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Case: 10-3824 Document: 003110417329 Page: 1 Date Filed: 01/24/2011

In The

United States Court of Appeals


for the

Third Circuit
Case No. 10-3824

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


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

LOWER MERION SCHOOL DISTRICT,


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

REPLY BRIEF FOR APPELLANTS

DAVID G.C. ARNOLD, ESQ.


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

Attorney for Appellants

COUNSEL PRESS  (888) 700-3226


Case: 10-3824 Document: 003110417329 Page: 2 Date Filed: 01/24/2011

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............................................................................ ii


ARGUMENT .................................................................................................... 1
CONCLUSION ................................................................................................. 20

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TABLE OF AUTHORITIES
Page(s)
Cases:
Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995) ............................................................................... 4, 17
Brown v. Board of Education,
347 U.S. 483 (1954) ............................................................................... 4, 19
Carpenter v. Godsil,
937 F.3d 859 (3d Cir. 1991) ................................................................... 14
Chainey v. Street,
523 F.3d 200 (3d Cir. 2008) ................................................................... 14, 15
EF Operating Corporation v. American Buildings,
933 F.2d 1046 (3d Cir. 1993) ................................................................. 2, 11
G-1 Holdings, Inc. v. Reliance Insurance Company,
586 F.2d 247 (3d Cir. 2009) ................................................................... 11
Gratz v. Bollinger,
539 U.S. 244 (2003) ............................................................................... 4, 17
Grutter v. Bollinger,
539 U.S. 306 (2003) .......................................................................... passim
Interstate Commerce Commission v. American Railway Express
Company,
265 U.S. 425 (1924)................................................................................ 2
Johnson v. California,
543 U.S. 499 (2005)............................................................................ 4, 17, 18
Marks v. United States,
430 U.S. 188 (1977)................................................................................ 5
Parents Involved in Community Schools v. Seattle School District No. 1,
551 U.S. 701 (2007).......................................................................... passim
Plessy v. Ferguson,
163 U.S. 537 (1896)................................................................................ 19
Pryor v. National Collegiate Athletic Association,
288 F.3d 548 (3d Cir. 2002) ............................................................. passim

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R.G. Speaks v. Trikora,


838 F.2d 1436 (5th Cir. 1988) ................................................................ 2
Regents of the University of California v. Bakke,
438 U.S. 265 (1978)................................................................................ 5, 8-9
Village of Arlington Heights v. Metropolitan Housing Development Corp.,
429 U.S. 252 (1977) ............................................................................... 4, 16
Woodson v. Scott Paper Co.,
109 F.3d 913 (3d Cir. 1997) ................................................................... 14

Statutes & Other Authorities:


29 U.S.C. § 794 ................................................................................................. 7
42 U.S.C. § 1981 ............................................................................................... 1, 8, 9
42 U.S.C. § 2000d ............................................................................................. 1, 8, 9
3rd Cir. R. 28.3(c) ............................................................................................. 10, 14
Fed. R. App. P. 4(a)(3) ...................................................................................... 2
Fed. R. App. P. 28(c) ........................................................................................ 1
Fed. R. Civ. P. 8 ................................................................................................ 14
Fed. R. Civ. P. 15 .............................................................................................. 14
Fed. R. Civ. P. 52(a).......................................................................................... 3
Rehabilitation Act § 504 ................................................................................... 7
Title VI of the Civil Rights Act ........................................................................ 1, 8, 9

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ARGUMENT

Appellants, Students Doe 1 through 9, now file the present Reply Brief in

accordance with Rule 28(c) of the Federal Rules of Appellate Procedure, and in

accordance with the Briefing and Scheduling Order entered by this Honorable

Court. Appellee, Lower Merion School District, argues in its Brief that the District

Court improperly found that race was a factor in its decision-making, that its

handling of redistricting complied with the guidelines set forth in Justice

Kennedy's concurrence in Parents Involved in Community Schools v. Seattle

School District No. 1, 551 U.S. 701 (2007), that its redistricting actions survive

review under the strict scrutiny test, that it did not waive and in fact proved an

"inevitability" defense, that the testimony of Drs. Lyles and Jarvis was properly

admitted into evidence at trial, and that Students Doe's alternate bases for relief

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

Section 2000d et. seq., are barred by precedent.

The NAACP Legal Defense & Educational Fund, Inc., the Lawyers'

Committee for Civil Rights Under Law, and the American Civil Liberties Union

Foundation, hereinafter collectively referred to as the "ACLU Amici", have filed a

Joint Amicus Curiae Brief in which they assert that Justice Kennedy's concurrence

in Seattle School District is controlling on the issues presented, that strict scrutiny

should not be applied in light of Justice Kennedy's concurrence, and that school
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districts do not violate the Fourteenth Amendment when they seek to achieve

greater racial diversity through redistricting.

Students Doe's position on the admissibility of Drs. Lyles and Jarvis'

testimony is set forth in its entirety in their previously filed Brief on pages 48-49.

Out of respect for this Honorable Court's time, Students Doe will not repeat their

arguments herein. Because Lower Merion, and the ACLU Amici's positions

regarding Justice Kennedy's concurrence in Seattle School District are essentially

the same, Students Doe will respond to them together.

However, before Students Doe address these arguments, Lower Merion's

actions on appeal call into question whether it is in fact entitled to raise some of its

arguments in the first place. Students Doe timely filed a Joint Notice of Appeal on

September 16, 2010. Appendix A100-A103. Lower Merion thereafter never filed a

cross-appeal in this action in accordance with Rule 4(a)(3) of the Rules of

Appellate Procedure; therefore, Lower Merion's arguments attacking adverse

rulings of the District Court may not have been properly preserved for appeal

because Lower Merion is seeking at this point to enlarge its rights and/or lessen the

rights of Students Doe. See Interstate Commerce Commission v. American

Railway Express Company, 265 U.S. 425, 435-436 (1924); EF Operating

Corporation v. American Buildings, 933 F.2d 1046, 1048-1049 (3d Cir. 1993);

R.G. Speaks v. Trikora, 838 F.2d 1436, 1439 (5th Cir. 1988).
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This waiver issue relates specifically to Lower Merion's argument

concerning the District Court's factual findings that race was a factor in decision-

making, and Lower Merion's argument on the continuing viability of Pryor v.

National Collegiate Athletic Association, 288 F.3d 548 (3d Cir. 2002). The ACLU

Amici's would in turn be limited by any ruling that Lower Merion failed to

preserve a given issue for appeal.

Even if it is found that Lower Merion may contest the District Court's

findings that race was a factor in decision-making on appeal, Lower Merion's

arguments on this point are without merit. The District Court's Findings of Fact are

only reversible if they are found to be clearly erroneous. F.R.Civ.P. 52(a). An

objective review of the District Court's Memorandum on Factual Findings

indicates that the District Court had ample bases to conclude that race was a factor

in Lower Merion's redistricting. Appendix A1-A57. Students Doe have highlighted

certain portions of the District Court's Findings of Fact in their previously filed

Brief at pages 31-36.

Turning to Lower Merion and the ACLU Amici's position concerning

Justice Kennedy's concurrence in Seattle School District, there are several

threshold legal and factual deficiencies in the argument that become apparent when

the position is deconstructed. These shortcomings constitute a basis to deny Lower

Merion and the ACLU Amici 's contentions in their entirety.


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First, although Lower Merion and the ACLU Amici tout the end of strict

scrutiny in cases like this, the demise of the strict scrutiny test is greatly

exaggerated. In order to apply any other standard of scrutiny to a case in which

race was a factor in decision-making, this Honorable Court would, at a minimum,

have to overturn or ignore the Supreme Court's decisions in Seattle School District,

551 U.S. 701, Johnson v. California, 543 U.S. 499 (2005), Gratz v. Bollinger, 539

U.S. 244 (2003), Grutter v. Bollinger, 539 U.S. 306 (2003), Adarand Constructors,

Inc. v. Pena, 515 U.S. 200 (1995), Village of Arlington Heights v. Metropolitan

Housing Development Corp., 429 U.S. 252 (1977), and Brown v. Board of

Education, 347 U.S. 483 (1954), as well as overturn or ignore this Honorable

Court's own decision in Pryor v National Collegiate Athletic Association, 288 F.3d

548.

Second, an informed reading of Seattle School District will reveal that all

nine (9) justices agree that strict scrutiny should apply. Chief Justice Roberts

clearly states in his plurality opinion that strict scrutiny applies, and that the

student assignment plans in question do not further a compelling state interest in a

narrowly tailored manner. Seattle School District, 551 U.S. at 708-748. Justice

Thomas comes to the same conclusion in his concurrence. Id. at 748-782. In his

concurrence, Justice Kennedy finds that strict scrutiny applies, but that in some

instances the goal of diversity can be a compelling state interest. Justice Kennedy

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then goes on to find that the student assignment plans at issue do not meet the

narrow tailoring prong of the strict scrutiny test. Id. at 782-799.

After arguing at length as to why strict scrutiny should not apply in cases

like the instant matter, Justice Breyer states in his dissent, "Nonetheless, in light of

Grutter and other precedents, see, e.g., Bakke,...I shall adopt the first alternative. I

shall apply the version of strict scrutiny that those cases embody. I shall

consequently ask whether the school boards in Seattle and Louisville adopted these

plans to serve a 'compelling governmental interest' and, if so, whether the plans are

'narrowly tailored' to achieve that interest. If the plans survive this strict review,

they would survive less exacting review a fortiori." Id. at 837. Justice Breyer then

found that Seattle and Louisville's student assignment plans survived strict

scrutiny. Id. at 838-869. Justice Stevens, Justice Ginsburg, and Justice Souter

joined in Justice Breyer's dissent. The foregoing should foreclose any argument

under Marks v. United States, 430 U.S. 188 (1977), that strict scrutiny does not

apply in the present case.

Third, in light of Justice Kennedy's concurrence and Justice Breyer's dissent,

the true Marks issue presented in this case is not whether strict scrutiny applies;

instead, the issue is whether the goal of achieving diversity can constitute a

compelling state interest. However, because of Lower Merion's failure to identify

any compelling state interest, see Students Doe's previously filed Brief at pages
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45-50, and its continuing unexplained denial that it took race into account when

redistricting, this Honorable Court does not have to resolve whether the goal of

achieving diversity can constitute a compelling state interest.

That issue is better left to a day when a school district unequivocally admits,

and then properly defends the issue in a school redistricting case, thereby placing

the issue squarely before the Court. When considering the diversity issue, it must

be kept in mind that the Supreme Court has never clearly indicated that the goal of

achieving racial diversity is a compelling state interest other than when an

institution of higher learning, i.e. one above the high school level, sought to use

race in conjunction with a number of other factors in order to truly diversify its

student body. Seattle School District, 551 U.S. at 722; Grutter, 539 U.S. 306.

Just so the record is clear, the diversity Lower Merion sought is entirely

different then the type of diversity found acceptable at the graduate school level in

Grutter v. Bollinger, 539 U.S. 306. This argument is made notwithstanding Lower

Merion's repeated denials that race was a factor in decision-making, and that

Lower Merion can somehow establish through proper citation to the record, a task

it has declined to undertake so far, that it was seeking to increase diversity when

redistricting. The type of diversity the University of Michigan Law School used

that was at issue in Grutter, considered diversity in a multifaceted manner, not in

terms of simply race. The University of Michigan considered gender, life


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experience, religion, unique work experience, unique life experiences,

contributions to the community, and a number of other factors. Id. at 341-342.

Lower Merion only purportedly looked at diversity in terms of race, disability

status, and economic status, but targeted Students Doe's neighborhood for racial

reasons. Appendix A65, A2118, A2141, and A2158. It should be noted that it has

always been Students Doe's contention that districting students on the basis of

disability status is a direct violation of § 504 of the Rehabilitation Act. See 29

U.S.C. Section 794; Plaintiff's Proposed Findings of Fact and Conclusions of Law

Paragraph 27 filed of record on April 5, 2010. Lower Merion's Administration and

School Directors admitted during trial that they never took into consideration many

of the diversifying factors used by the University of Michigan, and which were at

issue in Grutter. Appendix A610-A611, A1364, A1478, A1592-A1593, A1625,

A1755, A1803, A1821, and A1850-A1851.

Lower Merion and the ACLU Amici's focus on the difference between

individual considerations of race versus group wide considerations of race citing

Seattle School District, merits some additional attention. First, the contention

ignores entirely the fact that Lower Merion's redistricting plan is far more

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

District. See Students Doe's previously filed Brief at pages 39-40. Second, the

contention further ignores the fact that in a school district where only

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approximately ten percent (10%) of the high school student population is African

American, over twenty five percent (25%) of the high school students moved due

to redistricting in the very first year were African American. Appendix A2118,

A2141, A2158, and Appellee's Brief page 26.

Lower Merion's related argument that African American and other non-

minority children were redistricted is unpersuasive because, as a result of

redistricting, Lower Merion had to move seven hundred (700) children. There are

only two hundred and twenty eight (228) African American children at the high

school level in the entire district. Appendix A2118, A2141, A2158, and Appellee's

Brief page 10.

Third, the individual classification versus group classification argument may

in fact demand additional consideration of whether Title VI, 42 U.S.C. § 2000 et.

seq., and 42 U.S.C. § 1981's protections are in fact co-extensive, and not broader,

than the protections under the Fourteenth Amendment. As Students Doe noted in

their previously filled Brief at page 64, the Supreme Court addressed this issue in

Grutter, and came to the conclusion that 42 U.S.C. § 1981 and Title VI offered no

protections in addition to those afforded by the Fourteenth Amendment.

However, this conclusion in Grutter is premised on a review of Justice

Powell's analysis of the issue in Regents of the University of California v. Bakke,

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438 U.S. 265 (1978). See Grutter, 539 U.S. 343. A review of Justice Powell's

discussion of the scope of Title VI in Bakke, and the legislative history cited

therein, does not indicate that Congress enacted Title VI with the view that it

should be applied differently in individual cases as opposed to group case. See

Bakke, 438 U.S. at 281-287. Both Title VI and 42 U.S.C. § 1981 outlaw all racial

discrimination. See 42 U.S.C. § 1981 (“All persons within the jurisdiction of the

United States shall have the same right in every State and Territory … to the full

and equal benefit of all laws and proceedings ….” Id. at § 1981(a); 42 U.S.C. §

2000d (“No person in the United States shall, on the ground of race, color, or

national origin, be excluded from participation in, be denied the benefits of, or be

subjected to discrimination under any program or activity receiving Federal

financial assistance.” Id.).

The ACLU Amici's position in this case also invites one additional

comment. A consideration of the ACLU Amici's position in its entirety will reveal

that they are actually advocating a view that constitutional protections should be

less stringently monitored when government action is purportedly taken to help

minority citizens. This position has not been adopted by the Supreme Court. As

this Honorable Court stated in Pryor, "Moreover, contrary to the assertions made in

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

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

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

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

subject a decisionmaker to liability for purposeful discrimination." Pryor, 288 F.3d

at 560-561.

Regarding Lower Merion's contention that its redistricting actions could

survive review under strict scrutiny, several additional comments are appropriate

even though Students Doe have thoroughly discussed the issue in their previously

filed Brief at pages 36 through 57. First, although Lower Merion states in its Brief

that it used race-based redistricting to prevent racial isolation and combat the

achievement gap, it fails to cite where it did so in the trial record, Appellee's Brief

at pages 47-48, and a review of the trial record clearly indicates that Lower Merion

never took such a position. Lower Merion's assertion without citation to the record

is a violation of Rule 28.3(c) of the Third Circuit Local Appellate Rules. As noted

in Students Doe's prior Brief, Dr. McGinely unequivocally testified at trial that

race was not a factor in Lower Merion's decision-making, that Lower Merion did

not redistrict on the basis of race to prevent racial isolation or to solve the

achievement gap, and that it was unnecessary to redistrict in order to solve these

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

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

A1265, and A1276.

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As noted in the preceding paragraphs of this very Brief, Lower Merion

wishes to argue this same point, one which it did not preserve for appeal by filing a

cross appeal, to this Honorable Court while still contending that it sought somehow

to further a compelling state interest. It is the legally irreconcilable nature of Lower

Merion's argument that dooms its position on strict scrutiny, and supports the view

that this Honorable Court should delay consideration of Justice Kennedy's

statements concerning compelling state interest and achieving racial diversity until

another day.

Although Lower Merion contests the application of judicial estoppel in light

of the underlying facts in G-1 Holdings, Inc. v. Reliance Insurance Company, 586

F.2d 247 (3d Cir. 2009), one has to appreciate that the insurance carrier’s change in

position in that case occurred early on in the pre-trial stages of the litigation, and

the Court never relied on said position. Id. At 260-263. Lower Merion's change of

heart occurred in the post-trial phase of the present case, after the District Court

entered its Memorandum on Factual Findings. Such conduct is simply not

permitted, and should be estopped. This Honorable Court stated in EF Operating

Corporation, "It goes without saying that one cannot casually [cast] aside

representations, oral or written, in the course of litigation simply because it is

convenient to do so...." EF Operating Corporation, 933 F.2d at 1050.

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Second, it is worth noting that the ACLU Amici agree with Students Doe

that the goals of equalizing high school enrollment, minimizing travel times and

transportation costs, fostering educational continuity, and fostering walk-ability are

not race related, and do not constitute compelling state interests. See Students

Doe's previously filed Brief at pages 50 through 52; ACLU Amici's Brief page 27n

17. Third, Lower Merion's criticism of Students Doe's narrow tailoring argument

about magnet programs is misplaced. While Students Doe acknowledge that Lower

Merion's Administration testified that they considered magnet programs, Students

Doe's contentions were related solely to the issue of magnet programs created to

attract African American children to Harriton High School. Lower Merion never

testified about such programs because it consistently testified at trail that race was

not a factor in redistricting. Appendix A609-A610, A612-A613, A636-A637,

A661, A666, A746-A747, A756, A758, A760-A762, A766, A1199, A1200-A1201,

A1250-A1251, A1265, and A1276.

Fourth, Lower Merion's position that durational requirements do not apply to

Lower Merion's redistricting, and the characterization of the majority's statements

regarding the duration issue in Grutter, 539 U.S. at 341-342, as dicta, are incorrect.

The durational requirement clearly applies to Lower Merion's redistricting because

race was a factor in its development. Id. Moreover, neither the majority or minority

opinions in Grutter characterize the durational requirement as dicta. See Id. at 341-

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342 ("The requirement that all race-conscious admissions programs have a

termination point assures all citizens that the deviation from the norm of equal

treatment of all racial and ethnic groups is a temporary matter, a measure taken in

the service of the goal of equality itself." Id. at 341 (Majority Opinion) (internal

quotations omitted)); Id. at 369 ("Finally, I believe that the Law School's program

fails strict scrutiny because it is devoid of any reasonably precise time limit on the

Law School's use of race in admissions. We have emphasized that we will

consider 'the planned duration of the remedy' in determining whether a race-

conscious program is constitutional. Id. (Chief Justice Rehnquist in dissent)); Id. at

387 ("Thus, an important component of strict scrutiny--that a program be limited in

time--is casually subverted." Id. (Chief Justice Rehnquist in dissent)); Id. at 370-

371 ("The Court will not even deign to make the Law School try other methods,

however, preferring instead to grant a 25-year license to violate the Constitution.

And the same Court that had the courage to order the desegregation of all public

schools in the South now fears, on the basis of platitudes rather than principle, to

force the Law School to abandon a decidedly imperfect admissions regime that

provides the basis for racial discrimination." Id. (Justice Thomas in dissent)).

Concerning the inevitability defense, Lower Merion contends that it did not

waive the defense, and actually proved the defense at trial. Students Doe have

discussed the aforementioned issue at length in their previously filed Brief at pages

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57 through 62. However, several additional points are in order in light of Lower

Merion's arguments.

First, Lower Merion has in essence conceded in its argument that it never

plead an inevitability defense as required by Rule 8 of the Federal Rules of Civil

Procedure, and that it never sought leave from the District Court to amend its

answer as required under Rule 15 of the Federal Rules of Civil Procedure. Lower

Merion seeks to excuse its procedural shortcomings by arguing that it placed

Students Doe on notice of this defense in a "pragmatically sufficient" amount of

time citing Woodson v. Scott Paper Co., 109 F.3d 913 (3d Cir. 1997), and

Carpenter v. Godsil, 937 F.3d 859 (3d Cir. 1991).

However, once again Lower Merion never directs this Honorable Court to

exactly where in the record it placed Students Doe on notice in direct violation of

Rule 28.3(c) of the Third Circuit Local Appellate Rules. See Appellee's Brief

pages 55-57. Moreover, in both Woodson and Carpenter the plaintiff was put on

notice of the affirmative defense before trial. Woodson, 109 F.3d at 924n 9;

Carpenter, 937 F.2d at 864. In this case, the defense did not arise until after trial

was concluded. See Students Doe's previously filed Brief page 58.

This Honorable Court held in Chainey v. Street, 523 F.3d 200 (3d Cir.

2008), that a party would not be allowed to raise an affirmative defense after trial

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stating, "The purpose of requiring the defendant to plead available affirmative

defenses in his answer is to avoid surprise and undue prejudice by providing the

plaintiff with notice and the opportunity to demonstrate why the affirmative

defense should not succeed...Permitting the limitations defense after the close of all

evidence contradicts the articulated purpose of the rule.” Id. at 209n 5 (internal

quotations and citations omitted). Lower Merion cites absolutely no authority for

the proposition that its unsuccessful liability defense somehow transformed itself

into a viable affirmative defense when it failed to plead it and/or sought leave to

assert it before the conclusion of trial.

Second, even if Lower Merion appropriately raised the defense, its

application is too speculative in this case. Lower Merion indicates in its own Brief

that the plan selection process was in part directed by community influence.

Appellee's Brief pages 15-24. The community's position on the plans was dictated

by the potential plans presented, and the information Lower Merion provided.

Racial decision-making was factored into every potential plan presented to the

public. Moreover, Lower Merion hid information from the public about its race

based decision-making. To assume the public would have made the same demands

of Lower Merion if the process were in fact "color blind" is inappropriate. See

Students Doe's previously filed Brief page 59.

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Furthermore, because race based decision-making was present throughout the

redistricting process, no one can reasonably know whether there are any race

neutral plans that could have been adopted creating a result different from Plan 3R.

According to the Supreme Court's decision in Arlington Heights, 429 U.S. at 270n

21, Lower Merion has the burden of proof on these issues.

Third, Lower Merion's continued references to the geographic proximity of

the Affected Area to Harriton High School warrants some clarification. Proximity

to Harriton High School in this case is determined using two (2) different factors.

The first factor is whether the student lives within the Lower Merion High School

Walk Zone. If the student lives within the Walk Zone, the analysis stops because

he/she has choice to determine whether he/she wants to go to Lower Merion High

School or Harriton High School. If the student does not live within the Walk Zone

then one simply considers his/her distance from Harriton High School. Appendix

A2161-A2176.

When Lower Merion asserts that the Affected Area was the closest available

neighborhood to add to the Harriton High School feeder pattern it is assuming

without explanation or disclosure that the threshold Lower Merion High School

Walk Zone qualification is being used. A simple look at the map without

consideration of the Walk Zone will indicate that there are a number of

neighborhoods closer to Harriton than the Affected Area. Appendix A2252.


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What makes Lower Merion's statements regarding the geographic proximity

of the Affected Area to Harriton High School misleading is that the Lower Merion

High School Walk Zone was truncated in the Affected Area, and does not extend

one (1) mile contrary to Lower Merion's written Transportation Policy. If the Walk

Zone extended one (1) mile into the Affected Area like it is supposed to, a number

of the Students Doe would live within the Walk Zone, and thereby have their

choice to attend Lower Merion High School or Harriton High School. See Students

Doe’s previously filed Brief pages 60-62.

Finally, the positions taken by Lower Merion and the ACLU Amici in the

present case certainly beg the following question, why at this point in time should

this Honorable Court lessen the Fourteenth Amendment's protections against racial

discrimination? If nothing else, the fact patterns in Seattle School District, 551

U.S. 701, Johnson v. California, 543 U.S. 499, Gratz v. Bollinger, 539 U.S. 244,

Grutter v. Bollinger, 539 U.S. 306, Adarand Constructors, Inc. v. Pena, 515 U.S.

200, and Pryor v National Collegiate Athletic Association, 288 F.3d 548, all

demonstrate that race based decision-making has not gone away yet, and will not

be going away anytime soon.

Moreover, the Supreme Court has recited at length in these cases the harm

we as a people suffer when race is the basis for decision-making. This discussion

simply cannot be ignored. Chief Justice Roberts stated in Seattle School District
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that “one form of injury under the Equal Protection Clause is being forced to

compete in a race based system that may prejudice the plaintiff.” Seattle School

District, 551 U.S. at 719 (emphasis added) (Part II of Chief Justice Roberts’

Opinion). Chief Justice Roberts went on to state, “[D]istinctions between citizens

solely because of their ancestry are by their very nature odious to a free people

whose institutions are founded upon the doctrine of equality.” Id. at 745 (internal

citations and quotations omitted). Chief Justice Roberts then warned that

permitting racially based policies diminishes us as a people by creating/reinforcing

notions of racial inferiority, racial hostility, and racial conflict. Id.

The Supreme Court stated in Johnson, “As we have recognized in the past,

racial classifications threaten to stigmatize individuals by reason of their

membership in a racial group and to incite racial hostility.” Johnson, 543 U.S. at

507 (internal citations and quotations omitted). The Supreme Court also stated in

Grutter, “As we have explained, whenever the government treats any person

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

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

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

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

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

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

18
Case: 10-3824 Document: 003110417329 Page: 23 Date Filed: 01/24/2011

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

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

District, 551 U.S. at 748.

While increasing diversity in schools may in fact be a compelling state

interest, a point which is not yet ripe for disposition due to Lower Merion's

irreconcilably conflicting positions in this case, the taint of racial decision-making

may in fact be too great a burden to bear. Constitutional decision-making has

consequences which go far beyond particular cases. One can only be comfortable

with a constitutional decision that lessens Fourteenth Amendment protections if

one is confident that it will in turn not lead to more racial discrimination.

Unfortunately, the history of Civil Rights in this country, and the hard fought for

gains realized since Brown v. Board of Education, 347 U.S. 483, do not provide

such assurances.

Judicial decisions about the improper disposition of racial discrimination

cases haunt the Civil Rights Jurisprudence of this country, and embarrasses us all

to this day. See e.g. Plessy v. Ferguson, 163 U.S. 537. Justice Harlan’s prophetic

warning in Plessy, despite being written over one hundred (100) years ago, still has

value today, “In my opinion, the judgment this day rendered will, in time, prove to

be quite as pernicious as the decision made by this tribunal in the Dred Scott case.”

Id. at 264. Chief Justice John Roberts concluded his plurality decision in Seattle
19
Case: 10-3824 Document: 003110417329 Page: 24 Date Filed: 01/24/2011

School District with the following thought provoking comment, "The way to stop

discrimination on the basis of race is to stop discriminating on the basis of race."

Seattle School District, 551 U.S. at 748.

CONCLUSION

For all the foregoing reasons as well as for the reasons set forth in Students

Doe’s previously filed Brief, it is respectfully requested that this Honorable Court

reject the arguments set forth by Appellee, Lower Merion School District, and

Amici Curiae, NAACP Legal Defense & Educational Fund, Inc., the Lawyers'

Committee for Civil Rights Under Law, and the American Civil Liberties Union

Foundation. It is further respectfully requested that this Honorable Court grant the

relief requested in Students Doe’s previously filed Brief.

Respectfully submitted,

/s/ David G. C. Arnold


____________________________________
David G. C. Arnold

Suite 106, 920 Matsonford Road


West Conshohocken, Pennsylvania 19428
(610) 397-0722
Email: davidgcarnold@aol.com

Attorney for Appellants

Dated: January 24, 2011


20
Case: 10-3824 Document: 003110417329 Page: 25 Date Filed: 01/24/2011

CERTIFICATION OF ADMISSION TO BAR

I, David G. C. Arnold, certify as follows:

1. I am a member in good standing of the bar of the United States Court of

Appeals for the Third Circuit.

2. Pursuant to 28 U.S.C. § 1746, I certify under penalty of perjury that the

foregoing is true and correct.

/s/ David G. C. Arnold


Date: January 24, 2011 David G. C. Arnold
Case: 10-3824 Document: 003110417329 Page: 26 Date Filed: 01/24/2011

CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF


APPELLATE PROCEDURE 32(a) AND LOCAL RULE 31.1

Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify the following:

This brief complies with the type-volume limitation of Rule

32(a)(7)(B) of the Federal Rules of Appellate Procedure because this brief

contains 4,538 words, excluding the parts of the brief exempted by Rule

32(a)(7)(B)(iii) of the Federal Rules of Appellate Procedure.

This brief complies with the typeface requirements of Rule 32(a)(5) of

the Federal Rules of Appellate Procedure and the type style requirements of

Rule 32(a)(6) of the Federal Rules of Appellate Procedure because this brief

has been prepared in a proportionally spaced typeface using the 2008 version

of Microsoft Word in 14 point Times New Roman font.

This brief complies with the electronic filing requirements of Local

Rule 31.1(c) because the text of this electronic brief is identical to the text of

the paper copies, and the Vipre Virus Protection, version 3.1 has been run

on the file containing the electronic version of this brief and no viruses have

been detected.

/s/ David G. C. Arnold


Date: January 24, 2011 David G. C. Arnold
Case: 10-3824 Document: 003110417329 Page: 27 Date Filed: 01/24/2011

AFFIDAVIT OF SERVICE

DOCKET NO. 10-3824


-------------------------------------------------------------------------------X
Student Doe1

vs.

Lower Merion School District


-------------------------------------------------------------------------------X

I, , swear under the pain and penalty of perjury, that according to law and
being over the age of 18, upon my oath depose and say that:

on January 24, 2011

I served the Reply Brief for Appellants within in the above captioned matter upon:

See Attached Service List

via electronic filing and electronic service. as well as, Express Mail by depositing 2 copies of same,
enclosed in a post-paid, properly addressed wrapper, in an official depository maintained by United States
Postal Service.

Unless otherwise noted, copies have been sent to the court on the same date as above for filing via Express
Mail.

Sworn to before me on January 24, 2011

/s/ Robyn Cocho


_______________________________
Robyn Cocho
Notary Public State of New Jersey
No. 2193491
Commission Expires January 8, 2012
Job # 234438
Case: 10-3824 Document: 003110417329 Page: 28 Date Filed: 01/24/2011

Service List

Counsel in Student Doe v. LMSD

Judith E. Harris, Esquire


Morgan, Lewis & Bokius LLP
1701 Market Street
Philadelphia, Pennsylvania 19103

Christopher M. Arfaa, Esquire


Suite F-200
150 North Radnor Chester Road
Radnor, Pennsylvania 19087

Mark L. Gross, Esquire


Erin H. Flynn, Esquire
United States Department of Justice-Civil Rights Division (Appellate Section)
Ben Franklin Station
P.O. Box 144403
Washington, D.C. 20044-4403

Joshua I. Civin, Esquire


NAACP Legal Defense and Education Fund
1444 I Street, NW
10th Floor
Washington, D.C. 20005

Kimberly A. Liu, Esquire


NAACP Legal Defense and Education Fund
16th Floor
99 Hudson Street
New York, New York 10013-