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Case: 10-3824 Document: 003110370013 Page: 1 Date Filed: 12/06/2010

In The

United States Court of Appeals


for the

Third Circuit
Case No. 10-3824

STUDENT DOE 1, BY AND THROUGH HIS PARENTS/GUARDIANS DOES


1 AND 2;STUDENT DOE 2, BY AND THROUGH HER PARENT/GUARDIAN
DOE 3; STUDENT DOES 3 AND 4, BY AND THROUGH THEIR
PARENT/GUARDIAN DOE 4;STUDENT DOE 5, BY AND THROUGH HIS
PARENTS/GUARDIANS DOE 5; STUDENT DOE 6, BY AND THROUGH
HIS PARENTS/GUARDIANS DOES 6 AND 7;STUDENT DOE 7, BY AND
THROUGH HIS PARENT/GUARDIAN DOE 8; STUDENT DOES 8 AND 9,
BY AND THROUGH THEIR PARENTS/GUARDIANS DOES 9 AND 10,
Appellants,
v.

LOWER MERION SCHOOL DISTRICT,


Appellee.
_____________________________
Appeal from an Order entered from the
United States District Court for the Eastern District of Pennsylvania

BRIEF AND APPENDIX


VOLUME I OF V (PAGES A1- A103)

DAVID G.C. ARNOLD, ESQ.


Suite 106
920 Matsonford Road
West Conshohocken, Pennsylvania 19428
610-397-0722
Email: davidgcarnold@aol.com

Attorney for Appellants

COUNSEL PRESS  (888) 700-3226


Case: 10-3824 Document: 003110370013 Page: 2 Date Filed: 12/06/2010
Case: 10-3824 Document: 003110307879 Page: 1 Date Filed: 10107/2010

United States Court of Appeals for the Third Circuit

Corporate Disclosure Statement and

Statement of Financial Interest

No. 10-3824

Student Doe 1, et. al.

v.

Lower Merion School District

Instructions

Pursuant to Rule 26.1, Federal Rules of Appellate Procedure any


nongovernmental corporate party to a proceeding before this Court must file a statement identifying
all of its parent corporations and listing any publicly held company that owns 10% or more of the
party's stock.

Third Circuit LAR 26.1 (b) requires that every party to an appeal must identify on
the Corporate Disclosure Statement required by Rule 26.1, Federal Rules of Appellate Procedure,
every publicly owned corporation not a party to the appeal, if any, that has a financial interest in the
outcome of the litigation and the nature of that interest. This information need be provided only if a
party has something to report under that section of the LAR.

In all bankruptcy appeals counsel for the debtor or trustee of the bankruptcy
estate shall provide a list identifying: 1) the debtor if not named in the caption; 2) the members of the
creditors' committee or the top 20 unsecured creditors; and, 3) any entity not named in the caption
which is an active participant in the bankruptcy proceedings. If the debtor or the bankruptcy estate is
not a party to the proceedings before this Court, the appellant must file this list. LAR 26.1 (c).
,
The purpose of collecting the information in the Corporate Disclosure and
Financial Interest Statements is to provide the judges with information about any conflicts of interest
which would prevent them from hearing the case.

The completed Corporate Disclosure Statement and Statement of Financial


Interest Form must, if required, must be filed upon the filing of a motion, response, petition or answer
in this Court, or upon the filing of the party's principal brief, whichever occurs first. A copy of the
statement must also be included in the party's principal brief before the table of contents regardless
of whether the statement has previously been filed. Rule 26.1 (b) and (c), Federal Rules of Appellate
Procedure.

If additional space is needed, please attach a new page.

(Page 1 of 2)
Case: 10-3824 Document: 003110370013 Page: 3 Date Filed: 12/06/2010
Case: 10-3824 Document: 003110307879 Page: 2 Date Filed: 10107/2010

Pursuant to Rule 26.1 and Third Circuit lAR 26.1, _A--'p-"-p_e_"_a_n_t_s_ _____,makes the
following disclosure: (Name of Party)

1) For non-governmental corporate parties please list all parent corporations:

Not Applicable

2) For non-governmental corporate parties please list all publicly held companies
that hold 10% or more of the party's stock:

Not Applicable

3) If there is a publicly held corporation which is not a party to the proceeding


before this Court but which has as a financial interest in the outcome of the proceeding, please
identify all such parties and specify the nature of the financial interest or interests:

Not Applicable

4) In all bankruptcy appeals counsel for the debtor or trustee of the bankruptcy
estate must list: 1) the debtor, if not identified in the case caption; 2) the members of the creditors'
committee or the top 20 unsecured creditors; and, 3) any entity not named in the caption which is
active participant in the bankruptcy proceeding. If the debtor or trustee is not participating in the
appeal, this information must be provided by appellant.

Not Applicable

Dated: October 7, 2010

(Page 2 of 2)

rev: 1112008
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TABLE OF CONTENTS

Jurisdictional Statement ............................................................................................. 1

Statement of Issues Presented for Review ................................................................. 2

Statement of Related Cases and Proceedings ............................................................ 7

Statement of the Case................................................................................................. 8

Statement of Facts .................................................................................................... 11

Summary of Argument............................................................................................. 28

Argument.................................................................................................................. 29

I. Lower Merion's Racial Redistricting Cannot Survive the Strict


Scrutiny Test .................................................................................................. 36

A. Precedent requires the application of the strict scrutiny test .......... 36

B. Lower Merion never established a compelling state


interest for its racial actions ................................................................ 45

1. Lower Merion never articulated a compelling state interest ........... 45

2. Any interests are unrelated to race, and not compelling ................. 50

C. Lower Merion's Redistricting Plan is not narrowly tailored .......... 53

D. The Redistricting Plan is improperly unlimited in duration .......... 56

II. Lower Merion Should Not Win An Inevitably Defense ........................... 57

III. Students Doe Should Have Won Their Federal Statutory Claims .......... 62

Conclusion ............................................................................................................... 67

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APPENDIX TABLE OF CONTENTS


Page
Volume I:

Memorandum on Factual Findings, filed May 13, 2010 ........................ A1

Order, filed May 13, 2010....................................................................... A58

Transcript of Trial, dated April 26, 2010 ................................................ A59

Transcript of Trial, dated April 27, 2010 ................................................ A61

Memorandum on Conclusion of Law, filed June 24, 2010 .................... A63

Order, filed June 24, 2010....................................................................... A94

Order, filed June 25, 2010....................................................................... A95

Order, filed August 19, 2010 .................................................................. A96

Joint Notice of Appeal, filed September 16, 2010.................................. A100

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TABLE OF AUTHORITIES

Adarand Constructors, Inc. v. Pena,


515 U.S. 200 (1995) ............................................................................................ 41
Barnes v. Gorman,
536 U.S. 181 (2002) ...................................................................................... 63-64
Brown v. Board of Education,
347 U.S. 483 (1954) ............................................................................................ 29
G-1 Holdings, Inc. v. Reliance Insurance Company,
586 F.3d 247 (3d Cir. 2009) ............................................................................... 49
Gonzaga University v. John Doe,
536 U.S. 273 (2002) ............................................................................................ 63
Gratz v. Bollinger,
539 U.S. 244 (2003) ......................................................................................41, 50
Grutter v. Bollinger,
539 U.S. 306 (2003) .....................................................................................passim
Johnson v. California,
543 U.S. 499 (2005) ......................................................................................41, 43
McGovern v. Philadelphia,
554 F.3d 114 (3d Cir. 2009) ............................................................................... 63
Parents Involved in Community Schools v.
Seattle School District No. 1,
551 U.S. 701 (2007) .....................................................................................passim
Plessy v. Ferguson,
163 U.S. 537 (1896) ............................................................................................ 29
Pryor v. National Collegiate Athletic Association,
288 F.3d 548 (3d Cir. 2002) ....................................................... 30-31, 41, 42, 49
Republican Party of Minnesota v. White,
536 U.S. 765 (2002) ............................................................................................ 51

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Ricci v. DeStefano,
129 S. Ct. 2658 (2009) ..................................................................................64, 65
Richmond v. Croson,
488 U.S. 469 (1989) ............................................................................................ 52
Shaw v. Hunt,
517 U.S. 899 (1996) ............................................................................................ 51
Simon & Schuster, Inc. v.
Members of the New York State Crime Victims Board,
502 U.S. 105 (1991) ............................................................................................ 52
Sutton v. United Airlines,
527 U.S. 471 (1999) ............................................................................................ 66
Village of Arlington Heights v.
Metropolitan Housing Development Corp.,
429 U.S. 252 (1977) .....................................................................................passim

Statutes and Other Authorities:


Fourteenth Amendment to the United States Constitution ...............................passim
20 U.S.C. § 1400 et. seq........................................................................................... 65
28 U.S.C. § 1291 ........................................................................................................ 1
28 U.S.C. § 1331 ........................................................................................................ 1
29 U.S.C. § 794 ........................................................................................................ 65
42 U.S.C. § 1981 ...............................................................................................passim
42 U.S.C. § 1983 ...................................................................................................... 63
42 U.S.C. § 1988 ...................................................................................................... 67
42 U.S.C. § 2000d et. seq..................................................................................passim
F.R.Civ.P. 8 .............................................................................................................. 58
F.R.Civ.P. 11 ............................................................................................................ 45

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F.R.Civ.P. 59 .......................................................................................................... 1, 9
Rule 108.1 of the Local Appellate Rules of the United States Court
of Appeals for the Third Circuit ......................................................................... 67
Internal Operating Procedure 9.1 of the United States Court of
Appeals for the Third Circuit .............................................................................. 42
S. Backer-McKee, W. Janssen, J. Corr, Federal Civil Rules Handbook 2010 ........ 58

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JURISDICTIONAL STATEMENT

On May 14, 2009, Appellants, Students Doe 1 through 9, by and through

their Parents/Guardians, filed a Three Count Complaint in the United States

District Court for the Eastern District of Pennsylvania seeking relief under the

Fourteenth Amendment to the United States Constitution, 42 U.S.C. § 1981, and

Title VI of the Civil Rights Act, 42 U.S.C. § 2000d et. seq. Appendix A124-A164.

The United States District Court for the Eastern District of Pennsylvania had

jurisdiction over the case pursuant to 28 U.S.C. § 1331.

On June 24 and 25, 2010, the District Court entered Orders granting

judgment in favor of Appellee, Lower Merion School District. Appendix A94-A95.

On July 22, 2010, Students Doe filed a Motion for a New Trial pursuant to Rule 59

of the Federal Rules of Civil Procedure. Appendix A444-A462. The District Court

denied said Motion on August 19, 2010. Appendix A96-A99. The District Court's

Order was a final Order in that it dismissed all of Students Doe's claims.

On September 16, 2009, Students Doe timely filed their Joint Notice of

Appeal. Appendix A100-A103. This Honorable Court has jurisdiction to hear the

present appeal pursuant to 28 U.S.C. § 1291.

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STATEMENT OF ISSUES PRESENTED FOR REVIEW

1. Whether Lower Merion School District's reasons for using race in its

redistricting decision-making constitute compelling state interests?

Suggested Answer: No

This issue was raised in Students Doe's Trial Brief, Appendix A291, in

Students Doe's Proposed Findings of Fact and Conclusions of Law, Appendix

A320-A321, in Students Doe's Post Trial Brief, Appendix A414-A418, and in

Students Doe's Motion for a New Trial, Appendix A451-A455. The District Court

ruled on the issue in its Memorandum on Conclusions of Law , Appendix A83-

A91, and in its Order on August 19, 2010, Appendix A96-A99. Students Doe

appealed the ruling in its Joint Notice of Appeal, Appendix A100-A103.

2. Whether Lower Merion School District proved at trial that it used race in

its redistricting decision-making to address the achievement gap and racial

isolation?

Suggested Answer: No

This issue was raised in Students Doe's Post Trial Brief, Appendix A414,

and in Students Doe's Motion for a New Trial, Appendix A454-A455. The District

Court ruled on the issue in its Memorandum on Conclusions of Law, Appendix

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A91-A94, and in its Order on August 19, 2010, Appendix A96-A99. Students Doe

appealed the ruling in its Joint Notice of Appeal, Appendix A100-A103.

3. Whether Lower Merion School District proved at trial that its race related

redistricting actions were narrowly tailored to serve a compelling state interest?

Suggested Answer: No

This issue was raised in Students Doe's Post Trial Brief, Appendix A415,

and in Students Doe's Motion for a New Trial, Appendix A456-A457. The District

Court ruled on the issue in its Memorandum on Conclusions of Law, Appendix

A83-A91, and in its Order on August 19, 2010, Appendix A96-A99. Students Doe

appealed the ruling in its Joint Notice of Appeal, Appendix A100-A103.

4. Whether Lower Merion School District's race related redistricting actions

survive strict scrutiny because they are not limited in duration?

Suggested Answer: No

This issue was raised in Students Doe's Proposed Findings of Fact and

Conclusions of Law, Appendix A321, in Students Doe's Post Trial Brief, Appendix

A416, and in Students Doe's Motion for a New Trial, Appendix A457. The District

Court ruled on the issue in its Memorandum on Conclusions of Law, Appendix

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A83-A91, and in its Order on August 19, 2010, Appendix A96-A99. Students Doe

appealed the ruling in its Joint Notice of Appeal, Appendix A100-A103.

5. Whether Lower Merion School District preserved the defense that Plan

3R would have inevitably been adopted notwithstanding its race related

redistricting actions?

Suggested Answer: No

This issue was raised in Students Doe's Motion for a New Trial, Appendix

A458-A459. The District Court ruled on the issue in its Memorandum on

Conclusions of Law, Appendix A92-A93, and in its Order on August 19, 2010,

Appendix A96-A99. Students Doe appealed the ruling in its Joint Notice of

Appeal, Appendix A100-A103.

6. Whether Lower Merion School District proved at trial that Plan 3R would

have inevitably been adopted notwithstanding its race related redistricting actions?

Suggested Answer: No

This issue was raised in Students Doe's Motion for a New Trial, Appendix

A458-A460. The District Court ruled on the issue in its Memorandum on

Conclusions of Law, Appendix A92-A93, and in its Order on August 19, 2010,

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Appendix A96-A99. Students Doe appealed the ruling in its Joint Notice of

Appeal, Appendix A100-A103.

7. Whether the District Court properly allocated the burden of proof to

Students Doe when making its determinations concerning the Lower Merion High

School Walk Zone?

Suggested Answer: No

This issue was raised in Students Doe's Motion for a New Trial, Appendix

A458-A460. The District Court ruled on the issue in its Memorandum on

Conclusions of Law, Appendix A83-A91, and in its Order on August 19, 2010,

Appendix A96-A99. Students Doe appealed the ruling in its Joint Notice of

Appeal, Appendix A100-A103.

8. Whether 42 U.S.C. §1981 and/or Title VI of the Civil Rights Act, 42

U.S.C. § 2000d et. seq. prohibit Lower Merion School District's race related

redistricting actions even though the Fourteenth Amendment to the United States

Constitution may not?

Suggested Answer: Yes

This issue was raised in Students Doe's Complaint, Appendix A138-A141,

in Students Doe's Trial Brief, Appendix A292-A294, in Students Doe's Proposed

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Findings of Fact and Conclusions of Law, Appendix A321-A322, in Students

Doe's Post Trial Brief, Appendix A418-A419. The District Court ruled on the issue

in its Memorandum on Conclusions of Law, Appendix A93. Students Doe

appealed the ruling in its Joint Notice of Appeal, Appendix A100-A103.

9. Whether Drs. Lyles and Jarvis should have been permitted to testify at

trial on behalf of Lower Merion School District in light of Student Doe's Motion in

Limine?

Suggested Answer: No

This issue was raised in Students Doe's Motion in Limine, Appendix A251-

A265. The District Court ruled on the issue during trial on April 26 and 27, 2010,

Appendix A59-A62. Students Doe appealed the ruling in its Joint Notice of

Appeal, Appendix A100-A103.

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STATEMENT OF RELATED CASES AND PROCEEDINGS

This case has not previously been before this Honorable Court. Students Doe

are not aware of any other case or proceeding that is any way related, completed,

or pending before this Honorable Court. Students Doe are aware that complaints

regarding the matters at issue in this case have been submitted to the Office of

Civil Rights for the United States Department of Education, and that a complaint

has also been submitted to the Pennsylvania Human Relations Commission.

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STATEMENT OF THE CASE

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,

Lower Merion's school redistricting plan adopted on January 12, 2009. Appendix

A124-A164. 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. Appendix A104-A123 (Docket Entries).

Students Doe contended in their Complaint that Lower Merion’s

redistricting plan improperly used race as a factor 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. Students Doe further

contended that Lower Merion’s redistricting actions violated the Fourteenth

Amendment to the United States Constitution, 42 U.S.C. § 1981, and Title VI of

the Civil Rights Act, 42 U.S.C. § 2000d et. seq. Appendix A124-A164.

Lower Merion subsequently filed a Motion for Summary Judgment on

December 31, 2009, which the District Court subsequently denied on February 24,

2010. Appendix A104-A123 (Docket Entries). In accordance with the District


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Court's Pre-Trial Schedule, Students Doe filed a Motion in Limine to Preclude the

Trial Testimony of Dr. Claudia Lyles and Dr. Robert Lee Jarvis because said

witnesses had not been identified during the course of discovery, and were only

identified by Lower Merion in their Pre-Trial Memorandum filed on March 12.

2010. Appendix A251-A265. The District Court denied said Motion in Limine

without prejudice. Appendix A104-A123 (Docket Entries). Students Doe

subsequently renewed said Motion during trial, but is was denied. Appendix A59-

A62.

The District Court then conducted a nine (9) day Federal Bench Trial.

Following the Bench Trial, the District Court issued its Memorandum on Findings

of Fact on May 13, 2010. In its Memorandum, the District Court concluded that

race was factor in Lower Merion's redistricting of Students Doe. Appendix A1-

A59. In its subsequent Memorandum on Conclusion of Law issued on June 24,

2010, the District Court concluded that Students Doe were not entitled to relief

because Lower Merion's actions did not violate the Fourteenth Amendment to the

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

42 U.S.C. § 2000d et. seq. Appendix A63-A93.

Students Doe thereafter filed a timely Motion for a New Trial pursuant to

Rule 59 of the Federal Rules of Civil Procedure on July 22, 2010. Appendix A444-

A462. The District Court rule against said Motion on August 19, 2010. Appendix
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A96-A99. Students Doe thereafter filed the present appeal with this Honorable

Court on September 16, 2010. Appendix A100-A103.

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STATEMENT OF FACTS

Lower Merion School District, hereinafter referred to as "Lower Merion," is

located in Montgomery County Pennsylvania, and is the entity charged with the

legal responsibility to provide, among other things, both regular and special

education services to school age children residing in Lower Merion Township and

Narberth Borough. Lower Merion is governed by the Lower School Board which is

made up of nine (9) School Directors who are chosen in at large elections in Lower

Merion Township and Narberth Borough. The Lower Merion School District

Administration actually runs Lower Merion's schools. Appendix A6

(Memorandum on Factual Findings) and A126 (Complaint).

Lower Merion operates six (6) elementary schools (i.e. Belmont Hills

Elementary School, Cynwyd Elementary School, Gladwyne Elementary School,

Merion Elementary School, Penn Valley Elementary School, and Penn Wynne

Elementary School), two (2) middle schools (i.e. Bala Cynwyd Middle School and

Welsh Valley Middle School), and two (2) high schools (i.e. Lower Merion High

School and Harriton High School). Lower Merion is not at the present time, nor

has it ever been, subject to a Federal and/or State Court busing decree. Lower

Merion has received in the past, and continues to receive, Federal Funding.

Appendix A6 (Memorandum on Factual Findings) and A127 (Complaint).

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As the final stage of its Capital Improvement Program that began in 1997,

Lower Merion decided to rebuild both Lower Merion High School and Harriton

High School. Lower Merion formed a Community Advisory Committee in January

of 2004, in order to assist it in determining whether it would build one (1) high

school on two (2) campuses, whether it would build two (2) high schools which

house approximately the same number of students, or whether it would build two

(2) high schools which would replicate the historic student populations at Lower

Merion High School and Harriton High School. Prior to reconstruction, Lower

Merion High School housed a student body that was much larger than Harriton

High School's student body. Appendix A12 (Memorandum on Factual Findings).

In its report dated May 24, 2004, the Community Advisory Committee

advised Lower Merion that it recommended that Lower Merion High School, and

Harriton High School be rebuilt to house approximately the same number of

students. The Lower Merion School Board subsequently adopted the Community

Advisory Committee's recommendation in 2004. It is the School Board's adoption

of the Community Advisory Committee's recommendation to equalize high school

enrollments at Lower Merion High School and Harriton High School which set the

stage for the current case, because the School Board's actions made it necessary to

redistrict a large number of students away from Lower Merion High School, to

Harriton High School. Appendix A12-A13 (Memorandum on Factual Findings).

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Students Doe, are nine (9) African American Students who live in the Lower

Merion School District, and reside in a section of Ardmore bounded by Athens

Avenue, Wynnewood Road, County Line Road, and Cricket Avenue. Appendix

A125-A126 (Complaint). This area has been referred to during the litigation as the

"Affected Area" and/or "South Ardmore." The Affected Area and the adjoining

region North of Cricket Avenue is the larger of two (2) areas in the Lower Merion

School District that have a significant African American population. Appendix A9-

A10 (Memorandum on Factual Findings).

The latter referenced adjoining region has been referred to during the

litigation as "North Ardmore," and said region is bounded by Cricket Avenue, East

Lancaster Avenue, County Line Road, and College Avenue. Appendix A9-A10

(Memorandum on Factual Findings). For the sake of consistency, Students Doe's

neighborhood will continue to be referred to as the "Affected Area" in this Brief,

and the adjoining region North of Cricket Avenue will continue to be referred to as

"North Ardmore" in this Brief. Said areas are not separated by any natural

boundary. The only other area in the district that has a concentration of African

American population is a small neighborhood located in Bryn Mawr. Appendix

A9-A10 (Memorandum on Factual Findings) and A2196-A2197 (Maps).

Prior to redistricting, the following students were districted to Lower Merion

High School, but had the option to attend either Lower Merion High School or
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Harriton High School: all students who lived in the Cynwyd Elementary School

feeder pattern; all students who lived in the Merion Elementary School feeder

pattern; all students who lived in the Penn Wynne Elementary School feeder

pattern; all students in the Belmont Hills Elementary School feeder pattern who

lived in Narberth Borough; and all students in the Penn Valley Elementary School

feeder pattern who lived in the Affected Area or who lived in the Lower Merion

High School Walk Zone. Appendix A13-A14 (Memorandum on Factual Findings).

The Lower Merion High School Walk Zone is an area surrounding Lower

Merion High School that under Lower Merion School District Policy is supposed

to extend one (1) mile in all directions. Appendix A2191-A2196. In contravention

of Lower Merion School District Policy, the Walk Zone does not extend one (1)

mile into the Affected Area; instead, the Walk Zone ends at Athens Avenue which

is well short of one (1) mile. If the Walk Zone extended one (1) mile into the

Affected Area, three (3) of the Students Doe would live within the Walk Zone, and

three (3) others may live within the Walk Zone. Appendix A11(Memorandum on

Factual Findings), A1293-A1303 (Trial Transcript), and A2189-A2190 (Trial

Exhibit). Students living in the Walk Zone do not receive bus transportation.

However, under each of the redistricting plans proposed, and under the

redistricting plan adopted, students living in the Walk Zone always received the

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option to attend either Lower Merion High School or Harriton High School.

Appendix A2097-A2176 (Proposed Redistricting Plans).

Prior to redistricting, the following students were districted to Harriton High

School: all students who lived in the Gladwyne Elementary School feeder pattern;

all students in the Penn Valley Elementary School feeder pattern who did not live

in the Affected Area, or who did not live in the Lower Merion High School Walk

Zone; and all students in the Belmont Hills Elementary School feeder pattern who

did not live in Narberth Borough. Students districted to Harriton High School did

not have choice to attend Lower Merion High School. Both prior to and following

redistricting, Harriton High School had an International Baccalaureate Program, a

specialized academic program that had a limited number of student placements

available which were given out on a selective basis. This program has never been

available at Lower Merion High School, and has been used to draw students

districted to Lower Merion High School to choose instead to attend Harriton High

School. Appendix A13-A14 (Memorandum on Factual Findings), and A2111-

A2112 (First Proposed Redistricting Plan).

Based upon the foregoing, prior to redistricting, all students in the Affected

Area as well as all students in North Ardmore had choice to attend either Lower

Merion High School or Harriton High School. The African American students in

Bryn Mawr were districted to attend Harriton High School both before and after
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the redistricting process at issue. Appendix A13-A14 (Memorandum on Factual

Findings), and A2111-A2112 (First Proposed Redistricting Plan).

Lower Merion started the redistricting process in the Spring of 2008. Lower

Merion apparently conducted initial, non-public meetings about redistricting early

in April of 2008. At its April 28, 2008, School Board Meeting, the Lower Merion

School Board adopted guidelines which it termed "non-negotiables." These non-

negotiables were: (1). The enrollment of the two (2) high schools and two (2)

middle schools would be equalized; (2). Elementary students would be assigned so

that the schools would be at or under school capacity; (3). The plan would not

increase the number of buses required; (4). At a minimum, the class of 2010 would

have choice to either follow the redistricting plan or stay at the high school of their

previous year; and (5). Redistricting decisions would be based upon current and

expected future needs, and not based upon past redistricting outcomes, or

perceived past promises or agreements. The School Board took the position that

any redistricting plan presented and/or adopted would have to comply with these

guidelines. In addition to "non-negotiable" Number 4, a broader grandfathering

provision was followed throughout the redistricting process, i.e. students who

started attending a high school before the redistricting plan was adopted, would not

have to change high schools. Appendix A15-A16 (Memorandum on Factual

Findings), and A2097-A2176 (Proposed Redistricting Plans). Therefore, the full

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impact of redistricting in Lower Merion will not be felt until the 2012-2013 School

Year.

Lower Merion then sought to engage the community at large by conducting

focus group meetings in the district during May and June of 2008. The purpose of

these meetings was to identify "community values" that would assist in the

formation of a final redistricting plan. Focus group meetings were conducted under

the direction of Dr. Harris Sokolov and Ms. Ellen Petersen on May 29, 2008, June

8, 2008, June 9, 2008, June 10, 2008, and on June 19, 2008. In addition, feedback

was also collected from the community via an online survey during the

aforementioned time period. Appendix A16-A17 (Memorandum on Factual

Findings), and A129-A130 (Complaint).

Dr. Sokolov and Ms. Petersen subsequently prepared a report detailing their

findings, and thereafter presented their report to the Lower School Board on July

11, 2008. According to the Sokolov/Petersen Report, the following values were

important to the community in formulating redistricting plans: (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; (4). Children learn best in

environments where they are comfortable-socially as well as physically; and (5).


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Explore and cultivate whatever diversity-ethnic, social, economic, religious, and

racial-there is in Lower Merion. The School Board unanimously voted to accept

the Sokolov/Petersen Report on July 11, 2008. Appendix A16-A17 (Memorandum

on Factual Findings), and A2099-A2100 (First Proposed Redistricting Plan).

While the aforementioned community input was taking place, Lower Merion

hired a consultant, Ross Haber, Ed.D., in June of 2008 to assist in identifying

demographic trends that would be used in drafting a redistricting plan, and to assist

in drafting redistricting plans. Throughout the redistricting process, Dr. Haber

worked with Lower Merion's Administration to generate potential redistricting

plans which were termed "Scenarios". Lower Merion's Administration picked from

these potential Scenarios when recommending its Proposed Redistricting Plans to

the School Board and the general public. Appendix A19, and A130-A131.

Using the information acquired from the Sokolov/Petersen Report, the non-

negotiables from the Lower Merion School Board, and demographic information

from Dr. Haber, Lower Merion and Dr. Haber went to work in the Summer of

2008 to formulate Lower Merion's redistricting plan. During meetings conducted in

the Summer of 2008, Dr. Haber produced, and Lower Merion's Administration

considered, Scenarios 1 through 5. Some School Directors were present during

some of these meetings. Regarding ethnicity, Scenarios 1 through 5 only reported

numbers concerning African American students. Charts were also prepared during
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this time period highlighting African American data. Appendix A16-A24

(Memorandum on Factual Findings).

Two of the Scenarios generated, i.e. Scenarios 1 and 4A, were eliminated

due to race. Scenarios 1 and 4A were the only Scenarios produced during the entire

redistricting process which kept students in the Affected Area and North Ardmore

together for high school. Ultimately, Lower Merion's Administration choose

Scenario 3 to be the First Proposed Redistricting Plan. Appendix A24

(Memorandum on Factual Findings).

The First Proposed Redistricting Plan was presented at the Lower Merion

School Board Meeting on September 8, 2008. In the First Proposed Plan, all

students who lived in the Penn Wynne Elementary School feeder pattern were

redistricted from Lower Merion High School to Harriton High School. Students

districted to Lower Merion High School retained the option to attend Harriton

High School for the International Baccalaureate Program. Appendix A27

(Memorandum on Factual Findings), and A2097-A2121 (First Proposed

Redistricting Plan).

Although the First Proposed Redistricting Plan did not change the existing

school placements for Students Doe, it drastically changed the racial make-up of

Lower Merion High School and Harriton High School in that it decreased the

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number of African American students at Lower Merion High School, and

increased the number of African American students at Harriton High School.

Harriton High School's enrollment became more diversified because the African

American students located in North Ardmore were redistricted to attend Harriton

High School, instead of Lower Merion High School, because those students lived

in the Penn Wynne Elementary School feeder pattern. Appendix A27

(Memorandum on Factual Findings).

Lower Merion prominently displayed its "diverse" high school populations

during the course of its slide show presentation on its First Proposed Redistricting

Plan. Under the First Proposed Redistricting Plan, the African American student

populations at Lower Merion High School and Harriton High School would have

been almost equal, and the percentage of African American students in each school

would have closely mirrored the overall percentage of the number of African

American high school students in the Lower Merion School District. Appendix

A27 (Memorandum on Factual Findings), and A2097-A2121 (First Proposed

Redistricting Plan).

Public comment was then taken on the First Proposed Redistricting Plan.

Among the public comments to the Plan was the accusation that Lower Merion

was redistricting based upon race. Dr. Haber and Lower Merion's Administration

thereafter went back to work on the redistricting project, and generated the 7 series
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of Scenarios. Lower Merion's Administration ultimately choose Scenario 7C-5 to

be the Second Proposed Redistricting Plan. Appendix A31-A33 (Memorandum on

Factual Findings).

The Second Proposed Redistricting Plan was presented at the Lower Merion

School Board Meeting on October 20, 2008. In the Second Proposed Redistricting

Plan, Lower Merion redistricted the following students from Lower Merion High

School to Harriton High School: some students who lived in the Penn Wynne

Elementary School feeder pattern, including students who lived in North Ardmore;

some students who lived in the Penn Valley Elementary School feeder pattern, but

not students who lived in the Affected Area or who lived in the Lower Merion

High School Walk Zone; and some students who lived in the Belmont Hills

Elementary School feeder pattern. Students districted to Lower Merion High

School once again retained the option to attend Harriton High School for the

International Baccalaureate Program. Appendix A33 (Memorandum on Factual

Findings), A132-A133 (Complaint), and A2122-A2145 (Second Proposed

Redistricting Plan).

Although the Second Proposed Redistricting Plan also did not change the

existing school placements for Students Doe, it again drastically changed the racial

make-up of Lower Merion High School and Harriton High School in that it

decreased the number of African American students at Lower Merion High School,
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and increased the number of African American students at Harriton High School.

Harriton High School's enrollment once again became more diversified because the

African American students living in North Ardmore were redistricted to attend

Harriton High School, instead of Lower Merion High School. Appendix A33

(Memorandum on Factual Findings), A132-A133 (Complaint), and A2122-A2145

(Second Proposed Redistricting Plan).

Lower Merion once again prominently displayed its "diverse" high school

populations during the course of its slide show presentation on its Second Proposed

Redistricting Plan. Under the Second Proposed Redistricting Plan, the African

American student populations at Lower Merion High School and Harriton High

School would have been closer to equal than before redistricting, and the

percentage of African American students in each school would have come closer to

mirroring the overall percentage of the number of African American high school

students in the Lower Merion School District than before redistricting. Appendix

A33 (Memorandum on Factual Findings), A132-A133 (Complaint), and A2122-

A2145 (Second Proposed Redistricting Plan).

Public comment was then taken on the Second Proposed Redistricting Plan.

Once again, among the public comments to the Plan was the accusation that Lower

Merion was redistricting based upon race. Dr. Haber and Lower Merion's

Administration thereafter went back to work on the redistricting project, and


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generated Scenario 8 which Lower Merion's Administration choose to be the Third

Proposed Redistricting Plan. Appendix A33-A34 (Memorandum on Factual

Findings).

The Third Proposed Redistricting Plan was presented at the Lower Merion

School Board Meeting on November 24, 2008. The Third Proposed Redistricting

Plan was known as a "3-1-1 Plan" in that three (3) defined elementary schools fed

into one (1) middle school which in turn fed into one (1) high school. Under the

Third Proposed Redistricting Plan, the following students were districted to Bala

Cynwyd Middle School and then onto Lower Merion High School: all students

who lived in the Cynwyd Elementary School feeder pattern; all students who lived

in the Merion Elementary School feeder pattern; and all students who lived in the

Penn Wynne Elementary School feeder pattern. The following students were

districted to Welsh Valley Middle School and then onto Harriton High School

under the Third Proposed Redistricting Plan: all students who lived in the

Gladwyne Elementary School feeder pattern; all students who lived in the Belmont

Hills Elementary School feeder pattern; and all students in the Penn Valley

Elementary School feeder pattern who did not live in the redrawn/smaller Lower

Merion High School Walk Zone. Students who lived in the Penn Valley

Elementary School feeder pattern, and who also lived in the redrawn/smaller

Lower Merion High School Walk Zone, retained choice to attend either Lower

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Merion High School or Harriton High School. Students districted to Lower Merion

High School once again retained the option to attend Harriton High School for the

International Baccalaureate Program. Appendix A38-A39 (Memorandum on

Factual Findings), and A2146-A2160 (Third Proposed Redistricting Plan).

Unlike its two (2) predecessors, the Third Proposed Redistricting Plan did

change the existing school placements for Students Doe in that they no longer had

choice to attend Lower Merion High School or Harriton High School. Instead,

Students Doe now had to attend Harriton High School. However, like its

predecessors, the Third Proposed Redistricting Plan drastically changed the racial

make-up of Lower Merion High School and Harriton High School in that it

decreased the number of African American students at Lower Merion High School,

and increased the number of African American students at Harriton High School.

Harriton High School's enrollment once again became more diversified because the

African American students in the Affected Area were redistricted to attend

Harriton High School, instead of Lower Merion High School, because they lived in

the Penn Valley Elementary School feeder pattern, but they also lived outside the

redrawn/smaller Lower Merion High School Walk Zone. Appendix A38-A40

(Memorandum on Factual Findings), and A2146-A2160 (Third Proposed

Redistricting Plan).

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Lower Merion once again prominently displayed its "diverse" high school

populations during the course of its slide show presentation on its Third Proposed

Redistricting Plan. Under the Third Proposed Redistricting Plan, the African

American student populations at Lower Merion High School and Harriton High

School would have been almost equal, and the percentage of African American

students in each school would have closely mirrored the overall percentage of the

number of African American high school students in the Lower Merion School

District. Appendix A38-A40 (Memorandum on Factual Findings), and A2146-

A2160 (Third Proposed Redistricting Plan).

Public comment was then taken on the Third Proposed Redistricting Plan.

Once again, among the public comments to the Plan was the accusation that Lower

Merion was redistricting based upon race. Appendix A40 (Memorandum on

Factual Findings).

Lower Merion then presented its Third Proposed Redistricting Plan Revised

at the Lower Merion School Board Meeting on December 15, 2008. The only

differences between the Third Proposed Redistricting Plan, and the Third Proposed

Redistricting Plan Revised, was that the Third Proposed Redistricting Plan Revised

restored the pre-redistricting Lower Merion High School Walk Zone, and restored

choice to students districted to Lower Merion High School, i.e. students districted

to Lower Merion High School could attend either Lower Merion High School or
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Harriton High School. Although Lower Merion still sought to draw students

districted to Lower Merion High School to Harriton High School through the

International Baccalaureate Program, it also added a Penn State Dual Enrollment

Program at Harriton High School as a further incentive to draw students districted

to Lower Merion High School to Harriton High School. Appendix A40-A44

(Memorandum on Factual Findings), and A2161-A2176 (Third Proposed

Redistricting Plan Revised).

Like all of the proposed plans before it, the Third Proposed Redistricting

Plan Revised drastically changed the racial make-up of Lower Merion High School

and Harriton High School in that it decreased the number of African American

students at Lower Merion High School, and increased the number of African

American students at Harriton High School. Harriton High School's enrollment

once again became more diversified because the African American students in the

Affected Area were redistricted to attend Harriton High School, instead of Lower

Merion High School. However, unlike its previous public slide show presentations

on Proposed Redistricting Plans, Lower Merion did not display a slide regarding its

diversified high school populations during the course of its slide show presentation

on its Third Proposed Redistricting Plan Revised. Appendix A40-A46

(Memorandum on Factual Findings), and A2161-A2176 (Third Proposed Redistrict

Plan Revised). Public comment was then taken on the Third Proposed Redistricting

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Plan Revised. Once again, among the public comments to the Plan was the

accusation that Lower Merion was redistricting based upon race. Appendix A135-

A136 (Complaint).

On January 12, 2009, Lower Merion conducted a School Board Meeting

during which the Lower Merion School Board deliberated on the Third Proposed

Redistricting Plan Revised, and then voted to accept said plan. School Directors

Diane DiBonaventuro and David Ebby voted against the plan. Appendix A46-A47

(Memorandum on Factual Findings). On May 14, 2009, Students Doe filed suit in

the United States District Court for the Eastern District of Pennsylvania seeking to

enjoin Lower Merion's high school redistricting plan. Appendix A124-A166

(Complaint).

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SUMMARY OF ARGUMENT

The District Court found that race was a factor in Lower Merion's

redistricting decision-making, and the decision to choose the redistricting plan at

issue herein; therefore, controlling precedent requires the application of the strict

scrutiny test. Lower Merion cannot survive the strict scrutiny test because it has

never identified a compelling state interest related to its race based decision-

making, and its actions were not narrowly tailored and/or limited in duration.

Any claim that the redistricting plan at issue would have inevitably been

adopted despite Lower Merion's race based actions, is legally incorrect. Lower

Merion waived the ability to assert an inevitability defense when it failed to plead

it as an Affirmative Defense. Moreover, the record fails to establish that the

defense could be proven even if Lower Merion had not waived it.

Notwithstanding the foregoing, Students Doe are entitled to prevail under

their Federal Statutory Claims, i.e. those claims asserted under 42 U.S.C. § 1981

and Title VI of the Civil Rights Act, 42 U.S.C. § 2000d et. seq. Controlling

precedent establishes private rights of action under both statutes. Lower Merion's

race related decision-making, and race related redistricting plan violates both

statutes.

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ARGUMENT

The legal basis for the present appeal is found in Justice Harlan's often

quoted dissent in Plessy v. Ferguson, 163 U.S. 537 (1896). In Plessy, the United

States Supreme Court adopted into law the proposition that people of different

races could be accommodated in separate, but equal facilities. In his famous

dissent against adoption of this policy, Justice Harlan adamantly stated, "But in

view of the Constitution, in the eye of the law, there is in this country no superior,

dominant, ruling class of citizens. There is no caste here. Our Constitution is

color-blind, and neither knows nor tolerates classes among citizens. In respect of

civil rights, all citizens are equal before the law." Id. at 559 (emphasis added).

In May of 1954, the Supreme Court rectified this embarrassing chapter in

this country’s Civil Rights Jurisprudence by overruling Plessy in Brown v. Board

of Education, 347 U.S. 483 (1954). The Supreme Court stated in Brown that

“Separate educational facilities are inherently unequal. Therefore, we hold that the

plaintiffs and others similarly situated for whom the actions have been brought are,

by reason of the segregation complained of, deprived of the equal protection of the

laws guaranteed by the Fourteenth Amendment.” Id. at 495. The legal principle

emanating from Brown is that students cannot be assigned to schools based upon

their race. It is this most basic, half century old, legal principle that is once again

under attack in the Lower Merion School District. This appeal directly challenges
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the District Court's legal conclusion that although Lower Merion's actions were not

"color blind," they were neither unconstitutional nor illegal.

In order to decide the present case, the District Court heard nine (9) days of

testimony, and considered numerous Trial Exhibits so that it could evaluate the

available circumstantial evidence to determine whether race was a factor in Lower

Merion's high school redistricting. Both the Supreme Court, and this Honorable

Court, have directed that this type of review take place whenever a District Court

initially determines, as the District Court did herein, that the government policy at

issue was facially neutral.

In Village of Arlington Heights v. Metropolitan Housing Development

Corp., 429 U.S. 252 (1977), the Supreme Court was asked to determine in part

whether a zoning board decision denying the construction of low income housing

violated the Fourteenth Amendment. The Supreme Court held that in order to

violate the Fourteenth Amendment, race had to be a factor in the zoning decision.

In order to determine whether race was in fact a factor in the decision, the Court

stated that the fact-finder was required to undertake "a sensitive inquiry into such

circumstantial and direct evidence of intent as may be available." Id. at 266.

Years later, this Honorable dealt with the same "facially neutral policy"

issue in Pryor v. National Collegiate Athletic Association, 288 F.3d 548 (3rd Cir.

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2002). In Pryor, two (2) African American student athletes filed suit against the

National Collegiate Athletic Association, hereinafter referred to as the "NCAA,"

contending in part that said organization's adoption of Proposition 16, a facially

neutral regulation pertaining to eligibility for collegiate athletics, violated Title VI

of the Civil Rights Act, 42 U.S.C.§ 2000d et. seq., and 42 U.S.C. § 1981. This

Honorable stated in the course of its decision, "Determining whether invidious

discriminatory purpose was a motivating factor [in the adoption of a facially

neutral policy] demands a sensitive inquiry into such circumstantial and direct

evidence of intent as may be available." Id. at 563 (internal citation and quotation

omitted).

The District Court's Arlington Heights/Pryor review in the present case

revealed, despite Lower Merion's repeated contentions to the contrary, that race

was a factor in Lower Merion's redistricting. Several of the District Court's

findings on this issue are worthy of note, and lend context to Students Doe's

arguments which follow.

When considering evidence introduced about potential Scenarios that were

the precursors of potential plans the Lower Merion Administration introduced to

the Board of School Directors, the District Court noted, "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),


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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." Appendix A23. The District

Court went on to note, "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 given and considered only African-American student

projections for Scenarios 1 through 5, there is ample 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." Appendix A24-A25.

The District Court made the following comment concerning an e-mail

exchange that took place in the Summer of 2008 between Lower Merion's

Superintendent, Dr. Christopher McGinley, and Dr. Ross Haber, the redistricting

consultant hired by Lower Merion to assist in the redistricting process,

"Nonetheless, the emails that followed demonstrate that Dr. McGinley was mindful

that splitting Ardmore effectively redistricted a significant number of African-

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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

supports an inference that race was considered." Appendix A26.

Even more disconcerting are the District Court's findings regarding an email

exchange between Dr. McGinley and another Lower Merion Administration

official as well as the District Court's findings regarding revisions Dr. McGinley

made to a draft Power Point presentation. The District Court stated, "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." Appendix A30.

Equally disconcerting is an email exchange on November 20, 2008, between

Dr. McGinley and School Director Lisa Pliskin, the President of the Lower Merion

School Board at the time the redistricting plan at issue was passed. Dr. McGinley

wrote to School Director Pliskin, "I wish there was a way to extend the option area

into the [Affected Area] but doing so would not only mean another hundred at
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[Lower Merion High School] but many fewer A[frican] A[merican] kids at

[Harriton High School]." Appendix A2187. School Director Pliskin ends her reply

to Dr. McGinley's email with the statement, "...and what happened to no racial

isolation." Appendix A2187.

The District Court commented on the exchange stating, "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 that Dr. McGinley and various Board members also had an

intent to increase the African-American population at Harriton." Appendix A36-

A37.

When commenting on the entire body of evidence presented at trial, the

District Court stated, "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 Administration

meetings, worked closely with the Administration to come up with Scenarios, and

remained an outside observer to the redistricting process." Appendix A51-A52.


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The District Court then held, "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...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." Appendix A52. The

District Court went on to find, "This conclusion follows: The Administration's

consistent intent was to achieve not only overall numeric equality, but also racial

parity, between the two schools." Appendix A53.

The District Court further concluded, "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

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collecting or 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." Appendix A54.

Students Doe agree wholeheartedly with the aforementioned District Court

findings. However, Students Doe respectfully disagree with the manner in which

the District Court applied the strict scrutiny test, with the manner in which the

District Court applied an inevitability defense, and the manner in which the District

Court dismissed Students Doe's Federal Statutory Claims. Students Doe now

address each of these points.

I. Lower Merion's Racial Redistricting Cannot Survive The Strict


Scrutiny Test.
A. Precedent requires the application of the strict scrutiny test.
Statement of the Standard of Review
(This Honorable Court should review this claim to determine whether

the District Court erred in formulating or applying a legal precept, in which case

review is plenary)

The Supreme Court's most recent discussion of student assignment plans that

used race as a factor in directing students to schools is found in Parents Involved in

Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007). As the

most recent expression of the Supreme Court's reasoning on the issue, Seattle

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School District cannot be analytically ignored. Seattle School District is actually a

consolidated case wherein the Supreme Court considered student assignment plans

from Seattle, Washington, and Louisville, Kentucky.

Under the Seattle plan, incoming high school students ranked their

preferences for Seattle's ten (10) high schools. Students were then assigned to a

high school in accordance with their preferences so long as a given high school

was not oversubscribed. If a high school was oversubscribed, a series of "tie

breakers" were used to determine which students would receive the oversubscribed

spots. The second (2) tie-breaker in the series of "tie breakers" awarded

oversubscribed seats to students who would better diversify a given high school.

Seattle had never in the past been found to have operated a segregated school

system. Id. at 710-714.

Louisville's student assignment plan had a similar racial component. Unlike

Seattle, Louisville operated under a District Court's desegregation decree until

2000 at which time the Court dissolved the decree after finding that Louisville had

achieved unitary status. Following the dissolution of the desegregation decree,

Louisville adopted the student assignment plan at issue in Seattle School District.

Under the Louisville plan, all non-magnet schools were to maintain a certain

minimum African American enrollment, but could not exceed a certain maximum

African American enrollment. Students were assigned to non-magnet schools in


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Louisville based in part on parental preference, available space, and the need to

maintain enrollment numbers within the aforementioned minimum/maximum

African American quotas. Id. at 715-718.

The Supreme Court, in a plurality opinion authored by Chief Justice John

Roberts, struck down the Seattle and Louisville plans because they violated the

Equal Protection Clause of the Fourteenth Amendment. The Supreme Court

reviewed the Seattle and Louisville plans using the strict scrutiny test. In a portion

of his opinion that was joined by four (4) other Justices, Chief Justice Roberts

stated, "It is well established that when government distributes burdens or benefits

on the basis of individual racial classifications that action is reviewed under strict

scrutiny...As the Court recently reaffirmed, racial classifications are simply too

pernicious to permit any but the most exact connection between justification and

classification." Id. at 720 (internal citations and quotations omitted).

Before addressing additional precedent which requires the application of the

strict scrutiny test to Lower Merion's racial redistricting, it is appropriate to

consider several issues that Seattle School District raises when considered in light

of the Lower Merion redistricting plan at issue herein. First, due to the District

Court's finding that race was a factor in redistricting Students Doe, the present case

implicates the same legal issue addressed in Seattle School District, i.e. “whether a

public school that had not operated legally segregated schools or has been found to
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Case: 10-3824 Document: 003110370013 Page: 47 Date Filed: 12/06/2010

be unitary may choose to classify students by race and rely upon that classification

in making school assignments.” Seattle School District, 551 U.S. at 711.

Any argument that Seattle School District is distinguishable from the present

case because the Student Assignment plans at issue in Seattle dealt with individual

student assignments whereas Lower Merion's redistricting plan targeted an entire

neighborhood, raises a distinction that simply makes no difference. The argument

merely begs the question, why should a school district be constitutionally

permitted to discriminate against an entire neighborhood, when it could not

constitutionally discriminate against individuals living within that neighborhood?

Second, it must be appreciated that Lower Merion's redistricting plan is far

more pernicious than either the Seattle or Louisville plans struck down in Seattle

School District. Initially, the constitutionally offensive provisions of the Seattle

and Louisville plans were expressly contingent on high schools being

oversubscribed in Seattle, or on non-magnet schools being over or under

subscribed by African Americans in Louisville. Due to the contingent nature of

their application, these constitutionally offensive provisions could have laid

dormant for years, or may have never been used again. However, Lower Merion's

redistricting plan mechanically changes school attendance patterns based in part on

race without fail every single school year.

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Moreover, on a percentage basis, the magnitude of Lower Merion's

redistricting plan is much more far reaching than Seattle's unconstitutional plan.

According to the District Court's Memorandum on Factual Findings, a total of forty

four (44) freshman were redistricted for the 2009-2010 school year, the first year

of the redistricting plan. Appendix A50. Slightly less than one third (1/3) of this

cohort were African American. Appendix A50. According to Dr. McGinley's

January 12, 2009, e-mail to the Board of School Directors, forty five (45) African

American children will be redistricted by the 2012-2013 school year, i.e. the first

school year every high school age student in the school district is subject to the

Redistricting Plan at issue because all applicable "grandfathering" would stop. See

Trial Exhibit P-123 and Appendix A409 (Students Doe's Post Trial Brief).

By comparison, despite the fact that Seattle has five (5) times as many high

schools as Lower Merion, according to the Supreme Court's decision in Seattle

School District, "the district could identify only 52 students who were ultimately

affected adversely by the racial tiebreaker in that it resulted in assignment to a

school they had not listed as a preference and to which they would not otherwise

have been assigned." Seattle School District, 551 U.S. at 733-734.

Even if this Honorable Court ultimately finds that the Supreme Court's

decision in Seattle School District is not controlling in the present case, a number

of other recent Supreme Court decisions regarding the Fourteenth Amendment


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mandate the application of strict scrutiny in the present case. The language in

these recent Supreme Court decisions directing the application of strict scrutiny is

extremely broad, and demands its use whenever race is a factor in government

decision-making. See e.g. Johnson v. California, 543 U.S. 499, 506 (2005) ("We

therefore apply strict scrutiny to all racial classifications to 'smoke out' illegitimate

uses of race by assuring that [government] is pursuing a goal important enough to

warrant use of a highly suspect tool." Id. (emphasis added) (internal citation and

quotation omitted)); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995)

(“Accordingly, we hold today that all racial classifications, imposed by whatever

federal, state, or local governmental actor, must be analyzed by a reviewing court

under strict scrutiny.” Id. (emphasis added)); Gratz v. Bollinger, 539 U.S. at 270

(2003) ("It is by now well established that all racial classifications reviewable

under the Equal Protection Clause must be strictly scrutinized." Id. (emphasis

added) (internal citations and quotations omitted)).

Furthermore, controlling Third Circuit precedent mandates the application of

the strict scrutiny test in the present case. After determining that the African

American student athletes had plead viable claims under Title VI and Section 1981

thereby overturning the District Court, the Pryor Court stated in the course of its

decision, "Once a plaintiff establishes a discriminatory purpose based on race, the

decisionmaker must come forward and try to show that the policy or rule at issue

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survives strict scrutiny, i.e. that it had a compelling interest in using a race-based

classification and this classification is narrowly tailored to achieve that compelling

interest." Pryor, 288 F.3d at 562. According to the Internal Operating Procedures

of this Honorable, a precedential opinion like Pryor is binding on subsequent Third

Circuit Panels, and should only be overturned following an en banc review. See

Internal Operating Procedure 9.1 of the United States Court of Appeals for the

Third Circuit.

For purposes of applying the strict scrutiny test, it is irrelevant whether

Lower Merion acted with good intention or bad intention when creating the race

based Redistricting Plan at issue; the only thing relevant to the inquiry is whether

Lower Merion was motivated by discriminatory purpose. See Seattle School

District, 551 U.S. at 732 (“The principle that racial balancing is not permitted is

one of substance, not semantics. Racial balancing is not transformed from ‘patently

unconstitutional’ to a compelling state interest simply by relabeling it ‘racial

diversity.’” Id.) (“Simply because the school districts may seek a worthy goal does

not mean they are free to discriminate on the basis of race to achieve it, or that

their racial classifications should be subject to less exacting scrutiny.” Id. at 743.);

Pryor, 288 F.3d at 561-562 ("Moreover, contrary to the assertions made in the

NCAA's brief, none of the case law it cited, much less Supreme Court case law,

absolves a decisionmaker from liability simply because it considered race for the

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'benevolent' purpose of helping a particular racial group. Indeed, the Supreme

Court has made clear that considerations of race, well intentioned or not, can still

subject a decisionmaker to liability for purposeful discrimination." Id. at 560-561.).

Justice Thomas warned in his concurring opinion in Seattle School District,

“Indeed, if our history has taught us anything, it has taught us to beware of elites

bearing racial theories.” Id. at 780-781.

Additionally, the Supreme Court has repeatedly recognized that race based

decision-making is inherently harmful whether the decision-makers intended to

cause harm or not. Chief Justice Roberts stated in Seattle School District that “one

form of injury under the Equal Protection Clause is being forced to compete in a

race-based system that may prejudice the plaintiff.” Seattle School District, 551

U.S. at 719 (emphasis added). The Supreme Court stated in Johnson v. California,

“As we have recognized in the past, racial classifications threaten to stigmatize

individuals by reason of their membership in a racial group and to incite racial

hostility.” Johnson v. California, 543 U.S. at 507 (internal citations and quotations

omitted). The Supreme Court also stated in Grutter v. Bollinger, 539 U.S. 306

(2003), “As we have explained, whenever the government treats any person

unequally because of his or her race, that person has suffered an injury that falls

squarely within the language and spirit of the Constitution’s guarantee of equal

protection.” Grutter, 539 U.S. 327 (emphasis added) (internal citations and

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quotations omitted). Justice Thomas noted in his concurrence in Seattle School

District, “Disfavoring a color-blind interpretation of the Constitution, the dissent

would give school boards a free hand to make decisions on the basis of race—an

approach reminiscent of that advocated by the segregationists in Brown….This

approach is just as wrong today as it was a half-century ago.” Seattle School

District, 551 U.S. at 748.

In order to defeat a strict scrutiny challenge, Lower Merion must

demonstrate that its use of racial classifications is “narrowly tailored” to achieve a

“compelling” government interest. Seattle School District, 551 U.S. at 720. When

conducting this exacting review, the reviewing Court must construe all ambiguities

in the policy at issue against the School District. See Seattle School District, 551

U.S. at 786 ("When a court subjects governmental action to strict scrutiny it cannot

construe ambiguities in favor of the State." Id.) (Kennedy J.). Justice Thomas aptly

noted in his concurrence in Seattle School District that, "This exacting scrutiny has

proven 'automatically fatal' in most cases." Id. at 752. For the reasons discussed at

length below, Lower Merion cannot meet either the compelling state interest prong

of the strict scrutiny test, or the "narrowly tailored" prong of the strict scrutiny test.

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B. Lower Merion never established a compelling state interest for its


racial actions.
1. Lower Merion never articulated a compelling state interest.

Statement of the Standard of Review

(This Honorable Court should review this claim to determine whether

the District Court's ruling was clearly erroneous.)

Lower Merion’s defense in this case, i.e. that race was not a factor in its

decision-making, precluded it from identifying a compelling state interest related

to its use of race in the redistricting process; therefore, when the District Court

found that race was a factor in redistricting, Lower Merion could not satisfy its

burden of proof as a matter of law. Lower Merion adopted its strategy of denying

that race was a factor in its decision-making at the very beginning of this case, and

persisted in its denial into the post-trial phase of the case. In fact, it was Lower

Merion's steadfast refusal to acknowledge that it used race as a factor in its

redistricting decision-making which resulted in the use of so much time and

resources in this case, i.e. the filing and disposition of a Motion for Summary

Judgment, the filing and disposition of Motions in Limine, and the bulk of the nine

(9) trial days.

Lower Merion, in accordance with its obligations under Rule 11 of the

Federal Rules of Civil Procedure, denied that it used race as a factor in decision-
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making in: (1). its Answer and Separate Defenses to Plaintiff’s Complaint filed on

July 6, 2009; (2). its Summary Judgment filings on December 31, 2009, January

22, 2010, and February 12, 2010; (3). its Trial Brief filed on March 23, 2010; (4).

its Proposed Findings of Fact filed on April 5, 2010; and (5). its Proposed

Conclusions of Law filed on April 6, 2010. See Appendix A165-A250, A266-

A286, and A325-A373.

When called to testify at trial, Lower Merion's Administration repeatedly

denied under oath, in vain, that they used race as a factor in formulating, selecting,

and recommending redistricting plans. Specifically, Dr. Christopher McGinley

denied at least a dozen times during his trial testimony that race played any part in

his actions. Appendix A609-A610, A612-A613, A636-A637, A661, A666, A746-

A747, A756, A758, A760-A762, A766, A1199, A1200-A1201, A1250-A1251,

A1265, and A1276. The only time Dr. McGinley reluctantly admitted that race

played any part in his consideration was when he was questioned why Scenario 1,

a potential candidate to become the First Proposed Redistricting Plan, was rejected

in July of 2008. Appendix A664-A668.

When questioned extensively on the topic of minority redistricting, Scott

Schafer, Lower Merion's Business Manager, specifically testified during his direct

examination, "Whenever you redistrict, one of the big questions you always get is

about minority students. So the School Board must understand, how do you district
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with minority students? And the answer is, you don't consider minority students.

And the lawyer has to address the board and explain that to them. So the Board has

to understand, that's a policy decision." Appendix A1394-A1395.

The District Court in its Memorandum on Factual Findings specifically

found Mr. Schafer's aforementioned self serving testimony about racial

redistricting not credible in that it blatantly contradicted the plain language of the

Administration's recommendations, and also contradicted the testimony of Patrick

Guinnane, another Lower Merion Administrator, who testified that "'someone' in

the cabinet had the goal of addressing minority student assignments." Appendix

A15. Lower Merion persisted in its denial of race related decision-making even

after trial in its Amended Proposed Findings of Fact filed on May 4, 2010.

Appendix A374-A406. In fact, a review of the entire trial record will indicate no

instance where any Lower Merion witness testified about a race related

compelling state interest that justified Lower Merion's use of race as a factor in the

redistricting process.

The District Court seems to indicate in its Memorandum on Conclusions of

Law that Lower Merion's race based decision-making was somehow related to

resolving the achievement gap, and racial isolation. The District Court noted in its

Memorandum on Factual Findings that the achievement gap "refers to the observed

and pervasive disparity in measurable educational achievement among groups of


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students." Appendix A7. The District Court further noted that racial isolation "is

the isolation a student feels because he or she is one only a few students of his or

her particular background in the class." Appendix A8. It is respectfully submitted

that this interpretation of the record is incorrect. Although there was testimony at

trial about the achievement gap, and racial isolation, at no time did Lower Merion

ever state that its race based decision-making was in way related to these issues.

As noted above, the pre-trial and trial record clearly indicates that Lower

Merion's position is that it never took race into account in its redistricting decision-

making. When questioned directly on the point at trial, Dr. McGinley stated time

and again that he did not use race as a factor in redistricting to solve the

achievement gap, and to prevent racial isolation. Appendix A756, A758, A760-

A762, and 766. The experts that testified at trial on racial isolation and the

achievement gap, Dr. Claudia Lyles and Dr. Robert Jarvis, admitted on cross

examination that they never worked with Lower Merion on its redistricting project.

Appendix A1891, and A1910-A1911.

It is respectfully submitted that Drs. Lyles and Jarvis never should have been

allowed to testify in the first place. Neither witness was ever identified during the

course of discovery, and only became known to Students Doe when Lower Merion

identified them in its Pre-Trial Memorandum filed on March 12, 2010. Students

Doe never had an opportunity to depose Drs. Lyles and Jarvis. Students Doe timely
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filed a Motion in Limine to preclude their testimony on March 19, 2010. Appendix

A251-A265. The District Court subsequently denied Students Doe's Motion.

Appendix A59-A62.

Furthermore, it would appear as a matter of law, that in those instances when

a District Court has found that a school district used race as a factor in its decision-

making after conducting an Arlington Heights/Pryor review, a school district

should always lose a strict scrutiny challenge. The school district's litigation

strategy, to defend on the basis that race was not a factor in its actions, is legally,

mutually exclusive of a defense premised on the claim that race was a factor in a

school district's actions, but that such actions were taken to advance a goal that

satisfied a compelling state interest. Allowing a school district to assert that race

was not a factor in decision-making, while at the same time preserving the school

district's right to contest a strict scrutiny challenge, is simply an invitation to a

school district to play “fast and loose” with the facts.

Gamesmanship of this type is not permitted in this Circuit. See e.g. G-1

Holdings, Inc. v. Reliance Insurance Company, 586 F.3d 247, 261 (3d Cir. 2009)

("Under the doctrine of judicial estoppel, a court can defend the integrity of the

judicial process by barring a party from taking contradictory positions during the

course of litigation." Id.). Interestingly, in the recent Supreme Court cases

involving race based student assignment policies, and race based admissions
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policies, each of the defendants readily admitted that race was a factor in its

decision-making. See Seattle School District, 551 U.S. 701; Gratz v. Bollinger, 539

U.S. 244; Grutter v. Bollinger, 539 U.S. 306.

2. Any interests are unrelated to race, and not compelling.

Statement of the Standard of Review

(This Honorable Court should review this claim to determine whether

the District Court erred in formulating or applying a legal precept, in which case

review is plenary)

According to the District Court in its Memorandum on Conclusions of Law,

Lower Merion articulated the following interests it sought to pursue in

redistricting: equal sized high schools; minimizing travel times and transportation

costs; fostering educational continuity; and fostering walk-ability. Appendix A67.

Initially, none of these interests bear any relationship to the race based decision-

making at issue in this case. In order to survive a strict scrutiny challenge, the

alleged compelling state interest has to bear a relationship to a race based policy.

See Seattle School District, 551 U.S. at 720.

Even if the aforementioned "interests" had some relationship to the race

based redistricting at issue, none of the interests identified are "compelling" under

controlling law. Chief Justice Roberts noted in his plurality opinion in Seattle
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School District, that there are only two (2) instances when student assignments

based upon race have survived the 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. A review of Lower Merion's stated "interests"

indicates that they do not address past segregationist policies; therefore, the first

instance noted above is inapplicable. The second instance is also inapplicable

because Lower Merion was redistricting at the high school level.

Moreover, the aforementioned "interests" identified by Lower Merion,

cannot be considered "compelling" when analyzed in light of other interests that

have far more impact on society, but which have nonetheless been found not to be

"compelling." For instance, taking action to remedy past societal discrimination is

not a "compelling" state interest, Seattle School District, 551 U.S. at 731 (citing

Shaw v. Hunt, 517 U.S. 899, 909-910 (1996) and other cases), nor is taking action

to remedy generalized instances of societal discrimination. Seattle School District,

551 U.S. at 731. In another context, assuring the impartiality of judges has been

found to be not "compelling" enough in a First Amendment case. Republican Party

of Minnesota v. White, 536 U.S. 765 (2002). Ensuring that criminals do not profit

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from selling the story about their crimes before their victims have an opportunity to

be compensated for their injuries was likewise found not to be "compelling" in

another First Amendment case. Simon & Schuster, Inc. v. Members of the New

York State Crime Victims Board, 502 U.S. 105 (1991).

Supreme Court Justice Scalia's remarks in his concurring opinion in

Richmond v. Croson, 488 U.S. 469 (1989), lend appropriate context to, and inform

the aforementioned discussion, "At least where state or local action is at issue, only

a social emergency rising to the level of imminent danger to life and limb--for

example, a prison race riot, requiring temporary segregation of inmates...can justify

an exception to the principle embodied in the Fourteenth Amendment that our

Constitution is colorblind, and neither knows nor tolerates classes among citizens."

Id. at 521 (internal citations and quotations omitted).

When Lower Merion's actions are carefully reviewed and analyzed, the only

conclusion that can be reached is that Lower Merion's race based decision-making

was related to its unarticulated goal to have equal numbers of African American

students in each of its high schools. Appendix A52-A53. The Supreme Court has

already determined that this goal does not serve a compelling state interest, and is

patently unconstitutional. See Grutter, 539 U.S. 329-330.

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C. Lower Merion's Redistricting Plan is not narrowly tailored.

Statement of the Standard of Review

(This Honorable Court should review this claim to determine whether

the District Court erred in formulating or applying a legal precept, in which case

review is plenary)

Because Lower Merion has failed to articulate a legally recognized

"compelling" state interest related to its use of race, and because none of the goals

identified above constitute "compelling" state interests even if they are somehow

found to be related to the race based decision-making at issue, it is impossible for

Lower Merion to meet the narrow tailoring required by a strict scrutiny challenge,

i.e. whether the means used to achieve the compelling state interest are either

under-inclusive or over-inclusive.

There is simply no evidence in the trial record regarding how many African

American students Lower Merion needed to redistrict to achieve its unarticulated

goal, and whether Lower Merion in fact moved this number of students, or whether

Lower Merion will move this number of students in the future. Additionally, there

is no evidence in the trial record whether racially targeted magnet programs were

seriously considered, whether other "choice" based programs were seriously

considered, and/or whether these programs could or would not work to achieve

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Lower Merion's unarticulated goal. There is also no evidence whatsoever in the

trial record which would support the conclusion that once the African American

student population at both high schools becomes equal, there will in fact be more

African American children taking classes with their non-African American

counterparts. The aforementioned ambiguities in the record are disappointing, and

serve to marginalize the Civil Rights of Students Doe who are being bused to a

non-neighborhood school to serve some unarticulated goal simply because they are

African American.

Even if this Honorable disregards the arguments in Section B(1) of the

present Brief regarding racial isolation and the achievement gap, and this

Honorable assumes proper and persuasive evidence had been presented at trial,

Lower Merion still fails the narrow tailoring prong of the strict scrutiny test on the

racial isolation and/or achievement gap claims. As noted above, no witness ever

testified as to how many African American children needed to be redistricted to

stop racial isolation, or to resolve the achievement gap. In fact, the only testimony

on these points at trial indicates that these educational challenges do not lend

themselves to quantification in the least. Appendix A1889-A1890, and A1911-

A1935.

The District Court stated in its Memorandum on Factual Findings that

"Witnesses including Dr. McGinley testified that racial isolation is not triggered by
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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." Appendix A8. Lower Merion concedes this point in its

Memorandum of Law on Proposed Conclusions of Law. Appendix A441 ("... there

is no formulaic solution to racial isolation and the related achievement gap. Indeed,

as Dr. McGinley, Dr. Lyles, and Dr. Jarvis testified, racial isolation is not triggered

or combated with a specific threshold number of students of a particular

background in a given classroom or school.” Id. at Appendix A441n.6).

The net impact of this statement coupled with the dearth of evidence of

record is that anyone seeking to remedy racial isolation and the achievement gap,

challenges which Lower Merion consistently argued that it did not seek to resolve

through redistricting, will never have any idea how many students it needs to move

based on race. The fundamental rights secured by the Fourteenth Amendment to

the United States Constitution, and the strict scrutiny test imposed by the Supreme

Court to protect them, demand more clarity.

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D. The Redistricting Plan is improperly unlimited in duration.

Statement of the Standard of Review

(This Honorable Court should review this claim to determine whether

the District Court erred in formulating or applying a legal precept, in which

case review is plenary)

Even if this Honorable finds that all of the aforementioned arguments are

unpersuasive, Lower Merion's race based redistricting plan still violates the

Fourteenth Amendment because it contains no limitations on its duration. In order

to survive strict scrutiny, programs that use race as a factor in their development

must be limited in duration. See Grutter, 539 U.S. at 341-342 ("This requirement

reflects that racial classifications, however compelling their goals, are potentially

so dangerous that they may be employed no more broadly than the interest

demands. Enshrining a permanent justification for racial preferences would offend

this fundamental equal protection principle. We see no reason to exempt race-

conscious admission programs from the requirement that all governmental use of

race must have a logical end point." Id. at 342.).

The trial record establishes that the redistricting plan at issue has no “sunset”

provision; therefore, it will stay unconstitutionally in place for an undetermined

time into the future, i.e. it has no "logical end point." See trial testimony of School

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Directors at Appendix A1385, A1593, A1625-A1626, A1803, A1821-A1822, and

1851.

II. Lower Merion Should Not Win An Inevitability Defense.

Statement of the Standard of Review

(This Honorable Court should review this claim to determine whether

the District Court erred in formulating or applying a legal precept, in which case

review is plenary)

In addition to its determination that Lower Merion met the strict scrutiny

test, the District Court also found that Students Doe were not entitled to relief

because Lower Merion had established that Plan 3R would have been adopted even

if race was not a factor in its selection citing Arlington Heights, 429 U.S. at 270

n.21. It is respectfully submitted that this legal conclusion is improper for two (2)

distinct reasons.

Initially, Lower Merion waived its right to assert an inevitability defense in

this case; therefore, said defense cannot be cited as a basis for denying Students

Doe's claims. The “inevitably” defense recognized by the Supreme Court in

Arlington Heights is an affirmative defense under the Federal Rules of Civil

Procedure in that it requires a defendant to prove that a certain outcome would

have inevitably come about despite the fact that the defendant acted as plaintiff
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claimed. Id. This is a textbook example of an affirmative defense. See S. Backer-

McKee, W. Janssen, J. Corr, Federal Civil Rules Handbook 2010 page 341 (“An

affirmative defense is an assertion by the defendant of new facts or arguments that,

if true, would defeat plaintiff’s claim, even if all [of plaintiff’s] allegations were

presumed correct.” Id.) Under Rule 8(c) of the Federal Rules of Civil Procedure, a

defendant has to plead in its Answer all of its affirmative defenses; any defense not

plead is waived. See F.R.Civ.P. 8.

Lower Merion, despite a clear obligation to do so, never plead an

“inevitability” defense in its Answer and Separate Defenses to Plaintiff’s

Complaint filed on July 6, 2009. Appendix A165-A179. Lower Merion thereafter

never moved to amend its Answer to include the defense. Appendix A104-A123.

Moreover, Lower Merion makes no reference to the defense in its Summary

Judgment filings on December 31, 2009, January 22, 2010, or February 12, 2010.

Appendix A180-A250. Furthermore, there is no reference to the defense in Lower

Merion’s Trial Brief filed on March 23, 2010, or in its Memorandum of Law on

Proposed Conclusions of Law filed on May 27, 2010. Appendix A266-A286, and

A423-A443. Lower Merion also failed to identify the defense in its Proposed

Findings of Fact filed on April 5, 2010, in its Proposed Conclusions of Law filed

on April 6, 2010, or in its Amended Proposed Findings of Fact filed on May 4,

2010. Appendix A325-A406.

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Secondly, even if the defense was not waived, it is respectfully submitted

that the District Court improperly came to the legal conclusion that Lower Merion

proved the defense at trial. Initially, the legal conclusion that the defense could

ever be proven in this case is at best speculative. The entire record in this case

proves, if nothing else, that the redistricting process in Lower Merion was

dynamic, very contentious, and highly controversial. Lower Merion's

Administration chose what the School Directors and public were allowed to see

and vote on, and race was a factor in that selection process. Appendix A1-A58.

Lower Merion's redistricting consultant, Dr. Ross Haber, admitted at trial that he

nixed potential redistricting plans without showing them to anyone because of

racial considerations. Appendix A961-A964. The District Court even found that

Lower Merion's Administration purged information to hide its race related actions

from the public. Appendix A30.

In short, the deck was racially "stacked" in this case from the outset;

therefore, concluding that a certain outcome would occur is not surprising, but

assuming that the same outcome would have been arrived at in an open, fair, and

untainted process is something else altogether. Reaching the latter legal conclusion

is even more unlikely in light of the fact that Lower Merion has the burden of

proof regarding the defense, Arlington Heights, 429 U.S. at 270 n.21, and in light

of the fact that all ambiguities in the record are properly construed against Lower

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Merion. Seattle School District, 551 U.S. at 786 (Kennedy J.). Concluding that a

"rigged" outcome does not violate the Fourteenth Amendment only serves to

reward those who acted improperly.

Moreover, the legal conclusion that the inevitably defense bars relief ignores

the importance of the Lower Merion High School Walk Zone issue that was so

vehemently contested at trial. The District Court correctly found in its

Memorandum on Factual Findings that the Lower Merion walk zone does not

extend one (1) mile into Students Doe’s neighborhood. Appendix A11. The

District Court also correctly found in its Memorandum on Factual Findings that

Lower Merion’s reduction of the walk zone in Students Doe’s neighborhood is

inconsistent with Lower Merion’s Transportation Policy. Appendix A43, and

A2189-A2195. Additionally, the District Court correctly found in its Memorandum

on Factual Findings that Students Doe’s neighborhood had been targeted due to its

racial composition. Appendix A1-A57.

Mike Andre, Lower Merion’s Director of Transportation, admitted during

his testimony at trial that if the walk zone extended one (1) mile into Students

Doe’s neighborhood, Students Doe 7, 8, and 9 would definitely live within the

walk zone, and Students Doe, 1, 3, and 4 may live within the walk zone. Appendix

A11, A1301-A1303, and A2189-A2190. When these facts are considered in

conjunction with Dr. McGinley's e-mail to School Director Pliskin of November


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20, 2008, it would appear that the adoption of Lower Merion's Redistricting Plan

was not inevitable if the process had truly been "color blind." Dr. McGinley states

in the aforementioned e-mail, "I wish 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 [African American] kids at [Harriton

High School]. Perhaps I am just venting frustration at this point." Appendix

A2187.

In considering the walk zone issue, it is respectfully submitted that the

District Court improperly imposed the burden of proof concerning the

configuration of the walk zone on Students Doe. The District Court Stated in its

Memorandum on Factual Findings, "[Students Doe] argued that because of the

expansion of the walk zone from Proposed Plan 3 to 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." Appendix A43-A44.

As noted at length in the preceding section of this Brief, once Students Doe

proved that race was a factor in redistricting, as the District Court found that

Students Doe did indeed prove, the burden of proof on the "walk zone" issue

shifted to Lower Merion. See Section I.A. of the present Brief as well as the
61
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caselaw cited therein. Additionally, the Supreme Court clearly articulated in

Arlington Heights that the defendant, i.e. Lower Merion, has the burden of proof

whenever an inevitability defense is asserted. Arlington Heights, 429 U.S. 270 n.

21 ("Proof that the decision by the Village was motivated in part by a racially

discriminatory purpose would not necessarily have required invalidation of the

challenged decision. Such proof would, however, have shifted to the Village the

burden of establishing that the same decision would have resulted even had the

impermissible purpose not been considered." Id.).

III. Students Doe Should Have Won Their Federal Statutory Claims.

Statement of the Standard of Review

(This Honorable Court should review this claim to determine whether

the District Court erred in formulating or applying a legal precept, in which case

review is plenary)

Even if Lower Merion can somehow survive the strict scrutiny review of its

redistricting plan mandated by the Fourteenth Amendment, and even if Lower

Merion is allowed to prevail on an inevitability defense, Lower Merion should still

be found liable for its race based decision-making under 42 U.S.C. § 1981, and

under Title VI of the Civil Rights Act, 42 U.S.C. § 2000d et. seq. The plain

wording of these Federal Statutes clearly bar Lower Merion’s race based actions.

62
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See 42 U.S.C. § 1981 (“All persons within the jurisdiction of the United States

shall have the same right in every State and Territory … to the full and equal

benefit of all laws and proceedings ….” Id. at § 1981(a); 42 U.S.C. § 2000d (“No

person in the United States shall, on the ground of race, color, or national origin, be

excluded from participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal financial

assistance.” Id.). In its Answer and Separate Defenses to Plaintiffs' Complaint,

Lower Merion admitted that it received Federal Funding. Appendix A127 and

A167.

The law is clear that a private cause of action exists under 42 U.S.C. § 1981,

and that a private cause of action also exists under Title VI. This Honorable has

previously held that a private right of action is available under 42 U.S.C. § 1981

against a state actor so long as the action is brought under 42 U.S.C. § 1983. See

McGovern v. Philadelphia, 554 F.3d 114 (3d Cir. 2009). Students Doe properly

brought their Section 1981 action under 42 U.S.C. § 1983. See Count III of

Students Doe's Complaint Appendix A124-A164. The Supreme Court has also held

that a private right of action exists under Title VI. See Gonzaga University v. John

Doe, 536 U.S. 273, 284 (2002)("We have recognized, for example, that Title VI of

the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972

create individual rights…." Id. (internal citations omitted)); Barnes v. Gorman, 536

63
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U.S. 181, 185 (2002) ("Although Title VI does not mention a private right of

action, our prior decisions have found an implied right of action...and Congress has

acknowledged this right in amendments to the statute, leaving it beyond dispute

that private individuals may sue to enforce Title VI...." Id. (internal quotations and

citations omitted)).

Students Doe acknowledge that the Supreme Court did not address the

impact of 42 U.S.C. § 1981 and/or Title VI in Seattle School District although a

Title VI cause of action was asserted in the case. Students Doe further

acknowledge, and place this Honorable and Lower Merion on notice, that the

Supreme Court did address this issue in Grutter v. Bollinger, 539 U.S. 306, and

came to the conclusion that 42 U.S.C. § 1981 and Title VI offered no protections in

addition to those afforded by the Fourteenth Amendment. Id. at 343.

However, Students Doe respectfully argue that this conclusion is incorrect,

and contend that 42 U.S.C. § 1981 and/or Title VI afford greater protection, and

bar broader conduct, than the Fourteenth Amendment would allow. Initially, a re-

examination of the ruling in Grutter is warranted in light of the Supreme Court's

subsequent decision in Ricci v. DeStefano, 129 S. Ct. 2658 (2009). In Ricci,

firemen in Connecticut filed suit under the Fourteenth Amendment to the United

States Constitution, and Title VII of the Civil Rights Act, after the City of New

64
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Haven invalidated promotion test scores because minority candidates had not

performed as well as their non-minority counterparts.

Instead of deciding the case on constitutional grounds, the Supreme Court

decided to overturn New Haven's actions under Title VII. The Supreme Court

stated, "Petitioners raise a statutory claim, under the disparate-treatment

prohibition of Title VII, and a constitutional claim, under the Equal Protection

Clause of the Fourteenth Amendment. A decision for petitioners on their statutory

claim would provide the relief sought, so we consider it first." Id. at 2672.

Moreover, the Supreme Court's decision in Grutter calls into question what

role a collateral branch of government can play in Civil Rights jurisprudence.

While Congress may pass no law which would afford a citizen less protection than

the United States Constitution and its Amendments, it is perfectly free to pass laws

which afford citizens greater protections than the Constitution and its

Amendments. In fact, Congress takes on this task every day, See e.g. The

Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et. seq., and Section

504 of the Rehabilitation Act, 29 U.S.C. § 794, and Congress clearly undertook

this task when it passed 42 U.S.C. § 1981 and Title VI.

Limiting the interpretation of 42 U.S.C. § 1981 and Title VI improperly

relegates Congressional action in the area of Civil Rights to a mere nullity.

65
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Additionally, the aforementioned statutes, because of their clearly remedial nature,

have to be interpreted broadly to effectuate their stated purpose, i.e. to eliminate all

racial discrimination. See Sutton v. United Airlines, 527 U.S. 471, 504 (1999)(“It

has long been a familiar canon of statutory construction that remedial legislation

should be construed broadly to effectuate its purposes.” Id. (internal quotation and

citation omitted))(Steven J.).

66
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CONCLUSION

For all of the foregoing reasons, Lower Merion School District's redistricting

plan adopted on January 12, 2009, should be enjoined to the extent that it

redistricts students in the Affected Area, because said plan violates the Fourteenth

Amendment to the United States Constitution, 42 U.S.C. § 1981, and/or Title VI of

the Civil Rights Act, 42 U.S.C. § 2000d et. seq. This matter should be remanded

to the United States District Court for the Eastern District of Pennsylvania for the

determination of appropriate remedial action. Attorneys' fees and costs should be

awarded in accordance with 42 U.S.C. § 1988 and Rule 108.1 of the Local

Appellate Rules of the United States Court of Appeals for the Third Circuit.

Respectfully submitted,

/S/ David G. C. Arnold


____________________________________
David G. C. Arnold

Suite 106, 920 Matsonford Road


West Conshohocken, Pennsylvania 19428
(610) 397-0722
Email: davidgcarnold@aol.com

Attorney for Appellants

Dated: December 6, 2010

67
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CERTIFICATION OF ADMISSION TO BAR

I, David G. C. Arnold, certify as follows:

1. I am a member in good standing of the bar of the United States Court of

Appeals for the Third Circuit.

2. Pursuant to 28 U.S.C. § 1746, I certify under penalty of perjury that the

foregoing is true and correct.

/s/ David G. C. Arnold


____________________________________
David G. C. Arnold

Date: December 6, 2010


Case: 10-3824 Document: 003110370013 Page: 77 Date Filed: 12/06/2010

CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF


APPELLATE PROCEDURE 32(a) AND LOCAL RULE 31.1

Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify the following:

This brief complies with the type-volume limitation of Rule

32(a)(7)(B) of the Federal Rules of Appellate Procedure because this brief

contains 13,945 words, excluding the parts of the brief exempted by Rule

32(a)(7)(B)(iii) of the Federal Rules of Appellate Procedure.

This brief complies with the typeface requirements of Rule 32(a)(5) of

the Federal Rules of Appellate Procedure and the type style requirements of

Rule 32(a)(6) of the Federal Rules of Appellate Procedure because this brief

has been prepared in a proportionally spaced typeface using the 2008 version

of Microsoft Word in 14 point Times New Roman font.

This brief complies with the electronic filing requirements of Local

Rule 31.1(c) because the text of this electronic brief is identical to the text of

the paper copies, and the Vipre Virus Protection, version 3.1 has been run

on the file containing the electronic version of this brief and no viruses have

been detected.

/s/ David G. C. Arnold


____________________________________
David G. C. Arnold

Dated: December 6, 2010


Case: 10-3824 Document: 003110370013 Page: 78 Date Filed: 12/06/2010
Case: 10-3824 Document: 003110370013 Page: 79 Date Filed: 12/06/2010

ADDENDUM

Const. Amend. 14, § 1

Sec. 1. [Citizens of the United States.]

All persons born or naturalized in the United States, and subject to the jurisdic-
tion thereof, are citizens of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any per-
son of life, liberty, or property, without due process of law; nor deny to any per-
son within its jurisdiction the equal protection of the laws.

42 USC § 1981

Equal rights under the law

(a) Statement of equal rights. All persons within the jurisdiction of the United States
shall have the same right in every State and Territory to make and enforce contracts,
to sue, be parties, give evidence, and to the full and equal benefit of all laws and pro-
ceedings for the security of persons and property as is enjoyed by white citizens, and
shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of
every kind, and to no other.

(b) "Make and enforce contracts" defined. For purposes of this section, the term
"make and enforce contracts" includes the making, performance, modification, and
termination of contracts, and the enjoyment of all benefits, privileges, terms, and
conditions of the contractual relationship.

(c) Protection against impairment. The rights protected by this section are protected
against impairment by nongovernmental discrimination and impairment under color
of State law.
Case: 10-3824 Document: 003110370013 Page: 80 Date Filed: 12/06/2010

42 USC § 2000d

§ 2000d. Prohibition against exclusion from participation in, denial of benefits of,
and discrimination under federally assisted programs on ground of race, color, or na-
tional origin

No person in the United States shall, on the ground of race, color, or national origin,
be excluded from participation in, be denied the benefits of, or be subjected to dis-
crimination under any program or activity receiving Federal financial assistance.
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AFFIDAVIT OF SERVICE

DOCKET NO. 10-3824


-------------------------------------------------------------------------------X
Student Doe 1

vs.

Lower Merion School District


-------------------------------------------------------------------------------X

I, , swear under the pain and penalty of perjury, that according to law and
being over the age of 18, upon my oath depose and say that:

on December 6, 2010

I served the Brief and Appendix Volume I for Appellant within in the above captioned matter
upon:

Christina J.F. Grese, Esq. Kenneth A. Roos, Esq.


215-963-5085 610-825-8400
Email: jgrese@morganlewis.com Email: kroos@wispearl.com
Judith E. Harris, Esq. Megan E. Shafer, Esq.
Email: jeharris@morganlewis.com Email: mshafer@wispearl.com
Allison N. Suflas, Esq. Wisler, Pearlstine, Talone, Craig, Garrity & Potash
Email: asuflas@morganlewis.com 484 Norristown Road, Suite 100
Morgan, Lewis & Bockius Blue Bell, PA 19422
1701 Market Street
Philadelphia, PA 19103

via electronic filing and electronic service.

Unless otherwise noted, copies have been sent to the court on the same date as above for filing via Express
Mail.

Sworn to before me on December 6, 2010

/s/ Robyn Cocho


_______________________________
Robyn Cocho
Notary Public State of New Jersey
No. 2193491
Commission Expires January 8, 2012

Job # 233637