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Case 2:09-cv-02095-MMB Document 14 Filed 06/29/2009 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Student Doe 1 by and through his


Parents/Guardians Does 1 and 2,
et al.

Plaintiffs,

CIVIL ACTION NO. 09-12095


v.

The School District of Lower Merion,

Defendant.

DEFENDANT'S MEMORANDUM OF LAW IN SUPPORT

OF ITS OPPOSITION TO PLAINTIFFS' MOTION

FOR PRELIMINARY INJUNCTION

Judith E. Harris (PA 1.0. No. 02358)


Christina Joy F. Greese (PA 1.0. No. 200727)
Allison N. Suflas (PA I.D. No. 204448)
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103
215-963-5028/5085/5752

Attorney for Defendant

Dated: June 29, 2009


Case 2:09-cv-02095-MMB Document 14 Filed 06/29/2009 Page 2 of 25

TABLE OF CONTENTS

Page

I. INTRODUCTION ............................................................................................................. 1

II. FACTS ............................................................................................................................... 2

A. The Community Advisory Committee Recommends the Construction of

Two Equal Size High Schools .............................................................................. 2

B. The Redistricting Process ...................................................................................... 3

1. Phase I ........................................................................................................ 4

2. Phase II ....................................................................................................... 5

3. Phase III ..................................................................................................... 5

C. Implementation ofPhase III The Redistricting Proposals and

Community Feedback ............................................................................................ 6

1. Plan 1 - The September 8, 2008 Proposal ................................................. 6

2. Plan 2 - The October 20, 2008 Proposal ................................................... 6

3. Plan 3 The November 25,2008 Proposal ............................................... 7

4. Plan 3R (the "Redistricting Plan") The December 15, 2008

Proposal...................................................................................................... 8

III. ARGUMENT ..................................................................................................................... 9

A. Injunctive Relief Will Alter, Not Preserve, The Status Quo ................................ 10

B. Plaintiffs Have Failed to Demonstrate Irreparable Harm .................................... 11

C. Plaintiffs Have Failed to Demonstrate a Likelihood of Success on the

Merits ................................................................................................................... 13

D. A Balancing ofthe Equities Favors the Lower Merion School District .............. 17

IV. CONCLUSION................................................................................................................ 19

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Case 2:09-cv-02095-MMB Document 14 Filed 06/29/2009 Page 3 of 25

TABLE OF AUTHORITIES

Acierno v. New Castle County,

40 F.3d 645 (3d Cir. 1994) ............................................................................................................. 12

Adams v. Freedom Forge Corp.,

204 F.3d 475 (3d Cir. 2000) ........................................................................................................... 10

Antonelli v. New Jersey,

419 F.3d 267 (3d Cir. 2005) ........................................................................................................... 14

Barnes Found. v. Twp. of Lower Merion,

982 F. Supp. 970 (E.D. Pa. 1997) ................................................................................................. 14

Bateman v. Ford Motor Co.,

310 F .2d 805 (3d Cir. 1962) ............................................................................................................. 9

Beaumont, S. L. & W. R. Co. v. United States,

282 U.S. 74 (1930) ......................................................................................................................... 18

Bennington Foods LLC v. St. Croix Renaissance, Group, LLP,

528 F .3d 176 (3d Cir. 2008) ........................................................................................................... 10

City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432 (1985) ...................................................................................................................... 14

Fed. Communications Comm'n v. Beach Communications, Inc.,

508 U.S. 307 (1993) ....................................................................................................................... 14

City of Cuyahoga Falls v. Buckeye Comty. Hope Found.,

538 U.S. 188 (2003) ....................................................................................................................... 13

Concerned Citizens for Neighborhood Schools v. Pastel,

No. 5:05-1070, 2007 WL 1220542 (N.D.N.Y. April 24, 2007) .................................................... 15

Constructors Ass'n ofW. Pa. v. Kreps,

573F.2d811 (3dCir.1978)........................................................................................................... 13

Cont'l Group, Inc. v. Amoco Chems. Corp.,

614F.2d351 (3dCir.1980)........................................................................................................... 12

Delaware River Port Auth. v. Transamerican Trailer Transport Inc.,

501 F.2d 917 (3d Cir. 1974) ........................................................................................................... 13

Dryfoos v. Edwards, D.C.,

284 F. 596 (1919); affirmed, 251 U.S. 146 (1919) ........................................................................ 17

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Case 2:09-cv-02095-MMB Document 14 Filed 06/29/2009 Page 4 of 25

Enterra Corp. v. SGS Associates,

600 F. Supp. 678 (E.D.Pa. 1985) ................................................................................................... 10

Gen. Building Contractors Assoc. v. Pa.,

458 U.S. 375 (1982) ....................................................................................................................... 17

Instant Air Freight Co. v. C.F. Air Freight, Inc.,

882 F.2d 797 (3d Cir. 1989) ........................................................................................................... 11

New Dana Perfumes Corp. v. The Disney Store, Inc.,

131 F. Supp. 2d 616 (M.D. Pa. 2001) ............................................................................................ 13

Oburn v. Shapp,

521 F.2d 142 (3d Cir. 1975) ........................................................................................................... 13

Orson v. Miramax Film Corp.,

836 F. Supp. 309 (E.D. Pa. 1993) .................................................................................................. 13

Parents Involved In Community Schools v. Seattle School District No.1,

127 S. Ct. 2738 (2007) ................................................................................................................... 17

Personnel Administrator ofMass. v. Feeney,

442 U.S. 256 (1979) ................................................................................................................. 14, 15

Plyler v. Doe,

457 U.S. 202 (1982) ....................................................................................................................... 14

Pryor v. National Collegiate Athletic Ass'n,

228 F.3d 548 (3d Cir. 2002) ........................................................................................................... 17

Shaw v. Reno,

509 U.S. 630 (1993) ....................................................................................................................... 13

South Camden Citizens in Action v. New Jersey Dep't of Envtl. Protection,

274 F.3d 771 (3d Cir. 2001) .................................................................................................9, 10, 17

Sovereign Order of St. John ofJerusalem Knights of Malta v. Messineo,

572 F. Supp. 983 (E.D. Pa.1983) .................................................................................................. 11

State of Wisconsin v. State of Illinois,

278 U.S. 367 (1929) ....................................................................................................................... 18

United Parcel Serv., Inc. v. United States Postal Serv.,

475 F. Supp.1158(E.D.Pa.1979) ...................................................................................................9

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Case 2:09-cv-02095-MMB Document 14 Filed 06/29/2009 Page 5 of 25

United States v. Price,


688 F.2d 204 (3d Cir. 1982) ........................................................................................................... 10

United States v. Spectro Foods Corp.,

544 F.2d 1175 (3d Cir. 1976) ..................................................................................................... 9, 10

Village of Arlington Heights v. Metro. Housing Dev. Corp.,


429 U.S. 252 (1977) ....................................................................................................................... 15

Virginian R. Co. v. United States,

272 U.S. 658 (1926) ....................................................................................................................... 17

Washington v. Davis,

426 U.S. 229 (1976) ....................................................................................................................... 14

STATUTES

42 U.S.C. §1981 ............................................................................................................................. 17

42 U.S.C. §2000d et seq................................................................................................................. 17

24 PS §§ 7-701 .............................................................................................................................. 16

24 P.S. § 13-1310(a) ...................................................................................................................... 16

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Case 2:09-cv-02095-MMB Document 14 Filed 06/29/2009 Page 6 of 25

I. INTRODUCTION

In this action, Plaintiffs, Students Doe I through 9, ("Plaintiffs") seek a preliminary

injunction to prevent Defendant Lower Merion School District! ("Defendant" or "District") from

carrying out a redistricting plan ("Redistricting Plan") that was adopted on January 12,2009.

Plaintiffs allege that they are being denied equal protection based upon their race. The District

opposes this motion because race was not a factor in its redistricting determination. Absent race

discrimination, Plaintiffs are unlikely to prevail on the merits. Furthermore, the District has

already adopted and is currently in the process of implementing its Redistricting Plan. Plaintiffs

did not institute their lawsuit until May 14, 2009, and waited until June 13, 2009 to file this

motion, six months after the Board adopted the Redistricting Plan, and a mere two months before

September 8, 2009, the day students will begin classes. Plaintiffs' inexplicable delay defeats any

claim of immediacy, while adversely affecting the legitimate state mandated authority ofthe

School District. Under the circumstances, Plaintiffs' motion is based on mere speculation and

seeks to change, rather than preserve the status quo. As such it should be denied.

The District operates two outstanding high schools: Lower Merion High School and

Harriton High School, both of which are in the process of being completely rebuilt. At all

relevant times prior to the commencement ofthe 2009-2010 school year, the enrollment at the

smaller Harriton High School has been about 400 students less than the enrollment at the larger

Lower Merion High SchooL The new schools are being built to accommodate equal student

populations. The new Harriton High School wi1l open for students on September 8, 2009.

The Defendant has been designated improperly in the caption ofthe pleadings as the School
District of Lower Merion. The correct name ofthe Defendant is Lower Merion School
District.
Case 2:09-cv-02095-MMB Document 14 Filed 06/29/2009 Page 7 of 25

Plaintiffs claim that, in the process of equalizing the student populations, the District

discriminated against them on the basis of race when, on January 12,2009, the District's Board

of School Directors ("Board") adopted a Redistricting Plan which assigned their children, as well

as hundreds of other students previously assigned to Lower Merion High School, to attend

Harriton High School. Contrary to Plaintiffs' allegations, the District created and the Board

adopted the Redistricting Plan based on input it purposefully solicited from the community to

ensure that decisions about the Redistricting Plan were based on the values and priorities of

District residents. The Board, through an open course of action and a constant consideration of

alternatives, made valid decisions regarding redistricting that balanced the interests of

community residents while also advancing the District's educational and co-curricular goals for

students. While the District maintained a general awareness ofthe impact ofthe various plans

on the general diversity of the respective high school student populations, the factors driving the

decision-making were completely unrelated to race. Accordingly, Plaintiffs' cannot show a

likelihood of success on the merits or irreparable harm. In addition, because a balancing of the

equities weighs in favor of the District, Plaintiffs' motion for injunctive relief should be denied.

II. FACTS

A. The Community Advisory Committee Recommends the Construction of Two


Equal Size High Schools

Ten years ago, the community as a whole recognized that both Lower Merion High

School and Harriton High School were outdated and required significant physical plant

investments. In connection with developing plans to address these community concerns, the

District's need to redraw attendance zones or "redistrict" became a reality approximately four

years ago. In order to review and study all options available for addressing the District's high

school situation, the Board established a forty-five member Community Advisory Committee

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("the CAC"). The CAC was comprised of a broad cross-section of school, community, and other

interested individuals with a wide range of perspectives, and its mission was to explore every

alternative for modernizing the two District high schools, including such ideas as creating one

separate school for ninth grade only and one school for grades 10-12, building one new single

high school, building two new high schools while keeping their present student populations

intact, and building two new high schools but balancing their student enrollment levels.

Community involvement was an objective throughout this process, and it was achieved through

CAC member communications to and from their constituent groups, public meetings, reports at

public meetings of the Board, information posted on cable television and the District's website,

and the ability for the public to forward suggestions and comments via e-mail to the CAC and

District Administration. After considering all of the information before it, the CAC's final vote,

by more than a two-thirds majority, strongly supported a plan for two new high schools of equal

size as being the best alternative for serving the educational needs of students and the

community.

B. The Redistricting Process

The District's actual redistricting plan decisions were formed throughout a three-phase

process. Phase I began in May, 2008, and centered on community engagement. In Phase I, the

District solicited input from the community, as set forth in detail below, to develop key findings

on community values to guide its redistricting decisions. Thereafter, Phase II began in July,

2008. In Phase II, the District engaged an outside consultant to review and analyze District data

and propose alternative plans in accordance with the input provided during Phase 1. Finally,

Phase III began in September, 2008. During Phase III, the District presented its proposed planes)

and variations thereon to the community through a series of pre-planned pubJic presentations on

the following dates: September 8, 2008; October 20, 2008; November 25, 2008; and December

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15, 2008. In between each scheduled presentation, the District sought and reviewed community

feedback, and eventually, as described below, the Board adopted the final plan, known as "Plan

3R," by a six to two vote at a public meeting on January 12,2009.

1. Phase I

Phase I of redistricting focused on community engagement. The District's goal in Phase

I was to develop citizen-driven values which would guide both the experts' development of a

redistricting proposal and also the Board's decision-making process. Through a series of

accessible and well attended public forums as well as on-line surveys, Phase I resulted in

understanding that the community placed value on numerous factors, one of which was exploring

the diversity, on many different levels, that exists in Lower Merion. In addition, the community

also established that it valued academics, extracurricular activities, the preservation ofexisting

zones for walkers, minimizing travel time for non-walkers, and the maintenance of social

networks.

In conjunction with the foregoing community values, the Board developed and approved

a set of guiding principles on or about April 21, 2008, to direct the redistricting planning process:

• The enrollment ofthe two high schools and two middle schools would be equalized;
• Elementary students would be assigned so that the schools are at or under the school
capacity;
• The plan should not increase the number of buses required;
• At a minimum, the class of20 10 would have the choice to either follow the redistricting
plan or stay at the high school of their previous year (i.e., implement the principle of
"grandfathering"); and
• Redistricting decisions would be based upon current and expected future needs and not
based upon past redistricting outcomes or perceived past promises or agreements.

In April, 2008, the Board determined that the above principles had to be included and/or met in

any oftheir subsequent redistricting recommendations.

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2. Phase II

In Phase II ofthe redistricting plan, the District engaged a redistricting consultant, Ross

Haber Associates, Inc. ("Haber"). Haber analyzed community demographic data and trends,

transportation resources and needs, and a variety of other information in order to propose

redistricting scenarios that were in line with the Board's Guiding Principles and, to the extent

possible, responsive to the Community Values gathered and developed in Phase I. Throughout

Phase II and the subsequent Phase III, Haber worked in conjunction with the District to develop

a number of redistricting scenarios. Ultimately, on September 8, 2008, the District

recommended and the Board publicly proposed a scenario which, in their opinion, most

appropriately met the needs ofthe District and community as they had been communicated to

that date.

3. Phase III

At the conclusion ofPhase II, the District moved into Phase III ofthe redistricting

process which embodied a three-month period of invited public input and modification to the

District's proposed redistricting plans. Like Phase I, this phase of the redistricting process

encouraged and facilitated community involvement by posting any progress and current

information on the District's website, publicizing the redistricting time line, broadcasting

presentations on the District's cable television channel, inviting public comment at Board

meetings, and providing an e-mail address specifically in regard to redistricting for submission of

ongoing suggestions and feedback.

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Case 2:09-cv-02095-MMB Document 14 Filed 06/29/2009 Page 11 of 25

C. Implementation of Phase In - The Redistricting Proposals and Community


Feedback

1. Plan 1 - The Septem ber 8, 2008 Proposal

The District presented the first version of its redistricting plan to the Board during a

public Board meeting on September 8, 2008 ("Plan I"). Highlights of Plan 1 included no

redistricting at the elementary school level and all students remaining with their cohorts in grades

K-8. In addition, under Plan 1, all current high school students were given the option to stay at

the high school that they were currently attending (i.e., those students were grandfathered). Only

those students entering high school in 2009 and thereafter would be required to attend the school

for which they were zoned under Plan 1. In addition, under Plan 1, the attendance zones altered

the transitions or "feeder patterns" for Penn Wynne Elementary School students to transition or

"feed" into Welsh Valley Middle School and Harriton High School. Penn Valley Elementary

School students were changed to feed into Bala Cynwyd Middle School, with most students then

attending Lower Merion High SchooL Plan 1 did not alter any other feeder patterns.

2. Plan 2 - The October 20, 2008 Proposal

The second version of a redistricting plan was presented to the Board during a public

Board meeting on October 20, 2008 ("Plan 2"). Plan 2 was the result of extensive community

feedback and subsequent data analysis by the District and consultants following the presentation

of Plan 1. The key themes and priorities that were expressed during the public comment period

included:

• The desire to reduce travel times for students to high school and middle school,

particularly from an area near City Avenue;

• The desire to see that all children remained together from grades six through twelve;
• The desire to have a better balance in middle school enrollments;
• The desire to disrupt fewer students as the plan was implemented; and
• The desire to avoid geographic isolation of communities.

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The benefits of Plan 2 included contiguous high school and middle school attendance

zones which would allow students to remain together from grades six through twelve. Also, Plan

2 again provided balanced enrollments at the high school and middle school levels in order to

ensure program equity as a driving principle. Furthermore, in many cases, the scenario created

by Plan 2 shortened the high school students' bus times from those indicated and/or anticipated

under Plan 1, as students from the furthest corridor ofthe District were no longer affected,

thereby eliminating the commute to Harriton. Finally, Plan 2 drew upon strengths of Plan 1, as

mentioned by the community. For example, all high school students were still permitted to

remain at their schools ofcurrent attendance, and there was no change to the existing elementary

school boundary zones. The District also maintained the walking zones2 for all schools in

support ofthe community value for "walkability."

3. Plan 3 - The Novem ber 25, 2008 Proposal

The District presented its third draft redistricting plan to the Board on November 24,

2008 during a public Board meeting ("Plan 3"). Plan 3 was created to extend continuity from

grades kindergarten through twelve to the maximum extent possible, an initiative that the District

implemented in response to public comment it received throughout the Phase III process. This

factor specifically distinguished this proposal from the two previous draft plans which focused

on continuity from either grades kindergarten through eight (Plan 1) or grades six through twelve

(Plan 2), respectively. In addition, Plan 3 supported educational continuity by aligning each

middle school to a single high school. Plan 3 also addressed the community's concerns

regarding walkability by protecting the walk zones for middle school and elementary school

students and, on a more limited basis, the walk zone for Lower Merion High School. Finally,

2
"Walk zone" or "walking zone" is the term used by the District to designate the area in
which it does not provide transportation to students.

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this proposal maintained the established feeder patterns for middle school students, thereby

improving on the previous draft which altered these established patterns. Specifically, this plan

proposed the following feeder patterns:

• Harriton High School and Welsh Valley Middle School:


o Belmont Hills - All
o Gladwyne - All
o Penn Valley - All would attend Welsh Valley, but those in an abbreviated Lower
Merion Walk Zone would have choice at the high school level.
• Lower Merion High School and Bala Cynwyd Middle School:
o Penn Wynne- All
o Cynwyd - An
o Merion - All
o Penn Valley - Students in abbreviated Lower Merion Walk Zone would have
choice at high school level.

As set forth above, this proposal also extended high school choice to a very narrow group of

students who resided within a truncated Lower Merion High School walk zone. In so doing, the

District was able to honor the value of walkability for those students who lived closest to Lower

Merion High School. However, Plan 3 assigned the students not in the truncated walk zone but

who did live in what historically was the Lower Merion High School walk zone ("the historical

walk zone") to Harriton High School.

4. Plan 3R (the "Redistricting Plan") - The December 15,2008 Proposal

Based upon its careful review of each plan and the public comments that it received

throughout, the District presented a final modified draft of Plan 3 at a public Board meeting on

December 15,2008 ("Plan 3R"). In an effort to address the community's concern regarding the

revised walk zone around Lower Merion High School, Plan 3R expanded the walk zone to its

official, historical designations. In addition, Plan 3R boosted the projected enrollment at

Harriton High School by providing all students zoned for Lower Merion High School with the

opportunity to elect to attend Harriton. To further enhance Harriton's appeal, the District

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Case 2:09-cv-02095-MMB Document 14 Filed 06/29/2009 Page 14 of 25

introduced new curricular opportunities at Harriton High School such as a dual enrollment

program with Penn State University in an effort to increase students' selection ofthis school.

These changes were intended to attract new students in order to balance the enrollment at the two

schools as well as providing opportunities to preserve, and in some cases expand, social

networks established in middle school at the high school level. Further highlights ofPlan 3R

included the following:

• Students could elect to stay with peers by following assigned feeder pattern K -12;
• The historical walk zones for elementary, middle and high schools were protected;
• The District's current feeder patterns were followed creating disruption for fewer
students;
• A high school population at each school, which included students from each middle
school, was probable due to the option area and choice programs;
• Grandfathering of all current high schoo] students was maintained; and
• The community interest of maintaining elementary schoo] attendance zones was

achieved.

Community feedback regarding Plan 3R was accepted via e-mail and regular mail up until

January 6, 2009. On January 12,2009, the Board approved Plan 3R by a 6-2 vote.

m. ARGUMENT

It is well settled that the purpose of a preliminary injunction is to preserve the status quo

pending a final hearing on the merits. United Parcel Serv., Inc. v. United States Postal Serv., 475

F .Supp. 1158, 1162-63 (B.D.Pa. 1979). The decision to grant or deny injunctive relief is left to

the sound discretion of the trial court. Bateman v. Ford Motor Co., 310 F.2d 805, 808 (3d Cir.

1962). The Third Circuit has explained that "injunctive relief, particularly preliminary relief, is

an extraordinary remedy which should be granted only in limited circumstances." South

Camden Citizens in Action v. New Jersey Dep't ofEnvtl. Protection, 274 F.3d 771, 777 (3d Cir.

2001) (internal citations, quotations, and ellipsis omitted). See also United States v. Spectro

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Foods Corp., 544 F.2d 1175, 1181 (3d Cir. 1976) ("The power to issue a preliminary injunction,

especially a mandatory one, should be sparingly exercised."). Specifically,

To obtain a preliminary injunction, the moving party must demonstrate: (I) the
reasonable probability of eventual success in the litigation, and (2) that it will be
irreparably injured if relief is not granted. Moreover, the district court also should
take into account, when relevant, (3) the possibility of harm to other interested
persons from the grant or denial ofthe injunction, and (4) the public interest.
Thus, a failure to show a Iikelibood of success or a failure to demonstrate
irreparable injury must necessarily result in the denial of a preliminary
injunction.

South Camden Citizens in Action, 274 F.3d at 777 (internal citations, quotations, and ellipsis

omitted) (emphasis added). See also Adams v. Freedom Forge Corp., 204 F.3d 475, 484 (3d

Cir.2000) (holding that where a plaintiff fails to prove either a likelihood of success on the

merits or irreparable harm, a court should deny injunctive relief "regardless of what the equities

seem to require"). "Moreover, where the relief ordered by the preliminary injunction is

mandatory and will alter the status quo, the party seeking the injunction must meet a higher

standard of showing irreparable harm in the absence of an injunction." Bennington Foods LLC

v. St. Croix Renaissance, Group, LLP, 528 F.3d 176, 179 (3d Cir. 2008). Here, Plaintiffs cannot

show a likelihood of success or irreparable harm, and a ifpreliminary injunction is nonetheless

granted, it will result in harm to other interested persons. Accordingly, their request for a

preliminary injunction should be denied.

A. Injunctive Relief Will Alter, Not Preserve, The Status Quo

When a party is seeking to alter the status quo and require the other party to take some

affirmative action, injunctive relief is particularly difficult to justify, cautiously viewed and

sparingly used. Enterra Corp. v. SGS Associates, 600 F.Supp. 678, 684 (E.D.Pa. 1985); see also

United States v. Price, 688 F.2d 204,212 (3d Cir. 1982) (mandatory injunctions should be used

sparingly); Spectro Foods Corporation, 544 F.2d at 1181 ("[t]he power to issue a preliminary

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injunction, especially a mandatory one, should be sparingly exercised."); Sovereign Order of St.

John of Jerusalem Knights of Malta v. Messineo, 572 F.Supp. 983, 988-89 (E.D.Pa. 1983) (

"Mandatory preliminary injunctions, which seek to alter the status quo, are normally granted

only in those circumstances where the exigencies ofthe situation demand such relief and the

facts and the law are clearly in favor of the moving party.").

The District's redistricting plan process began in May, 2008. On January 12,2009, more

than five months ago, following eight months of extensive interaction with the community, the

District adopted Plan 3R and began its implementation. Following the Board's January 12

action, the District submitted and approved the preliminary and final budgets for the 2009·2010

scholastic year. Extensive transition planning meetings have been held, both internally and with

parents. In addition, teachers have been reassigned from Lower Merion High School to Harriton

High School to accommodate the additional students. Students have selected and been assigned

to courses, and given schedules in one ofthe two high schools. Ifthis Court grants Plaintiffs'

motion for preliminary injunction it would reverse these actions, thereby changing the status quo.

In light of the typically heavy burden imposed on plaintiffs seeking preliminary injunctions to

reverse the status quo, this Court should deny Plaintiffs' request for injunctive relief.

B. Plaintiffs Have Failed to Demonstrate Irreparable Harm

Plaintiffs have also failed to show that they will suffer irreparable harm iftheir request

for an injunction is denied. To demonstrate irreparable harm, a plaintiff must demonstrate

potential harm which the district court cannot remedy following a final determination on the

merits. Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 80 I (3d Cir. 1989).

"More than a risk of irreparable harm must be demonstrated. The requisite for injunctive relief

has been characterized as a 'clear showing ofimmediate irreparable injury,' or a 'presently

existing actual threat; an injunction may not be used simply to eliminate a possibility of a remote

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future injury.'" Acierno v. New Castle County, 40 FJd 645, 655 (3d Cir. 1994) (quoting Cont'l

Group, Inc. v. Amoco Chems. Corp., 614 F.2d 351,358 (3d Cir. 1980».

Plaintiffs' argument is based entirely upon specUlation and unfounded fear. They make

vague assertions about the deprivation of an "'unalienable' right" and a "liberty interest,"

without identifying any harm, let alone any irreparable harm. In fact, the students selected to

attend Harriton High School in September will be benefited, not harmed. The two high schools

will provide equitable course offerings, beneficial co-curricular activities, and modern facilities.

Moreover, in order to further enhance Harriton's appeal, the District introduced new curricular

opportunities such as a dual enrollment program with Penn State University. Harriton High

School also offers an International Baccalaureate Program, which is not currently offered at

Lower Merion High SchooL Consequently, in addition to attending a state ofthe art high school

a year earlier than they otherwise would if they attended Lower Merion High School, Plaintiffs'

will have additional programs available to them that they would not otherwise have, ifthey do

not attend Harriton.

Of equal importance is Plaintiffs' own concession in their Motion for Preliminary

Injunction that prior to instituting this litigation their counsel received and conducted a fairly

extensive document review ofthe District's records obtained pursuant to the Pennsylvania Right

to Know Act. Plaintiffs submitted their request for the documents on February 23, 2009, and had

received responses thereto by March 3, 2009. However, instead of instituting this action upon

the adoption ofPlan 3R on January 12,2009, or shortly thereafter, they delayed doing so until

May 14,2009. The Motion itself was not filed until June 12,2009, six months after the adoption

ofPlan 3R, allowing the District to proceed with implementing Plan 3R as to the September

2009 opening ofthe new Harriton High School. Where, as here, a plaintiff delays for several

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months without explanation prior to filing for injunctive relief, courts routinely find that such a

delay precludes a finding of irreparable harm. See, e.g., New Dana Perfumes Corp. v. The

Disney Store, Inc., 131 F. Supp. 2d 616, 630 (M.D. Pa. 2001) (finding that an unexplained five

month delay in moving for injunctive relief precluded a fmding of irreparable harm); Orson v.

Miramax Film Corp., 836 F. Supp. 309,312 (B.D. Pa. 1993) (finding that a 50 day delay in filing

a motion for injunctive relief showed that irreparable harm was not imminent).

C. Plaintiffs Have Failed to Demonstrate a Likelihood of Success on the Merits

The Third Circuit has emphasized that to establish a likelihood of success on the merits,

"the burden is on the party seeking [injunctive] reliefto make a prima facie case showing a

reasonable probability that it will prevail on the merits." Oburn v. Shapp, 521 F.2d 142, 148 (3d

Cir. 1975). Furthermore, where, as here, "the threatened irreparable injury is limited or is

balanced to a substantial degree by countervailing injuries which would result to third parties, or

to the public interest from the issuance of an injunction, 'greater significance must be placed

upon the likelihood that the party will ultimately succeed on the merits ofthe litigation.'"

Constructors Ass'n ofW. Pa. v. Kreps, 573 F.2d 811, 815 (3d Cir. 1978) (quoting Delaware

River Port Auth. v. Transamerican Trailer Transport Inc., 501 F.2d 917 (3d Cir. 1974»; see also

Oburn v. Shapp, 521 F.2d 142, 152 (3d Cir. 1975).

The Equal Protection Clause ofthe Fourteenth Amendment prohibits states from

intentionally discriminating between individuals on the basis of race. Shaw v. Reno, 509 U.S.

630, 642, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). "Proof of racially discriminatory intent or

purpose is required to show a violation ofthe Equal Protection Clause." City ofCuyahoga Falls

v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194, 123 S.Ct. 1389, 155 L.Ed.2d 349 (2003)

(internal citations and quotations omitted). "Discriminatory intent 'implies that the decision­

maker ... selected or reaffirmed a particular course of action at least in part because of, not

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Case 2:09-cv-02095-MMB Document 14 Filed 06/29/2009 Page 19 of 25

merely in spite of, its adverse effects upon an identifiable group.'" Antonelli v. New Jersey,

419 F.3d 267, 273 -274 (3d Cir. 2005) (quoting Personnel Adm'r of Mass. v. Feeney, 442 U.S.

256,279,99 S.Ct. 2282, 60 L.Ed.2d 870 (1979».

State and local governments generally possess the initial discretion to determine what in

fact "is 'different' and what is the 'same,' " and enjoy "substantial latitude to establish

classifications that roughly approximate the nature of the problem perceived, that accommodate

competing concerns both public and private, and that account for limitations on the practical

ability of the State to remedy every ill." Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394,

72 L.Ed.2d 786 (1982). "[T]he'general rule' is that state legislation or other official action 'is

presumed to be valid and will be sustained if the classification drawn by the statute is rationally

related to a legitimate state interest.'" Barnes Found. v. Twp. of Lower Merion, 982 F.Supp.

970,983 (B.D. Pa. 1997) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.s. 432, 440

(1985» (citing Fed. Communications Comm'n v. Beach Communications, Inc., 508 U.S. 307,

313 (1993) ("In areas of social or economic policy, a statutory classification that neither

proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld

against equal protection challenge if there is any reasonably conceivable state of facts that could

provide a rational basis for the classification."». Thus, "[w]hen official action taken pursuant to

a facially neutral Jaw is challenged under the Equal Protection Clause, rational basis scrutiny will

apply unless the plaintiff can show that the law was enacted as a proxy for race or was applied on

the basis of race, which would then trigger strict scrutiny." Barnes, 982 F.Supp. at 983. In order

to make this showing, the plaintiff must demonstrate that the defendant acted with the purpose or

intent to discriminate on the basis of race. Id.; see also Washington v. Davis, 426 U.S. 229, 239­

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Case 2:09-cv-02095-MMB Document 14 Filed 06/29/2009 Page 20 of 25

42 (1976); Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977);

Personnel Admlr v. Feeney, 442 U.S. 256, 272 (1979).

The rational basis test is appropriate here, where the District did not consider race in its

redistricting plans. As described above, the District did not use race to decide its redistricting

plan, or in selecting among the alternative plans. The District was attempting to reconcile the

information it received from months of community involvement with its educational goals. The

guiding factors in arriving at the Redistricting Plan were to: balance enrollments; minimize travel

times; allow students to remain with cohorts; minimize the number of students affected; maintain

the historic walk zones; grandfather current high school students; and maintain elementary

school attendance zones.

While the District did commission specialists to asses what implications the various plans

would have on the school population, it did so to understand the various demographics of its

student population. At no point did the District's consideration of information regarding race

affect or otherwise influence its decision to adopt the Redistricting Plan. See Concerned Citizens

for Neighborhood Schools v. Pastel, No. 5:05-1070, 2007 WL 1220542, at *1 (N.D.N.Y. April

24,2007). In that case, prior to granting the defendants' motion for judgment on the pleadings,

the Court denied plaintiffs' motion for preliminary injunction, finding plaintiffs' evidence that

the board reviewed information about the redistricting plan's effect on the racial composition of

its elementary schools during its consideration of various alternative plans, to be insufficient to

establish an impermissible use of race as a motivating factor in the board's conduct. Here also,

Plaintiffs' allegations are entirely without merit. In fact, the projected demographic makeup of

the high school populations under the Redistricting Plan and its predecessors illustrate that

achieving racial balance at the schools was not the District's goal. By way of example, several

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Case 2:09-cv-02095-MMB Document 14 Filed 06/29/2009 Page 21 of 25

scenarios considered by the Board would have achieved a more equalized enrollment of African

American students at the two high schools compared to the Redistricting Plan which was

adopted. Plainly, the District's decision to keep track ofthe many factors which encompass the

diversity of its population cannot, in and of itself, be considered as evidence of a discriminatory

motive and/or intent.

Furthermore, Plaintiffs do not dispute that the decision to redistrict was well within the

District's authority. The Pennsylvania Public School Code of 1949 imposes on school districts

and, specifically, their operating boards, mandatory duties and discretionary powers in order to

maintain and support a thorough and effective system of public schools in accordance with

Article X, Section I of the Pennsylvania Constitution. To this end, the board of school directors

for each district is explicitly vested with the duty to provide the grounds and buildings upon

which to accommodate their students, as well as the attendant duty to assign pupils to those

various schools. See 24 PS §§ 7-701; 13-1310. In particular, Section 13-1310(a) provides in

pertinent part, that:

"The board of school directors of every school district [ ] shall, for


the purposes of designating the schools to be attended by the
several pupils in the district [ ] subdivide the district [ ] in such
manner that all the pupils in the district shall be assigned to, and
reasonably accommodated in, one of the public schools in the
district [I The board of school directors may...classify and assign
the pupils in the district to any school or schools therein as it may
deem best, in order to properly educate them."

24 P.S. § 13-131O(a). As made clear above, it is well within a local school board's purview and

discretion to promulgate and implement redistricting directives to serve the educational interests

of the district. Thus, because the District's facially neutral Redistricting Plan was not

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Case 2:09-cv-02095-MMB Document 14 Filed 06/29/2009 Page 22 of 25

promulgated with any discriminatory intent or purpose, Plaintiffs' will be unable to prevail on

the merits. 3

Lastly, Plaintiffs' reliance on the United States Supreme Court's holding in Parents

Involved In Cmty. Schools v. Seattle School District No.1, 127 S.Ct. 2738 (2007), is misplaced.

In Parents Involved the Court found that student assignment plans that relied on racial

classification to allocate students between schools to maintain a preset, numerical "racial

balance" violated the Equal Protection Clause. 127 S.Ct. at 2738. Those facts are absent in this

case. Here, the District was not seeking to achieve a formulaic racial balance. It neither

classified nor assigned students by race. Instead, the District assigned its student body to two

numerically equal groups from a population of students that had formerly been assigned to two

numerically unequal groups. Nor did the District did alter the distribution based on any

consideration of racial composition. For that reason, Parents Involved does not apply.

D. A Balancinf! ofthe Equities Favors the Lower Merion School District

As part ofthe balancing test performed in deciding whether to grant or deny a

preliminary injunction, a court must consider the public interest by weighing the effect that either

granting or denying the injunction will have on nonparties. See South Camden Citizens in

Action, 274 F.3d at 777. It has long been held that where an injunction will adversely affect a

public interest, the court may, in the public interest, withhold relief until there is a final

determination of the rights of the parties. Virginian R. Co. v. United States, 272 U.S. 658, 672

(1926); Dryfoos v. Edwards, D.C., 284 F.596, 603 affirmed 251 U.S. 146,40 S.Ct. 106,64 L.Ed.

3
Plaintiffs preserve their right to argue that application of 42 U.S.C. § 1981 and Title VI,
however, that is unnecessary. The Third Circuit explained in Pryor v. Nat'l Collegiate
Athletic Ass'n, 228 F.3d 548, 562 (3d Cir. 2002) that Title VI and § 1981 only provide a
cause of action for intentional discrimination. See also Gen. Bldg. Contractors Assoc. v.
Pa., 458 U.S. 375, 391 (1982). Thus, for the same reasons set forth above, Plaintiffs will not
succeed on the merits oftheir claims under Title VI and §1981 as well.

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Case 2:09-cv-02095-MMB Document 14 Filed 06/29/2009 Page 23 of 25

194 (1919); see Beaumont, S. L. & W. R. Co. v. United States, 282 U.S. 74, 91 (1930); State of

Wisconsin v. State of Illinois, 278 U.S. 367,418-421 (1929).

In this case, the Plaintiffs' remedy disregards the rights and needs ofthe District's

students who will be adversely affected if Plaintiffs are permitted to reverse the District's

Redistricting Plan. This relief would adversely affect all of the students who attend the District's

schools by seriously disrupting their education. The 2009-2010 Budget has been approved.

Staff positions have been allocated, courses selected and teachers assigned to each them. Class

schedules have also been determined. At this point, ifthe Redistricting Plan were to be enjoined

and events reversed, thereby changing rather than preserving status quo, the District would have

to reverse those educational decisions that have already been executed. The hardship to students

and faculty of reversing the Redistricting Plan now outweighs any unsubstantiated, speculative

harm to Plaintiffs. Accordingly, Plaintiffs' motion must be denied.

-18­
David G. C. Arnold
From: ecCpaed@paed.uscourts.gov
Sent: Monday, June 29, 2009 6:33 PM
To: paedmail@paed.uscourts.gov
Subject: Activity in Case 2:09~cv"'()2095~MMB STUDENT DOE 1 et al v. THE SCHOOL DISTRICT OF
LOWER MERION Memorandum

This is an automatic e-mail message generated by the CM/ECF system. Pkase DO RESPOND to
this e-mail because til(.' mail hox is unaftt;nded.
***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits
attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of
all documents filed electronically, if receipt is required by law or directed by the ftler. PACER access fees
apply to all other users. To avoid later charges, download a copy of each document during this first
viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not
apply.

United States District Court

Eastern District of Pennsylvania

Notice of Electronic Filing

The following transaction was entered by HARRIS, JUDITH on 6/29/2009 at 6:32 PM EDT and filed on
612912009
Case Name: STUDENT DOE 1 et al v. THE SCHOOL DISTRICT OF LOWER MERION
Case Number: 2:09-cv-2095
Filer: THE SCHOOL DISTRICT OF LOWER MERION
Document Number: 14

Docket Text:
Memorandum of Law in Opposition re [5] First MOTION for Preliminary Injunction filed by THE
SCHOOL DISTRICT OF LOWER MERION. (HARRIS, JUDITH)

2:09-cv-2095 Notice has been electronically mailed to:

ALLISON N. SUFLAS asufias@)norganiewis.com, jkrouse@morganlewis.com

CHRISTINA JOY F. GRESE jgrese@morganlewis.com, cgasiewski@morganlewis.com

DAVID G. C. ARNOLD davidgcamold(a),aol.com

JUDITH E. HARRIS jeharris@morganlewis.com, nncdonnell@,morganlewis.com

KENNETH A. ROOS kroos@wispearl.com

MEGAN A. GUERNSEY mguernsey@,wispearl.com

MICHAEL D. KRISTOFCO mkristofco@,wispearl.com


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