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Case: 10-3824 Document: 003110399782 Page: 1 Date Filed: 01/05/2011

UNITED STATES COURT OF APPEALS


FOR THE THIRD CIRCUIT

Case No. 10-3824

_____________________________________________________________
_

STUDENT DOE 1, ET AL.

Plaintiffs-Appellants,
v.

LOWER MERION SCHOOL DISTRICT

Defendant-Appellee.
_____________________________________________________________
_

On Appeal from the United States District Court


for the Eastern District of Pennsylvania
Civ. No. 09-2095

BRIEF OF APPELLEE

Judith E. Harris (PA I.D. No. 02358)


Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103
215-963-5028

Attorneys for Lower Merion School


District – Defendant-Appellee

Dated: January 5, 2011


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TABLE OF CONTENTS

Page

STATEMENT OF ISSUES ........................................................................... 1


STATEMENT OF FACTS ............................................................................ 2
A. Introduction ............................................................................... 2
B. Appellants.................................................................................. 4
C. Lower Merion School District .................................................. 5
D. Superintendent Dr. McGinley ................................................... 6
E. The Community Advisory Committee Recommended
Construction of Two Equal-Size High Schools, Which
Made Redistricting Necessary .................................................. 8
F. The Redistricting Process........................................................ 11
1. Non–Negotiables .......................................................... 11
2. Community Values ....................................................... 12
3. Redistricting Planning Stages ....................................... 13
4. Proposed Plan 1 ............................................................ 15
5. Proposed Plan 2 ............................................................ 18
6. Proposed Plan 3 ............................................................ 21
7. Proposed Plan 3R.......................................................... 23
8. Adoption and Implementation of Proposed Plan 3R.... 24
SUMMARY OF ARGUMENT................................................................... 27
ARGUMENT............................................................................................... 31
A. Race Was Not An Impermissible “Motivating Factor” In
The Redistricting Process........................................................ 31
B. Assuming Strict Scrutiny Applies, The District’s
Redistricting Plan Withstands Such Review........................... 45
1. Appellants’ Contention That The District Never
Identified A Compelling State Interest Related To
Its Purportedly Race-Based Decisionmaking Is
Incorrect ........................................................................ 47

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TABLE OF CONTENTS
(continued)
Page

2. Appellants’ Contention That The District’s


Actions Were Not Narrowly Tailored And/Or
Limited In Duration Is Without Merit .......................... 52
C. The District Did Not Waive And, In Fact, Proved, That
Plan 3R Would Have Been Adopted Regardless Of The
Racial Composition Of The Affected Area ............................ 55
D. Appellants’ Argument That § 1981 And Title VI Prohibit
The District’s Redistricting Actions, Even Though The
Fourteenth Amendment May Not Do So, Have Been
Soundly Rejected By The Supreme Court And Should
Again Be Rejected Here.......................................................... 62
E. The District Court Did Not Commit An Abuse Of
Discretion In Allowing Dr. Robert Jarvis And Dr.
Claudia Lyles to Testify .......................................................... 63
CONCLUSION............................................................................................ 68

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TABLE OF AUTHORITIES

Page

CASES

Adarand Constructors v. Pena,


515 U.S. 200 (1995)................................................................................. 45

Albemarle Paper Co. v. Moody,


422 U.S. 405 (1975)................................................................................. 39

Ansell v. Green Acres Contracting Co., Inc.,


347 F.3d 515 (3d Cir. 2003) .................................................................... 65

Biessel v. Pittsburgh and Lake Erie R.R. Co.,


801 F.2d 143 (3d Cir. 1986) .................................................................... 63

Bush v. Vera,
517 U.S. 952 (1996)................................................................................. 43

Cary Oil Co. v. MG Refining & Marketing, Inc.,


No. 99 Civ. 1725, 2003 WL 1878246 (S.D.N.Y. April 11, 2003) .......... 67

Charpentier v. Godsil,
937 F.2d 859 (3d Cir. 1991) .................................................................... 57

City of Richmond v. J.A. Croson Co.,


488 U.S. 469 (1998)................................................................................. 45

Concerned Citizens for Neighborhood Schools v. Pastel,


No. 5:05-1070, 2007 WL 1220542 (N.D.N.Y. Apr. 24, 2007)............... 42

Cunningham v. Town of Ellicott,


No. 04CV301, 2007 WL 1040013 (W.D.N.Y. April 3, 2007)................ 67

Davis v. Bandemer,
478 U.S. 109 (1986)................................................................................. 58

DeMarines v. KLM Royal Dutch Airlines,


580 F.2d 1193 (3d Cir. 1978) .................................................................. 66

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TABLE OF AUTHORITIES
(continued)
Page

G-I Holdings, Inc. v. Reliance Insurance Co.,


586 F.3d 247 (3d Cir. 2009) .............................................................. 50, 51

General Building Contractors Association, Inc. v. Pa.,


458 U.S. 375 (1982)................................................................................. 63

Gratz v. Bollinger,
539 U.S. 244 (2003)........................................................................... 45, 62

Grutter v. Bollinger,
539 U.S. 306 (2003)............................................................... 45, 49, 54, 62

Johnson v. California,
543 U.S. 499 (2005)................................................................................. 45

Mazus v. Department of Transport,


629 F.2d 870 (3d Cir. 1980) .................................................................... 37

Meyers v. Pennypack Woods,


559 F.2d 894 (3d Cir. 1977) .................................................................... 66

Parents Involved in Community Schools v.


Seattle Sch. District No. 1,
551 U.S. 701 (2007).......................................................................... passim

Pryor v. National Collegiate Athletic Association,


288 F.3d 548 (3d Cir. 2002) .............................................................. 45, 51

Sandoval v. Alexander,
532 U.S. 275 (2001)................................................................................. 62

Terrell v. Richter-Rosin, Inc.,


81 F.3d 161, 1996 WL 122639 (6th Cir. Mar. 19, 1996) ........................ 65

The Globe Savings Bank, F.S.B. v. U.S.,


61 Fed. Cl. 91 (2004)............................................................................... 67
Upshur v. Shepherd,
538 F. Supp. 1176 (E.D. Pa. 1982).......................................................... 66

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TABLE OF AUTHORITIES
(continued)
Page

Village of Arlington Heights v. Metropolitan Housing


Development Corp.,
429 U.S. 252 (1977)........................................................................... 46, 51

Woodson v. Scott Paper Co.,


109 F.3d 913 (3d Cir. 1997) .................................................................... 57

Yelverton v. Lehman,
No. CIV.A. 94-6114, 1996 WL 296551 (E.D. Pa. June 3, 1996) ........... 63

STATUTES

20 U.S.C. § 6301 et seq ................................................................................ 69

20 U.S.C. § 6311(b)(2)(C)(v)(II).................................................................. 41

42 U.S.C. § 1981................................................................................. 1, 29, 62

42 U.S.C. § 2000d et seq ................................................................................ 1

RULES

Fed. R. Civ. P. 26(a)(1)................................................................................. 64

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STATEMENT OF ISSUES
A. Did the District Court commit reversible legal error in

concluding that the District did not discriminate against Appellants on the

basis of race in violation of the Equal Protection Clause of the Fourteenth

Amendment?

Suggested Answer: No.

B. Are the District’s actions violative of 42 U.S.C. § 1981 and/or

Title VI of the Civil Rights Act, 42 U.S.C. § 2000d et seq., even though they

are permissible under the Equal Protection Clause of the Fourteenth

Amendment?

Suggested Answer: No.

C. Did the District Court abuse its discretion in admitting the

testimony of Dr. Claudia Lyles and Dr. Robert Jarvis?

Suggested Answer: No.

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STATEMENT OF FACTS

A. Introduction
The essential, material facts of this case can be distilled to the

following: (1) the Board of School Directors (“Board”) adopted the Lower

Merion School District’s (the “District”) redistricting plan, Plan 3R, on

January 12, 2009, and did not consider race in doing so; (2) the purpose of

Plan 3R was to achieve equal enrollment in the District’s two high schools,

as set forth in the Non-Negotiables adopted by the Board; (3) the District did

not select individual students for assignments to either Lower Merion High

School (“Lower Merion” or “LMHS”) or Harriton High School (“Harriton”)

under Plan 3R; (4) student assignment under Plan 3R was based on existing

feeder patterns from the elementary schools to the middle schools and on to

a high school; (5) these feeder patterns assigned all students, irrespective of

race or ethnicity, outside the official LMHS walk zone1 who attended any of

1
The official, historic LMHS walk zone did not originate with redistricting
and had been in place, in its current form, for many years prior to
redistricting. A “walk zone” is simply the area within which the District
does not provide bus transportation to students. That is how the District
defines “walking.” Appendix A2133. Every school within the District, with
the exception of Harriton (which had a walk zone until PennDOT certified
Ithan Avenue as hazardous for student walking) has a walk zone. Appendix
A1313.

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the three elementary schools feeding into Welsh Valley Middle School to

Harriton; and (6) Appellants, along with all other students in the Affected

Area (as hereinafter defined), regardless of race, have lost the option of

attending Lower Merion because all attend Penn Valley Elementary School

and Welsh Valley Middle School and reside outside of the official LMHS

walk zone. Appellants mischaracterize, oversimplify, or simply omit these

key findings from their brief.

Although the District Court also found that the Administration desired

racial diversity in both high schools, and that the Affected Area was

“targeted” for redistricting in part because of its racial demographics, it

concluded that the District did not invidiously discriminate against any

individual student on the basis of his or her race, and that the Board

The LMHS walk zone is one mile in some places and less than one mile in
other places. As with all walk zones in the District, it is measured “as the car
drives” or as the student walks, not “as the crow flies.” Appendix A1295-
A1296. The shape of the walk zone takes into consideration the location of
streets and cross streets (e.g., walk zones are not intended to split a block in
the middle of a block), obstacles, and hazardous walking areas. Appendix
A687-A688. Consequently, the LMHS walk zone does not extend in a
perfect one-mile radius from the high school. While a few of the Appellants
may live within a mile of Lower Merion High School, none of them lives
within the official LMHS walk zone. As Mr. Andre, the District’s
Transportation Supervisor, testified at trial, the LMHS walk zone extends
less than a full mile in areas other than the Affected Area as well. Appendix
A1296.

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Members, in voting to approve Plan 3R, did not consider race. Appendix

A53, A55.

B. Appellants
Appellants include nine African-American students (“Students Doe”)

and ten parents (“Parents/Guardians Doe”) who reside in the District in an

area known as “South Ardmore,” which is bounded by Athens Avenue,

Wynnewood Road, County Line, and Cricket Avenue. This area has been

referred to throughout this case as the “Affected Area.” The Affected Area

is one of the areas closest to Harriton that was not districted to Harriton prior

to the Board’s adoption of Plan 3R. Appendix A87.

The Affected Area is adjacent to another area referred to at trial as

“North Ardmore,” which, like the Affected Area, has a significant

concentration of African-American residents. Appendix A9-A10. With the

exception of Student Doe 4, who elected to attend Harriton for the 2009–

2010 academic year, Students Doe attend Penn Valley Elementary School or

Welsh Valley Middle School. Students Doe are bused to their current

schools, along with students of all races from the Affected Area, and have

always received bus transportation provided by the District because they live

outside any official walk zone, which is the designated area within which the

District does not provide bus transportation to students. Appendix A11,

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A14, A81-A82. See also footnote 1, infra. In terms of travel time, students

in the Affected Area travel eighteen to nineteen minutes on District buses to

Harriton High School, which is half the distance and half the time of the

longest bus ride in the District. Appendix A40.

Under Plan 3R, Appellants and all other students in the Affected Area

are districted to attend Penn Valley Elementary School and Welsh Valley

Middle School, as they were prior to redistricting, but now they are

districted to Harriton for high school. Prior to redistricting, they had the

option of attending either Lower Merion or Harriton. All students in North

Ardmore are districted to attend Penn Wynne Elementary School, Bala

Cynwyd Middle School, and Lower Merion, as they were prior to

redistricting. Appendix A10-A11.

C. Lower Merion School District


The District operates six elementary schools (Belmont Hills, Cynwyd,

Gladwyne, Merion, Penn Valley, and Penn Wynne), two middle schools

(Bala Cynwyd and Welsh Valley), and two high schools (Harriton High

School and Lower Merion High School).2 Both of the high schools are

ranked as being among the best in the state, if not the nation. The Board is

2
The District’s elementary schools include kindergarten through grade five,
its middle schools include grades six through eight, and its high schools
include grades nine through twelve.

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composed of nine elected School Directors (“Board Members”) who are

vested, by state law, with the authority to assign students to schools within

the District. Appendix A6.

D. Superintendent Dr. McGinley


Dr. Christopher McGinley has been the District’s Superintendent

since June 2008. The Board Members voted to hire Dr. McGinley in part

because he was a “true educator” who was “student–focused” and

personable, and because he had a wealth of experience and success in

combating the minority student “achievement gap.”3 Appendix A7.

Prior to working for the District, Dr. McGinley was Assistant

Superintendent and then Superintendent at Cheltenham School District in

Montgomery, Pennsylvania, where he was known as a “pioneer” and

“leader” in combating the achievement gap, a national educational issue. In

particular, Dr. McGinley helped implement initiatives to eliminate class

3
According to Dr. McGinley, Dr. Claudia Lyles, who worked with Dr.
McGinley in the Cheltenham School District, and Dr. Robert Jarvis, who
heads the Delaware Valley Minority Student Achievement Consortium, the
“achievement gap” refers to the observed and pervasive disparity in
measurable educational achievement among groups of students. Research
on the achievement gap across the nation, as well as specifically in the
District, shows that African–American and Latino students as a whole
perform significantly poorer than their White and Asian–American peers.
“Combating the achievement gap,” therefore, refers to valid and appropriate
educational policies aimed at minimizing and eradicating the achievement
gap. Appendix A7.

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tracking after second grade, and to use demonstrated performance, such as

test scores and report cards, to place students, thereby taking away teacher

subjectivity. Both initiatives resulted in a significant decrease in the

achievement gap in Cheltenham School District. In addition to this work,

Dr. McGinley helped form a partnership with the University of Pennsylvania

to create the Delaware Valley Minority Student Achievement Consortium

(“Consortium”), which is an organization “dedicated to eliminating the

achievement gap by educating educators on the subject, and studying

techniques to combat, and the causes of, this phenomenon.” Appendix A7-

A8.

As part of combating the achievement gap, Dr. McGinley and the

Consortium have done work to minimize “racial isolation,” which is the

isolation a student may feel when, for example, he or she is one of only a

few students of his or her particular background in the class. Racial

isolation is not triggered by a particular “threshold” number of students, or

lack thereof, from a particular background in a given classroom, and is not

necessarily affected by the number of minorities in a given school. Since

becoming the District’s Superintendent, Dr. McGinley has overseen a

“clustering” program in which the District places students of a given

minority background, who have agreed to participate in the program,

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together in language and language honors classes. This “clustering”

program has been successful at increasing the number of minorities, and in

particular, the number of African–American students, in language programs

in the District. Appendix A8.

E. The Community Advisory Committee Recommended


Construction of Two Equal-Size High Schools, Which Made
Redistricting Necessary
In 1997, the District began a capital improvement program to

modernize each of its ten schools. As of 2004, Lower Merion and Harriton

remained to be modernized to fulfill the District’s educational requirements.

The community as a whole recognized that both high schools were outdated

and required significant physical plant investments. In order to review and

study all options available for addressing the District’s high school situation,

in 2004, the Board established a forty-five member Community Advisory

Committee (“CAC”) comprised of a broad cross-section of school,

community, and other interested individuals with a wide range of

perspectives. The CAC considered the following alternatives for

modernizing the District’s two high schools: (1) creating one separate

school for ninth grade students only and one school for students in grades

10-12; (2) building a new, single high school of 2,500 students; (3) building

two new high schools while keeping their present student populations (1,600

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Lower Merion/900 Harriton students) intact; and (4) building two new high

schools but balancing their student enrollment levels (1,250 students each).

Appendix A12.

The CAC rejected the first three proposals. It decided against

establishing a separate ninth grade school because it heard no strong

educational arguments in favor of such a school, the proposal would add

another transition for students, from ninth to tenth grade, and co-curricular

activities would be adversely affected. The CAC also decided against a

single high school of 2,500 students due to the advantages of smaller

schools, including a greater sense of community, better relations between

students and faculty, more opportunities for co-curricular activities, and

better educational outcomes, and also because a school of 2,500 students

would not fit on either existing high school site, would create major traffic

problems, would require students to be bused to off-site athletic fields at

additional cost, and would violate impervious coverage allowances. The

CAC decided against two high schools of unequal size because this option

would not address differences in the educational offerings at the two high

schools, the evidence indicated that smaller schools produce better

educational outcomes, and if the larger Lower Merion High School

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continued to be the larger school, traffic and parking problems at that site

would be perpetuated. Appendix A12-13.

Ultimately, the CAC voted in favor of a plan for two new high schools

of equal enrollment capacity, designed for 1,250 students each, and the

Board subsequently adopted the CAC’s recommendation. Specifically, the

CAC concluded that this was the best option because it allowed all students

to benefit from the smallest possible schools, which provide a stronger sense

of community, promote better student/faculty interactions, and provide a

better educational outcome for all students than larger schools. In addition,

this option provided students across the District with the most equitable

access to programs and facilities, because each school would be able to offer

the same range of courses and would have its own co-curricular activities.

Finally, the CAC determined that equal-size schools would make the best

use of the existing school sites by alleviating the overcrowding, traffic, and

parking problems at Lower Merion. Appendix A13.

The Board accepted this recommendation; however, because the

District had to keep the high schools at their existing locations, equalizing

enrollment at the two high schools required redistricting to eliminate the

700–student disparity between the two high schools. Appendix A13. It was

clear that merely having voluntary magnet programs to attract students to

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Harriton would be insufficient to draw the requisite number of students to

Harriton. Indeed, even prior to redistricting Harriton had in place an

International Baccalaureate (“IB”) program that aimed to attract more

students to Harriton, yet Lower Merion always had had a substantially

higher student enrollment than Harriton. Appendix A14. Consequently, to

implement the CAC’s recommendation that the District build two new high

schools of equal student enrollment, it was inevitable that a number of

students who would have attended Lower Merion prior to any redistricting

plan would now have to attend Harriton.

In addition to being constrained by geography, the process was also

constrained by the residential location of students in the District. Because

the overwhelming majority of the District’s students live much closer to

Lower Merion than to Harriton, in order to achieve an equal student

population at Harriton, significant redistricting would be required.

Appendix A14; A51, n.22.

F. The Redistricting Process

1. Non–Negotiables
On April 21, 2008, the Board adopted the following set of guiding

principles, known as “Non-Negotiables,” to govern the redistricting process:

(1) The enrollment of the two high schools and two middle schools will be

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equalized; (2) Elementary students will be assigned so that the schools are at

or under the school capacity; (3) The plan may not increase the number of

buses required; (4) The class of 2010 will have the choice to either follow

the redistricting plan or stay at the high school of their previous year (i.e. the

principle of “grandfathering”); and (5) Redistricting decisions will be based

upon current and expected future needs and not based on past practices.

Appendix A15-16. These Non–Negotiables did not reference race or

minority student assignments, and each stated a valid, educational purpose

that was legitimate and non–discriminatory. Appendix A16.

2. Community Values
Beginning in May 2008, the District hired two outside consultants, Dr.

Harris Sokoloff and Ms. Ellen Petersen, who held a series of public forums

and collected online surveys to solicit input from the community and

identify their values in the context of redistricting. This process involved

asking citizens a hypothetical question unrelated to redistricting: you have a

friend contemplating moving to the District – what would you tell her about

what you like or do not like about Lower Merion to help her make a

decision? Appendix A16; Appendix A1837-A1838. Notably, this question

was posed to citizens before any proposed redistricting plan had been

presented or even formulated.

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On July 11, 2008, Dr. Sokoloff and Ms. Petersen presented to the

Board their report, which identified five “Community Values”: (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 when they are

comfortable—socially as well as physically”; and (5) “explore and cultivate

whatever diversity–ethnic, social, economic, religious and racial—there is in

Lower Merion.” The Board voted to accept Dr. Sokoloff and Ms. Petersen’s

report. Appendix A17.4

3. Redistricting Planning Stages


In June 2008, the School Board engaged a redistricting consultant, Dr.

Ross Haber, of Ross Haber Associates, Inc., to review and analyze District

enrollment data, and to propose alternative redistricting plans. Appendix

4
Dr. McGinley and several Board Members testified that the Community
Values, unlike the Non–Negotiables, were never mandates that had to be met
by proposed redistricting plans, but merely informed the redistricting
process, and many of them, including the value respecting diversity, were
applicable only at the implementation phase, after a redistricting plan had
been selected by the Board. Appendix A17. As the District Court noted, the
District cannot be faulted for soliciting the community’s input and could not
preclude discussions of race. There is nothing inappropriate about having a
Community Value respecting diversity. Appendix A18.

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A19. Dr. Haber was selected to be the District’s redistricting consultant

primarily because he had proprietary Geographic Information Software

(“GIS”) that allowed him to move school attendance lines and then report

how many students would be within those lines. Appendix A944. In prior

redistrictings, the District used push-pins on a map to represent students, an

extremely onerous process. Appendix A1671. In connection with his work,

Dr. Haber requested and received standard student file data maintained by

the district— namely the students’ identification numbers, names, addresses,

race, ethnicity, special needs status, and socioeconomic status, as measured

by participation in free and reduced lunch programs. Appendix A19.

During July and August 2008, Dr. Haber worked with the Administration to

create various redistricting plans, called Scenarios. Appendix A19.5

Over the course of the redistricting process, eight sets of Scenarios, of

which some had additional variations, were prepared by Dr. Haber, and

considered by the Administration.6 Of the Scenarios, the Administration

chose four Proposed Plans (1, 2, 3, and 3R) to present to the Board at public

5
As the District Court noted, Dr. Haber testified that he was never directed
to create or change a redistricting scenario based on its diversity outcome.
Appendix A22.
6
Toward the end of the redistricting process, Dr. Haber’s involvement had
decreased substantially. Appendix A52, n.23.

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Board meetings, where they were presented to both the Board and members

of the community, and after which public comments on each proposed plan

were solicited. Only Plan 3R was voted upon by the Board. Appendix

A19.7

4. Proposed Plan 1
On September 8, 2008, Proposed Plan 1 (“Plan 1”) was presented at a

public Board meeting. As part of this presentation (and also as part of the

subsequent presentations of Plans 2 and 3), the District presented a

PowerPoint slide concerning the projected diversity make-up (of which racial

diversity was a part, along with socioeconomic status, as measured by

participation in free and reduced price lunch programs, and special needs status)

of each high school in the event that the proposed plan was adopted by the

Board.8 Appendix A28; A2118, A2141, A2158.

7
The Scenarios were not presented to, considered, or voted upon by, the
Board, nor did the Board Members at the meeting recall the initial Scenarios
that Dr. Haber presented to them. Accordingly, the District Court rightly
determined that the Scenarios were of minor importance to the determination
of whether race was a motivating factor in the redistricting process.
Appendix A20.
8
Appellants mischaracterize the District’s intentions in presenting such
information, arguing that it “prominently displayed its ‘diverse’ high school
populations” (Appellants’ Brief at 20, 22, and 25, and thereby suggesting
that merely providing this information to the public, which the public itself
had sought, was improper and/or that the District had intended to produce a
certain diversity outcome, neither of which is accurate.

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Plan 1 required no redistricting at the elementary school level, and

allowed students to remain with their cohorts from kindergarten through to

grade 8. Plan 1 changed the District’s middle school feeder patterns so that

Penn Wynne Elementary School students (which included not only North

Ardmore but all other Penn Wynne students) would attend Welsh Valley

Middle School (and then Harriton), and Penn Valley Elementary School

students would attend Bala Cynwyd Middle School (and then Lower

Merion). Appendix A2116, A2119. Students districted to attend Lower

Merion under Plan 1 retained the option of attending Harriton to enroll in its

IB program. In addition, Plan 1 had a grandfathering component, meaning

that all current high school students were given the option of remaining at

the high school they presently attended. Appendix A27. Plan 1 satisfied

each of the Non-Negotiables. It maintained all elementary school

boundaries and changed feeder patterns based on elementary schools moving

together to middle school as a community unit. Appendix A2119-A2120,

A2130.

During the public comment period following the presentation of Plan

1, the Board received criticisms of the plan, namely from the Penn Wynne

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school community.9 Questions and concerns were raised about middle

school assignments and the possibility of grandfathering eighth graders to

their planned high schools. Appendix A2131. Ultimately, the

Administration was not satisfied with Plan 1 primarily because it resulted in

excessive travel times for students, particularly those Penn Wynne students

who lived along the City Avenue corridor, the eastern-most boundary of the

District.10 Appendix A2132. Accordingly, the Administration and Dr.

Haber investigated alternate plans with an eye toward creating new ways to

expand Harriton’s projected student enrollment by drawing from students

who lived closer to Harriton, and the community’s expressed desire to see

that all children remained together for grades six through twelve. Appendix

A32; A2133.

9
Appellants focus solely on comments raised by a few community members
that the proposed plans were based on race is an apparent attempt to make it
seem as though race-based concerns were the primary concerns expressed
and that the proposed plans were rejected because of such concerns. As
demonstrated herein, however, the record reveals other, race-neutral
concerns expressed by the community.
10
During the summer, the District tested bus travel times under Proposed
Plan 1 to assess student impact. After the 2008 to 2009 school year began,
the District again tested the bus travel times, this time finding that bus travel
times were significantly longer than they had been during the summer.
Appendix A32, n. 14; A2131.

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5. Proposed Plan 2
On October 28, 2008, Proposed Plan 2 (“Plan 2”) was presented at a

public Board Meeting. Like Plan 1, Plan 2 set forth which high school each

student must attend, based on where each student lived in the District.

Under Plan 2, students districted to attend Lower Merion had the option of

attending Harriton to enroll in its IB program, and students living in the

official LMHS walk zone that were zoned to attend Harriton had the option

of attending Lower Merion for any reason. Appendix A2140.

Plan 2 addressed concerns expressed during the public comment

period that followed the presentation of Plan 1. Appendix A2131-A2134.

The foundations of the plan included: (1) keeping all children together from

grades six through twelve; (2) avoiding drawing students from communities

adjacent to City Avenue; and (3) avoiding, to the extent possible, reducing

the official walking area for middle and high school. Appendix A2133.

Plan 2 again provided numerically balanced enrollments at the high school

and middle school levels in order to ensure program equity as a driving

principle. Appendix A2134. In many cases, Plan 2 shortened high school

students’ bus times from those indicated and/or anticipated under Plan 1, as

students from the furthest corridor of the District were no longer affected,

thereby eliminating their commute to Harriton. Appendix A2134.

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Under Plan 2, Gladwyne Elementary School students continued to

attend Welsh Valley Middle School and Harriton; all Belmont Hills

Elementary School students were districted to Welsh Valley and Harriton;

the Penn Valley and Haverford areas of the Penn Valley Elementary feeder

area were districted to Welsh Valley and Harriton; part of the Penn Wynne

Elementary feeder area (including North Ardmore) was districted to Welsh

Valley and Harriton; and part of the Merion Elementary feeder area was

districted to Welsh Valley and Harriton. The remaining areas of the Penn

Valley, Merion, and Cynwyd Elementary feeder areas were districted to

Bala Cynwyd Middle School and Lower Merion. Consequently, under Plan

2 students were split after elementary school and then remained together for

middle and high school. Appendix A2136-A2137.11

During the subsequent public comments period, the community raised

various concerns about Plan 2, including that any plan should maximize

continuity in general, both K-12 and 6-12, that the plan split up communities

that were part of the same elementary school, and that the plan posed

11
The District Court found that Plan 2 kept students with their elementary
school peers for middle school and separated them at high school but, in
fact, the record demonstrates that Plan 2 split students after elementary
school and then kept them together with their peers for middle school and
high school, providing continuity only for grades six through twelve.
Appendix A2136-A2137.

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difficulties for the transition to middle school, particularly since each middle

school would be working with students from four or five different

elementary schools. Appendix A2153.12

After the public presentation of Plan 2, the Board brought Dr.

Sokoloff and Ms. Petersen back to provide clarification as to what factors

were important to the community in redistricting. The Board understood the

primary community concern expressed during the Plan 2 comment period to

be that of educational continuity from kindergarten through high school,

meaning that students who attend the same kindergarten, continue through to

grade twelve, rather than having the group of students who attend one

elementary school split up between the District’s two middle schools, or

having the group of students who attend one middle school split up between

Harriton and Lower Merion High Schools. In addition to educational

continuity, the Board noted the following three primary concerns: (1)

distance and access, (2) walkability, and (3) community. Appendix A34;

A2150-A-2151.

In light of these concerns, the District extended the timeline for

redistricting in order to allow for fuller consideration of the community’s

12
One group of students also made accusations that Proposed Plan 2 had a
disparate impact on Asian–American students by increasing Harriton’s
Asian–American student population by redistricting students in Shortridge.
Appendix A33-A34.

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input, and to allow the community to express concerns about Proposed Plan

3 and any modifications to that plan. The District also scheduled additional

public meetings to allow for further discussion concerning the priorities

moving forward. Appendix A34.

6. Proposed Plan 3
On November 24, 2008, Proposed Plan 3 (“Plan 3”) was presented at

a public Board Meeting. Consistent with the aim of maintaining educational

continuity from kindergarten through to grade twelve to the maximum extent

possible, Plan 3 employed a “3-1-1 Feeder Pattern” whereby the students

that were districted for three elementary schools were assigned to attend a

single middle school and a single high school. The 3-1-1 plan enabled

students to transition more easily from elementary school, to middle school

and high school, because it permitted teachers at the middle and high schools

to become knowledgeable about what their students previously had learned

and to build upon that foundation. Appendix A38. Plan 3 also protected the

walk zones for the elementary and middle schools and followed the then-

current feeder patterns to middle school. Appendix A2154.

Under Proposed Plan 3, students districted for Cynwyd, Merion, and

Penn Wynne Elementary Schools were assigned to Bala Cynwyd Middle

School and Lower Merion, while students districted for Belmont Hills,

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Gladwyne, and Penn Valley Elementary Schools were assigned to Welsh

Valley Middle School and Harriton. The feeder patterns under Plan 3

assigned all students, irrespective of race or ethnicity. The only exception

Plan 3 made to the 3-1-1 Feeder Pattern was to create an abbreviated Lower

Merion High School walk zone that allowed students living within it the

choice of which high school to attend. The only other students who retained

a choice of high school under Plan 3 were students districted to attend Lower

Merion, but who wanted to attend Harriton to enroll in its IB program.

Appendix A2155-A2156.

Under Plan 3, students in the Affected Area, all other areas districted

for Penn Valley Elementary School (with the exception of those residing

within the abbreviated walk zone), and the Narberth Borough of Belmont

Hills, would no longer have a choice of high schools. Appendix A2155-

A2156.

During the public comment period following Plan 3, the Board

understood the main concern expressed by the community to be that of

walkability, because Plan 3 only allowed a limited number of students to

choose to walk to Lower Merion. Appendix A40. Other concerns included

overall student enrollment balance and the expansion of social networks at

the high school level. Appendix A2168. The Administration thus decided

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to maintain the official, historical LMHS walk zone to allow more students

who lived within walking distance of Lower Merion but who were

redistricted for Harriton under Plan 3 to have the choice of walking to Lower

Merion. The revised Plan 3 became Proposed Plan 3R. Appendix A40-A41.

7. Proposed Plan 3R
Proposed Plan 3R (“Plan 3R”) was presented at a public board

meeting on December 15, 2008. Like Plan 3, Plan 3R put in place a 3-1-1

feeder pattern under which students districted for Penn Valley Elementary

School, including the Affected Area, as well as students districted for

Gladwyne and Belmont Hills Elementary Schools, were districted to attend

Welsh Valley Middle School and Harriton. Appendix A41-A42.

Under Plan 3R, students could remain with their peers by following

assigned feeder patterns K-12, the official walk zones for elementary,

middle, and high school were maintained, current feeder patterns were

followed, and the plan allowed for a mixed13 high school population at each

school through the option area or choice programs. Appendix A2170.

Plan 3R restored the abbreviated walk zone in Plan 3 back to the

LMHS walk zone’s official, historical designations, which at times measures

13
By “mixed” high school population, the District meant only that each
high school would have students from both Welsh Valley and Bala Cynwyd
Middle Schools, as opposed to students from only one of those middle
schools.

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one mile (not “as the crow flies” but as students walk to school) and which is

constrained by areas designated as hazardous. While the official LMHS

walk zone includes some areas districted for Penn Valley and Belmont Hills

Elementary Schools, it does not include and never has included the Affected

Area. Appendix A43; A514; A531; A536. To offset the restoration of the

official LMHS walk zone and better equalize overall student enrollment

numbers at Harriton and Lower Merion, Plan 3R also allowed all students

districted for Lower Merion, as well as students residing in the historic walk

zone, to have the choice of attending either Harriton or Lower Merion;

however, students in the Affected Area and other areas districted for

Harriton did not have a choice of high school. Appendix A2171-A2172.

8. Adoption and Implementation of Proposed Plan 3R


At a public board meeting on the evening of January 12, 2009, the

Board voted to adopt Plan 3R. This was the only formal action taken by the

Board respecting redistricting. Appendix A51. Six Board Members voted in

favor of the Plan, and only two Board Members voted against the plan. The

then-Board President could not vote because she was ill and in the hospital,

but prior to the vote, she sent over her thoughts to the Board, which were

read to the Board before the vote, indicating that she supported Plan 3R.

Appendix A46-A47.

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Of the seven Board Members who voted for, or in the case of the

then-Board President, who expressed support for, Plan 3R, many voted in

large part because they, like the community, believed that educational

continuity provided substantial pedagogical and psychological benefits.

None of the Board Members considered race in voting to adopt Plan 3R.

Appendix A55. One Board Member, who voted against the plan, did so for

valid pedagogical reasons unrelated to race, namely, that he did not believe

that educational continuity was in students’ best interest, but did believe that

mixing students via the feeder patterns added to students’ educational

experiences. Another Board Member, who also voted against the plan, did

not believe the Board was discriminating on the basis of race in considering

and adopting Plan 3R. She simply had other priorities. Appendix A48-50.

After Plan 3R went into effect, all students in Appellants’

neighborhood – a majority of whom are not African-American – were

redistricted to Harriton. Appendix A53-A54. Moreover, under Plan 3R all

other neighborhoods that were not districted to Harriton before the adoption

of Plan 3R but which also, like the Affected Area, were zoned to one of the

three elementary schools that feed into Welsh Valley Middle School (i.e.,

Penn Valley, Belmont Hills, and Gladwyne) and did not fall within the

official LMHS walk zone, were districted to Harriton without choice of

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attending Lower Merion. Appendix A2176. Appellants ignore these crucial

facts. Twenty-one rising ninth grade students from the Affected Area were

redistricted to Harriton for the 2009-2010 school year, of which twelve were

African–American. Appendix A1204-A1205. In addition, twenty-three

students were redistricted from the Narberth and Penn Valley geographic

areas districted for Penn Valley Elementary School, none of whom was

African–American. Appendix A50.14

14
Because all current high school students were grandfathered under Plan
3R, only incoming ninth grade students were affected by the redistricting in
the 2009-2010 school year.

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SUMMARY OF ARGUMENT
Appellants seek reversal of the District Court’s ruling that the Lower

Merion School District’s redistricting plan did not discriminate against them

on the basis of their race. In doing so, they argue that they were redistricted

because of race, since it was known that the Affected Area has a significant

African-American population. They ignore the fact that they were not

singled out for redistricting and that students of all races in the Affected

Area, as well as students of all races who attend the same elementary and

middle schools as Appellants and who, like them, live outside the official

LMHS walk zone, were redistricted to Harriton. If this Court were to

provide Appellants with the result they desire, it would have to treat them

differently from similarly situated non-African-American students because

of their race. For the reasons set forth below, the District Court’s ruling

should stand.

Appellants appeal from the District Court’s ruling that the District did

not discriminate against them on the basis of race in violation of the Equal

Protection Clause of the Fourteenth Amendment, but the District Court’s

ruling should only be reversed if legally erroneous. Although there is no

case directly on point, the District Court was appropriately guided by the

Supreme Court’s decision in Parents Involved in Community Schools v.

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Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) (“Seattle”). To the extent that

some of the District Court’s factual findings were, as the District

respectfully submits, unsupported by the record evidence, that does not alter

the result here, as the kinds of race-conscious action that the District Court

found are the kinds of action that Justice Kennedy (along with the four

dissenting Justices in Seattle) expressly sanctioned. Consequently,

regardless of whether strict scrutiny is applied, and regardless of whether the

District Court’s factual findings are based on sufficient record evidence, the

District Court’s ultimate legal conclusion – that the District did not

discriminate against Appellants in violation of the Fourteenth Amendment –

is correct.

The District’s Court’s factual finding that the District considered

racial demographics in redistricting the Affected Area to Harriton does not

render Plan 3R unconstitutional. Any such race-conscious action on behalf

of the District is permissible and not subject to strict scrutiny. Seattle, 551

U.S. at 789 (Kennedy, J., concurring). Even assuming, as the District Court

did, that such conduct does require the application of strict scrutiny, the

District demonstrated sufficient, narrowly tailored compelling government

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interests.15 As the District Court concluded, “considering racial

demographics alongside numerous race–neutral, valid educational

interests—similar to the goal of achieving general diversity in higher

education admissions programs, with reference to multiple factors such as

race, gender, economic background, religion, and other individual

characteristics—has never been held unconstitutional” (Appendix A66), and

there is no basis for this Court to find so now. Moreover, the District

showed that it would have adopted Plan 3R regardless of any racial

considerations, as there was no other redistricting plan that could have met

all of the District’s educational objectives.

Appellants’ contention that 42 U.S.C. § 1981 and/or Title VI of the

Civil Rights Act provide them recourse, when the District Court concluded

that the District did not discriminate against them in violation of the Equal

Protection Clause of the Fourteenth Amendment, has been soundly rejected

on numerous occasions by the Supreme Court. Appellants do not provide,

nor can they provide, any sufficient reason why this Court should depart

from these well-established precedents.

15
The District Court acknowledged that if Plan 3R survived strict scrutiny,
it certainly would meet lower standards of review, i.e., rational basis review
and intermediate scrutiny. Since the District court concluded that Plan 3R
survived strict scrutiny, inherent in that conclusion is that it would have
survived rational basis review or intermediate scrutiny.

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Finally, Appellants argue that the District Court’s decision to allow

certain witnesses to testify is reversible error. The District Court’s decision

to allow the testimony is subject to review by this Court under the abuse of

discretion standard, and Appellants have failed to identify any such abuse,

nor have they explained how they were prejudiced by this decision,

including how the admission of such testimony affected the outcome of the

case.

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ARGUMENT

A. Race Was Not An Impermissible “Motivating Factor” In


The Redistricting Process
The District Court concluded that the Affected Area was “targeted”

for redistricting in part because of its racial demographics, and that the

District sought some kind of “racial parity” between the two high schools.

However, the District respectfully submits that the District Court did not

provide a factual predicate for such findings, and that there is insufficient

record support for such findings.

The District Court seemed to base its factual finding that racial

considerations factored into the redistricting process on the following: (1) e-

mails and conversations discussing the inclusion of the Affected Area and

North Ardmore; (2) the candid elimination of two scenarios due to their

racial implications before they reached the Board, and the rejection by the

Administration of the sole redistricting scenario that did not include either

the Affected Area or North Ardmore; (3) testimony by Dr. Haber, the

District’s redistricting consultant, that race was considered throughout the

redistricting process; (4) the inclusion of African-American-specific data;

(5) decisions not to present certain information concerning diversity to the

public; and (6) the increase in African-American students at Harriton under

each of the proposed redistricting plans.

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These facts do not add up to race being a “motivating factor” and,

therefore, the District respectfully submits that this Court’s decision should

not be made in reliance upon them. As a preliminary matter, the District

Court noted 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.”

Appendix A54 (emphasis added). There is nothing inherently suspect about

such awareness. Indeed, record testimony from Dr. McGinley indicated that

race data was reviewed by him during the redistricting process for the

purpose of understanding the racial consequences or impact of any

redistricting plan. He believed that it was important for him as an educator

to know what the student population at any school was going to look like,

not only in terms of race, but also in terms of socioeconomic status and

special needs status, because there are educational and programmatic

consequences as a result. Appendix A609-A610, A635, A1184, 1188.

First, none of the e-mails relied upon by Appellants or referenced by

the District Court demonstrate that the Affected Area was redistricted to

Harriton because of racial considerations. The e-mails between Dr.

McGinley and Dr. Haber indicating that Dr. McGinley was mindful that

splitting Ardmore effectively redistricted a significant number of African-

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American students to Harriton, are simply that – e-mails demonstrating Dr.

McGinley’s sensitivity to the effects of redistricting on Ardmore. The fact

that Dr. McGinley and/or Dr. Haber also questioned whether the Seattle

decision might have implications on the District’s redistricting process, is

immaterial, as the District Court recognized. Appellants ignore the fact that

the District Court found that Dr. McGinley wanted to be informed as to how

to ensure that the redistricting process did not violate the law, and reflected a

good faith effort to examine an issue that had been brought to his attention.

Appendix A26.

Appellants also focus on Dr. Haber’s e-mail response to Dr. McGinley

in which he stated that he could create “color-blind” scenarios. While the

District Court assumed that this e-mail indicated that Dr. Haber considered

redistricting plans that split Ardmore to not be “color-blind” (Appendix

A26), in fact, Dr. Haber testified that by “color-blind,” he simply meant that

racial diversity information or data would not have appeared in the scenario

documents. Appendix A999.

In addition, the November 20, 2008 e-mail correspondence between

Dr. McGinley and Board Member Pliskin in which Dr. McGinley expressed

that he “wish[ed] 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] but many fewer A[frican-American] kids at Harriton,” and

Ms. Pliskin’s reply, in which she stated, “what happened to no racial

isolation?” (Appendix A2187), does not indicate that the District “targeted”

the Affected Area for redistricting. The tenor of these comments shows that

Dr. McGinley and Ms. Pliskin were considering whether there was a way to

avoid sending the Affected Area students to Harriton given that they did not

want to go there, but the answer to that question was “no.” The mere fact

that the Administration and/or Board Members attempted to find a way to

provide the Affected Area with the option to attend Lower Merion but

recognized that doing so would result in many more students overall at

Lower Merion, which violated the overarching goal of equalizing student

enrollment between the two high schools, and fewer African-American

students at Harriton, does not mean the Affected Area was chosen for

districting because it contained African-American students. Rather, Dr.

McGinley was simply acknowledging what the outcome would be if the

District extended choice to the Affected Area. It was common knowledge

throughout the District that Ardmore had a significant concentration of

African-American students, and the District’s Administration and Board

were sensitive to that fact. There is nothing nefarious or impermissible

about that.

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Second, Dr. Haber clarified on cross-examination that he considered

the community value of diversity in what he was doing because he had data

that allowed him to report on diversity outcomes and in that way only, race,

for him, was a factor. Appendix A1021. Consequently, in testifying that

race was “considered” throughout the redistricting process, Dr. Haber meant

only that race data was reviewed and considered during the process – not

that the redistricting was based on race or was a “motivating factor” in the

process or the outcome.

Third, with the one exception of the small concentrated group of

Asian-American students residing within the Shortridge neighborhood,

African-American students were more concentrated geographically than

students of other races and, therefore, in terms of addressing the well-

documented achievement gap between African-American students and

students of other races, such a focus is both logical and necessary.

Fourth, while scenarios 1 and 4A, which were never submitted to the

Board for its consideration, were eliminated from consideration in part

because of their effects upon the racial make-up of the high schools (e.g.,

Scenario 1 essentially would have removed all African-American students

from Lower Merion High School, and Scenario 4A did not support the

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community value of diversity as much as other scenarios), Appellants fail to

make the important distinction between deciding to forego a particular

scenario because it would result in a certain racial outcome, and the Board’s

affirmatively choosing to adopt a particular redistricting plan because it

would result in a particular racial outcome, which did not occur here.

Moreover, while Appellants contend that Scenarios 1 and 4A were the only

scenarios that kept the Affected Area and North Ardmore together for high

school, that is not surprising since the redistricting plans were based on

existing elementary and middle school feeder patterns, and keeping these

two areas together for high school would disturb the continuity of these

feeder patterns, since the Affected Area and North Ardmore attend different

elementary schools and different middle schools.16

Fifth, while the District Court concluded that Dr. McGinley’s

decisions not to present or publish to the public certain information

references to racial diversity data provided to the Administration suggested

16
Interestingly, Appellants offer no educational or pedagogical reasons for
attending high school with North Ardmore, their desired outcome. They
simply want to be with their non-school, neighborhood peers, with whom
they have never attended school. They have made no showing that this is a
valid educational purpose. Moreover, in such circumstances, if the Affected
Area and North Ardmore were districted to attend either Harriton together or
Lower Merion together, they would have been separated from their
elementary and middle school peers, which would have interfered with the
goal of educational continuity. Appendix A89-A90.

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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, the District respectfully submits that such a conclusion was

unwarranted, given the lack of testimony or other evidence supporting such

a conclusion, particularly in light of the fact that the District repeatedly

presented diversity information to the public in connection with its proposed

redistricting plans, which belies any suggestion that it sought to hide

information from the public.

Finally, the District Court seemed to place importance on statistical

evidence that the African-American student population at Harriton increased

significantly under each proposed plan, but such evidence is not statistically

probative and cannot be relied on as evidence of discrimination. See, e.g.,

Mazus v. Dep’t of Transp., 629 F.2d 870, 875 (3d Cir. 1980) (“Statistical

comparisons, if they are to have any value, must be between comparable

groups and free from variables which would undermine the reasonableness

of discrimination inferences to be drawn.”). The District, to achieve equal

student enrollments between Lower Merion and Harriton in accordance with

the CAC’s recommendation and the Non-Negotiables adopted by the Board,

had to reduce the 700-student disparity between the two high schools by

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approximately 50 percent. It is, therefore, not surprising that the number of

African-American students at Harriton would also increase, particularly

when one takes into account the geographic location of various student

populations, the concentration of African-Americans in Ardmore, and the

Affected Area’s geographic proximity to Harriton compared to other

communities. As the District Court itself recognized, it “is not uncommon

in major urban, as well as suburban, areas throughout the United States, that

some racial, ethnic, or religious groups are concentrated in particular

geographic areas.” Appendix A53.17 Consequently, because Plan 3R

assigned geographic areas of students to the high schools – rather than

selecting among individual students – it logically follows that the number of

African-American students at Harriton would increase significantly if a

particular geographic area zoned to attend Harriton had a significant

population of African-American students, even apart from any consideration

of race. In fact, Appellants’ own statistical expert, Dr. Greenfield,

acknowledged that geographic locations of students of a particular race

could account for any observed statistics. A1063-A1064, A1067-A1068.

17
If the District truly were using race figures or data to increase the African-
American student population at Harriton, it would have redistricted North
Ardmore to Harriton, given that North Ardmore had a greater number of
African-American students. Appendix A10, n.2.

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The purpose of statistical evidence in a case such as this is to determine

whether the observed outcome is due to chance or is more likely based on

something else, and the question then becomes whether that “something

else” is an impermissible factor, i.e., redistricting on the basis of race. In

order to be able to rely on statistics as probative of the issue of

discrimination, Appellants would have to show that those statistics were

significant. See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975).

They have this burden, and only after they satisfy this burden would the

District be obligated to explain why the statistics appear as they do. Id. at

425. Appellants, however, never met this burden, as their statistics, which

are the basis for the District Court’s finding, do not raise an inference of

discrimination.

In focusing solely upon the above-enumerated factual findings,

Appellants ignore the fact that under Plan 3R, Appellants are treated the

same as every other student who attends Penn Valley Elementary School or

any of the other two elementary schools that feed into Welsh Valley Middle

School, regardless of race. Essentially, Appellants’ position is that they

should be exempted from the 3-1-1 feeder pattern established under Plan 3R

and should have been given the option of attending Lower Merion, even

though all students, of all races in their neighborhood are similarly districted

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to Harriton without choice, and even though all other areas outside the

official LMHS walk zone that are zoned to attend an elementary school that

feeds into Welsh Valley Middle School are similarly districted to Harriton.

For this Court to provide Appellants the redistricting outcome they desire, it

would have to treat Appellants as they wish because of their race.

In addition, the District has always maintained that it was the official

action of the Board in voting to adopt Plan 3R that is dispositive of this

matter. Significantly, after an exhaustive review of all of the evidence, the

District Court concluded that the Board Members did not adopt Plan 3R on

the basis of race. Appendix A55. The above-enumerated facts ultimately

are therefore immaterial, as each of them occurred prior to the Board’s

adoption of Plan 3R.

Despite these factual findings, the District Court recognized that no

statute or Supreme Court case has found that mere consideration of a

neighborhood’s racial demographics in assigning students to schools equates

to decisionmaking in which race has been a “motivating factor.” Appendix

A80, n.18. Nevertheless, assuming, arguendo, that there is sufficient record

support for the District Court’s finding that race was a factor in the

redistricting process, the District considered race in an entirely permissible

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and constitutional manner, as the District Court found. The District never

argued that it did not review race data or that it never had any discussion of

the racial consequences of redistricting. Therefore, Appellants’ contention

that the District denied that race was a factor is grossly oversimplified, and

their assertion that the District is therefore precluded from arguing that it had

compelling reasons for considering race should be rejected. Rather, the

District has always maintained that to the extent that race was considered

during the redistricting process, it was done permissibly. The distinction

between race as a factor or consideration in the informal sense, and race as a

“motivating factor” in the legal sense cannot be overstated. Appellants

appear to argue that any and all consideration of race, including review of

race data or discussions of the racial implications of any redistricting plan,

constitute race being an impermissible “motivating factor.” The law,

however, does not support such a conclusion. In fact, the law supports such

a review, and the District’s performance is measured on its ability to

effectively address the achievement gap, which requires a review of racial

data. See No Child Left Behind Act, 20 U.S.C. § 6311(b)(2)(C)(v)(II)

(requiring disaggregation of data regarding “students from major racial and

ethnic groups,” among other groups).

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Indeed, any consideration of race during the process was the very kind

of race-conscious action that Justice Kennedy addressed in Seattle and, as

Justice Kennedy observed, does not have to satisfy strict scrutiny to be found

permissible. Seattle, 551 U.S. at 789. See also Concerned Citizens for

Neighborhood Schools v. Pastel, No. 5:05-1070, 2007 WL 1220542, at *1

(N.D.N.Y. Apr. 24, 2007) (granting defendants’ motion for judgment on the

pleadings and denying plaintiff’s motion to amend complaint, in case where

plaintiff asserted that elementary school students were selected by

defendants because of their race to be districted out of their academically

successful neighborhood school and placed into a more distant school that

was failing academically, noting that plaintiff’s evidence that school board

reviewed information about redistricting plan’s effect on racial composition

of elementary schools during consideration of various alternative plans was

insufficient to establish impermissible use of race as motivating factor in

board’s conduct).

In Seattle, Justice Kennedy parted with the plurality because he felt

that it implied “an all-too-unyielding insistence that race cannot be a

factor in instances when, in [his] view, race may be taken into account.”

551 U.S. at 787. (emphasis added) He recognized the following:

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In the administration of public schools by the state


and local authorities, it is permissible to consider
the racial makeup of schools and to adopt general
policies to encourage a diverse student body, one
aspect of which is its racial composition. If school
authorities are concerned that the student-body
compositions of certain schools interfere with the
objective of offering an equal educational
opportunity to all of their students, they are free
to devise race-conscious measures to address
the problem in a general way and without
treating each student in different fashion solely
on the basis of a systematic, individual typing
by race.

Id. at 788-89 (emphasis added) (internal citations omitted).

Furthermore, and perhaps most importantly for purposes of this case,

Justice Kennedy explained:

School boards may pursue the goal of bringing


together students of diverse backgrounds and races
through other means, including strategic site
selection of new schools; drawing attendance
zones with general recognition of the
demographics of neighborhoods; allocating
resources for special programs; recruiting students
and faculty in a targeted fashion; and tracking
enrollments, performance, and other statistics
by race. These mechanisms are race conscious
but do not lead to different treatment based on
a classification that tells each student he or she
is to be defined by race, so it is unlikely any of
them would demand strict scrutiny to be found
permissible.

Id. at 789 (emphasis added) (citing Bush v. Vera, 517 U.S. 952, 958 (1996)).

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Justice Kennedy further stated that executive and legislative branches,

which for generations now have considered these types of policies and

procedures, “should be permitted to employ them with candor and with

confidence that a constitutional violation does not occur whenever a

decisionmaker considers the impact a given approach might have on

students of different races.” Id. at 789 (emphasis added).

“What the government is not permitted to do,” Justice Kennedy wrote,

“absent a showing of necessity not made [in Seattle], is to classify every

student on the basis of race and to assign each of them to schools based on

that classification, as crude measures of this sort threaten to reduce children

to racial chits valued and traded according to one school’s supply and

another’s demand.” Id at 798. Justice Kennedy cautioned, however, that the

Court’s decision “should not prevent school districts from continuing the

important work of bringing together students of different racial, ethnic, and

economic backgrounds.” Id. What the District did in this case is consistent

with Justice Kennedy’s admonition against racial classifications and is also

consistent with his recognition of the important work of school districts in

bringing together students of different backgrounds.

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B. Assuming Strict Scrutiny Applies, The District’s


Redistricting Plan Withstands Such Review
The District Court assumed, on the record, that strict scrutiny applied

and therefore analyzed the redistricting process under that framework. The

District Court did not, however, as the Appellants would have this Court

believe, hold that strict scrutiny was mandated in this case. Rather,

interpreting the facts in the light most favorable to Appellants and giving

them every benefit of the doubt, it concluded that racial considerations were

a factor in the redistricting process and therefore applied strict scrutiny in

light of the broad holding in Pryor v. National Collegiate Athletic Ass’n, 288

F.3d 548 (3d Cir. 2002) that strict scrutiny applies to any policy motivated in

part by race.

Notably, however, the District Court expressed serious reservations

about applying strict scrutiny, noting that Seattle and other Supreme Court

precedents relied upon by the Appellants (Gratz v. Bollinger, 539 U.S. 244

(2003), Grutter v. Bollinger 539 U.S. 306 (2003), Adarand Constructors v.

Pena, 515 U.S. 200 (1995), City of Richmond v. J.A. Croson Co., 488 U.S.

469 (1998), and Johnson v. California, 543 U.S. 499 (2005) did not require

strict scrutiny in this case; that Seattle’s focus on applying strict scrutiny to

student assignment and placement programs, only involving individual racial

classifications, called into question whether Pryor’s pronouncement on the

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broad applicability of strict scrutiny to policies motivated in part on race

applies to student assignment plans that do not involve individual

classifications; and that language in Adarand (noting that that case

“concern[ed] only classifications based explicitly on race, and presents none

of the additional difficulties posed by laws that, although facially race

neutral, result in racially disproportionate impact and are motivated by a

racially discriminatory purpose”) indicated that the Supreme Court did not

intend for strict scrutiny to be applied to cases such as Village of Arlington

Heights v. Metro Housing Dev. Corp., 429 U.S. 252 (1977), Pryor, or this

case, in which the challenged policies do not expressly employ “individual

racial classifications.” Appendix A77-A78.

In short, the District Court applied a more stringent standard than was

necessary, exercising caution and providing Appellants every benefit of the

doubt. Pryor was the District Court’s only basis for applying strict scrutiny

in this case, and now the Third Circuit has the opportunity to determine

whether strict scrutiny does, in fact, apply to this case. Given that Pryor

predates Seattle, it stands to reason that the most recent application of the

equal protection principle by the Supreme Court in the school context would

control and, therefore, Pryor is not controlling here and cannot be relied

upon to decide this case. Indeed, Seattle does not prohibit and, in fact,

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contains language that would permit, what the District Court concluded the

District did in this case.

Nevertheless, even after interpreting the facts in the light most

favorable to the Appellants and applying the most stringent form of review,

the District Court properly found that the District’s redistricting process was

constitutional.

1. Appellants’ Contention That The District Never


Identified A Compelling State Interest Related To Its
Purportedly Race-Based Decisionmaking Is Incorrect
The District Court recognized as compelling the District’s educational

interests of equalized high school populations, minimized student travel,

educational continuity, and walkability, but it similarly recognized as

compelling the District’s interests in addressing the achievement gap and

racial isolation. Even if the race-neutral educational interests identified by

the District and acknowledged by the District Court are not compelling

government reasons for purposes of the strict scrutiny analysis because they

are not tied to the District’s purported use of race, there was sufficient record

evidence for the District Court to conclude that the District took race into

account in connection with the compelling interests in addressing the

empirically measured achievement gap between African–American students

and their peers of other racial and ethnic backgrounds in the District and in

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addressing racial isolation. This conduct is consistent with the No Child

Left Behind Act, which requires the District to understand the differences in

achievement levels among students of different races in order to be able to

address and eliminate the gap. At trial Dr. McGinley testified at length as to

the reasons why he, as an educator, would look at race in connection with

providing educational opportunities to all students, and testified concerning

a number of programs and initiatives that he and the District had

implemented to specifically combat the achievement gap and ameliorate

racial isolation. Appendix A1177-A1185. Appellants themselves

introduced evidence demonstrating that, to the extent race was taken into

account during redistricting, it was done so in connection with these

educational issues. A756-A758.

Appellants’ contention that the interests identified by the District (a)

do not fall within the categories of compelling state interests recognized by

the Supreme Court in situations where student school assignments are based

upon race, and (b) cannot be considered “compelling” when measured

against other interests recognized by the Supreme Court, should be rejected.

As an initial matter, and as the District Court found, this case does not

involve individual student assignments based upon race. Moreover, the

Supreme Court’s recognition of certain interests as “compelling” does not

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preclude the existence of other compelling interests, and Appellants fail to

cite any authority that would indicate otherwise. Seattle did not rule out

diversity as a compelling government interest outside the higher education

context, and, indeed, according to Justice Kennedy’s concurring opinion in

Seattle, achieving a diverse student population and avoiding racial isolation

are compelling interests that a school district, in its discretion and expertise,

may pursue. 551 U.S. at 798. Indeed, a majority of justices – Justice

Kennedy and the four dissenters, i.e., Justices Breyer, Stevens, Ginsberg,

and Souter – concluded that such interests are compelling. See 551 U.S. at

788, 790, 864-66.

Indeed, while the Supreme Court placed limits on when and how

school districts can consider the race of individual students, it did not rule

out any and all consideration of race. At the time Seattle was decided,

diversity as a compelling government interest had been recognized by the

Court only in the higher education context. See Grutter, 539 U.S. 306.

While the Seattle Court very easily could have stated definitively that

diversity is not a compelling interest in the primary and/or secondary

education context, it did not do so. Instead, Justice Kennedy’s separate

concurrence strongly embracing Grutter’s holding that cultivating broad

diversity by using race as one of many factors is a compelling educational

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goal even in secondary education received the support of the four dissenters

and, in this sense, five justices have expressed support for school districts’

consideration of broad diversity in assigning students to high school as a

compelling state interest.

Furthermore, contrary to Appellants’ argument, the District was not

precluded from arguing both that race was not a factor in the redistricting

decision and that, to the extent that it did consider race during the process, it

did so to achieve a compelling state interest. The District has maintained

throughout this case that race was not a factor in determining which of the

District’s two high schools students would attend, but that to the extent that

it did consider race in the redistricting process, it did so in an appropriate

and legally permissible manner. This position does not preclude it from

arguing, and is entirely consistent with its position, that Plan 3R and any

consideration of race in connection with Plan 3R were narrowly tailored to

achieve compelling government interests. Appellants fail to proffer any

applicable case law holding otherwise. The one case they do cite in

purported support of their argument that these defenses are mutually

exclusive, G-I Holdings, Inc. v. Reliance Insurance Co., 586 F.3d 247 (3d

Cir. 2009), is inapposite, as it did not involve an equal protection analysis, or

any claim of discrimination, for that matter. Instead, in G-I Holdings the

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defendant first claimed that a particular policy did not apply to the matter at

issue but later attempted to invoke a provision of the same policy. The court

ultimately found that judicial estoppel did not apply, and noted that in the

Third Circuit, judicial estoppel is generally not appropriate where the

defending party did not convince the District Court to accept its earlier

position. 586 F.3d at 262. Here, the District Court found that race was one

of several motivating factors in the Administration’s consideration and

formulation of redistricting plans; therefore, judicial estoppel does not

operate to preclude the District from arguing that Plan 3R and any

consideration of race in redistricting were narrowly tailored to achieve

compelling government interests.18

18
Appellants boldly assert that “[i]t would appear as a matter of law that in
those instances when a court has found that a defendant used race as a factor
in decision-making after an Arlington Heights/Pryor review, as in this case,
then said defendant will always lose a strict scrutiny challenge.” Appellants’
Brief at 49. Appellants cite no authority in support of this statement, and the
Supreme Court’s precedents contradict it. Even under Pryor, a defendant
can prevail after race has been found to have been a factor by showing that
its action was narrowly tailored to a compelling state interest, see Pryor, 288
F.3d at 562, and under Arlington Heights a defendant can prevail even after
it has been found to have been motivated in part by a racially discriminatory
purpose where it establishes that the same decision would have resulted even
had the impermissible purpose not been considered. 429 U.S. at 271 n.21.

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2. Appellants’ Contention That The District’s Actions


Were Not Narrowly Tailored And/Or Limited In
Duration Is Without Merit
Appellants contend that there is no evidence in the trial record

regarding how many African-American students needed to be redistricted to

achieve the District’s goals or whether this number were in fact moved or

scheduled to be moved in future. The District, however, was not required to

demonstrate a specific number of students that needed to be moved or that

were in fact moved to show that its redistricting plan is constitutional. The

undisputed testimony of Dr. McGinley, Dr. Jarvis, and Dr. Lyles was that

because racial isolation is not formulaic, any effective method of combating

racial isolation similarly must not be formulaic or “by the numbers.” Far

from indicating, as Appellants contend, that the redistricting plan adopted by

the District cannot be narrowly tailored to the interests of combating the

achievement gap and racial isolation, this fact instead demonstrates the

appropriateness of the District’s plan.

Appellants similarly contend that there is no evidence that once the

African-American student population at both high schools “becomes equal,”

there will be more African-American children taking classes with their non-

African-American peers. The District Court, however, never found that the

African-American student populations would at some point be equal at both

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high schools. The District Court instead relied on evidence that the District

implemented initiatives such as clustering to address racial isolation and

achievement gap issues by, for example, encouraging African-American

students to take advanced-level courses and not select courses below their

individual abilities. On that basis, the District Court found legitimate

educational reasons for having African-American students at both high

schools. Plan 3R, in addition to fulfilling the District’s goals of equalizing

the overall student populations at the two high schools, minimizing travel

time and transportation costs, fostering educational continuity K-12, and

fostering walkability, achieved that.

In addition, Appellants’ contention that there is no record evidence as

to whether race-neutral programs, including targeted magnet programs, were

seriously considered simply is wrong. Appellants ignore the undisputed

testimony of Dr. McGinley and Board Members that magnet programs were,

in fact, considered, but because additional magnet programs at Harriton

would interfere with the legitimate educational goal of having equal

curricular opportunities at both high schools, and because the use of magnet

programs in the past failed to result in a significant number of students

choosing to attend Harriton instead of Lower Merion, the District

determined, in its discretion, that the implementation of additional magnet

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programs at Harriton would not achieve its redistricting goals. Appendix

A1170-1174, A1176. Moreover, as the District Court noted, “narrow

tailoring does not require exhaustion of every conceivable race neutral

alternative.” A92 (quoting Grutter, 539 U.S. at 339).

Finally, the mere fact that Plan 3R may not have a definitive end point

does not render it insufficiently narrowly tailored. First, the language of

Grutter wherein Justice O”Connor referenced duration, on which Plaintiffs

rely, appears to be mere dicta. Second, Justice O’Connor went on to state

that “[e]nshrining a permanent justification for racial preferences would

offend this fundamental equal protection principle.” Grutter, 539 U.S. at

341-42. These concerns simply do not exist here, where there is no ongoing

government use of racial preferences or racial classifications. Here, to the

extent that there was any use of race, that use ended once Plan 3R was

implemented – there is no ongoing use of race. Moreover, there is no

constitutional requirement that a plan or policy involving considerations of

race have a sunset provision, particularly where the government is not

selecting or excluding people, because of their race. Here, the District did

not group together African-American students on one hand and non-African-

American students on the other and decide, for example, that it was going to

assign a specific number of African-American students to one school and a

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specific number of non-African American students to another school. The

District did not provide or deny students a high school education because of

their race. All District students are being providing an exceptional high

school education. The only question is where students are going to receive

that education – at Lower Merion or Harriton – which the District, through

its Board, has the authority to determine.

C. The District Did Not Waive And, In Fact, Proved, That Plan
3R Would Have Been Adopted Regardless Of The Racial
Composition Of The Affected Area
The District Court concluded that, “[a]ssuming that the District’s

consideration of the Affected Area’s racial demographics in assigning

students from that neighborhood to Harriton is considered evidence that race

was a motivating factor during redistricting, the appropriate inquiry for this

Court is whether Plan 3R would have been adopted regardless of the racial

composition of the Affected Area.” Appendix A80 (emphasis added).

Notably, this so-called “inevitability defense” only becomes a relevant

defense if strict scrutiny applies and, therefore, if strict scrutiny does not

apply here, Appellants’ argument that the District waived and/or did not

prove such a defense is immaterial.

The District asserted from the very beginning and throughout the case

that the Affected Area was districted to Harriton because of geography and

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existing feeder patterns. Students living in the Affected Area attend Penn

Valley Elementary School and Welsh Valley Middle School and reside

outside the official LMHS walk zone; consequently, under Plan 3R, which

utilized a 3-1-1 feeder pattern, they were districted to Harriton, along with

all other students, regardless of race, who similarly attend Penn Valley and

Welsh Valley and live outside the official LMHS walk zone. Consequently,

Appellants clearly were on notice of the District’s position that even apart

from any consideration of race, the Affected Area would attend Harriton

under Plan 3R.

Appellants also were on notice of the District’s position that the

Administration developed and presented, and the Board ultimately adopted,

Plan 3R because it simultaneously fulfilled the overarching objective of

redistricting, i.e., to equalize the overall student enrollments between the two

high schools, and because it fulfilled the K-12 continuity goal the Board

recognized as a priority in mid-November 2008, and restored walkability for

those students living within the official LMHS walk zone, another priority

identified by the Board.

The mere fact that the District did not label these facts and arguments

as an “affirmative defense” does not alter the fact that they were sufficiently

alleged, and that Appellants were on notice of them. Appellants cannot

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demonstrate any prejudice to them resulting from the District’s failure to

assert this as an affirmative defense in its answer or other pleading. The

Third Circuit has held “that the failure to assert an affirmative defense in an

answer will not result in waiver if the opposing party has notice of the

defense sufficient to avoid prejudice.” Woodson v. Scott Paper Co., 109

F.3d 913, 925 n. 9 (3d Cir. 1997) (citing Charpentier v. Godsil, 937 F.2d

859, 864 (3d Cir. 1991) (“It has been held that a defendant does not waive an

affirmative defense if he raised the issue at a pragmatically sufficient time,

and [the plaintiff] was not prejudiced in its ability to respond.”) (internal

quotations omitted).

Appellants’ hyperbolic contentions that the District cannot prove the

inevitability defense because the “deck was racially ‘stacked’ in this case

from the outset” and in light of the District Court’s finding that the Affected

Area had been “targeted” in part because of its racial composition are

without merit and should be rejected. Appellants appear to be arguing that

one can never prove the inevitability defense when race has been found to be

a factor in decisionmaking. This argument is absurd, as it would mean that

the inevitability defense is unavailable in such cases, which runs counter to

the very Supreme Court precedent enunciating the availability of an

inevitability defense in cases where race has been found to be a factor.

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Moreover, the District Court’s finding that the District “targeted” the

Appellants’ neighborhood for redistricting to Harriton High School in part

because of its racial demographics does not negate the fact that the District

would have chosen Plan 3R, and the Affected Area would have been

districted to attend Harriton High School under Plan 3R, even in the absence

of such “targeting.”

In addition, Appellants’ contention that the District cannot prove

inevitability because of the “reduction” in the official Lower Merion High

School walk zone is both factually disingenuous and legally incorrect. As

Appellants are well aware, they have never lived within the official Lower

Merion High School walk zone, which has been in place in its current form

at least since the 1990s. Appendix A43, n.18. The District Court properly

found that there was no evidence in the record to support the Appellants’

assertion that not expanding the official LMHS walk zone to include the

Affected Area, even though part of the Affected Area is within one mile of

Lower Merion High School, was somehow discriminatory. Appendix A43-

44. It is Appellants’ burden to show that race motivated that decision, which

they failed to do. See, e.g., Davis v. Bandemer, 478 U.S. 109, 173 n.10

(1986) (“Our cases have construed the Equal Protection Clause to require

proof of intentional discrimination, placing the burden on plaintiffs to trace

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the invidious quality of a law claimed to be racially discriminatory to a

racially discriminatory purpose.”) (citations, internal quotations, and ellipses

omitted).

Similarly, the Appellants’ fixation on the elimination of potential

scenarios because of racial considerations fails to show that Plan 3R was not

inevitable. What matters is what plan was adopted by the Board, not what

scenarios or plans were discarded. Consequently, the argument that Dr.

Haber unilaterally discarded potential scenarios because of racial

considerations is immaterial. Appellants’ argument that information was

withheld from the public is likewise immaterial. What is material is that

once the Board recognized that K-12 educational continuity, which required

a 3-1-1 feeder pattern, was a priority, and that it should maintain walkability

(as defined in relation to those students residing within the official LMHS

walk zone), Plan 3R was the only plan that could meet these requirements.

Moreover, as the District Court acknowledged, there was no evidence that

another neighborhood in the District could have been redistricted to attend

Harriton, while simultaneously meeting both the equalization and minimal

transportation goals of the District. Appendix A88.

Specifically, prior to redistricting, there were six elementary schools,

three of which (Penn Valley, Gladwyne, and Belmont Hills) fed into Welsh

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Valley Middle School, and three of which (Cynwyd, Merion, Penn Wynne)

fed into Bala Cynwyd Middle School. These students were then split at the

high school level – (1) most of the students attending Penn Valley and

Belmont Hills Elementary Schools and all students attending Gladwyne

Elementary School were districted to Harriton; and (2) students attending

Cynwyd, Merion, and Penn Wynne Elementary Schools, along with small

areas of the Penn Valley and Belmont Hills feeder areas (including South

Ardmore and Narberth Borough), were districted to Lower Merion.

Consequently, the only way to fulfill the goal of educational continuity from

kindergarten through grade twelve was, therefore, to have students attending

the three elementary schools that fed into Welsh Valley together attend one

high school, and to have the students attending the three elementary schools

that fed into Bala Cynwyd together attend the other high school. Since most

of the students attending the three elementary schools that fed into Welsh

Valley already attended Harriton, it only made sense for them to be

districted to attend Harriton together.

In addition, to fulfill the District’s goals of reducing travel time for

students, not creating a need for new buses, and maintaining walkability as

defined by the official LMHS walk zone, it was only natural that the

Affected Area, which was one of the areas closest to Harriton that was not

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already districted to Harriton, and which did not fall within the official

Lower Merion High School walk zone, would be redistricted to Harriton.

As the District Court noted, students in all other neighborhoods

districted for Penn Valley were already districted to Harriton. Thus,

redistricting students in the Affected Area to Harriton enabled those students

to attend high school with their peers from Penn Valley Elementary and

Welsh Valley Middle School (with the exception of those in the historic

Lower Merion High School walk zone who elect to attend that high school),

whereas redistricting North Ardmore to Harriton would result in students

from Penn Wynne Elementary School and Bala Cynwyd Middle School

being split between the two high schools. Appendix A89-A90.

The irony is that if the District had never looked at any race data

during the redistricting process, it still would have ended up with Plan 3R,

knowing full well that a significant number of African-American students

reside within Ardmore. As the Court found, both North Ardmore and the

Affected Area were “natural candidates for redistricting” because they were

the two areas geographically closest to Harriton that were not already

districted to attend Harriton prior to the adoption of Plan 3R. Appendix

A87. Of these two areas, the Affected Area ultimately was chosen for

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redistricting to Harriton High School, because redistricting students in that

area fostered K-12 educational continuity from elementary school to middle

school to high school, whereas redistricting students in North Ardmore

would not have done so, since it would have split kids from the same

elementary and middle schools to attend different high schools. Appendix

A89-A90.

D. Appellants’ Argument That § 1981 And Title VI Prohibit


The District’s Redistricting Actions, Even Though The
Fourteenth Amendment May Not Do So, Have Been
Soundly Rejected By The Supreme Court And Should
Again Be Rejected Here
The District Court appropriately found that Appellants’ remaining

claims pursuant to Title VI and 42 U.S.C. § 1981 fail because those statutes’

prohibitions against discrimination are coextensive with the Equal Protection

Clause, as the Supreme Court repeatedly has held. See Grutter, 539 U.S. at

343 (finding that because the Equal Protection Clause was not violated by

the law school admissions’ use of race, the petitioner’s statutory claims

under Title VI and § 1981 must also fail); Gratz, 539 U.S. at 276

(“[D]iscrimination that violates the Equal Protection Clause of the

Fourteenth Amendment committed by an institution that accepts federal

funds also constitutes a violation of Title VI.”); Sandoval v. Alexander, 532

U.S. 275, 280 (2001) (explaining that Title VI “proscribe[s] only those racial

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classifications that would violate the Equal Protection Clause”) (internal

citations omitted); Gen. Bldg. Contractors Ass’n, Inc. v. Pa., 458 U.S. 375,

391 (1982) (applying same analysis for Equal Protection and § 1981). See

also Yelverton v. Lehman, No. CIV.A. 94-6114, 1996 WL 296551, at *7

(E.D. Pa. June 3, 1996) (noting that to establish claim under § 1981, plaintiff

must allege facts showing intent to discriminate on basis of race, and finding

that because all of plaintiff’s equal protection claims were dismissed, he

could not establish that defendants intended to discriminate on basis of race).

E. The District Court Did Not Commit An Abuse Of


Discretion In Allowing Dr. Robert Jarvis And Dr. Claudia
Lyles to Testify
While Appellants contend that the District Court erred in admitting

the testimony of Dr. Robert Jarvis and Dr. Claudia Lyles, they fail to show

how the ruling on such testimony prejudiced them and how a different ruling

would have changed the outcome of this case. The decision to admit or

preclude witness testimony should not be disturbed absent a clear abuse of

discretion, which Appellants have not shown – and cannot show – in this

matter. See, e.g., Biessel v. Pittsburgh and Lake Erie R.R. Co., 801 F.2d

143 (3d Cir. 1986) (finding no abuse of discretion in trial court’s admission

of testimony of witness, even where witness’ name did not appear on list of

witnesses required by pretrial order). Counsel for the District did not learn

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of Dr. Robert Jarvis and Dr. Claudia Lyles until March 11, 2010, just one

day before it was required to file its Pretrial Memorandum, which listed

these and other proposed witnesses. Nevertheless, even if the District had

been aware of these witnesses beforehand, it is not clear that it was required

to disclose them in its Rule 26(a)(1) initial disclosures. Rule 26(a)(1)

requires parties to disclose the identities of individuals likely to have

discoverable information concerning the claims and defenses at issue in the

lawsuit. Fed. R. Civ. P. 26(a)(1). These witnesses had no such personal

knowledge regarding the subject matter of this litigation, i.e., the District’s

redistricting process and redistricting plan. Rather, each witness is an

educator who had worked with Dr. McGinley, and who had personal

knowledge concerning his reputation as an educator, his work concerning

issues such as the “achievement gap,” his advocacy for children of color and

children with disabilities, and his commitment to ensuring greater access to

challenging coursework for minority students and students with disabilities.

Notably, Counsel for Appellants questioned Dr. McGinley during his

deposition regarding these areas of inquiry, and the jobs he had held and the

districts within which had worked since college. Appellants could have

sought the identities of individuals with whom Dr. McGinley has worked,

but they chose not to do so. Indeed, Appellants never propounded

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interrogatories to the District which would have called for information

relating to the challenged witnesses.

Appellants alleged in their Complaint that the District – including its

Superintendent and Board of School Directors – intentionally discriminated

against them on the basis of race “by mandating that they attend Harriton

High School because they are minorities.” See Compl., ¶¶ 70, 75, 82.

Consequently, the testimony elicited from these witnesses goes to motive or

intent and, therefore, is properly characterized as rebuttal testimony. See,

e.g., Ansell v. Green Acres Contracting Co., Inc., 347 F.3d 515 (3d Cir.

2003) (affirming, in ADEA case, district court’s decision denying motion in

limine to exclude testimony concerning employer’s treatment of employees

over age of forty, where testimony was offered to rebut plaintiffs’ argument

that termination was motivated by overarching plan to eliminate older

workers and to establish that employer did not have a discriminatory intent

when it discharged plaintiff); Terrell v. Richter-Rosin, Inc., 81 F.3d 161,

1996 WL 122639, at * 4 (6th Cir. Mar. 19, 1996) (ruling, in housing

discrimination case, that district court properly allowed African-American

home buyers to testify regarding their experiences with defendants for

purpose of rebutting inference that defendants discriminated against

plaintiffs).

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In general, rebuttal lay witnesses are not required to be disclosed.

Moreover, courts in this Circuit have allowed parties to call witnesses in

rebuttal even when they were not disclosed in a pretrial memorandum or

order, as long as the witness and his testimony are within the scope of proper

rebuttal. See, e.g., Upshur v. Shepherd, 538 F. Supp. 1176, 1180 (E.D. Pa.

1982). The District identified the challenged witnesses in its Pretrial

Memorandum filed on March 12, 2010, in accordance with the District’s

Court’s scheduling order and the Local Rules of Civil Procedure, allowing

Appellants ample time to depose such witnesses if it chose to do so.

Moreover, the preclusion of witness testimony is an extreme sanction

that should be employed only in rare circumstances. See Meyers v.

Pennypack Woods, 559 F.2d 894, 904-905 (3d Cir. 1977) (reversing, in

racial discrimination case under Civil Rights Act of 1866 and Fair Housing

Act of 1968, district court’s refusal to admit testimony of witnesses not

named in pre-trial memoranda); DeMarines v. KLM Royal Dutch Airlines,

580 F.2d 1193, 1202 (3d Cir. 1978) (holding that exclusion of expert

testimony was reversible error, even though subject of testimony was not

included in expert report in accordance with court order, where testimony

did not disrupt trial, and there was no assertion that defendant exercised bad

faith).

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Consequently, even if the identities of Dr. Jarvis and Dr. Lyles were

subject to disclosure under Rule 26(a)(1), the District Court appropriately

exercised its discretion in admitting their testimony in the absence of such

disclosure, as courts routinely do. See, e.g., Cunningham v. Town of

Ellicott, No. 04CV301, 2007 WL 1040013, at *3 (W.D.N.Y. April 3, 2007)

(permitting defendant in discrimination case to call character witnesses not

disclosed pursuant to Rule 26(a)(1) or (e)); The Globe Savings Bank, F.S.B.

v. U.S., 61 Fed. Cl. 91, 100-101 (2004) (denying motion in limine to

preclude government from calling witnesses who were not disclosed under

Rule 26(a)(1) or (e) in case brought by thrift alleging that government

breached promises of regulatory forbearance, where witnesses were not

considered to have “discoverable information” because anticipated

testimony was not directly related to their regulation of plaintiff specifically,

but rather their regulation of other particular thrifts); Cary Oil Co. v. MG

Ref. & Mktg., Inc., No. 99 Civ. 1725, 2003 WL 1878246, at *4-5 (S.D.N.Y.

April 11, 2003) (denying motion to strike expert opinion testimony even

though it was not contained in initial report in accordance with Fed. R. Civ.

P. 26(a)(2)(B), as defendants had ample time to prepare effective cross

examination and consider possible witnesses to counter supplemental expert

opinions that defendants were only on notice of one month before trial).

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In sum, the District disclosed the identities of the challenged

witnesses in its Pretrial Memorandum, just one day after it learned of them,

and one month before trial. The District also provided Appellants with

notice of the anticipated subject matter of these witnesses’ testimony.

Appellants therefore were not prejudiced by the District’s failure to disclose

the identities of these witnesses prior to the filing of its Pretrial

Memorandum, particularly given that Appellants could have deposed these

witnesses before or even during trial, as the District Court suggested, but

chose not to do so.

CONCLUSION
In asserting that the District Court erred in granting judgment in favor

of the District, Appellants appear to contend that the fact that the

Administration and/or the Board knew that the Affected Area has a high

concentration of African-American students made the Affected Area off

limits for redistricting because then any decision to redistrict the Affected

Area would be racially discriminatory. As the District Court found,

however, Appellants are being treated the same as all other students – of all

races – in their neighborhood, as well as all other students – of all races –

within the same elementary and middle school feeder patterns who similarly

live outside the official Lower Merion High School walk zone. Therefore,

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there is no legitimate reason to exempt Appellants from redistricting.

Appellants would have this Court rule that any consideration of race is

impermissible. Taken to its logical conclusion, such a ruling would severely

impede school districts everywhere in their ability to provide quality

education to all students by having the absurd result of rendering

unconstitutional all race-conscious measures to address the well-documented

achievement gap and racial isolation, including but not limited to clustering

on a voluntary basis, as well as the No Child Left Behind Act of 2001, 20

U.S.C. § 6301 et seq. (whose stated purpose is to “close the achievement

gap,” and which requires the disaggregation of student performance and

enrollment data by race).

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For these and the foregoing reasons, the District respectfully requests

that this Court affirm the decision of the District Court granting judgment in

favor of the District, and the decision of the District Court denying

Appellant’s Motion for New Trial.

Respectfully submitted,

/s/ Judith E. Harris


Judith E. Harris (PA I.D. No. 02358)
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103
215-963-5028

Attorney for Defendant-Appellee


Lower Merion School District
Dated: January 5, 2010

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CERTIFICATE OF ADMISSION

I certify that I am a member of the bar of this Court.

/s/ Judith E. Harris


Judith E. Harris

CERTIFICATES OF COMPLIANCE
I, Judith E. Harris, an attorney, pursuant to Fed. R. App. P. 32(a)(7)(C)(i),

certify that the foregoing Brief of Appellees, Lower Merion School District,

complies with the typeface requirements of Fed.R.App.P. 32(a)(5) and the type

style requirements of Fed.R.App.P. 32(a)(6).

This brief complies with the type-volume limitations of Federal Rule

Appellate Procedure 32(a)(7)(B). The Brief contains 14,586 words, excluding the

parts of the Brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), and was prepared

using Microsoft Word 2003.

L.A.R. 31.1(c) Certification: The text of the electronic version of this brief

is identical to the text in the paper copies of this brief. A virus detection program

(McAfee AntiVirus version 4.0) has been run on the file of this brief and no virus

was detected.

/s/ Judith E. Harris


Judith E. Harris
January 5, 2011 Attorneys for Appellee

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CERTIFICATE OF SERVICE

I hereby certify that on this 5th day January, 2011, a digital version of the

Brief, was delivered by electronic mail, and on the 6th day of January, 2011 two

copies of the Brief of Defendant-Appellee Lower Merion School District were

delivered via first class mail, to the following counsel:

David G.C. Arnold, Esq.


Suite 106
920 Matsonford Road
West Conshohocken, PA 19428
Email: davidgcarnold@aol.com
Attorneys for Plaintiffs

Christopher M. Arfaa, Esq.


Suite F-200
150 North Radnor Chester Road
Radnor, PA 19087
Email: carfaa@arfaalaw.com
Amicus Appellant

/s/ Judith E. Harris


Judith E. Harris

January 5, 2011