board Members testified that he emailed the Board these projections in order to respond to a flyer that had circulated in the community and that been brought to his attention. The flyer, which Dr. McGinley attached to his email, accused Proposed Plan 3R of being “artificially designed to create token diversity at Harriton,” such that “[m]inority students make up 20 % of the [District] population but make up 41% of the population being redistricted.” (Pls.’ Ex. 123, at 5281.) 45

Dr. McGinley’s email included a heading called “Token Diversity???,” under which he said that he did not agree with the flyer and that “[t]he community value of diversity is what caused us to look at this issue in the process. This was clearly misinterpreted in the public and the press.” (Pls.’ Ex. 123, at 5280.) Dr. McGinley then represented that of the “214 students in grades 5–8 (which represents a four year replacement at Harriton [in the near future]),” 45 “Black” students would be affected by redistricting, which makes up 21 percent of the total students redistricted under Proposed Plan 3R. (Pls.’ Ex. 123, at 5280.) At trial, Dr. McGinley testified that he no longer believed that these estimations were accurate, given that there was no way of knowing for sure how many students in the historic walk zone, or students districted to attend Lower Merion High School, would elect to attend Harriton. Although the Board Members acknowledge receiving the email, several testified that they could not be sure that they in fact read over Dr. McGinley’s email prior to the vote on Proposed Plan 3R, and all testified that they did not cast their votes based on race. Once again, the Court gives no weight to Dr. McGinley’s decision to provide the Board Members with estimated, projected general diversity numbers for the redistricting plan being considered. Ample evidence indicates that race was considered, but also that Dr. McGinley intended to provide the Board Members with information that the community had expressly indicated was a matter of concern, and to provide the information necessary for the Board to respond to the community’s criticisms of the Plan. E. Adoption and Implementation of Proposed Plan 3R

At a public board meeting on the evening of January 12, 2009, the Board voted to adopt Proposed Plan 3R: Six Board Members voted in favor of the Plan, and only David Ebby and Diane DiBonaventuro voted against the plan. Then Board President Lisa Pliskin could not vote because she was ill and in the hospital, but she sent over her thoughts to the Board prior to the 46

vote and had indicated that she supported Proposed Plan 3R. 1. Board Members’ Reasons for Voting for or Against Plan 3R

Although Plaintiffs contend this Court should believe that “all” such testimony was purely “self–serving,” as stated above, all of the Board Members’ testimony is credible. Their testimony, rather than merely sidestepping and denying any race or diversity–related statements made during the redistricting process, confronted and acknowledged many of these statements, and explained the context of such statements. The Court will detail their testimony below. a. Board Members Supporting Plan 3R

Of the seven Board Members who voted for, or in the case of Lisa Pliskin, who expressed support for, Proposed Plan 3R, four testified that they voted in large part because they, like the community, believed that educational continuity provided substantial pedagogical and psychological benefits. Moreover, six indicated that their votes in favor of the plan were based upon the Administration’s representations regarding the plan’s educational benefits and the Administration’s support of the plan. Prior to the vote, Susan Guthrie, one of the Board Members who would vote in favor of Plan 3R, organized her thoughts respecting each of the Proposed Plans that was presented to the Board, in the form of a chart, which included comparing the Plans under a heading entitled “Diversity Ardmore.” For Proposed Plans 1 and 2, Guthrie wrote “Yes Divides,” for Proposed Plan 3, she wrote “Depends Divides, but with choice?” and for Proposed Plan 3R, she wrote “Yes Yes.” (Pls.’ Ex. 32, at 5355–56.) Guthrie testified that she included such information because it had been raised by the community as being of interest to the public. Her testimony is supported by the fact that the “Diversity Ardmore” heading comes after she considered whether the plans “keep[] [the] Community together,” under which she noted under Plans 1, 2, and 3, that Ardmore 47

was one of the boroughs that were split up, “minimize[] [b]us time and “preserve[] [w]alkers,”and provides for educational continuity, all of which had been identified as concerns of the community or of Board Members critical of Proposed Plans 3 and 3R. Although Guthrie’s testimony was credible, her chart also indicates that she had considered the effects that the Proposed Plans had on diversity, as well as on the community of Ardmore. b. Diane DiBonaventuro

Diane DiBonaventuro, however, opposed the plan, and in voicing her opposition, stated in an email to Dr. McGinley that Proposed Plan 3R created an “additional stressor” for African–American kids already struggling with the achievement gap by “asking Ardmore kids to take one for the team,” when the fact of the matter was that there “just aren’t a lot of A[frican–]A[merican] families.” (Pls.’ Ex. 104.) DiBonaventuro continued by concluding that she did not think it was “worth it” to redistrict these students in order to “marginally increase diversity.” (Pls.’ Ex. 104.) At trial, DiBonaventuro conceded that she “raised race as a consideration in the decision–making process, but explained that she in fact aimed to convince the Board to look at a wide variety of factors, including general diversity, which was not limited to race and ethnicity. Moreover, she testified that she wanted the Affected Area “to have choice,” because it was within walking distance of Lower Merion High School. DiBonaventuro explained that she was trying to “wave” any argument she could in front of her fellow Board Members, including Ted Lorenz, in order to convince them to join her in voting against Plan 3R, but that she was unsuccessful in doing so. DiBonvaventuro’s explanation of her race–related emails to the Board is credible: Not only did she appear to be earnest and truthful about how she agonized over what she recognized to be the effects Proposed Plan 3R would have on African–American students in the Affected Area; 48

but also, her testimony was corroborated by that of Ebby and Lorenz, each of whom understood her comments as trying to persuade the Board to not adopt the plan, rather than accusing the Board of discriminating on the basis of race in considering and adopting Proposed Plan 3R. Nonetheless, her testimony shows that she considered race, even though she denied that her final vote on Plan 3R was based on race. After the Board voted in favor of Plan 3R, DiBonaventuro sent Dr. McGinley an email that stated that “Even with redistricting, I always refer to the board as the decision makers, not the [A]dministration. We determined the process and allowed it to proceed the way it did. I always insulate the [A]dministration from any criticism about redistricting.” (Pls.’ Ex. 126, at 5009.) At trial, DiBonaventuro confirmed that she viewed the Administration as acting upon the Board’s instructions to create plans. c. David Ebby

David Ebby, the other Board Member who voted against the plan, credibly testified that he did so because of valid educational concerns unrelated to race. Ebby testified that he considered the Affected Area and North Ardmore as making up a single community that is unique within the District because it has long had “generations of families living there that have pride in the area.” Ebby disagrees with his Board colleagues’ view that educational continuity best met student needs, because he believes that continuity leads to “stagnation” by not allowing students from different geographic areas of the District to mix. Although Ebby testified that he was concerned that Ardmore and Narberth were “two communities [who] bore the brunt of redistricting,” and that Ardmore in particular “never gets any choices ever,” he does not believe that race was “at all relevant” in the redistricting process. The Court has determined that Ebby’s testimony was credible, and that he truthfully provided valid, pedagogical reasons for voting against Plan 3R, 49

namely that he did not believe that educational continuity was in students’ best interest, and that breaking the feeder patterns added to students’ educational experiences. 2. High School Enrollment Data

For the 2009 to 2010 school year, the first school year after Proposed Plan 3R went into effect, 897 students are enrolled at Harriton High School, of which 740 are White, 74 are African–American, 55 are Asian–American, 23 are Hispanic–American, and 5 are American Indian. As for Lower Merion High School, a total of 1401 students are enrolled, of which 1,098 are White, 176 are African–American, 90 are Asian–American, 29 are Hispanic–American, 4 are American Indian, and 5 identify as being of more than one race. (Pls.’ Ex. 154, at ¶¶ 8–11.) This is the first year of grandfathering, which means that it is still somewhat unclear what effect redistricting will have on the future enrollment of the District’s high schools. Since Plan 3R has gone into effect, 21 students from the Affected Area were redistricted, of which 14 are African–American. In addition, 23 students were redistricted from the Narberth and Penn Valley geographic areas districted for Penn Valley Elementary School, of which none were African–American. Thus, a little under a third of the students redistricted are African–Americans from the Affected Area. IV. Factual Conclusions Concerning the relative functions of the Administration and the School Board in Lower Merion Township, as a general matter, the Board decides policy and is responsible to the public for school matters, while the Administration operates the schools. As for the specific facts of this case and the process of redistricting, the Administration developed the Scenarios and Plans by considering the relevant factors necessary to follow the Non–Negotiables adopted by the Board,

50

which included achieving equal student populations at both Lower Merion and Harriton.22 Some Board Members were in frequent contact with the Administration, usually Dr. McGinley, while other Board Members did not have any, or only had very few, interactions with the Administration. The dialogue among the former group of Board Members often considered and discussed issues relating to race, most of which are reviewed above. Nonetheless, the development of the Scenarios and Proposed Plans was the work and responsibility of the Administration, not the Board. The only formal action taken by the Board respecting redistricting was to approve Proposed Plan 3R on January 12, 2009. Difficult choices were required in order to meet the race–neutral goal of equalizing the student enrollment at the two high schools. In large measure, legitimate factors motivated the Administration to act as it did, including the goals of helping students achieve educational excellence, attaining equal student populations at the two high schools, minimizing travel time, developing the 3–1–1 feeder pattern, and also closing the achievement gap that the Administration perceived to exist between African–American and white students. The Court gives significant weight to the Administration’s examination of African–American–specific data for many of the early Scenarios, and candid elimination of at least two Scenarios on the basis of race. The Court also considers persuasive Dr. Haber’s testimony that race was considered during the entire redistricting process, because although he was only a consultant, and not an employee of the District, he attended numerous Board and

As the Court observed during the trial, the equalized high school population policy inevitably required difficult choices about redistricting, which did not necessarily involve race: Given that the overwhelming majority of the Lower Merion Township population lives much closer to Lower Merion High School than to Harriton, in order to achieve an equal student population at Harriton, significant redistricting, as well as significant busing, would be required. 51

22

Administration meetings, worked closely with the Administration to come up with Scenarios, and remained an outside observer to the redistricting process. In addition, Dr. McGinley instructed Doug Young to strip from public information respecting the redistricting process, certain references to the racial diversity data provided to the District, reflecting Dr. McGinley’s obvious discomfort with public knowledge that the Administration was considering this data.23 The

circumstantial evidence leads inevitably to a factual conclusion that the Administration plainly allowed racial considerations to influence what neighborhoods would be assigned to attend Harriton High School, without the choice to attend Lower Merion High School. Proposed Plans 1 and 2 redistricted North Ardmore to Harriton, while Proposed Plans 3 and 3R redistricted the Affected Area to Harriton. Thus, under each Proposed Plan students in either North Ardmore or the Affected Area—the two geographic areas with the highest concentrations of African–American students—had no choice of high school. There are too many e-mails and conversations that consider the inclusion of these areas because they were heavily concentrated with African-American residents, to allow any other conclusion. Under each Proposed Plan, due to the assignment of either North Ardmore or the Affected Area to Harriton High School, the projection of the African–American population increased significantly at Harriton. Members of the community accused each Proposed Plan of burdening and disproportionately affecting racial minorities. Under each Proposed Plan, the projected African–American population increased significantly at Harriton, such that the pre–redistricting number of students increased from forty–six students, making up 5.6 percent of the total high

Scenarios 1 and 4a were expressly eliminated on the basis of race, and Dr. Haber was heavily involved, only in the early stages of redistricting, rather than at the later stages, when Proposed Plan 3R came into fruition and was adopted. 52

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school population, to between 74 and 110 African–American students, making up between 7.8 to 9.9 percent of the total projected Harriton high school population. This conclusion follows: The Administration’s consistent intent was to achieve not only overall numeric equality, but also racial parity, between the two schools. The Court rejects any allegations of invidious discrimination or hostility towards African–American students by the Administration or the Board. The Board and Administration were most interested in providing all students an excellent education, and ensuring that Harriton and Lower Merion continued to be outstanding schools. The Board and Administration followed sound education policies, including the reduction of the achievement gap, and the desire to reduce or eliminate racial isolation by using techniques such as “clustering” minority students in language honors classes. The valid educational reasons for the Administration’s recommendation that the Board adopt Proposed Plan 3R do not obfuscate the obvious desire for racial diversity in both high schools. The high African–American student concentration in North Ardmore and the Affected Area made those areas prime targets for redistricting to Harriton, and for the denial of choice.24 Adoption of Plan 3R resulted from Lower Merion Township’s existing demographics, rather than an express intent to discriminate. As is not uncommon in major urban, as well as suburban, areas throughout the United States, some racial, ethnic, or religious groups are concentrated in particular geographic areas. It is important to note that the Affected Area contains many students who are not African–American, indeed more students who are not

If North Ardmore or any other neighborhood had finally been selected for redistricting in Harriton, without a choice for Lower Merion, a case similar to this one would likely have been brought by the students/parents in that neighborhood. One may conclude that this issue was headed for judicial resolution one way or the other merely because of the fact of redistricting. 53

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African–Americans students than those who are.25 Under Plan 3R, White, Asian–American, and Hispanic–American students, like their African–American peers, have also lost the option of choosing to attend Lower Merion High School, because all students in the geographic area are treated alike. If the African–American student population in the District was not concentrated into these two areas, racial parity would likely be achieved regardless of what specific areas were assigned to which high school. Although the Administration was not overt in its discussions with the entire Board about race, the circumstantial evidence reviewed above mandates a finding that racial considerations were one of several motivating factors that resulted in the Administration’s development of the various plans, including the recommendation that Plan 3R be adopted. In particular, Dr. McGinley and others in the Administration, to whom the Board gave the responsibility of coming up with plans, and making recommendations regarding the educational benefits each proposed plan provided, as well as individual Board Members, made numerous race and racial diversity–related comments. These race–related comments indicate that the Board and Administration remained cognizant of the effects that a given redistricting proposal would have on the African–American students living in North Ardmore and the Affected Area. These comments went above and beyond collecting or reporting general diversity data. Thus, while the Court rejects any allegation of impropriety in collecting and reporting general diversity data, the evidence shows that the data was relied upon by the Administration in the development of the various plans and in the adopting of Plan 3R.

As of September 2008, the Affected Area had a total of 308 students in kindergarten through to grade 12, of which 104 are African–American, and 168 are not. (Pls.’ Ex. 154, at ¶13.) 54

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The Administration, in developing the various plans, and recommending that the Board approve Plan 3R, did not advise the entire Board at any point that racial considerations motivated the Administration’s selection of the plan, although Dr. McGinley advised Board Member David Ebby that Scenario 4A had been rejected because of race. For this reason, as the Court indicated at the close of testimony, the Board members were credible insofar as they denied that racial considerations had any part in their approval of Plan 3R. The Court does not find a contradiction between the conclusions that the Administration considered race, but that the Board members, in voting to approve Plan 3R, did not consider race. The evidence demonstrates that most of the Board Members were not aware of the detailed considerations that had been given to race, as found above. At this time, the Court makes no determination as to whether Plaintiffs have sustained their burden of showing that strict scrutiny applies, or, regardless of what level of scrutiny is applied to the District’s January 2009 redistricting decision, whether Plaintiffs are entitled to relief. V. Further Proceedings The most fair method to reach a final judgment in this case is to proceed by stages. The trial and these findings of fact constitute the first stage. In a case of this nature, counsel for the parties can propose more precise legal arguments now that the Court had issued its factual findings, which are governed by Federal Rule of Civil Procedure 52(a) and are not subject to reversal unless “clearly erroneous.” The Court’s legal conclusions will constitute the next stage, after appropriate briefing and argument. On appeal, legal conclusions are subject to plenary review, i.e., the Third Circuit Court of Appeals will review this Court’s legal conclusions under a much broader standard in determining whether this Court correctly interpreted prior cases, and principally, the Seattle 55

Supreme Court decision. If there is a finding for the Plaintiffs, a third stage must be undertaken, i.e., deciding the relief to which the Plaintiffs are entitled, following which a final judgment will issue. Plaintiffs would also be entitled to attorney fees. The Third Circuit has a decided preference for final judgments (and attorney fees awards) being entered by district courts before considering an appeal. Although using truncated stages may appear as a delay, this is the most expeditious way to reach a fair and final resolution in this Court, which will facilitate a final decision by the Third Circuit Court of Appeals, subject, of course, to discretionary review by the Supreme Court. VI. Legal Issues To Be Briefed and Argued The parties will now be given an opportunity to brief and argue the following legal issues: 1. Does the Court’s finding that race was one of several motivating factors used by

the District’s Administration in redistricting, require that strict scrutiny apply? If so, can the District meet its burden of showing a compelling government interest? 2. If strict scrutiny does not apply, then applying either intermediate scrutiny or

rational basis, have Plaintiffs met their burden of proof? 3. Seattle presents very different facts from the present case: Both the Seattle and

Louisville schools at issue in Seattle assigned students on an individual basis, whereas the District assigned students based on geographic residential areas, two of which had heavy concentrations of African–American students. a. b. What is the legal significance of this factual difference? Given that in the Affected Area, more students who are not African–American students were affected by the redistricting than African–American students, does Seattle apply to the present case? 56

4.

Keeping in mind that only Sections III.A and III.C of the analysis in Chief Justice

Roberts’s opinion in Seattle constitute the majority opinion, to what extent does Seattle control this case? 5. Applying the Marks doctrine, what, if any portions of Justice Kennedy’s

concurring opinion in Seattle constitute Supreme Court precedent binding this Court? 6. Given the factual findings detailed above, Plaintiffs’ claim centers on the

contention that they are being denied choice in their selection of a high school. Does it matter that both Lower Merion and Harriton are excellent high schools, i.e., there is no evidence that Plaintiffs have been forced to attend an inferior high school? Is the denial of high school choice alone legally sufficient to establish Plaintiffs’ claim? 7. Does it matter that the denial of high school choice applies to all students in the

Affected Area, including many White, Asian–American, and Hispanic–American students, in determining whether the Plaintiffs, who are African–American, have been denied Equal Protection? An Order setting forth the briefing schedule on proposed conclusions of law follows.26
O:\CIVIL 09-10\09-2095 Doe v. Lower Merion\Doe v. Lower Merion - Factual Findings Memo.wpd

On May 13, 2010, just prior to the filing of this Memorandum, counsel for both parties sent the Court a letter stipulation with details concerning the various Plans. All of the information which is relevant is already contained in the Memorandum, except for the following: Under Proposed Plan 2, students within the historic Lower Merion High School walk zone had the choice of walking to Lower Merion High School. The Court does not recall any evidence about this fact at trial. 57

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