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Case: 10-3824 Document: 003110445383 Page: 1 Date Filed: 02/22/2011

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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 PARENT/GUARDIAN 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 ofPennsylvania

SUPPLEMENTAL REPLY BRIEF


FOR APPELLANTS

DA VIDG. C. ARNOLD, ESQ.


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

Attorney for Appellants

_ COUNSEL PRESS. (888) 700-3226


Case: 10-3824 Document: 003110445383 Page: 2 Date Filed: 02/22/2011

TABLE OF CONTENTS
Page

ARGUMENT.................................................................................................... 1
CONCLUSION ................................................................................................. 19

TABLE OF AUTHORITIES

Adarand Constructors, Inc. v. Pena,


515 U.S. 200 (1995) ....................................................................................... 12,13

Bush v. Vera,
517 U.S. 952 (1996) ............................................................................. 7, 12, 13, 14

LaVerdure v. County of Montgomery,


324 F.3d 123 (3d Cir. 2003) .......................................................................... 17

Marks v. United States,


430 U.S. 188 (1977)....................................................................................... 8

Miller v. Johnson,
515 U.S. 900 (1993) ....................................................................................... 13,14

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


551 U.S. 70 1 (2007) ...................................................................................... passim

Pembaur v. Cincinnati,
475 U.S. 469 (1986)....................................................................................... 17

Pryor v. National Collegiate Athletic Association,


288 F.3d 548 (3d Cir. 2002) .......................................................................... 7

Rogers v. Lodge,
458 U.S. 613 (1982) ....................................................................................... 12,13

Shaw v. Reno,
509 U.S. 630 (1993) ................................................................................... 7, 13, 14

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Village of Arlington Heights v.


Metropolitan Housing Development Corporation,
429 U.S. 252 (1977) ....................................................................................... 12,13

White v. Regester,
412 U.S. 755 (1973) ....................................................................................... 12,13

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ARGUMENT

On February 2, 2011, the United States of America filed an Amicus Curiae

Brief in this matter urging affirmance of the United States District Court for the

Eastern District of Pennsylvania's judgment in favor of Appellee, Lower Merion

School District. The United States was granted permission to file its Amicus Brief

on February 2, 2011, in a Court Order dated January 19, 2011. Appellants,

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

accordance with the Federal Rules of Appellate Procedure, and in accordance with

the Court Order dated January 19, 2011.

Students Doe will discuss and rebut each of the United States' arguments

momentarily; however, there are several factual errors in the United States'

Amicus Brief which need to be addressed before the United States' arguments can

be discussed. On page 1 of its Brief, the United States represents that Lower

Merion's school officials merely "considered the racial impact of various zoning

alternatives .... " during the redistricting process. On page 13 of its Brief, the United

States represents that Lower Merion's school officials "considered race

incidentally." On page 22 of its Brief, the United States represents that Lower

Merion "school officials did consider racial attendance patterns to a limited

extent .... "


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In its Memorandum on Factual Findings, the District Court concluded that

Lower Merion's "school officials" race related decision-making was neither

casual, nor limited, as the United States suggests. To the contrary, the District

Court clearly summarized it conclusions regarding the actions of Lower Merion's

school officials stating, "The Administration's recommendation to the Board, to

redistrict [Students Doe] to Harriton High School, was based largely on the fact

that [Students Doe's] neighborhood of residence has a heavy concentration of

African-American students, and that Harriton had a significantly lower African-

American student population than Lower Merion High School prior to

redistricting. Like a leitmotif in a Wagner opera, a recurring theme with variations,

the process of redistricting repeatedly embraced the goal of achieving racial parity

between the two high schools ... The circumstantial evidence introduced at trial

leads, like a well-worn path through the woods, inescapably to the finding that race

was a motivating factor for the Administration." Appendix A3 (Memorandum on

Factual Findings).

On page 4 of its Brief, the United States represents that one of the "non-

negotiables" adopted by the Lower Merion School Board was that all "high school

students could stay in their present high school. ... " no matter what happened in

redistricting. This statement is incorrect. The non-negotiable adopted by the School

Board was that the class of 2010 would have the choice to either stay in their

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present high school, or to follow the redistricting plan. Appendix A16

(Memorandum on Factual Findings).

On page 5 of its Brief, the United States discusses the development of

proposed Plan 1, proposed Plan 2, proposed Plan 3, and Plan 3R. In its discussion,

the United States neglects to mention the District Court's finding that racial

considerations played a part in eliminating two (2) scenarios that were under

consideration to become Proposed Plan 1, that North Ardmore and the Affected

Area were always separated in each of the proposed plans and Plan 3R, and that

each proposed plan and Plan 3R significantly increased African American

enrollment at Harriton High School. Appendix A24-A25, A27, A33, A40, A51-

A53, and A52 n.23 (Memorandum on Factual Findings).

On page 6 of its Brief, the United States represents that "school officials

became reluctant to assign both North and South Ardmore to the same high school;

because Ardmore had the highest residential concentration of African-American

students in the district .... " The use of the term "reluctant" is somewhat curious in

that Lower Merion's Administration unequivocally rejected all scenarios which

placed North Ardmore and South Ardmore at the same high school, and "targeted"

the Affected Area for redistricting in part due to its racial make-up. Appendix A24-

A25, A51-A52, A52n.3 (Memorandum on Factual Findings), and A65

(Memorandum on Conclusions of Law).


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On pages 6, 7, and 26 of its Brief, the United States indicates that under the

adopted redistricting plan, students districted to Lower Merion High School could

choose to attend Harriton High School in order to take advantage of two (2)

educational programs offered there, i.e. the International Baccalaureate Program

and the Penn State Program. These statements are incorrect. Under the adopted

redistricting plan, any student assigned to Lower Merion High School could

choose to attend Harriton High School for any reason whatsoever. The students do

not have to enroll in either the International Baccalaureate Program or the Penn

State Program. Appendix A43 (Memorandum on Factual Findings), and A2161-

A2176 (Students Doe's Trial Exhibit P-4 Plan 3R).

On page 7 of its Brief, the United States seems to indicate that the Lower

Merion High School "walk zone" is uniformly less than a mile around the high

school. Although the "walk zone" is supposed to be a uniform mile, the District

Court unequivocally found that the "walk zone" was less than a mile in the

Affected Area, that if the "walk zone" were a mile in the Affected Area at least

three (3) of the Students Doe would live within the "walk zone," and that Lower

Merion's truncation of the "walk zone" violated the School District's own

transportation policy. Testimony at trial indicated that three (3) additional Students

Doe may live within the "walk zone" if it were in fact one (1) mile. Appendix

Alln.7, A43, A43n.18 (Memorandum on Factual Findings); See also Appendix

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A81-A82 (Memorandum on Conclusions of Law), A1301-A1303 (Trial Testimony

of Lower Merion's Director of Transportation), A2189-A2190 (Students Doe's

Trial Exhibit P-129 Map), and A2191-A2195 (Students Doe's Trial Exhibit P-141

Lower Merion Transportation Policy).

On page 22 of its Brief, the United States represents that Lower Merion has

not challenged on appeal the District Court's factual conclusion that its

Administration engaged in race based decision-making. While it is certainly true

that Lower Merion never filed a cross-appeal in the present case, and thereby

should be foreclosed from contesting the District Court's adverse factual findings

on this point, Lower Merion has seen fit to argue that the District Court's findings

on race based decision-making were in fact incorrect. See Lower Merion's Brief at

pages 31-40, and Students Doe's initial Reply Briefpages 2-3.

Now that the record has been clarified, Students Doe will address the United

States' arguments at length. In its Brief, the United States argues that the District

Court should not have applied the strict scrutiny standard in this case because

benign classification cases do not require the application of strict scrutiny, because

the application of strict scrutiny should only be applied when racial decision-

making is made on an individual basis, and because application of strict scrutiny in

this case is inconsistent with Justice Kennedy's concurrence in Parents Involved in

Community Schools v. Seattle School District No.1, 551 U.S. 701 (2007). See
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United States' Amicus Brief pages 13, 17, and 18. The United States' argument

regarding the level of scrutiny to be applied in non-individual discrimination cases,

and its argument concerning the level of scrutiny Justice Kennedy's concurrence in

Seattle School District requires, are essentially the same argument, i.e. that strict

scrutiny should only be applied in individual racial classification cases. In light of

this fact, they will be discussed together. In support of its contentions, the United

States cites to a number of racial gerrymandering cases. See United States' Amicus

Brief page 25.

Initially, any argument that the United States raises that strict scrutiny does

not apply in the present case is of course subject to the procedural objection

Students Doe raised in their initial Reply Brief, i.e. Lower Merion waived the right

to raise this issue on appeal because it failed to cross appeal the District Court's

adverse ruling on this point. See Students Doe's initial Reply Brief pages 2-3.

Certainly the various Amici Curiae who filed Briefs in support of Lower Merion

cannot rectify this procedural shortcoming.

However, in the event that this Honorable Court wishes to resolve the strict

scrutiny issue, Students Doe would counter the United States' arguments with the

following positions. Regarding the United States' contention that strict scrutiny

should not be applied in benign classification cases, a review of the binding

precedent indicates that the United States' position is legally wrong.


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As noted in Students Doe's initial Reply Brief, this Honorable Court, after

considering controlling Supreme Court precedent, concluded in Pryor v. National

Collegiate Athletic Association, 288 F.3d 548 (3d Cir. 2002), that the United

States' approach was completely wrong. See Id. at 560-561; See also Students

Doe's initial Reply Brief pages 9-10. This Honorable Court's resolution of the

benign classification argument in Pryor is correct. See Seattle School District, 551

U.S. at 742 ("This argument that different rules should govern racial classifications

designed to include rather than exclude is not new; it has been repeatedly pressed

in the past ... , and has been repeatedly rejected." Id. (Roberts C.J.)(citations

omitted)); Bush v. Vera, 517 U.S. 952, 984 (1996)("we subject racial

classifications to strict scrutiny precisely because that scrutiny is necessary to

determine whether they are benign ... We see no need to revisit our prior debates."

Id.); Shaw v. Reno, 509 U.S. 630,650-651 (1993)(" We have made clear, however,

that equal protection analysis is not dependent on the race of those burdened or

benefited by a particular classification ... Indeed, racial classifications receive close

scrutiny even when they may be said to burden or benefit the races equally." Id.

(internal citations and quotations omitted)).

Regarding the United States' argument that strict scrutiny should not be

applied in non-individualized cases, and the United States' Justice Kennedy

concurrence argument, these positions have been addressed in Students Doe's

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initial Reply Brief at pages 3-10. Out of respect for this Honorable Court's time,

the arguments will not be repeated herein. However, three (3) additional comments

are necessary.

First, while the United States, Lower Merion, and the other Amici tout the

impact of Justice Kennedy's concurrence in Seattle School District citing Marks v.

United States, 430 U.S. 188 (1977), it is critical to appreciate just how far Justice

Kennedy distances himself from the dissenters in Seattle School District. Justice

Kennedy explicitly states at the very beginning of his concurring opinion, "Justice

Breyer's dissenting opinion '" rests on what in my respectful submission is a

misuse and mistaken interpretation of our precedents. This leads it to advance

propositions that, in my view, are both erroneous and in fundamental conflict with

basic equal protection principles. As a consequence, this separate opinion is

necessary to set forth my conclusions in the two cases before the Court." Seattle

School District, 557 U.S. at 783.

Second, Lower Merion's actions in the present case are certainly not the type

of narrowly tailored, race based action of which Justice Kennedy approved. In his

concurrence in Seattle School District, Justice Kennedy takes Jefferson County to

task for its inability to explain exactly how and when it applies its race based plan.

Id. at 784-785. Justice Kennedy, in a similar fashion, takes Seattle to task for

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limiting its racial classifications to "white" and "non-white" when it developed its

race based plan. Id. at 786-787.

Unlike Jefferson County and Seattle, Lower Merion, despite the District

Court's factual findings to the contrary, persistently refuses even to admit to this

very day that it even engaged in race based decision-making. See Lower Merion's

Brief pages 31-40. In light of this fact, it would appear that Lower Merion has

already run afoul of Justice Kennedy's most basic of rules. See Seattle School

District, 551 U.S. at 786 ("When a court subjects governmental action to strict

scrutiny, it cannot construe ambiguities in favor of the State." Id.).

Moreover, Justice Kennedy clearly stresses in his concurrence that the race

conscious means used to achieve greater diversity should "not lead to different

treatment based on a classification that tells each student he or she is to be defined

by race .... " Id. at 789. Lower Merion's actions in this case clearly violated this

rule. The District Court found that Students Doe's neighborhood was "targeted" in

part because of its racial make-up. Appendix A65 (Memorandum on Conclusion of

Law).

Contemporaneous statements made by those involved in the redistricting

process confirm just how race defining Lower Merion's conduct turned out to be.

Superintendent Christopher McGinley wrote in an e-mail to School Director Lisa

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Pliskin on November 20, 2008, "I wish there was a way to extend the option area

into the [Affected Area] but doing so would not only mean another hundred at

[Lower Merion High School] but many fewer A[ frican] A[ merican] kids at

[Harriton High School]." Appendix A2187 (Students Doe's Trial Exhibit P-92).

Equally as disappointing is School Director Diane DiBonaventuro's e-mail

to School Director Ted Lorenz dated December 9, 2008, in which she stated, "I

believe that moving any of the low income and African American students to

Harriton when they can walk to [Lower Merion High School] simply creates an

additional stressor that doesn't need to be there. We are basically asking the

A[ frican] A[merican] kids in Ardmore to 'take one for the team' for the A[ frican]

A[ merican] kids in other areas of the district. The A[ frican] A[ merican] families

that moved into the district outside the Ardmore area knew they were moving into

a fairly white community. Perhaps they chose that for their family. If they wanted

an African American community they would have chosen Ardmore." Appendix

A1645-A1646, and Students Doe's Trial Exhibit P-104.

School Director DiBonaventuro goes on to state, " Furthermore, I am still

not convinced that there is a significant difference between 50 and 80 kids-or

even between 50 and 100 kids. There just aren't a lot of A[frican] A[merican]

families in L[ower] M[erion] S[chool] D[istrict] to begin with, so I don't think

increasing the diversity numbers marginally at H[arriton] H[igh] [School] in return


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for a reduced walk zone is worth the effect it has on all the other families

(including the non minority families who are getting caught up in the sweep to

bring kids to H[arriton] H[igh] [School].)" Id.

As the caselaw cited in the present Brief as well as the caselaw cited in all of

the other Briefs filed in this case to date clearly demonstrate, it matters what means

are used to achieve even the most noble of goals. Chief Justice Roberts explained

in Seattle School District, "In Brown v. Board of Education ... we held that

segregation deprived black children of equal educational opportunities regardless

of whether school facilities and other tangible factors were equal, because

government classification and separation on grounds of race themselves denoted

inferiority .. .It was not the inequality of the facilities but the fact of legally

separating children on the basis of race on which the Court relied to find a

constitutional violation in 1954." Seattle School District, 551 U.S. at 746 (citations

omitted).

Third, a careful review of that portion of Justice Kennedy's concurrence

upon which the United States relies in asserting its argument will reveal that the

District Court properly applied strict scrutiny in this case. In the course of his

concurrence, Justice Kennedy discusses race conscious measures, including the

drawing of school attendance zones, and comments thereafter that "it is unlikely

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any of them would demand strict scrutiny to be found permissible." Id. at 789. As

support for his position, Justice Kennedy cites Bush v. Vera, 517 U.S. 952.

The portion of Bush v. Vera which Justice Kennedy cites in fact quotes

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). The portion of Adarand

that is quoted discusses "the additional difficulties posed by laws that, although

facially race neutral, result in racially disproportionate impact and are motivated by

a racially discriminatory purpose." Id. at 213. The Supreme Court then refers the

reader to Village of Arlington Heights v. Metropolitan Housing Development

Corporation, 429 U.S. 252 (1977), as the controlling authority when this situation

arises. Adarand, 515 U.S. at 213.

The District Court in this case found itself faced with the very "difficulties"

discussed in the aforementioned passage from Adarand. As required by Arlington

Heights, the District Court conducted an extensive review of the situation, and

properly applied strict scrutiny after it found that race was a factor in Lower

Merion's decision-making. Arlington Heights, 429 U.S. 252; Pryor, 288 F.3d 548.

The United States' reliance on racial gerrymandering cases in order to

support the proposition that strict scrutiny should not be applied in this case is

somewhat questionable. At the outset, reference to Rogers v. Lodge, 458 U.S. 613

(1982), and White v. Regester, 412 U.S. 755 (1973), is entirely unhelpful because

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the cases substantially pre-dated the Supreme Court's adoption of the relevant

standard of review which now governs Fourteenth Amendment cases, and which is

at issue in this case. As Chief Justice Roberts noted in Seattle School District, the

Supreme Court did not definitively determine until Adarand, decided in 1995-

thirteen (13) years after Rogers and twenty two (22) years after White, that "all

racial classifications ... must be analyzed by a reviewing court under strict

scrutiny." Seattle School District, 551 U.S. at 739n.16 (citing Adarand, 515 U.S. at

227).

The United States' reliance on Bush v. Vera, 517 U.S. 952, Miller v.

Johnson, 515 U.S. 900 (1993), and Shaw v. Reno, 509 U.S. 630, raises even more

questions for two (2) reasons. First, each of the aforementioned cases confirms the

controlling nature of the Supreme Court's holding in Arlington Heights, i.e. that

race neutral statutes/policies can be subjected to strict scrutiny if race was a factor

in their creation. See Bush v. Vera, 517 U.S. at 958 ("Electoral district lines are

'facially race neutral' so a more searching inquiry is necessary before strict

scrutiny can be found applicable in redistricting cases than in cases of

'classifications based explicitly on race. '" rd. (citations omitted)); Miller v.

Johnson, 515 U.S. at 913 ("We recognized in Shaw that, outside the districting

context, statutes are subject to strict scrutiny under the Equal Protection Clause not

just when they contain express racial classifications, but also when, though race

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neutral on their face, they are motivated by a racial purpose or object." Id.); Shaw

v. Reno, 509 U.S. at 643 ("These principles apply not only to legislation that

contains explicit racial distinctions, but also to those 'rare' statutes that, although

race neutral, are, on their face unexplainable on grounds other than race." Id.

(quotations and citations omitted)).

Second, in each of the aforementioned cases, the Supreme Court found that

strict scrutiny had to be applied once it was proven that racial gerrymandering

occurred. See Bush v. Vera, 517 U.S. at 962 ("These findings -- that the State

substantially neglected traditional districting criteria such as compactness, that it

was committed from the outset to creating majority-minority districts, and that it

manipulated district lines to exploit unprecedentedly detailed racial data -- together

weigh in favor of the application of strict scrutiny." Id. ); Miller v. Johnson, 515

U.S. at 903 and 920 ("As a result, Georgia's congressional redistricting plan cannot

be upheld unless it satisfies strict scrutiny, our most rigorous and exacting standard

of constitutional review." Id. at 920); Shaw v. Reno, 509 U.S. at 653 ("Thus, if

appellants' allegations of a racial gerrymander are not contradicted on remand, the

District Court must determine whether the General Assembly'S reapportionment

plan satisfies strict scrutiny." Id.).

As the foregoing clearly demonstrates, Bush, Miller, and Shaw, all represent

instances where the Supreme Court imposed the strict scrutiny test in cases
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involving a facially neutral government statute/policy which did not discriminate

on an individual basis. These cases simply confirm Students Doe's long held

position that Seattle School District is indistinguishable from the present case

because focusing on individual student assignment plans versus targeting an entire

neighborhood "raises a distinction that simply makes no difference." Students

Doe's initial Briefpage 39.

Alternatively, the United States argues that increasing racial diversity, and

combating racial isolation constitute compelling state interests. See United States'

Amicus Briefpages 17,20, and 29. This argument has been thoroughly analyzed in

Students Doe's initial Brief at pages 36-57, and in Students Doe's initial Reply

Brief at pages 10-13. Out of respect for this Honorable Court's time, only one point

needs to be briefly emphasized. The argument only makes sense if the United

States or Lower Merion can identify in the trial record where Lower Merion took

the position that it engaged in race based decision-making in order to prevent racial

isolation and/or to deal with the achievement gap.

As Students Doe's prior Briefs clearly demonstrate, Lower Merion never

took such a position at trial, and in fact took the opposite position. Students Doe's

initial Brief pages 36-57, and Students Doe's initial Reply Brief page 10; See also

Appendix A2187 ("I hate the fact that the quest is publicly tied to the achievement

gap issue by some of the speakers. Nothing could be further from the truth." 1d.
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(Superintendent McGinley's November 20, 2008, e-mail to School Director Lisa

Pliskin, Students Doe's Trial Exhibit P-92). Although everyone opposing Students

Doe have taken the position that Lower Merion engaged in race based decision-

making to deal with racial isolation and/or the achievement gap, no one has ever

referenced where in the trial record Lower Merion actually took such a position.

The United States' emphasis on the District Court's finding that although

Lower Merion's Administration engaged in race based decision-making when

developing and selecting redistricting plans, the School Directors who voted to

approve Plan 3R did not consider race deserves a brief comment. United States'

Amicus Curiae Brief page 9. Initially, it is obvious that the School Directors did

not have to take race into account when voting on the redistricting plan at issue,

because Lower Merion's Administration had already screened out all proposed

plans that failed to give the District the racial attendance profiles it was seeking.

Moreover, the District Court noted that the evidence presented at trial persuaded

"the Court that Dr. McGinley and various Board Members also had an intent to

increase the African-American population at Harriton." Appendix A36-A37

(Memorandum on Factual Findings); See also Appendix A37-A38, and A47-A49

(Memorandum on Factual Findings). Furthermore, Lower Merion has never cross

appealed the District Court's disposition of its potential liability for its

Administrators' actions.

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Notwithstanding the foregoing, Lower Merion is liable for the race based

actions of its Administration. The School Directors clearly testified at trial that the

Administration had the responsibility to research, develop, and select redistricting

plans for the School Directors' approval. Appendix A1360, A1447, A1561,

A1604-A1605, A1670-A1671, A1786-A1787, A1790-A1791, A1808-A1809, and

A1852; See also Appendix A50 ("As for the specific facts of this case and the

process of redistricting, the Administration developed the Scenarios and Plans .... "

Id.)(Memorandum on Factual Findings), and A-51 ("Nonetheless, the development

of the Scenarios and Proposed Plans was the work and responsibility of the

Administration, not the Board." Id.)(Memorandum on Factual Findings).

The Administration's improper racial decision-making in performing its task

clearly subjects Lower Merion to liability. See Pembaur v. Cincinnati, 475 U.S.

469 (1986)("With this understanding, it is plain that municipal liability may be

imposed for a single decision by municipal policymakers under appropriate

circumstances." Id. at 4.80); LaVerdure v. County of Montgomery, 324 F.3d 123

(3d Cir. 2003); Third Circuit Model Jury Instruction 4.6.5.

Finally, it is interesting to note that the United States has taken two (2)

positions that are entirely consistent with Students Doe's positions in the present

case. First, the United States acknowledges that race was a factor in Lower

Merion's decision-making. See United States' Amicus Brief at page 28. Second,
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the United States acknowledges that Lower Merion's consideration of school

capacities, deployment of school buses, minimizing travel times, and fostering

continuity had nothing to do with race, which is the very point Students Doe made

in their initial Brief. Compare United States' Amicus Brief at pages 1 and 28, and

Students Doe's initial Brief at page 50.

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CONCLUSION

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

Doe's previously filed Briefs, it is respectfully requested that this Honorable Court

reject the arguments set forth in the United States of America's Amicus Brief, and

grant the relief requested in Students Doe's initial Brief.

Respectfully submitted,

lSI David G. C. Arnold

Suite 106, 920 Matsonford Road


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

Attorney for Appellants

Dated: February 22,2011

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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 4,019 words, excluding the parts of the brief exempted by Rule

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

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

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

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

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

of Microsoft Word in 14 point Times New Roman font.

This brief complies with the electronic filing requirements of Local

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

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

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

been detected.

/s/ David G. C. Arnold


David G. C. Arnold

February 22, 2011


Case: 10-3824 Document: 003110445383 Page: 24 Date Filed: 02/22/2011

AFFIDAVIT OF SERVICE

DOCKET NO. 10-3824


-------------------------------------------------------------------------------X
Student Doe

vs.
Lower Merion School District
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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 February 22, 2011

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

See Attached Service List

via electronic filing and electronic service.

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

Sworn to before me on February 22, 2011

/s/ Robyn Cocho


_______________________________
Robyn Cocho
Notary Public State of New Jersey
No. 2193491
Commission Expires January 8, 2012
Job # 234908
Case: 10-3824 Document: 003110445383 Page: 25 Date Filed: 02/22/2011

SERVICE LIST

Christina IF. Grese, Esq. Kimberly A. Liu, Esq.


215-963-5085 212-965-2250
Email: jgrese@morganlewis.com Email: kliu@naacldf.org
Judith E. Harris, Esq. NAACP Legal Defense & Educational Fund
th
Email: jeharris@morganlewis.com 99 Hudson Street, 16 Floor
Allison N. Suflas, Esq. New York, NY 10013
Email: asuflas@morganlewis.com
Morgan, Lewis & Bockius
1701 Market Street
Philadelphia, PA 19103

Christopher M. Arfaa, Esq.


610-977-2001
Email: carfaa@arfaalaw.com
150 North Radnor Chester Road
Suite F-200
Radnor, PA 19087

Mark L. Gross, Esq.


202-514-2172
Email: mark.l.gross@usdoj.gov
Erin H. Flynn, Esq.
Email: erin.flynn@usdoj.gov
United States Department of Justice
Civil Rights Division, Appellate Section
P.O. Box 14403
Ben Franklin Station
Washington, DC 20044-4403

Joshua I. Civin, Esq.


202-682-1300
Email: jcivin@naacpldf.org
NAACP Legal Defense & Educational Fund
1444 I Street, NW
10th Floor
Washington, DC 20005

Kenneth A. Roos, Esq.


610-825-8400
Email: kroos@wispearl.com
Megan E. Shafer, Esq.
Email: mshafer@wispearl.com
Wisler, Pearlstine, Talone, Craig, Garrity & Potash
484 Norristown Road, Suite 100
Blue Bell, PA 19422