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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. 09-2095

v.
Lower Merion School District

Defendant

ORDER

AND NOW THIS __ day of _ _ _ _, 2010, upon consideration of Defendant,

Lower Merion School District's Motion for Summary Judgment, and the response filed thereto, it

is hereby ordered and decreed that said Motion is denied.

BY THE COURT

The Honorable Michael M. Baylson

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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. 09-2095

v.
Lower Merion School District

Defendant

PLAINTIFFS' RESPONSE TO DEFENDANT'S


MOTION FOR SUMMARY JUDGMENT

SEALED AS CONDIDENTIAL

CONFIDENTIAL: This envelope contains documents, testimony or infonnation filed under a


Confidentiality Agreement between the Parties. This envelope shall not be opened or its contents
revealed except: (1) by and to the Court; (2). by written agreement of the parties; or (3) by prior
Order of the Court.

Respectfully submitted,

Pennsylvania Attorney Identification No. 49819

Suite 109, Royal Plaza


915 Montgomery Avenue
Narberth, Pennsylvania 19072
(484) 562,.0008

Attorney for Plaintiffs

Dated: January 15,2009


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. 09-2095

v.
Lower Merion School District

Defendant

PLAINTIFFS' RESPONSE TO DEFENDANT'S


MOTION FOR SUMMARY JUDGMENT

Plaintiffs, Students Doe 1 through 9, by and through their undersigned counsel now

respond to defendant, Lower Merion School District's Motion for Summary Judgment. In light

of the discovery record in this case, the exhibits produced herewith, and the legal authorities set

forth in the in the accompanying Brief, summary judgment should not be granted in the present

matter. Students Doe incorporate herein by reference their Response to Defendant's Statement of

Undisputed Facts and their Brief filed herewith.

Wherefore, Students Doe respectfully request that the present Motion for Summary

Judgment be denied.
Respectfully submitted,

Pennsylvania Attorney Identification No. 49819

Suite 109, Royal Plaza


915 Montgomery Avenue
Narberth, Pennsylvania 19072
(484) 562-0008

Attorney for Plaintiffs

Dated: January 15,2009

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. 09-2095

v.
Lower Merion School District

Defendant

PLAINTIFFS' BRIEF IN OPPOSITION TO DEFENDANT'S

MOTION FOR SUMMARY JUDGMENT

SEALED AS CONDIDENTIAL

CONF~NTIAL: This envelope contains documents, testimony or information filed under a


~pcj,idenTfality Agreement between the Parties. This envelope shall not be opened or its contents
:'t-t(~e~le<@cept: (1) by and to the Court; (2). by written agreement of the parties; or (3) by prior
~.--.J ,," .. ~ ~

!.l,-i () Q- Order of the Court.


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t-) U Respectfully submitted,
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........

Pennsy vania Attorney Identification No. 49819

Suite 109, Royal Plaza


915 Montgomery Avenue
Narberth, Pennsylvania 19072
(484) 562-0008

Attorney for Plaintiffs

Dated: January 15,2009


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. 09-2095

v.
Lower Merion School District

Defendant

PLAINTIFFS' BRIEF IN OPPOSITION TO DEFENDANT'S

MOTION FOR SUMMARY JUDGMENT

Introduction

In May of 1954, the United States Supreme Court rectified one of the most embarrassing

chapters in this Country's Civil Rights Jurisprudence by overruling Plessey v. Ferguson, 163

U.S. 5376 (1896). The Supreme Court held in Brown v. Board of Education, 347 U.S. 483
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i11~4)~.that "Separate educational facilities are inherently unequaL Therefore, ... plaintiffs and
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::9b:t~rs ~rmilarly situated for whom the actions have been brought are, by reason of the
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gttteg.n complained of, deprived of the equal protection of the laws guaranteed by the
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Fourte~h Amendment." Id. at 495. The legal principle emanating from Brown is that students

cannot be aSsigned to schools based upon their race.

The Chief Justice of the United States Supreme Court, John Roberts, noted in his

plurality opinion in Parents Involved in Community Schools v. Seattle School District No.1,

551 U.S. 701 (2007), that there are only two (2) instances when student assignments based upon

race have survived the Court's strict scrutiny test. The first instance was when a school district
used racial classifications in order to remedy the effects of its own past segregationist policies.

See Id. at 720. The second instance was when an institution of higher learning, i.e. one above the

high school level, sought to use race in conjunction with a number of other factors in order to

truly diversify its student body. See Id. at 722. Because neither of the aforementioned situations

apply in the present case, Students Doe have corne before this Honorable Court, and ask it to

reaffirm and apply the holding in Brown.

Factual Background

On May 14, 2009, Students Doe, by and through their Parents/Guardians, filed a Three

Count Complaint in the United States District Court for the Eastern District of Pennsylvania

seeking to enjoin, both preliminarily and permanently, defendant, Lower Merion School

District's school redistricting plan adopted on January 12, 2009. 1 Students Doe contend in their

Complaint that Lower Merion's redistricting plan improperly used racial criteria in order to

mandate that they be bused to a non-neighborhood school, Harriton High School, instead of

allowing them to continue to voluntarily choose to attend their neighborhood high school, Lower

Merion High School, or Harriton High School. See Students Doe Exhibit 59.

Students Doe are all minority students who live in a neighborhood bounded by Athens

A venue, Wynnewood Road, County Line Road, and Cricket Avenue in South Ardmore,

Pennsylvania, hereinafter referred to as the "Ardmore Island." Students Doe contend that Lower

Merion's redistricting actions violate the Fourteenth Amendment to the United States

Constitution, 42 U.S.C. Section 1981, and Title VI of the Civil Rights Act, and 42 U.S.C.

Section 2000d et. seq. See Students Doe Exhibit 59.

I Shortly after filing its Complaint, Students Doe filed a Motion for Preliminary Injunction. Said Motion was
scheduled to be heard in August of 2009. Students Doe later withdrew said Motion prior to the Preliminary
Injunction Hearing.

On December 31, 2009, Lower Merion timely filed a Motion for Summary Judgment.

Students Doe file the present Brief in order to comply with Rille 7.1 of the Rules of Civil

Procedure of the United States District Court for the Eastern District of Pennsylvania, and to

further explain why the pending Motion should be denied.

Argument

Motions for Summary Judgment are governed by Rule 56 of the Federal Rules of Civil

Procedure. In accordance with Rule 56, judgment should not be granted for the moving party

unless "the pleadings, the discovery and disclosure materials on file, and any affidavits show that

there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a

matter oflaw. F.R.Civ.P. 56(c)(2). When determining the outcome of the Motion, the reviewing

Court must view all evidence, and draw all inferences, in the light most favorable to the non­

moving party. Startzell v. Philadelphia, 533 F.3d 183, 192 (3d CiT. 2008). The reviewing Court

at the summary judgment stage should not weigh the credibility of witnesses, or other evidence,

in ruling on the Motion. Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986). Discrimination

cases rarely lend themselves to summary adjudication. See Pryor v. National Collegiate Athletic

Association, 288 F.3d 548, 563 (2002).

When Lower Merion's Motion is analyzed and deconstructed, it appears that its argument

is that Student Doe have uncovered no evidence during the course of discovery substantiating

that Lower Merion purposefully discriminated against them. Lower Merion's assertions are

incorrect; the record developed during discovery overwhelmingly supports the conclusion that

Lower Merion redistricted using race as a criteria in violation of the law.

I. Lower Merion Adopted a Racially Based Policy

It would appear that in law, like in so many other things, where you end up is partly

determined by where you begin. Lower Merion begins its argument, without any analysis

whatsoever, stating that the Redistricting Plan adopted on January 12,2009, is a facially neutral

policy. While this clever tactic allows Lower Merion to avoid explaining why the Redistricting

Plan is not the result of a raced based policy, Students Doe refuse to start their analysis in the

middle; rather, it is best to start at the beginning.

Lower Merion's Redistricting Plan is a race based policy due to the criteria it adopted to

develop and evaluate the various Redistricting Plans brought forth. According to Lower Merion,

the Redistricting Plan was arrived at using the non-negotiables adopted by the School Board on

April 21, 2008, and the Community Values set forth in the DRS Report dated July 11, 2008. See

Lower Merion's Statement of Undisputed Facts Paragraphs 38-44. One ofthe Community Values

in the DRS Report required Lower Merion to "Explore and cultivate whatever diversity-ethnic,

social, economic, religious and racial-there is in Lower Merion," when formulating

Redistricting Plans. See Students Doe Exhibit 2 page 5.

It should be noted that the School Board was repeatedly warned that race based

redistricting was illegal. The undersigned counsel in letters dated December 12, 2008, and

January 9, 2009, warned Lower Merion that its action were illegal, and would result in a lawsuit.

action. See Students Doe Exhibits 60 and 61. The Public Interest Law Center also warned Lower

Merion in Public Comments Regarding its Redistricting Plan that it was acting illegally. See

Students Doe Exhibit 62.

A review of the excerpts made of School Board Meetings concerning redistricting reveals

that the Superintendent, Dr. Christopher McGinley, the Redistricting Consultant, Dr. Ross

Haber, and the President of the School Board, Lisa Fair Pliskin, all advised the public that the

Community Values set forth in the DRS Report, which included the Community Value to

"cultivate and explore" diversity, were used as guidelines in formulating Proposed Redistricting

Plans as well as in adopting Proposed Plan 3R on January 12, 2009. See Students Doe Exhibit 8

pages 3, and 5-9, Students Doe Exhibit 9 pages 1-7, Students Doe Exhibit 10 pages 1-7, Students

Doe Exhibit 11 pages 14-17, Students Doe Exhibit 12 pages 1-4, Students Doe Exhibit 13 pages

7-10, Students Doe Exhibit 14 pages 1-3, Students Doe Exhibit 15 pages 3-5, Students Doe

Exhibit 16 pages 1 and 20.2

Moreover, Lower Merion advised the general public in the Frequently Asked Questions

section on its Redistricting Website that the Community Values set forth in the URS Report,

which included the Community Value requiring diversity, were used as guidelines in formulating

Redistricting Plans. In response to a question concerning the use of the Community Values dated

July 28, 2006, Lower Merion responded, "That set of values has been provided to the experts

who are developing the redistricting plan who will use them as part of the information used in

developing the plan." Students Doe Exhibit 17 at Student Doe 00067. In response to a similar

question dated July 29, 2008, Lower Merion stated, "The purpose of the first round of forums

was to empower community members to develop a set of community values and direct how

those values should be applied in the redistricting work. These values-based principles have been

2 Unfortunately, Lower Merion does not have a written transcript of its School Board meetings. In order to procure
appropriate evidence. Students Doe requested from Lower Merion, and subsequently received digital copies of the
Board Meetings on an external hard drive. A Court Reporter has reviewed these meetings, and created a transcript of
limited time segments of the Board Meetings. These transcribed segments appear as Students Doe Exhibit 6-15.
Included in the package delivered to opposing counsel, and this Honorable Court, is an external hard drive with a
copy the Board Meetings which appear on the external hard drive provided to Students Doe.