Case 2:09-cv-02095-MMB Document 77 Filed 03/23/10 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Student Doe 1 by and through his :

Parents/Guardians Does 1 and 2, :
et al. :
:
Plaintiffs, :
:
: CIVIL ACTION NO. 09-2095
v. :
:
:
Lower Merion School District, :
:
Defendant. :

LOWER MERION SCHOOL DISTRICT’S TRIAL BRIEF

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

Christina Joy F. Grese (PA I.D. No. 200727)
Allison N. Suflas (PA I.D. No. 204448)
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103
215-963-5028/5085/5752

Kenneth A. Roos, Esquire

Megan E. Shafer, Esquire
WISLER PEARLSTINE, LLP
484 Norristown Road
Blue Bell, PA 19422
610-825-8400

Attorneys for Defendant

Dated: March 23, 2010

 Case 2:09-cv-02095-MMB Document 77 Filed 03/23/10 Page 2 of 21

I. INTRODUCTION

Defendant Lower Merion School District (“District”) submits this trial brief to

summarize for the Court the principal legal issues in this case, and to explain the lack of merit to

Plaintiffs’ race discrimination claims under the Equal Protection Clause of the Fourteenth

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

Act, 42 U.S.C. § 2000d et seq.

II. BRIEF SUMMARY OF RELEVANT FACTS

On January 12, 2009, the Lower Merion School District Board of School Directors

(“Board”) adopted a redistricting plan known as Plan 3R to fulfill the goals of the District’s high

school modernization process and achieve equal student enrollment at the District’s two new

high schools. The District did not individually select students for assignment to either Lower

Merion High School or Harriton High School under Plan 3R; rather, student assignment under

Plan 3R was based on the District’s feeder patterns from the elementary schools to the middle

schools and on to a high school.

Specifically, Plan 3R utilized a 3-1-1 feeder system, which meant that three elementary

schools fed into one middle school, which in turn fed into one high school. This 3-1-1 system

preserved the elementary and middle school attendance zones in existence prior to redistricting.

Consequently, under Plan 3R, students living in geographic areas that were zoned to Belmont

Hills, Gladwyne, and Penn Valley Elementary Schools and on to Welsh Valley Middle School

were districted to Harriton High School. Students living in geographic areas that were zoned to

Penn Wynne, Cynwyd, and Merion Elementary Schools and on to Bala Cynwyd Middle School

were districted to Lower Merion High School. The only exceptions were that Penn Valley

Elementary and Belmont Hills Elementary School students who lived in the official, historic

Lower Merion High School walk zone, while zoned for Harriton High School, could choose
 Case 2:09-cv-02095-MMB Document 77 Filed 03/23/10 Page 3 of 21

between attending Harriton High School and walking to Lower Merion High School. In

addition, to boost the projected enrollment at Harriton High School and counterbalance the

choice provided to those students residing in the Lower Merion High School walk zone, as well

as to provide all students with access to Harriton High School’s unique curricular programs, all

students zoned for Lower Merion High School continued to have the opportunity to elect to

attend Harriton, as they did prior to redistricting.

These feeder patterns assigned all students, irrespective of race or ethnicity, who lived

outside the official Lower Merion High School walk zone and who attended one of the three

elementary schools feeding into Welsh Valley Middle School (i.e., Penn Valley, Belmont Hills,

and Gladwyne Elementary Schools) to Harriton High School. Students Doe, along with all other

students in the Affected Area,1 attend Penn Valley Elementary School and Welsh Valley Middle

School and reside outside of the official Lower Merion High School walk zone; consequently,

they are districted to attend Harriton High School under Plan 3R.

III. LEGAL ARGUMENT2

A. Plaintiffs’ Discrimination Claims under the Equal Protection Clause, Title

VI, and Section 1981 Are Without Merit.

Plaintiffs allege race discrimination in violation of: (1) the Equal Protection Clause of the

Fourteenth Amendment; (2) Title VI of the Civil Rights Act, 42 U.S.C. § 2000d et seq.; and (3)

42 U.S.C. § 1981. Specifically, Plaintiffs contend that “Redistricting Plan Three Revised . . .

discriminates against Students Doe on the basis of race by mandating that said students attend

1
“Affected Area” means the area bounded by Athens Avenue, Wynnewood Road, County Line Road, and
Cricket Avenue in South Ardmore, Pennsylvania. See Compl., ¶ 8.
2
On March 19, 2010, the District submitted a number of motions in limine to exclude evidence in this case. By
presenting legal arguments here using evidence and contentions proffered by Plaintiffs that the District has
moved to exclude, the District is not conceding that such evidence is relevant or admissible.

2
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Harriton High School because they are minorities.” Compl., ¶¶ 70, 75, 82 (emphasis added).3 To

prove discrimination under any of these three provisions, Plaintiffs must show purposeful

discrimination. See Williams v. Pennsylvania State Police Bureau of Liquor Control

Enforcement, 108 F. Supp. 2d 460, 471 (E.D. Pa. 2000) (citing Keenan v. City of Phila., 983

F.2d 459, 465 (3d Cir. 1992)); Andrews v. City of Phila., 895 F.2d 1469, 1478 (3d Cir. 1990)

(“The sine qua non of any successful Equal Protection claim under § 1983 is purposeful

discrimination.”); Alexander v. Sandoval, 532 U.S. 275, 280 (2001) (“[I]t is similarly beyond

dispute – and no party disagrees – that § 601 prohibits only intentional discrimination.”); Gen.

Bldg. Contractors Ass’n v. Pa., 458 U.S. 375, 391 (1982) (“We conclude, therefore, that § 1981,

like the Equal Protection Clause, can be violated only by purposeful discrimination.”).

Plaintiffs will not be able to meet their burden of proving that they were intentionally

subjected to race discrimination, as the evidence supporting the Board’s legitimate, non-

discriminatory reasons for adopting Plan 3R is overwhelming and undisputed.

1. Plan 3R Is Facially Neutral.

As a preliminary matter, the evidence will show that Plan 3R is a facially race-neutral

policy. Plan 3R expressly provides that:

(1) Students attending Gladwyne, Belmont Hills, and Penn Valley Elementary Schools are
zoned to attend Welsh Valley Middle School and then Harriton High School (with those

3
The District has noted throughout this case that to the extent that Plaintiffs intend to assert disparate impact (as
opposed to disparate treatment) claims of discrimination through their vague allegations that Plan 3R “imposes
an undue burden on minority students,” see Compl., ¶¶ 71 76, 83, such claims must be dismissed as a matter of
law, as neither the Fourteenth Amendment to the United States Constitution, Section 1981, nor Title VI allows
disparate impact claims. See, e.g., Crawford v. Marion County Election Bd., 128 S. Ct. 1610, 1626 (2008)
(holding that disparate impact claims are not available under the 14th Amendment's Equal Protection clause);
Sandoval, 532 U.S. at 281 (holding that private parties may not invoke Title VI disparate impact regulations to
obtain redress for disparate impact discrimination because Title VI itself prohibits only intentional
discrimination); S. Camden Citizens in Action v. N.J. Dep’t of Envtl. Protection, 274 F.3d 771, 783, 791 (3d
Cir. 2001) (holding that disparate impact regulations adopted pursuant to § 602 of Title VI do not create a right
enforceable via § 1983); Pryor v. National Collegiate Athletic Ass’n, 288 F.3d 548, 562-63 (3d Cir. 2002)
(finding that both Section 1981 and Title VI provide a private cause of action for intentional discrimination
only).

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students living in the official, historic Lower Merion High School walk zone having
the option to choose between Harriton High School or walking to Lower Merion High
School);

(2) Students attending Penn Wynne, Cynwyd, and Merion Elementary Schools are zoned to
attend Bala Cynwyd Middle School, and then Lower Merion High School; and

(3) To better equalize student enrollments between the two high schools, all students zoned
for Lower Merion High School continue to have the opportunity to elect to attend
Harriton High School.

See Exhibit 7 to Defendant’s Statement of Undisputed Material Facts in Support of Motion for

Summary Judgment, at Students Doe 00192, 00196.

In addition, Plan 3R explicitly states as follows:

 Students may elect to stay with peers by following assigned feeder patterns K-12;
 [The Plan] [p]rotects the official Walk Zones for Elementary, Middle and High School;
 [The Plan] [f]ollows the current feeder patterns and creates disruption for fewer students;
and
 [The Plan] [a]llows for a mixed high school population at each school through the option
area or the choice programs.4

Id. at Students Doe 00190.

By its very terms, Plan 3R assigns students to high schools based on elementary and

middle school feeder patterns. It does not classify or assign any individual students, let alone do

so on the basis of race. Indeed, as the Court already has recognized, nowhere does Plan 3R even

mention race or any item that could be deemed a proxy for race. See February 24, 2010 Opinion,

at p. 15. In sum, Plan 3R is a facially race-neutral policy.

4
The “option area” is the geographic area within which students have the option to attend either Lower Merion
High School or Harriton High School. Under Plan 3R, the “option area” is the official Lower Merion High
School walk zone. Students residing in the official Lower Merion High School walk zone, although zoned to
attend Harriton High School due to the fact that they attend an elementary school that feeds into Welsh Valley
Middle School, are given the option to choose between Harriton High School or walking to Lower Merion
High School. “Choice programs” refers to the fact that Plan 3R, in an effort to better equalize the overall
student enrollment numbers at Harriton High School and Lower Merion High School, continued to allow
students zoned to attend Lower Merion High School the choice to attend Harriton High School. “Mixed” high
school population in this context means that each high school would be populated by students from both Bala
Cynwyd and Welsh Valley Middle Schools (as opposed to students from only one middle school).

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2. Plaintiffs Will Be Unable to Show Intent to Discriminate.

When official action taken pursuant to a facially neutral policy is challenged under the

Equal Protection Clause,5 rational basis scrutiny will apply unless the plaintiff can show that the

policy was enacted as a proxy for race or was applied on the basis of race, which would then

trigger strict scrutiny. Barnes Found. v. Township of Lower Merion, 982 F. Supp. 970, 983

(E.D. Pa. 1997). To show that Plan 3R was enacted on the basis of race, Plaintiffs must show

that the Board adopted Plan 3R with the purpose or intent to discriminate on the basis of race.

See id. (citing Washington v. Davis, 426 U.S. 229, 239-42 (1976); Village of Arlington Heights

v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977); Personnel Admin. v. Feeney, 442 U.S.

256, 272 (1979)).

The Supreme Court clarified the meaning of discriminatory “intent” or “purpose” in

Personnel Admin. v. Feeney, 442 U.S. 256 (1979). Discriminatory purpose “implies more than

intent as volition or intent as awareness of consequences.” Id. at 278-79. Rather, to prove

intentional discrimination by a facially neutral policy, a plaintiff must show that the relevant

decisionmaker – here, the Board – adopted the policy at issue “because of,” not merely “in spite

of,” its adverse effects upon an identifiable group. Id. at 279; see also Antonelli v. New Jersey,

419 F.3d 267, 273-74 (3d Cir. 2005). “A mere awareness of the consequences of an otherwise

neutral policy will not suffice.” Pryor, 288 F.3d at 562 (citing Feeney, 442 U.S. at 277-78).

5
Plaintiffs’ claims under 42 U.S.C. § 1981 and Title VI are coextensive with their Equal Protection claim and,
therefore, the same analysis applies to all three claims. See Sandoval, 532 U.S. at 581 (explaining that Title VI
“proscribe[s] only those racial classifications that would violate the Equal Protection Clause”) (internal
citations omitted); Gen. Bldg. Contractors Ass’n v. Pa., 458 U.S. 375, 391 (1982) (applying same analysis for
Equal Protection and § 1981). Therefore, Plaintiffs’ claims under 42 U.S.C. § 1981 and Title VI fail for the
same reasons as analyzed herein consistent under the Equal Protection Clause. 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).

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Consequently, the crucial inquiry under the Equal Protection Clause is whether the

District treated Plaintiffs differently than it treated similarly situated non-African American

students, and if it did, whether the District did so specifically because Plaintiffs are African

American. Barnes Found., 982 F. Supp. at 985. Plaintiffs will not be able to show that they

were treated differently from similarly situated students outside their protected class, nor will

they be able to demonstrate that the Board adopted Plan 3R because of their race.

a. Plaintiffs Will Be Unable to Show That They Were Treated

Differently from Individuals Similarly Situated.

To assert a viable Equal Protection claim, Plaintiffs must first make a threshold showing

that they were treated differently from others who were similarly situated to them. See

Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). Plaintiffs will be unable to do so. The District

submits that for purposes of Plaintiffs’ allegations, “all persons similarly situated” should

encompass school-age children who are registered to attend public school and who reside within

the Affected Area, i.e., the South Ardmore “neighborhood” described by Plaintiffs. See Compl.,

¶ 8. The evidence will show that all of the students who reside within the Affected Area –

African American, White, Asian, and Hispanic students – were districted in Plan 3R to attend

Harriton High School, irrespective of their race. All of these similarly situated children together

attend Penn Valley Elementary School and Welsh Valley Middle School, and, now, Harriton

High School.

Even assuming, arguendo, that all persons “similarly situated” should include a broader

geographic area, Plaintiffs’ claims must still fail, as the evidence will show that Plaintiffs’

neighborhood is not the only geographic area redistricted to Harriton High School under Plan

3R. For example, for the 2009-2010 school year, 44 ninth grade students, of all races, were

redistricted to Harriton High School as a result of Plan 3R, including 23 students from the

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Narberth and Penn Valley areas, 19 of whom are White, three of whom are Asian, and one of

whom is Indian. All of these students, like Plaintiffs and the other students in the Affected Area,

live outside the official Lower Merion High School walk zone and attend an elementary school

(Penn Valley, Gladwyne, or Belmont Hills Elementary School) that feeds into Welsh Valley

Middle School. Consequently, they are districted to Harriton High School under Plan 3R.

In sum, the overwhelming evidence will show that similarly situated African American

and non-African American students are treated the same under Plan 3R.

b. Plaintiffs Will Be Unable to Show that the Board Adopted Plan

3R Because of Their Race.

The evidence will show that the Board’s objective in adopting Plan 3R was to balance the

overall student enrollment levels at the two new high schools, in accordance with the

Community Advisory Committee’s (“CAC”) recommendations in 2004, and as set forth in the

Board’s Non-Negotiables adopted on April 21, 2008. At the same time, consistent with the

themes elicited from the Community Values study conducted by Dr. Sokoloff and Ms. Petersen,

and ongoing community input throughout the redistricting process, the District Administration

chose to present Plan 3R to the Board for its consideration because it:

 Provided the greatest amount of continuity by allowing students to stay with peers by
following assigned feeder patterns in kindergarten through grade 12;
 Preserved the historic walk zones for elementary, middle and high schools;
 Created disruption for fewer students by following the feeder patterns in place prior to
redistricting;
 Made it probable, through the option area and choice programs, that each high school
population would consist of a mix of students from each middle school (i.e., from Welsh
Valley and Bala Cynwyd Middle Schools);
 Maintained grandfathering of all current high school students; and
 Maintained elementary school attendance zones.

Plaintiffs will be unable to show that it was because of their race – and not the above enumerated

considerations – that the Board adopted Plan 3R. Indeed, the evidence will show that the Board

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Members did not take race into account in voting to adopt Plan 3R, and their public statements,

made contemporaneously with the Board’s adoption of Plan 3R and providing the reasons for

their decisions, make no mention of race. See Washington v. Davis, 426 U.S. 229, 239 (1976)

(“The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the

prevention of official conduct discriminating on the basis of race.”) (emphasis added).6

Moreover, the evidence will show that in developing Plan 3R (as well as the other plans

and scenarios prior to Plan 3R), the District did not select individual students for assignments to

either high school. Rather, under Plan 3R students were assigned to high school attendance

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

high school. These feeder patterns assigned all students outside the official Lower Merion High

School Walk Zone who attend Penn Valley, Gladwyne, and Belmont Hills Elementary Schools,

which each feed into Welsh Valley Middle School, to Harriton High School. Which students

were districted to Lower Merion High School and which students were districted to Harriton

High School as a result of the adoption of Plan 3R was not the result of individual selections by

the Board. The evidence will show that there was no difference in the treatment of students in

the Affected Area based on race.

c. Plaintiffs’ “Evidence” Is Insufficient to Prove Intentional

Discrimination.

During the course of this case, Plaintiffs have cobbled together facts and “evidence” that

are, in fact, quite innocent, but which paint an incendiary picture of the District’s redistricting

6
Pursuant to the District’s Policy Handbook, Local Board Procedures and Goals – 005 School Board
Organization and Responsibility provides that Board “policy” is “those actions, agreed to by formal majority
vote of Board of School Directors, that establish goals and objectives for the school district.” See Exhibit D to
Defendant’s Memorandum of Law in Support of Motion for Summary Judgment. Therefore, the official action
at issue here is the Board’s adoption, by 6-2 vote, of Plan 3R. The initial investigatory and drafting process by
the Administration and even the open meeting structure set up by the Board was not Board “policy” and
therefore should not be considered as part of the official conduct by this Court.

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process, particularly when misconstrued and mischaracterized as they have been by Plaintiffs.

While these facts and “evidence” may incite emotions when viewed out of context, they do not

demonstrate intentional race discrimination. For example, Plaintiffs have pointed to the

presentation of slides at the Board meetings concerning the anticipated diversity make-up of the

high school students under proposed Plans 1, 2, and 3 (none of which was ever acted upon or

adopted by the Board). In addition to these slides, Plaintiffs rely on: (1) discussions and

documents concerning proposed non-negotiables that never were adopted by the Board; (2) the

fact that Dr. Ross Haber, the outside consultant retained by the District to conduct an enrollment

projection study and assist in the redistricting process, requested student file data from the

District, which included race and ethnicity (as well as student ID, last name, first name, address,

town, zip code, current grade level, current school attending, special needs category or

classification, and socioeconomic status); (3) documents generated by Dr. Haber that noted the

diversity implications for various redistricting scenarios; and (4) mere references to “diversity,”

“race,” or “isolation” by individual Administration officials, Board Members, consultants, and

even community members, oftentimes in connection with proposed plans that never were

officially acted upon by the Board. While the District has acknowledged that among the

volumes of information and data generated during the redistricting process, there are data

concerning diversity issues, including racial diversity, Plaintiffs will be unable to show that this

“evidence” supports their conclusory allegations that they were intentionally discriminated

against on the basis of race.

First, the evidence will show that the District’s decision to keep track of the many factors

that encompass the diversity of its student population does not demonstrate discriminatory intent.

The District is required by law to maintain, review, and track student enrollment and

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performance data by race and ethnicity. See, e.g., 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). Furthermore, the compilation and review of diversity data,

which includes special needs and socioeconomic status in addition to race, serves valuable

educational purposes, as it enables the District to anticipate what the learning environment will

be like at a particular school.

Moreover, as the evidence will show, the inclusion of race and ethnicity data in Dr.

Haber’s request for student file data was by no means unusual or inappropriate. The District

retained Dr. Haber, an educational consultant with years of experience as an educator and

administrator, and, in particular, with school redistricting, to conduct both an enrollment

projection study and a redistricting project. As part of his engagement, and as he does for all

such projects, Dr. Haber requested standard student file data from the District, which included

race and ethnicity, as well special needs status, socioeconomic status, and a number of other

categories.

Second, the evidence will show that race data were not used as inputs to create any of the

redistricting scenarios or Plans actually presented to the Board. The diversity data – which

included race, as well as socioeconomic status and special needs status – reported in the

PowerPoint slides presented at the public Board meetings concerning Plans 1, 2, and 3 were

generated and presented simply to inform the public what the outcomes of the proposed Plans

would be, given that the community had expressed that it valued “diversity.”

Additionally, the evidence will show that Dr. Haber was never given a guideline as to

either a desirable, or, in the alternative, an unacceptable, racial distribution. Indeed, had

diversity or race actually been used as an input, there would have been no reason to note the

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diversity outcomes, as Dr. Haber could have used the race data to generate a scenario that created

a desired diversity outcome. In generating documents that contained data regarding the

prospective racial make-up of the students who would be attending the two high schools under a

particular proposed scenario, Dr. Haber merely reported on the after-the-fact outcomes of the

proposed scenarios that had been generated.

Plaintiffs attempt to make much out of Dr. Haber’s notations indicating that Scenario 1

was “eliminated due to inequitable racial balancing,” and that Scenario 4A was not selected, in

part, because it did not support the community value of diversity as did other scenarios.

However, they fail to make the important distinction between deciding to forego a particular

scenario because it would result in a “racial imbalance” in student populations, and an

affirmative choice by the Board to adopt a particular redistricting plan because it would result in

a “racial balance.” Even assuming, arguendo, that the Board Members did not choose a

proposed plan because of its diversity outcome, Plaintiffs will not be able to show that the Board

adopted Plan 3R, the redistricting plan at issue here, because of its diversity outcome.7

In short, the Administration’s and/or the Board’s general awareness of the effect of

various redistricting scenarios or plans on the racial and ethnic composition of its high schools

does not constitute evidence that race was a motivating factor in selecting particular geographic

areas to be drawn into different attendance zones. See, e.g., 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

7
Significantly, the evidence will show that the Board Members never saw, or do not recall having seen, the
scenario documents with Dr. Haber’s notations regarding “racial balance.” Even if the Board Members had
seen these documents, they have no bearing on the official action at issue here, i.e., the Board’s adoption of
Plan 3R, and are insufficient to demonstrate discriminatory intent.

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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).

Finally, to find liability based on what Plaintiffs proffer as evidence of intentional race

discrimination, one would have to believe: (1) that communications, discussions, references, and

even mere thoughts by the Administration and/or Board Members regarding race, “diversity,” or

“racial isolation” are alone inappropriate, and (2) even if the Board took no affirmative, official

action as a result of these discussions, communications, or thoughts, they nonetheless “tainted”

the process and made the Board’s action in adopting Plan 3R illegal. Plaintiffs have the burden

of proving that the Board adopted Plan 3R because of its adverse effects on Students Doe as

African American students. They will be unable to do so by relying on mere references to race,

diversity, or racial isolation.

d. Plaintiffs Will Be Unable to Present Valid Statistical Evidence

That Race Was a Factor in the Redistricting Process.

While Plaintiffs have proffered an expert report from Dr. Pavel Greenfield purporting to

show statistical evidence that race was a factor in the redistricting process, the evidence will

demonstrate otherwise. Dr. Greenfield’s own statements in his report, and the analysis provided

by the District’s expert in rebuttal, conclusively demonstrate that Dr. Greenfield’s data and his

own analysis are inconsistent with a conclusion that race was a factor. For example, Dr.

Greenfield’s analysis assumed that if race were not a factor in the decision process, on average,

African American and non-African American students initially districted to Lower Merion High

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School would have the same probability of being redistricted to Harriton High School. As will

be demonstrated through the expert testimony of Dr. Bernard Siskin, this assumption ignores the

actual decision-making process utilized by the District in this matter, i.e., (1) that any

redistricting plan had to adhere to the five non-negotiables, (2) that students were not

individually selected for assignment to Harriton High School under the redistricting plan, and (3)

that all students in a given geographic area were zoned to attend a specific set of schools, with

those residing in a defined walking area around Lower Merion High School (the official Lower

Merion High School walk zone) being given a choice of high schools, and all students zoned to

Lower Merion High School having the option of choosing to attend Harriton High School. The

final plan adopted, Plan 3R, maintains the pre-existing elementary and middle school feeder

patterns and the pre-existing Lower Merion High School walk zone, and simply assigns all

students going to one middle school to one high school and all students going to the other middle

school to the other high school, but Dr. Greenfield’s analysis completely ignores this fact.

Notably, even Dr. Greenfield himself recognized the inappropriateness of his assumption

of complete randomness, and in doing so conceded its unreliability by stating that “this is quite a

strong and ‘blanket’ assumption: complete randomness is not possible to achieve due to many

practical considerations (such as the need to arrange efficient bus routes) and other basic

realities, such as the fact that ethnic groups may tend to cluster geographically. For example, if

some African-American students were chosen to be redistricted by a procedure completely

random with regard to ethnicity, those students’ neighbors (who are more likely to be African-

American than another randomly selected group of students) would also be redistricted out of

practical considerations.” See Exhibit E to Defendant’s Memorandum of Law in Support of

Motion for Summary Judgment, at p. 2.

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To study the statistical evidence as to whether race was a factor in the decision to select

Plan 1 to present to the Board, the District’s expert, Dr. Bernard Siskin, compared the number of

African-American students who would be redistricted to Harriton in all the alternative scenarios

created by Dr. Haber and the Administration, as the total universe of possible plans to be

considered for recommendation to the Board. See Exhibit F to Defendant’s Memorandum of

Law in Support of Motion for Summary Judgment. In 15 of the 32 alternative scenarios, at least

as many African-American students were redistricted to Harriton High School as were

redistricted to Harriton High School in Plan 1; thus, the likelihood of choosing an initial plan that

would yield as many African American students redistricted to Harriton High School purely by

chance was 15 out of 32, or 46.9 percent. Id. at ¶ 18. Consequently, the selection of Plan 1 from

among all the alternative plans considered clearly was not inconsistent with a decision making

process which did not consider race as a factor in selecting a plan. Id. Moreover, as Dr. Siskin

noted, Plans 2 and 3 actually lowered the number of African American students redistricted to

Harriton, and Plan 3R, because it differed from Plan 3 only by increasing the Lower Merion

High School walk zone distance back to the official walk zone parameters, could only further

lower the number of African-American students expected to be redistricted to Harriton High

School. Id. at ¶ 17.

In sum, Plaintiffs have no valid statistical evidence that race was a factor in the selection

of a redistricting plan. It is particularly telling that Dr. Greenfield expressly conceded in his

report that he was unable to conclude whether the redistricting process was based explicitly on

race or other factors strongly correlated with race. Ex. E to Defendant’s Motion for Summary

Judgment, at p. 4. While he ultimately concluded that “the disproportionate effect on the African

American students is statistically evident,” see id., the fact remains that, in order to prevail on

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their claims, Plaintiffs must show intentional discrimination on the basis of race, not mere

disproportionate impact, and they will be unable to do so. See Village of Arlington Heights v.

Metro. Hous. Dev. Corp., 429 U.S. 252, 264-265 (1977) (“Official action will not be held

unconstitutional solely because it results in a racially disproportionate impact.”).

3. Plaintiffs Will Be Unable To Show That Plan 3R Runs Afoul of

Parents Involved in Cmty. Schools v. Seattle Sch. Dist. No. 1.

Plaintiffs have repeatedly compared the instant action to Parents Involved in Cmty.

Schools v. Seattle Sch. Dist. No. 1, 55 U.S. 701, 127 S. Ct. 2738 (2007), yet the evidence will

show that Plan 3R is factually inapposite to the student assignment plans at issue in Seattle, and

that Plan 3R is not unconstitutional under the Supreme Court’s holding in that case.

In contrast to the race-based Seattle plan, where the district selected individual students

for assignments, and where selection hinged on a numeric value set by the district’s overall racial

composition, the District’s Redistricting Plan did not select individual students for assignments

to high school. Rather, it modified its high school attendance zones to equally divide its high

school students by number, not by race, in an attempt to redistribute a previously numerically

imbalanced high school enrollment. The new attendance zones were based on the feeder patterns

from the elementary schools to the middle schools and on to a high school. These feeder

patterns assigned all students outside the official Lower Merion High School Walk Zone who

attended Penn Valley, Gladwyne, and Belmont Hills Elementary Schools, and Welsh Valley

Middle School, to Harriton High School, regardless of race.

Even if this Court were to find race-conscious action during the redistricting process from

the mere fact that Administration officials, Board Members, and/or the District’s consultants

discussed the community’s concerns regarding the potential effect of various redistricting

scenarios or plans on racial composition, such race-conscious mechanisms, as Justice Kennedy

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emphasized in Seattle, do not demand strict scrutiny because they “do not lead to different

treatment based on a classification that tells each student he or she is to be defined by race.” 127

S. Ct. at 2792.

As Justice Kennedy explained:

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 2792 (emphasis added) (internal citations omitted).

Moreover, Justice Kennedy continued:

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 2792 (emphasis added) (citing Bush v. Vera, 517 U.S. 952, 958 (1996) (plurality opinion)

(“Strict scrutiny does not apply merely because redistricting is performed with consciousness of

race …. 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.’” (quoting Adarand Construction, Inc. v. U.S., 515 U.S.

200, 213 (1995)).

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

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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 2792 (emphasis added).

Consistent with Justice Kennedy’s concurring opinion, the District did nothing more than

what it was permitted to do. The evidence will show that in presenting data concerning the

projected racial composition, as well as the special needs status and socioeconomic status of the

students under proposed Plans, the District was cognizant of what the racial composition of the

student populations would be under Plans 1, 2, and 3 in recognition of the value of diversity

expressed by the community, and in order to anticipate what the learning environment would be

like at each high school. The evidence also will show that the District did not treat students

differently on the basis of racial classifications and, consequently, that – consistent with both the

majority holding and Justice Kennedy’s concurring opinion in Seattle – Plan 3R does not violate

Plaintiffs’ constitutional rights.

a. Rational Basis Scrutiny Is the Appropriate Standard of

Review, and the District Will Satisfy That Standard.

Because Plan 3R is facially neutral, it is subject to strict scrutiny review “only if it can be

proved that the law was ‘motivated by a racial purpose or object,’ or is unexplainable on grounds

other than race.” Hunt v. Cromartie, 526 U.S. 541, 546 (1999). As explained above, Plaintiffs

will not be able to demonstrate that the Board adopted Plan 3R because of their race; therefore,

Plan 3R will be subject to simple “rational basis” equal protection review. Id. See also 127 S.

Ct. at 2792 (noting that “drawing attendance zones with general recognition of the demographics

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of neighborhoods,” while race conscious, “does not lead to different treatment based on a

classification defining by race,” and therefore does not require strict scrutiny).8

The evidence will show that Plan 3R clearly is rationally related to a legitimate state

interest. See, e.g., Lavia v. Pennsylvania Dept. of Corrections, 224 F.3d 190, 199 (3d Cir. 2000)

(“Under rational basis scrutiny, state action will survive as long as it merely furthers a legitimate

state interest.”). The Pennsylvania Public School Code of 1949 imposes on school districts and,

specifically, their operating boards, mandatory duties and discretionary powers in order to

maintain and support a thorough and effective system of public schools in accordance with

Article X, Section I of the Pennsylvania Constitution. To this end, the board of school directors

for each district is explicitly vested with the duty to provide the grounds and buildings upon

which to accommodate their students, as well as the attendant duty to assign pupils to those

various schools. See 24 P.S. §§ 7-701; 13-1310. In particular, Section 13-1310(a) provides, in

pertinent part, that:

The board of school directors of every school district [ ] shall, for the purposes of
designating the schools to be attended by the several pupils in the district [ ]
subdivide the district [ ] in such manner that all the pupils in the district shall be
assigned to, and reasonably accommodated in, one of the public schools in the
district [ ]. The board of school directors may...classify and assign the pupils in
the district to any school or schools therein as it may deem best, in order to
properly educate them.

24 P.S. § 13-1310(a). As explained by this statute, it is well within a local school board’s

purview and discretion to promulgate and implement redistricting directives to serve the

educational interests of the district and, consequently, the Board here had a legitimate interest in

redistricting the District’s high school students to achieve equalized student enrollments at its

two new high schools in accordance with the CAC’s recommendations. The evidence will show

8
Should the Court find that strict scrutiny applies, the District reserves the right to show that it had a compelling
interest in redistricting the way that it did, and that Plan 3R was narrowly tailored to that interest.

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that Plan 3R was rationally related to that interest, as it furthered the District’s objective of

equalizing student enrollments between the two high schools.

IV. CONCLUSION

For all of the foregoing reasons, the District respectfully submits that the Court, after

hearing all of the evidence, will deem it appropriate to enter judgment in the District’s favor and

dismiss Plaintiffs’ Complaint with prejudice.

Respectfully submitted,

/s/ Judith E. Harris

Judith E. Harris (PA I.D. No. 02358)
Christina Joy F. Grese (PA I.D. No. 200727)
Allison N. Suflas (PA I.D. No. 204448)
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103
215-963-5028/5085/5752

Kenneth A. Roos, Esquire

Megan E. Shafer, Esquire
WISLER PEARLSTINE, LLP
484 Norristown Road
Blue Bell, PA 19422
610-825-8400

Dated: March 23, 2010 Attorneys for Defendant

Lower Merion School District

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CERTIFICATE OF SERVICE

I hereby certify that on this 23rd day of March, 2010, a true and correct copy of the

foregoing Lower Merion School District’s Trial Brief was filed electronically and is available for

viewing and downloading from the ECF system of the U.S. District Court for the Eastern District

of Pennsylvania, and that I served the same via electronic filing upon the following:

David G. C. Arnold
Suite 106, 920 Matsonford Road
West Conshohocken, PA 19428

Attorney for Plaintiff

/s/ Judith E. Harris

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