student doe brief - 3rd circuit
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In The
United States Court of Appeals for the
Third Circuit
Case No. 10-3824
STUDENT DOE 1, BY AND THROUGH HIS PARENTS/GUARDIANS DOES1 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 THROUGHHIS PARENTS/GUARDIANS DOES 6 AND 7;STUDENT DOE 7, BY AND
THROUGH HIS PARENT/GUARDIAN DOE 8; STUDENT DOES 8 AND 9,BY AND THROUGH THEIR PARENTS/GUARDIANS DOES 9 AND 10,
Appellants,
v.
LOWER MERION SCHOOL DISTRICT,
Appellee.
_____________________________
Appeal from an Order entered from the
United States District Court for the Eastern District of Pennsylvania
BRIEF AND APPENDIX
VOLUME I OF V (PAGES A1- A103)
DAVID G.C. ARNOLD, ESQ. Suite 106920 Matsonford Road
West Conshohocken, Pennsylvania 19428
610-397-0722
Email: davidgcarnold@aol.com
Attorney for Appellants
COUNSEL PRESS (888) 700-3226
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Case: 10-3824 Document: 003110307879 Page: 1 Date Filed: 10107/2010
United States Court of Appeals for the Third Circuit
Corporate Disclosure Statement and
Statement of Financial Interest
No. 10-3824
Student Doe 1, et. al.
v.
Lower Merion School District
Instructions
Pursuant to Rule 26.1, Federal Rules of Appellate Procedure anynongovernmental corporate party to a proceeding before this Court must file a statement identifying
all of its parent corporations and listing any publicly held company that owns 10% or more of the
party's stock.
Third Circuit LAR 26.1 (b) requires that every party to an appeal must identify on
the Corporate Disclosure Statement required by Rule 26.1, Federal Rules of Appellate Procedure,
every publicly owned corporation not a party to the appeal, if any, that has a financial interest in the
outcome of the litigation and the nature of that interest. This information need be provided only if a
party has something to report under that section of the LAR.
In all bankruptcy appeals counsel for the debtor or trustee of the bankruptcy
estate shall provide a list identifying: 1) the debtor if not named in the caption; 2) the members of the
creditors' committee or the top 20 unsecured creditors; and, 3) any entity not named in the caption
which is an active participant in the bankruptcy proceedings. If the debtor or the bankruptcy estate is
not a party to the proceedings before this Court, the appellant must file this list. LAR 26.1 (c).,
The purpose of collecting the information in the Corporate Disclosure and
Financial Interest Statements is to provide the judges with information about any conflicts of interest
which would prevent them from hearing the case.
The completed Corporate Disclosure Statement and Statement of Financial
Interest Form must, if required, must be filed upon the filing of a motion, response, petition or answer
in this Court, or upon the filing of the party's principal brief, whichever occurs first. A copy of the
statement must also be included in the party's principal brief before the table of contents regardless
of whether the statement has previously been filed. Rule 26.1 (b) and (c), Federal Rules of AppellateProcedure.
If additional space is needed, please attach a new page.
(Page 1 of 2)
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Case: 10-3824 Document: 003110307879 Page: 2 Date Filed: 10107/2010
Pursuant to Rule 26.1 and Third Circuit lAR 26.1, _A--'p-"-p_e_"_a_n_t_s______,makes the
following disclosure: (Name of Party)
1) For non-governmental corporate parties please list all parent corporations:
Not Applicable
2) For non-governmental corporate parties please list all publicly held companiesthat hold 10% or more of the party's stock:
Not Applicable
3) If there is a publicly held corporation which is not a party to the proceedingbefore this Court but which has as a financial interest in the outcome of the proceeding, please
identify all such parties and specify the nature of the financial interest or interests:
Not Applicable
4) In all bankruptcy appeals counsel for the debtor or trustee of the bankruptcyestate must list: 1) the debtor, if not identified in the case caption; 2) the members of the creditors'committee or the top 20 unsecured creditors; and, 3) any entity not named in the caption which is
active participant in the bankruptcy proceeding. If the debtor or trustee is not participating in theappeal, this information must be provided by appellant.
Not Applicable
Dated: October 7, 2010
(Page 2 of 2)
rev: 1112008
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i
TABLE OF CONTENTS
Jurisdictional Statement ............................................................................................. 1
Statement of Issues Presented for Review ................................................................. 2
Statement of Related Cases and Proceedings ............................................................ 7
Statement of the Case ................................................................................................. 8
Statement of Facts .................................................................................................... 11
Summary of Argument............................................................................................. 28
Argument.................................................................................................................. 29
I. Lower Merion's Racial Redistricting Cannot Survive the Strict
Scrutiny Test .................................................................................................. 36
A. Precedent requires the application of the strict scrutiny test .......... 36
B. Lower Merion never established a compelling state
interest for its racial actions ................................................................ 45
1. Lower Merion never articulated a compelling state interest ........... 45
2. Any interests are unrelated to race, and not compelling ................. 50
C. Lower Merion's Redistricting Plan is not narrowly tailored .......... 53
D. The Redistricting Plan is improperly unlimited in duration .......... 56
II. Lower Merion Should Not Win An Inevitably Defense ........................... 57
III. Students Doe Should Have Won Their Federal Statutory Claims .......... 62
Conclusion ............................................................................................................... 67
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APPENDIX TABLE OF CONTENTS
Page
Volume I:
Memorandum on Factual Findings, filed May 13, 2010 ........................ A1
Order, filed May 13, 2010 ....................................................................... A58
Transcript of Trial, dated April 26, 2010 ................................................ A59
Transcript of Trial, dated April 27, 2010 ................................................ A61
Memorandum on Conclusion of Law, filed June 24, 2010 .................... A63
Order, filed June 24, 2010 ....................................................................... A94
Order, filed June 25, 2010 ....................................................................... A95
Order, filed August 19, 2010 .................................................................. A96
Joint Notice of Appeal, filed September 16, 2010 .................................. A100
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iii
TABLE OF AUTHORITIES
Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995) ............................................................................................ 41
Barnes v. Gorman,
536 U.S. 181 (2002) ...................................................................................... 63-64
Brown v. Board of Education,
347 U.S. 483 (1954) ............................................................................................ 29
G-1 Holdings, Inc. v. Reliance Insurance Company,
586 F.3d 247 (3d Cir. 2009) ............................................................................... 49
Gonzaga University v. John Doe,
536 U.S. 273 (2002) ............................................................................................ 63
Gratz v. Bollinger,
539 U.S. 244 (2003) ...................................................................................... 41, 50
Grutter v. Bollinger,
539 U.S. 306 (2003) ..................................................................................... passim
Johnson v. California,
543 U.S. 499 (2005) ...................................................................................... 41, 43
McGovern v. Philadelphia,554 F.3d 114 (3d Cir. 2009) ............................................................................... 63
Parents Involved in Community Schools v.
Seattle School District No. 1,
551 U.S. 701 (2007) ..................................................................................... passim
Plessy v. Ferguson,
163 U.S. 537 (1896) ............................................................................................ 29
Pryor v. National Collegiate Athletic Association,
288 F.3d 548 (3d Cir. 2002) ....................................................... 30-31, 41, 42, 49
Republican Party of Minnesota v. White,
536 U.S. 765 (2002) ............................................................................................ 51
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Ricci v. DeStefano,
129 S. Ct. 2658 (2009) .................................................................................. 64, 65
Richmond v. Croson,
488 U.S. 469 (1989) ............................................................................................ 52
Shaw v. Hunt,
517 U.S. 899 (1996) ............................................................................................ 51
Simon & Schuster, Inc. v.
Members of the New York State Crime Victims Board,
502 U.S. 105 (1991) ............................................................................................ 52
Sutton v. United Airlines,
527 U.S. 471 (1999) ............................................................................................ 66
Village of Arlington Heights v.Metropolitan Housing Development Corp.,
429 U.S. 252 (1977) ..................................................................................... passim
Statutes and Other Authorities:
Fourteenth Amendment to the United States Constitution ............................... passim
20 U.S.C. § 1400 et. seq ........................................................................................... 65
28 U.S.C. § 1291 ........................................................................................................ 1
28 U.S.C. § 1331 ........................................................................................................ 1
29 U.S.C. § 794 ........................................................................................................ 65
42 U.S.C. § 1981 ............................................................................................... passim
42 U.S.C. § 1983 ...................................................................................................... 63
42 U.S.C. § 1988 ...................................................................................................... 67
42 U.S.C. § 2000d et. seq .................................................................................. passim
F.R.Civ.P. 8 .............................................................................................................. 58
F.R.Civ.P. 11 ............................................................................................................ 45
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F.R.Civ.P. 59 .......................................................................................................... 1, 9
Rule 108.1 of the Local Appellate Rules of the United States Court
of Appeals for the Third Circuit ......................................................................... 67
Internal Operating Procedure 9.1 of the United States Court of Appeals for the Third Circuit .............................................................................. 42
S. Backer-McKee, W. Janssen, J. Corr, Federal Civil Rules Handbook 2010 ........ 58
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1
JURISDICTIONAL STATEMENT
On May 14, 2009, Appellants, Students Doe 1 through 9, by and through
their Parents/Guardians, filed a Three Count Complaint in the United States
District Court for the Eastern District of Pennsylvania seeking relief under the
Fourteenth Amendment to the United States Constitution, 42 U.S.C. § 1981, and
Title VI of the Civil Rights Act, 42 U.S.C. § 2000d et. seq. Appendix A124-A164.
The United States District Court for the Eastern District of Pennsylvania had
jurisdiction over the case pursuant to 28 U.S.C. § 1331.
On June 24 and 25, 2010, the District Court entered Orders granting
judgment in favor of Appellee, Lower Merion School District. Appendix A94-A95.
On July 22, 2010, Students Doe filed a Motion for a New Trial pursuant to Rule 59
of the Federal Rules of Civil Procedure. Appendix A444-A462. The District Court
denied said Motion on August 19, 2010. Appendix A96-A99. The District Court's
Order was a final Order in that it dismissed all of Students Doe's claims.
On September 16, 2009, Students Doe timely filed their Joint Notice of
Appeal. Appendix A100-A103. This Honorable Court has jurisdiction to hear the
present appeal pursuant to 28 U.S.C. § 1291.
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STATEMENT OF ISSUES PRESENTED FOR REVIEW
1. Whether Lower Merion School District's reasons for using race in its
redistricting decision-making constitute compelling state interests?
Suggested Answer: No
This issue was raised in Students Doe's Trial Brief, Appendix A291, in
Students Doe's Proposed Findings of Fact and Conclusions of Law, Appendix
A320-A321, in Students Doe's Post Trial Brief, Appendix A414-A418, and in
Students Doe's Motion for a New Trial, Appendix A451-A455. The District Court
ruled on the issue in its Memorandum on Conclusions of Law , Appendix A83-
A91, and in its Order on August 19, 2010, Appendix A96-A99. Students Doe
appealed the ruling in its Joint Notice of Appeal, Appendix A100-A103.
2. Whether Lower Merion School District proved at trial that it used race in
its redistricting decision-making to address the achievement gap and racial
isolation?
Suggested Answer: No
This issue was raised in Students Doe's Post Trial Brief, Appendix A414,
and in Students Doe's Motion for a New Trial, Appendix A454-A455. The District
Court ruled on the issue in its Memorandum on Conclusions of Law, Appendix
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A91-A94, and in its Order on August 19, 2010, Appendix A96-A99. Students Doe
appealed the ruling in its Joint Notice of Appeal, Appendix A100-A103.
3. Whether Lower Merion School District proved at trial that its race related
redistricting actions were narrowly tailored to serve a compelling state interest?
Suggested Answer: No
This issue was raised in Students Doe's Post Trial Brief, Appendix A415,
and in Students Doe's Motion for a New Trial, Appendix A456-A457. The District
Court ruled on the issue in its Memorandum on Conclusions of Law, Appendix
A83-A91, and in its Order on August 19, 2010, Appendix A96-A99. Students Doe
appealed the ruling in its Joint Notice of Appeal, Appendix A100-A103.
4. Whether Lower Merion School District's race related redistricting actions
survive strict scrutiny because they are not limited in duration?
Suggested Answer: No
This issue was raised in Students Doe's Proposed Findings of Fact and
Conclusions of Law, Appendix A321, in Students Doe's Post Trial Brief, Appendix
A416, and in Students Doe's Motion for a New Trial, Appendix A457. The District
Court ruled on the issue in its Memorandum on Conclusions of Law, Appendix
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A83-A91, and in its Order on August 19, 2010, Appendix A96-A99. Students Doe
appealed the ruling in its Joint Notice of Appeal, Appendix A100-A103.
5. Whether Lower Merion School District preserved the defense that Plan
3R would have inevitably been adopted notwithstanding its race related
redistricting actions?
Suggested Answer: No
This issue was raised in Students Doe's Motion for a New Trial, Appendix
A458-A459. The District Court ruled on the issue in its Memorandum on
Conclusions of Law, Appendix A92-A93, and in its Order on August 19, 2010,
Appendix A96-A99. Students Doe appealed the ruling in its Joint Notice of
Appeal, Appendix A100-A103.
6. Whether Lower Merion School District proved at trial that Plan 3R would
have inevitably been adopted notwithstanding its race related redistricting actions?
Suggested Answer: No
This issue was raised in Students Doe's Motion for a New Trial, Appendix
A458-A460. The District Court ruled on the issue in its Memorandum on
Conclusions of Law, Appendix A92-A93, and in its Order on August 19, 2010,
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Appendix A96-A99. Students Doe appealed the ruling in its Joint Notice of
Appeal, Appendix A100-A103.
7. Whether the District Court properly allocated the burden of proof to
Students Doe when making its determinations concerning the Lower Merion High
School Walk Zone?
Suggested Answer: No
This issue was raised in Students Doe's Motion for a New Trial, Appendix
A458-A460. The District Court ruled on the issue in its Memorandum on
Conclusions of Law, Appendix A83-A91, and in its Order on August 19, 2010,
Appendix A96-A99. Students Doe appealed the ruling in its Joint Notice of
Appeal, Appendix A100-A103.
8. Whether 42 U.S.C. §1981 and/or Title VI of the Civil Rights Act, 42
U.S.C. § 2000d et. seq. prohibit Lower Merion School District's race related
redistricting actions even though the Fourteenth Amendment to the United States
Constitution may not?
Suggested Answer: Yes
This issue was raised in Students Doe's Complaint, Appendix A138-A141,
in Students Doe's Trial Brief, Appendix A292-A294, in Students Doe's Proposed
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Findings of Fact and Conclusions of Law, Appendix A321-A322, in Students
Doe's Post Trial Brief, Appendix A418-A419. The District Court ruled on the issue
in its Memorandum on Conclusions of Law, Appendix A93. Students Doe
appealed the ruling in its Joint Notice of Appeal, Appendix A100-A103.
9. Whether Drs. Lyles and Jarvis should have been permitted to testify at
trial on behalf of Lower Merion School District in light of Student Doe's Motion in
Limine?
Suggested Answer: No
This issue was raised in Students Doe's Motion in Limine, Appendix A251-
A265. The District Court ruled on the issue during trial on April 26 and 27, 2010,
Appendix A59-A62. Students Doe appealed the ruling in its Joint Notice of
Appeal, Appendix A100-A103.
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STATEMENT OF RELATED CASES AND PROCEEDINGS
This case has not previously been before this Honorable Court. Students Doe
are not aware of any other case or proceeding that is any way related, completed,
or pending before this Honorable Court. Students Doe are aware that complaints
regarding the matters at issue in this case have been submitted to the Office of
Civil Rights for the United States Department of Education, and that a complaint
has also been submitted to the Pennsylvania Human Relations Commission.
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STATEMENT OF THE CASE
On May 14, 2009, Students Doe by and through their Parents/Guardians,
filed a Three Count Complaint in the United States District Court for the Eastern
District of Pennsylvania seeking to enjoin, both preliminarily and permanently,
Lower Merion's school redistricting plan adopted on January 12, 2009. Appendix
A124-A164. Shortly after filing its Complaint, Students Doe filed a Motion for
Preliminary Injunction. Said Motion was scheduled to be heard in August of 2009.
Students Doe later withdrew said Motion prior to the Preliminary Injunction
Hearing. Appendix A104-A123 (Docket Entries).
Students Doe contended in their Complaint that Lower Merion’s
redistricting plan improperly used race as a factor in order to mandate that they be
bused to a non-neighborhood school, Harriton High School, instead of allowing
them to continue to voluntarily choose to attend their neighborhood high school,
Lower Merion High School, or Harriton High School. Students Doe further
contended that Lower Merion’s redistricting actions violated the Fourteenth
Amendment to the United States Constitution, 42 U.S.C. § 1981, and Title VI of
the Civil Rights Act, 42 U.S.C. § 2000d et. seq. Appendix A124-A164.
Lower Merion subsequently filed a Motion for Summary Judgment on
December 31, 2009, which the District Court subsequently denied on February 24,
2010. Appendix A104-A123 (Docket Entries). In accordance with the District
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Court's Pre-Trial Schedule, Students Doe filed a Motion in Limine to Preclude the
Trial Testimony of Dr. Claudia Lyles and Dr. Robert Lee Jarvis because said
witnesses had not been identified during the course of discovery, and were only
identified by Lower Merion in their Pre-Trial Memorandum filed on March 12.
2010. Appendix A251-A265. The District Court denied said Motion in Limine
without prejudice. Appendix A104-A123 (Docket Entries). Students Doe
subsequently renewed said Motion during trial, but is was denied. Appendix A59-
A62.
The District Court then conducted a nine (9) day Federal Bench Trial.
Following the Bench Trial, the District Court issued its Memorandum on Findings
of Fact on May 13, 2010. In its Memorandum, the District Court concluded that
race was factor in Lower Merion's redistricting of Students Doe. Appendix A1-
A59. In its subsequent Memorandum on Conclusion of Law issued on June 24,
2010, the District Court concluded that Students Doe were not entitled to relief
because Lower Merion's actions did not violate the Fourteenth Amendment to the
United States Constitution, 42 U.S.C. § 1981, and Title VI of the Civil Rights Act,
42 U.S.C. § 2000d et. seq. Appendix A63-A93.
Students Doe thereafter filed a timely Motion for a New Trial pursuant to
Rule 59 of the Federal Rules of Civil Procedure on July 22, 2010. Appendix A444-
A462. The District Court rule against said Motion on August 19, 2010. Appendix
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A96-A99. Students Doe thereafter filed the present appeal with this Honorable
Court on September 16, 2010. Appendix A100-A103.
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STATEMENT OF FACTS
Lower Merion School District, hereinafter referred to as "Lower Merion," is
located in Montgomery County Pennsylvania, and is the entity charged with the
legal responsibility to provide, among other things, both regular and special
education services to school age children residing in Lower Merion Township and
Narberth Borough. Lower Merion is governed by the Lower School Board which is
made up of nine (9) School Directors who are chosen in at large elections in Lower
Merion Township and Narberth Borough. The Lower Merion School District
Administration actually runs Lower Merion's schools. Appendix A6
(Memorandum on Factual Findings) and A126 (Complaint).
Lower Merion operates six (6) elementary schools (i.e. Belmont Hills
Elementary School, Cynwyd Elementary School, Gladwyne Elementary School,
Merion Elementary School, Penn Valley Elementary School, and Penn Wynne
Elementary School), two (2) middle schools (i.e. Bala Cynwyd Middle School and
Welsh Valley Middle School), and two (2) high schools (i.e. Lower Merion High
School and Harriton High School). Lower Merion is not at the present time, nor
has it ever been, subject to a Federal and/or State Court busing decree. Lower
Merion has received in the past, and continues to receive, Federal Funding.
Appendix A6 (Memorandum on Factual Findings) and A127 (Complaint).
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As the final stage of its Capital Improvement Program that began in 1997,
Lower Merion decided to rebuild both Lower Merion High School and Harriton
High School. Lower Merion formed a Community Advisory Committee in January
of 2004, in order to assist it in determining whether it would build one (1) high
school on two (2) campuses, whether it would build two (2) high schools which
house approximately the same number of students, or whether it would build two
(2) high schools which would replicate the historic student populations at Lower
Merion High School and Harriton High School. Prior to reconstruction, Lower
Merion High School housed a student body that was much larger than Harriton
High School's student body. Appendix A12 (Memorandum on Factual Findings).
In its report dated May 24, 2004, the Community Advisory Committee
advised Lower Merion that it recommended that Lower Merion High School, and
Harriton High School be rebuilt to house approximately the same number of
students. The Lower Merion School Board subsequently adopted the Community
Advisory Committee's recommendation in 2004. It is the School Board's adoption
of the Community Advisory Committee's recommendation to equalize high school
enrollments at Lower Merion High School and Harriton High School which set the
stage for the current case, because the School Board's actions made it necessary to
redistrict a large number of students away from Lower Merion High School, to
Harriton High School. Appendix A12-A13 (Memorandum on Factual Findings).
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Students Doe, are nine (9) African American Students who live in the Lower
Merion School District, and reside in a section of Ardmore bounded by Athens
Avenue, Wynnewood Road, County Line Road, and Cricket Avenue. Appendix
A125-A126 (Complaint). This area has been referred to during the litigation as the
"Affected Area" and/or "South Ardmore." The Affected Area and the adjoining
region North of Cricket Avenue is the larger of two (2) areas in the Lower Merion
School District that have a significant African American population. Appendix A9-
A10 (Memorandum on Factual Findings).
The latter referenced adjoining region has been referred to during the
litigation as "North Ardmore," and said region is bounded by Cricket Avenue, East
Lancaster Avenue, County Line Road, and College Avenue. Appendix A9-A10
(Memorandum on Factual Findings). For the sake of consistency, Students Doe's
neighborhood will continue to be referred to as the "Affected Area" in this Brief,
and the adjoining region North of Cricket Avenue will continue to be referred to as
"North Ardmore" in this Brief. Said areas are not separated by any natural
boundary. The only other area in the district that has a concentration of African
American population is a small neighborhood located in Bryn Mawr. Appendix
A9-A10 (Memorandum on Factual Findings) and A2196-A2197 (Maps).
Prior to redistricting, the following students were districted to Lower Merion
High School, but had the option to attend either Lower Merion High School or
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Harriton High School: all students who lived in the Cynwyd Elementary School
feeder pattern; all students who lived in the Merion Elementary School feeder
pattern; all students who lived in the Penn Wynne Elementary School feeder
pattern; all students in the Belmont Hills Elementary School feeder pattern who
lived in Narberth Borough; and all students in the Penn Valley Elementary School
feeder pattern who lived in the Affected Area or who lived in the Lower Merion
High School Walk Zone. Appendix A13-A14 (Memorandum on Factual Findings).
The Lower Merion High School Walk Zone is an area surrounding Lower
Merion High School that under Lower Merion School District Policy is supposed
to extend one (1) mile in all directions. Appendix A2191-A2196. In contravention
of Lower Merion School District Policy, the Walk Zone does not extend one (1)
mile into the Affected Area; instead, the Walk Zone ends at Athens Avenue which
is well short of one (1) mile. If the Walk Zone extended one (1) mile into the
Affected Area, three (3) of the Students Doe would live within the Walk Zone, and
three (3) others may live within the Walk Zone. Appendix A11(Memorandum on
Factual Findings), A1293-A1303 (Trial Transcript), and A2189-A2190 (Trial
Exhibit). Students living in the Walk Zone do not receive bus transportation.
However, under each of the redistricting plans proposed, and under the
redistricting plan adopted, students living in the Walk Zone always received the
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option to attend either Lower Merion High School or Harriton High School.
Appendix A2097-A2176 (Proposed Redistricting Plans).
Prior to redistricting, the following students were districted to Harriton High
School: all students who lived in the Gladwyne Elementary School feeder pattern;
all students in the Penn Valley Elementary School feeder pattern who did not live
in the Affected Area, or who did not live in the Lower Merion High School Walk
Zone; and all students in the Belmont Hills Elementary School feeder pattern who
did not live in Narberth Borough. Students districted to Harriton High School did
not have choice to attend Lower Merion High School. Both prior to and following
redistricting, Harriton High School had an International Baccalaureate Program, a
specialized academic program that had a limited number of student placements
available which were given out on a selective basis. This program has never been
available at Lower Merion High School, and has been used to draw students
districted to Lower Merion High School to choose instead to attend Harriton High
School. Appendix A13-A14 (Memorandum on Factual Findings), and A2111-
A2112 (First Proposed Redistricting Plan).
Based upon the foregoing, prior to redistricting, all students in the Affected
Area as well as all students in North Ardmore had choice to attend either Lower
Merion High School or Harriton High School. The African American students in
Bryn Mawr were districted to attend Harriton High School both before and after
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the redistricting process at issue. Appendix A13-A14 (Memorandum on Factual
Findings), and A2111-A2112 (First Proposed Redistricting Plan).
Lower Merion started the redistricting process in the Spring of 2008. Lower
Merion apparently conducted initial, non-public meetings about redistricting early
in April of 2008. At its April 28, 2008, School Board Meeting, the Lower Merion
School Board adopted guidelines which it termed "non-negotiables." These non-
negotiables were: (1). The enrollment of the two (2) high schools and two (2)
middle schools would be equalized; (2). Elementary students would be assigned so
that the schools would be at or under school capacity; (3). The plan would not
increase the number of buses required; (4). At a minimum, the class of 2010 would
have choice to either follow the redistricting plan or stay at the high school of their
previous year; and (5). Redistricting decisions would be based upon current and
expected future needs, and not based upon past redistricting outcomes, or
perceived past promises or agreements. The School Board took the position that
any redistricting plan presented and/or adopted would have to comply with these
guidelines. In addition to "non-negotiable" Number 4, a broader grandfathering
provision was followed throughout the redistricting process, i.e. students who
started attending a high school before the redistricting plan was adopted, would not
have to change high schools. Appendix A15-A16 (Memorandum on Factual
Findings), and A2097-A2176 (Proposed Redistricting Plans). Therefore, the full
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impact of redistricting in Lower Merion will not be felt until the 2012-2013 School
Year.
Lower Merion then sought to engage the community at large by conducting
focus group meetings in the district during May and June of 2008. The purpose of
these meetings was to identify "community values" that would assist in the
formation of a final redistricting plan. Focus group meetings were conducted under
the direction of Dr. Harris Sokolov and Ms. Ellen Petersen on May 29, 2008, June
8, 2008, June 9, 2008, June 10, 2008, and on June 19, 2008. In addition, feedback
was also collected from the community via an online survey during the
aforementioned time period. Appendix A16-A17 (Memorandum on Factual
Findings), and A129-A130 (Complaint).
Dr. Sokolov and Ms. Petersen subsequently prepared a report detailing their
findings, and thereafter presented their report to the Lower School Board on July
11, 2008. According to the Sokolov/Petersen Report, the following values were
important to the community in formulating redistricting plans: (1). Social networks
are at the heart of where people live, and those networks expand as people grow
older; (2). Lower Merion Public Schools are known for their excellence, academic
as well as extracurricular; (3). Those who walk should continue to walk while the
travel time for non-walkers should be minimized; (4). Children learn best in
environments where they are comfortable-socially as well as physically; and (5).
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Explore and cultivate whatever diversity-ethnic, social, economic, religious, and
racial-there is in Lower Merion. The School Board unanimously voted to accept
the Sokolov/Petersen Report on July 11, 2008. Appendix A16-A17 (Memorandum
on Factual Findings), and A2099-A2100 (First Proposed Redistricting Plan).
While the aforementioned community input was taking place, Lower Merion
hired a consultant, Ross Haber, Ed.D., in June of 2008 to assist in identifying
demographic trends that would be used in drafting a redistricting plan, and to assist
in drafting redistricting plans. Throughout the redistricting process, Dr. Haber
worked with Lower Merion's Administration to generate potential redistricting
plans which were termed "Scenarios". Lower Merion's Administration picked from
these potential Scenarios when recommending its Proposed Redistricting Plans to
the School Board and the general public. Appendix A19, and A130-A131.
Using the information acquired from the Sokolov/Petersen Report, the non-
negotiables from the Lower Merion School Board, and demographic information
from Dr. Haber, Lower Merion and Dr. Haber went to work in the Summer of
2008 to formulate Lower Merion's redistricting plan. During meetings conducted in
the Summer of 2008, Dr. Haber produced, and Lower Merion's Administration
considered, Scenarios 1 through 5. Some School Directors were present during
some of these meetings. Regarding ethnicity, Scenarios 1 through 5 only reported
numbers concerning African American students. Charts were also prepared during
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this time period highlighting African American data. Appendix A16-A24
(Memorandum on Factual Findings).
Two of the Scenarios generated, i.e. Scenarios 1 and 4A, were eliminated
due to race. Scenarios 1 and 4A were the only Scenarios produced during the entire
redistricting process which kept students in the Affected Area and North Ardmore
together for high school. Ultimately, Lower Merion's Administration choose
Scenario 3 to be the First Proposed Redistricting Plan. Appendix A24
(Memorandum on Factual Findings).
The First Proposed Redistricting Plan was presented at the Lower Merion
School Board Meeting on September 8, 2008. In the First Proposed Plan, all
students who lived in the Penn Wynne Elementary School feeder pattern were
redistricted from Lower Merion High School to Harriton High School. Students
districted to Lower Merion High School retained the option to attend Harriton
High School for the International Baccalaureate Program. Appendix A27
(Memorandum on Factual Findings), and A2097-A2121 (First Proposed
Redistricting Plan).
Although the First Proposed Redistricting Plan did not change the existing
school placements for Students Doe, it drastically changed the racial make-up of
Lower Merion High School and Harriton High School in that it decreased the
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number of African American students at Lower Merion High School, and
increased the number of African American students at Harriton High School.
Harriton High School's enrollment became more diversified because the African
American students located in North Ardmore were redistricted to attend Harriton
High School, instead of Lower Merion High School, because those students lived
in the Penn Wynne Elementary School feeder pattern. Appendix A27
(Memorandum on Factual Findings).
Lower Merion prominently displayed its "diverse" high school populations
during the course of its slide show presentation on its First Proposed Redistricting
Plan. Under the First Proposed Redistricting Plan, the African American student
populations at Lower Merion High School and Harriton High School would have
been almost equal, and the percentage of African American students in each school
would have closely mirrored the overall percentage of the number of African
American high school students in the Lower Merion School District. Appendix
A27 (Memorandum on Factual Findings), and A2097-A2121 (First Proposed
Redistricting Plan).
Public comment was then taken on the First Proposed Redistricting Plan.
Among the public comments to the Plan was the accusation that Lower Merion
was redistricting based upon race. Dr. Haber and Lower Merion's Administration
thereafter went back to work on the redistricting project, and generated the 7 series
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of Scenarios. Lower Merion's Administration ultimately choose Scenario 7C-5 to
be the Second Proposed Redistricting Plan. Appendix A31-A33 (Memorandum on
Factual Findings).
The Second Proposed Redistricting Plan was presented at the Lower Merion
School Board Meeting on October 20, 2008. In the Second Proposed Redistricting
Plan, Lower Merion redistricted the following students from Lower Merion High
School to Harriton High School: some students who lived in the Penn Wynne
Elementary School feeder pattern, including students who lived in North Ardmore;
some students who lived in the Penn Valley Elementary School feeder pattern, but
not students who lived in the Affected Area or who lived in the Lower Merion
High School Walk Zone; and some students who lived in the Belmont Hills
Elementary School feeder pattern. Students districted to Lower Merion High
School once again retained the option to attend Harriton High School for the
International Baccalaureate Program. Appendix A33 (Memorandum on Factual
Findings), A132-A133 (Complaint), and A2122-A2145 (Second Proposed
Redistricting Plan).
Although the Second Proposed Redistricting Plan also did not change the
existing school placements for Students Doe, it again drastically changed the racial
make-up of Lower Merion High School and Harriton High School in that it
decreased the number of African American students at Lower Merion High School,
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and increased the number of African American students at Harriton High School.
Harriton High School's enrollment once again became more diversified because the
African American students living in North Ardmore were redistricted to attend
Harriton High School, instead of Lower Merion High School. Appendix A33
(Memorandum on Factual Findings), A132-A133 (Complaint), and A2122-A2145
(Second Proposed Redistricting Plan).
Lower Merion once again prominently displayed its "diverse" high school
populations during the course of its slide show presentation on its Second Proposed
Redistricting Plan. Under the Second Proposed Redistricting Plan, the African
American student populations at Lower Merion High School and Harriton High
School would have been closer to equal than before redistricting, and the
percentage of African American students in each school would have come closer to
mirroring the overall percentage of the number of African American high school
students in the Lower Merion School District than before redistricting. Appendix
A33 (Memorandum on Factual Findings), A132-A133 (Complaint), and A2122-
A2145 (Second Proposed Redistricting Plan).
Public comment was then taken on the Second Proposed Redistricting Plan.
Once again, among the public comments to the Plan was the accusation that Lower
Merion was redistricting based upon race. Dr. Haber and Lower Merion's
Administration thereafter went back to work on the redistricting project, and
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generated Scenario 8 which Lower Merion's Administration choose to be the Third
Proposed Redistricting Plan. Appendix A33-A34 (Memorandum on Factual
Findings).
The Third Proposed Redistricting Plan was presented at the Lower Merion
School Board Meeting on November 24, 2008. The Third Proposed Redistricting
Plan was known as a "3-1-1 Plan" in that three (3) defined elementary schools fed
into one (1) middle school which in turn fed into one (1) high school. Under the
Third Proposed Redistricting Plan, the following students were districted to Bala
Cynwyd Middle School and then onto Lower Merion High School: all students
who lived in the Cynwyd Elementary School feeder pattern; all students who lived
in the Merion Elementary School feeder pattern; and all students who lived in the
Penn Wynne Elementary School feeder pattern. The following students were
districted to Welsh Valley Middle School and then onto Harriton High School
under the Third Proposed Redistricting Plan: all students who lived in the
Gladwyne Elementary School feeder pattern; all students who lived in the Belmont
Hills Elementary School feeder pattern; and all students in the Penn Valley
Elementary School feeder pattern who did not live in the redrawn/smaller Lower
Merion High School Walk Zone. Students who lived in the Penn Valley
Elementary School feeder pattern, and who also lived in the redrawn/smaller
Lower Merion High School Walk Zone, retained choice to attend either Lower
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Merion High School or Harriton High School. Students districted to Lower Merion
High School once again retained the option to attend Harriton High School for the
International Baccalaureate Program. Appendix A38-A39 (Memorandum on
Factual Findings), and A2146-A2160 (Third Proposed Redistricting Plan).
Unlike its two (2) predecessors, the Third Proposed Redistricting Plan did
change the existing school placements for Students Doe in that they no longer had
choice to attend Lower Merion High School or Harriton High School. Instead,
Students Doe now had to attend Harriton High School. However, like its
predecessors, the Third Proposed Redistricting Plan drastically changed the racial
make-up of Lower Merion High School and Harriton High School in that it
decreased the number of African American students at Lower Merion High School,
and increased the number of African American students at Harriton High School.
Harriton High School's enrollment once again became more diversified because the
African American students in the Affected Area were redistricted to attend
Harriton High School, instead of Lower Merion High School, because they lived in
the Penn Valley Elementary School feeder pattern, but they also lived outside the
redrawn/smaller Lower Merion High School Walk Zone. Appendix A38-A40
(Memorandum on Factual Findings), and A2146-A2160 (Third Proposed
Redistricting Plan).
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Lower Merion once again prominently displayed its "diverse" high school
populations during the course of its slide show presentation on its Third Proposed
Redistricting Plan. Under the Third Proposed Redistricting Plan, the African
American student populations at Lower Merion High School and Harriton High
School would have been almost equal, and the percentage of African American
students in each school would have closely mirrored the overall percentage of the
number of African American high school students in the Lower Merion School
District. Appendix A38-A40 (Memorandum on Factual Findings), and A2146-
A2160 (Third Proposed Redistricting Plan).
Public comment was then taken on the Third Proposed Redistricting Plan.
Once again, among the public comments to the Plan was the accusation that Lower
Merion was redistricting based upon race. Appendix A40 (Memorandum on
Factual Findings).
Lower Merion then presented its Third Proposed Redistricting Plan Revised
at the Lower Merion School Board Meeting on December 15, 2008. The only
differences between the Third Proposed Redistricting Plan, and the Third Proposed
Redistricting Plan Revised, was that the Third Proposed Redistricting Plan Revised
restored the pre-redistricting Lower Merion High School Walk Zone, and restored
choice to students districted to Lower Merion High School, i.e. students districted
to Lower Merion High School could attend either Lower Merion High School or
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Harriton High School. Although Lower Merion still sought to draw students
districted to Lower Merion High School to Harriton High School through the
International Baccalaureate Program, it also added a Penn State Dual Enrollment
Program at Harriton High School as a further incentive to draw students districted
to Lower Merion High School to Harriton High School. Appendix A40-A44
(Memorandum on Factual Findings), and A2161-A2176 (Third Proposed
Redistricting Plan Revised).
Like all of the proposed plans before it, the Third Proposed Redistricting
Plan Revised drastically changed the racial make-up of Lower Merion High School
and Harriton High School in that it decreased the number of African American
students at Lower Merion High School, and increased the number of African
American students at Harriton High School. Harriton High School's enrollment
once again became more diversified because the African American students in the
Affected Area were redistricted to attend Harriton High School, instead of Lower
Merion High School. However, unlike its previous public slide show presentations
on Proposed Redistricting Plans, Lower Merion did not display a slide regarding its
diversified high school populations during the course of its slide show presentation
on its Third Proposed Redistricting Plan Revised. Appendix A40-A46
(Memorandum on Factual Findings), and A2161-A2176 (Third Proposed Redistrict
Plan Revised). Public comment was then taken on the Third Proposed Redistricting
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Plan Revised. Once again, among the public comments to the Plan was the
accusation that Lower Merion was redistricting based upon race. Appendix A135-
A136 (Complaint).
On January 12, 2009, Lower Merion conducted a School Board Meeting
during which the Lower Merion School Board deliberated on the Third Proposed
Redistricting Plan Revised, and then voted to accept said plan. School Directors
Diane DiBonaventuro and David Ebby voted against the plan. Appendix A46-A47
(Memorandum on Factual Findings). On May 14, 2009, Students Doe filed suit in
the United States District Court for the Eastern District of Pennsylvania seeking to
enjoin Lower Merion's high school redistricting plan. Appendix A124-A166
(Complaint).
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SUMMARY OF ARGUMENT
The District Court found that race was a factor in Lower Merion's
redistricting decision-making, and the decision to choose the redistricting plan at
issue herein; therefore, controlling precedent requires the application of the strict
scrutiny test. Lower Merion cannot survive the strict scrutiny test because it has
never identified a compelling state interest related to its race based decision-
making, and its actions were not narrowly tailored and/or limited in duration.
Any claim that the redistricting plan at issue would have inevitably been
adopted despite Lower Merion's race based actions, is legally incorrect. Lower
Merion waived the ability to assert an inevitability defense when it failed to plead
it as an Affirmative Defense. Moreover, the record fails to establish that the
defense could be proven even if Lower Merion had not waived it.
Notwithstanding the foregoing, Students Doe are entitled to prevail under
their Federal Statutory Claims, i.e. those claims asserted under 42 U.S.C. § 1981
and Title VI of the Civil Rights Act, 42 U.S.C. § 2000d et. seq. Controlling
precedent establishes private rights of action under both statutes. Lower Merion's
race related decision-making, and race related redistricting plan violates both
statutes.
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ARGUMENT
The legal basis for the present appeal is found in Justice Harlan's often
quoted dissent in Plessy v. Ferguson, 163 U.S. 537 (1896). In Plessy, the United
States Supreme Court adopted into law the proposition that people of different
races could be accommodated in separate, but equal facilities. In his famous
dissent against adoption of this policy, Justice Harlan adamantly stated, "But in
view of the Constitution, in the eye of the law, there is in this country no superior,
dominant, ruling class of citizens. There is no caste here. Our Constitution is
color-blind, and neither knows nor tolerates classes among citizens. In respect of
civil rights, all citizens are equal before the law." Id. at 559 (emphasis added).
In May of 1954, the Supreme Court rectified this embarrassing chapter in
this country’s Civil Rights Jurisprudence by overruling Plessy in Brown v. Board
of Education, 347 U.S. 483 (1954). The Supreme Court stated in Brown that
“Separate educational facilities are inherently unequal. Therefore, we hold that the
plaintiffs and others similarly situated for whom the actions have been brought are,
by reason of the segregation complained of, deprived of the equal protection of the
laws guaranteed by the Fourteenth Amendment.” Id. at 495. The legal principle
emanating from Brown is that students cannot be assigned to schools based upon
their race. It is this most basic, half century old, legal principle that is once again
under attack in the Lower Merion School District. This appeal directly challenges
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the District Court's legal conclusion that although Lower Merion's actions were not
"color blind," they were neither unconstitutional nor illegal.
In order to decide the present case, the District Court heard nine (9) days of
testimony, and considered numerous Trial Exhibits so that it could evaluate the
available circumstantial evidence to determine whether race was a factor in Lower
Merion's high school redistricting. Both the Supreme Court, and this Honorable
Court, have directed that this type of review take place whenever a District Court
initially determines, as the District Court did herein, that the government policy at
issue was facially neutral.
In Village of Arlington Heights v. Metropolitan Housing Development
Corp., 429 U.S. 252 (1977), the Supreme Court was asked to determine in part
whether a zoning board decision denying the construction of low income housing
violated the Fourteenth Amendment. The Supreme Court held that in order to
violate the Fourteenth Amendment, race had to be a factor in the zoning decision.
In order to determine whether race was in fact a factor in the decision, the Court
stated that the fact-finder was required to undertake "a sensitive inquiry into such
circumstantial and direct evidence of intent as may be available." Id. at 266.
Years later, this Honorable dealt with the same "facially neutral policy"
issue in Pryor v. National Collegiate Athletic Association, 288 F.3d 548 (3rd Cir.
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2002). In Pryor, two (2) African American student athletes filed suit against the
National Collegiate Athletic Association, hereinafter referred to as the "NCAA,"
contending in part that said organization's adoption of Proposition 16, a facially
neutral regulation pertaining to eligibility for collegiate athletics, violated Title VI
of the Civil Rights Act, 42 U.S.C.§ 2000d et. seq., and 42 U.S.C. § 1981. This
Honorable stated in the course of its decision, "Determining whether invidious
discriminatory purpose was a motivating factor [in the adoption of a facially
neutral policy] demands a sensitive inquiry into such circumstantial and direct
evidence of intent as may be available." Id. at 563 (internal citation and quotation
omitted).
The District Court's Arlington Heights/Pryor review in the present case
revealed, despite Lower Merion's repeated contentions to the contrary, that race
was a factor in Lower Merion's redistricting. Several of the District Court's
findings on this issue are worthy of note, and lend context to Students Doe's
arguments which follow.
When considering evidence introduced about potential Scenarios that were
the precursors of potential plans the Lower Merion Administration introduced to
the Board of School Directors, the District Court noted, "The inclusion and
consideration of African-American student data, to the exclusion of other types of
diversity data (e.g. other races and ethnicities, socio-economics, or disability),
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reflect a specific concern about the African-American student population that
started with Scenario 1 and continued throughout the redistricting process, even
though subsequent Scenarios and Plans included broader diversity information. By
including only African-American student data in the first five Scenarios considered
during redistricting, the District, by way of Dr. Haber and the Administration,
employed a 'limited notion of diversity' similar to the plans criticized and
ultimately held to be unconstitutional in Seattle." Appendix A23. The District
Court went on to note, "Accordingly, two of the Scenarios, Scenarios 1 and 4A,
were eliminated due to race. When this finding is coupled with the fact that the
Administration had given and considered only African-American student
projections for Scenarios 1 through 5, there is ample evidence indicating that racial
balance, and in particular, the number of African-Americans projected to enroll at
each high school, were taken into account by the Administration in selecting
Proposed Plan 1." Appendix A24-A25.
The District Court made the following comment concerning an e-mail
exchange that took place in the Summer of 2008 between Lower Merion's
Superintendent, Dr. Christopher McGinley, and Dr. Ross Haber, the redistricting
consultant hired by Lower Merion to assist in the redistricting process,
"Nonetheless, the emails that followed demonstrate that Dr. McGinley was mindful
that splitting Ardmore effectively redistricted a significant number of African-
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American students, and that the Seattle decision might have implications on the
District's redistricting process. In addition, the emails show that Dr. Haber
considered redistricting plans that split Ardmore to not be 'color-blind,' and that the
Administration did not consider plans he viewed as being 'color-blind,' which
supports an inference that race was considered." Appendix A26.
Even more disconcerting are the District Court's findings regarding an email
exchange between Dr. McGinley and another Lower Merion Administration
official as well as the District Court's findings regarding revisions Dr. McGinley
made to a draft Power Point presentation. The District Court stated, "Dr.
McGinley's two decisions to purge public information respecting redistricting of
references to the racial diversity data provided to the Administration is troubling,
because it suggests that the Administration either did not want the public to be
fully informed about the diversity information the District had at its disposal, or
did not want to mention the role that racial diversity data played in the redistricting
process, or both." Appendix A30.
Equally disconcerting is an email exchange on November 20, 2008, between
Dr. McGinley and School Director Lisa Pliskin, the President of the Lower Merion
School Board at the time the redistricting plan at issue was passed. Dr. McGinley
wrote to School Director Pliskin, "I wish there was a way to extend the option area
into the [Affected Area] but doing so would not only mean another hundred at
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[Lower Merion High School] but many fewer A[frican] A[merican] kids at
[Harriton High School]." Appendix A2187. School Director Pliskin ends her reply
to Dr. McGinley's email with the statement, "...and what happened to no racial
isolation." Appendix A2187.
The District Court commented on the exchange stating, "Although Dr.
McGinley and Pliskin were credible witnesses, there is no indication that they by
any means intended to discriminate against African-American students, and they in
fact had legitimate, educational goals, the comments described above nonetheless
persuade the Court that Dr. McGinley and various Board members also had an
intent to increase the African-American population at Harriton." Appendix A36-
A37.
When commenting on the entire body of evidence presented at trial, the
District Court stated, "The Court gives significant weight to the Administration's
examination of African-American-specific data for many of the early Scenarios,
and candid elimination of at least two Scenarios on the basis of race. The Court
also considers persuasive Dr. Haber's testimony that race was considered during
the entire redistricting process, because although he was only a consultant, and not
an employee of the District, he attended numerous Board and Administration
meetings, worked closely with the Administration to come up with Scenarios, and
remained an outside observer to the redistricting process." Appendix A51-A52.
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The District Court then held, "The circumstantial evidence leads inevitably to a
factual conclusion that the Administration plainly allowed racial considerations to
influence what neighborhoods would be assigned to attend Harriton High School,
without the choice to attend Lower Merion High School...Thus, under each
Proposed Plan students in either North Ardmore or the Affected Area-the two
geographic areas with the highest concentrations of African-American students-
had no choice of high school. There are too many e-mails and conversations that
consider the inclusion of these areas because they were heavily concentrated with
African-American residents, to allow any other conclusion." Appendix A52. The
District Court went on to find, "This conclusion follows: The Administration's
consistent intent was to achieve not only overall numeric equality, but also racial
parity, between the two schools." Appendix A53.
The District Court further concluded, "In particular, Dr. McGinley and
others in the Administration, to whom the Board gave the responsibility of coming
up with plans, and making recommendations regarding the educational benefits
each proposed plan provided, as well as individual Board Members, made
numerous race and racial diversity-related comments. These race-related comments
indicate that the Board and Administration remained cognizant of the effects that a
given redistricting proposal would have on the African-American students living in
North Ardmore and the Affected Area. These comments went above and beyond
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collecting or reporting general diversity data...the evidence shows that the data was
relied upon by the Administration in the development of the various plans and in
the adopting of Plan 3R." Appendix A54.
Students Doe agree wholeheartedly with the aforementioned District Court
findings. However, Students Doe respectfully disagree with the manner in which
the District Court applied the strict scrutiny test, with the manner in which the
District Court applied an inevitability defense, and the manner in which the District
Court dismissed Students Doe's Federal Statutory Claims. Students Doe now
address each of these points.
I. Lower Merion's Racial Redistricting Cannot Survive The Strict
Scrutiny Test.
A. Precedent requires the application of the strict scrutiny test.
Statement of the Standard of Review
(This Honorable Court should review this claim to determine whether
the District Court erred in formulating or applying a legal precept, in which case
review is plenary)
The Supreme Court's most recent discussion of student assignment plans that
used race as a factor in directing students to schools is found in Parents Involved in
Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007). As the
most recent expression of the Supreme Court's reasoning on the issue, Seattle
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School District cannot be analytically ignored. Seattle School District is actually a
consolidated case wherein the Supreme Court considered student assignment plans
from Seattle, Washington, and Louisville, Kentucky.
Under the Seattle plan, incoming high school students ranked their
preferences for Seattle's ten (10) high schools. Students were then assigned to a
high school in accordance with their preferences so long as a given high school
was not oversubscribed. If a high school was oversubscribed, a series of "tie
breakers" were used to determine which students would receive the oversubscribed
spots. The second (2) tie-breaker in the series of "tie breakers" awarded
oversubscribed seats to students who would better diversify a given high school.
Seattle had never in the past been found to have operated a segregated school
system. Id. at 710-714.
Louisville's student assignment plan had a similar racial component. Unlike
Seattle, Louisville operated under a District Court's desegregation decree until
2000 at which time the Court dissolved the decree after finding that Louisville had
achieved unitary status. Following the dissolution of the desegregation decree,
Louisville adopted the student assignment plan at issue in Seattle School District.
Under the Louisville plan, all non-magnet schools were to maintain a certain
minimum African American enrollment, but could not exceed a certain maximum
African American enrollment. Students were assigned to non-magnet schools in
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Louisville based in part on parental preference, available space, and the need to
maintain enrollment numbers within the aforementioned minimum/maximum
African American quotas. Id. at 715-718.
The Supreme Court, in a plurality opinion authored by Chief Justice John
Roberts, struck down the Seattle and Louisville plans because they violated the
Equal Protection Clause of the Fourteenth Amendment. The Supreme Court
reviewed the Seattle and Louisville plans using the strict scrutiny test. In a portion
of his opinion that was joined by four (4) other Justices, Chief Justice Roberts
stated, "It is well established that when government distributes burdens or benefits
on the basis of individual racial classifications that action is reviewed under strict
scrutiny...As the Court recently reaffirmed, racial classifications are simply too
pernicious to permit any but the most exact connection between justification and
classification." Id. at 720 (internal citations and quotations omitted).
Before addressing additional precedent which requires the application of the
strict scrutiny test to Lower Merion's racial redistricting, it is appropriate to
consider several issues that Seattle School District raises when considered in light
of the Lower Merion redistricting plan at issue herein. First, due to the District
Court's finding that race was a factor in redistricting Students Doe, the present case
implicates the same legal issue addressed in Seattle School District, i.e. “whether a
public school that had not operated legally segregated schools or has been found to
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be unitary may choose to classify students by race and rely upon that classification
in making school assignments.” Seattle School District, 551 U.S. at 711.
Any argument that Seattle School District is distinguishable from the present
case because the Student Assignment plans at issue in Seattle dealt with individual
student assignments whereas Lower Merion's redistricting plan targeted an entire
neighborhood, raises a distinction that simply makes no difference. The argument
merely begs the question, why should a school district be constitutionally
permitted to discriminate against an entire neighborhood, when it could not
constitutionally discriminate against individuals living within that neighborhood?
Second, it must be appreciated that Lower Merion's redistricting plan is far
more pernicious than either the Seattle or Louisville plans struck down in Seattle
School District. Initially, the constitutionally offensive provisions of the Seattle
and Louisville plans were expressly contingent on high schools being
oversubscribed in Seattle, or on non-magnet schools being over or under
subscribed by African Americans in Louisville. Due to the contingent nature of
their application, these constitutionally offensive provisions could have laid
dormant for years, or may have never been used again. However, Lower Merion's
redistricting plan mechanically changes school attendance patterns based in part on
race without fail every single school year.
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Moreover, on a percentage basis, the magnitude of Lower Merion's
redistricting plan is much more far reaching than Seattle's unconstitutional plan.
According to the District Court's Memorandum on Factual Findings, a total of forty
four (44) freshman were redistricted for the 2009-2010 school year, the first year
of the redistricting plan. Appendix A50. Slightly less than one third (1/3) of this
cohort were African American. Appendix A50. According to Dr. McGinley's
January 12, 2009, e-mail to the Board of School Directors, forty five (45) African
American children will be redistricted by the 2012-2013 school year, i.e. the first
school year every high school age student in the school district is subject to the
Redistricting Plan at issue because all applicable "grandfathering" would stop. See
Trial Exhibit P-123 and Appendix A409 (Students Doe's Post Trial Brief).
By comparison, despite the fact that Seattle has five (5) times as many high
schools as Lower Merion, according to the Supreme Court's decision in Seattle
School District, "the district could identify only 52 students who were ultimately
affected adversely by the racial tiebreaker in that it resulted in assignment to a
school they had not listed as a preference and to which they would not otherwise
have been assigned." Seattle School District, 551 U.S. at 733-734.
Even if this Honorable Court ultimately finds that the Supreme Court's
decision in Seattle School District is not controlling in the present case, a number
of other recent Supreme Court decisions regarding the Fourteenth Amendment
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mandate the application of strict scrutiny in the present case. The language in
these recent Supreme Court decisions directing the application of strict scrutiny is
extremely broad, and demands its use whenever race is a factor in government
decision-making. See e.g. Johnson v. California, 543 U.S. 499, 506 (2005) ("We
therefore apply strict scrutiny to all racial classifications to 'smoke out' illegitimate
uses of race by assuring that [government] is pursuing a goal important enough to
warrant use of a highly suspect tool." Id. (emphasis added) (internal citation and
quotation omitted)); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995)
(“Accordingly, we hold today that all racial classifications, imposed by whatever
federal, state, or local governmental actor, must be analyzed by a reviewing court
under strict scrutiny.” Id. (emphasis added)); Gratz v. Bollinger, 539 U.S. at 270
(2003) ("It is by now well established that all racial classifications reviewable
under the Equal Protection Clause must be strictly scrutinized." Id. (emphasis
added) (internal citations and quotations omitted)).
Furthermore, controlling Third Circuit precedent mandates the application of
the strict scrutiny test in the present case. After determining that the African
American student athletes had plead viable claims under Title VI and Section 1981
thereby overturning the District Court, the Pryor Court stated in the course of its
decision, "Once a plaintiff establishes a discriminatory purpose based on race, the
decisionmaker must come forward and try to show that the policy or rule at issue
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survives strict scrutiny, i.e. that it had a compelling interest in using a race-based
classification and this classification is narrowly tailored to achieve that compelling
interest." Pryor, 288 F.3d at 562. According to the Internal Operating Procedures
of this Honorable, a precedential opinion like Pryor is binding on subsequent Third
Circuit Panels, and should only be overturned following an en banc review. See
Internal Operating Procedure 9.1 of the United States Court of Appeals for the
Third Circuit.
For purposes of applying the strict scrutiny test, it is irrelevant whether
Lower Merion acted with good intention or bad intention when creating the race
based Redistricting Plan at issue; the only thing relevant to the inquiry is whether
Lower Merion was motivated by discriminatory purpose. See Seattle School
District, 551 U.S. at 732 (“The principle that racial balancing is not permitted is
one of substance, not semantics. Racial balancing is not transformed from ‘patently
unconstitutional’ to a compelling state interest simply by relabeling it ‘racial
diversity.’” Id.) (“Simply because the school districts may seek a worthy goal does
not mean they are free to discriminate on the basis of race to achieve it, or that
their racial classifications should be subject to less exacting scrutiny.” Id. at 743.);
Pryor, 288 F.3d at 561-562 ("Moreover, contrary to the assertions made in the
NCAA's brief, none of the case law it cited, much less Supreme Court case law,
absolves a decisionmaker from liability simply because it considered race for the
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'benevolent' purpose of helping a particular racial group. Indeed, the Supreme
Court has made clear that considerations of race, well intentioned or not, can still
subject a decisionmaker to liability for purposeful discrimination." Id. at 560-561.).
Justice Thomas warned in his concurring opinion in Seattle School District,
“Indeed, if our history has taught us anything, it has taught us to beware of elites
bearing racial theories.” Id. at 780-781.
Additionally, the Supreme Court has repeatedly recognized that race based
decision-making is inherently harmful whether the decision-makers intended to
cause harm or not. Chief Justice Roberts stated in Seattle School District that “one
form of injury under the Equal Protection Clause is being forced to compete in a
race-based system that may prejudice the plaintiff.” Seattle School District, 551
U.S. at 719 (emphasis added). The Supreme Court stated in Johnson v. California,
“As we have recognized in the past, racial classifications threaten to stigmatize
individuals by reason of their membership in a racial group and to incite racial
hostility.” Johnson v. California, 543 U.S. at 507 (internal citations and quotations
omitted). The Supreme Court also stated in Grutter v. Bollinger, 539 U.S. 306
(2003), “As we have explained, whenever the government treats any person
unequally because of his or her race, that person has suffered an injury that falls
squarely within the language and spirit of the Constitution’s guarantee of equal
protection.” Grutter, 539 U.S. 327 (emphasis added) (internal citations and
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quotations omitted). Justice Thomas noted in his concurrence in Seattle School
District, “Disfavoring a color-blind interpretation of the Constitution, the dissent
would give school boards a free hand to make decisions on the basis of race—an
approach reminiscent of that advocated by the segregationists in Brown….This
approach is just as wrong today as it was a half-century ago.” Seattle School
District, 551 U.S. at 748.
In order to defeat a strict scrutiny challenge, Lower Merion must
demonstrate that its use of racial classifications is “narrowly tailored” to achieve a
“compelling” government interest. Seattle School District, 551 U.S. at 720. When
conducting this exacting review, the reviewing Court must construe all ambiguities
in the policy at issue against the School District. See Seattle School District, 551
U.S. at 786 ("When a court subjects governmental action to strict scrutiny it cannot
construe ambiguities in favor of the State." Id.) (Kennedy J.). Justice Thomas aptly
noted in his concurrence in Seattle School District that, "This exacting scrutiny has
proven 'automatically fatal' in most cases." Id. at 752. For the reasons discussed at
length below, Lower Merion cannot meet either the compelling state interest prong
of the strict scrutiny test, or the "narrowly tailored" prong of the strict scrutiny test.
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B. Lower Merion never established a compelling state interest for its
racial actions.
1. Lower Merion never articulated a compelling state interest.
Statement of the Standard of Review
(This Honorable Court should review this claim to determine whether
the District Court's ruling was clearly erroneous.)
Lower Merion’s defense in this case, i.e. that race was not a factor in its
decision-making, precluded it from identifying a compelling state interest related
to its use of race in the redistricting process; therefore, when the District Court
found that race was a factor in redistricting, Lower Merion could not satisfy its
burden of proof as a matter of law. Lower Merion adopted its strategy of denying
that race was a factor in its decision-making at the very beginning of this case, and
persisted in its denial into the post-trial phase of the case. In fact, it was Lower
Merion's steadfast refusal to acknowledge that it used race as a factor in its
redistricting decision-making which resulted in the use of so much time and
resources in this case, i.e. the filing and disposition of a Motion for Summary
Judgment, the filing and disposition of Motions in Limine, and the bulk of the nine
(9) trial days.
Lower Merion, in accordance with its obligations under Rule 11 of the
Federal Rules of Civil Procedure, denied that it used race as a factor in decision-
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making in: (1). its Answer and Separate Defenses to Plaintiff’s Complaint filed on
July 6, 2009; (2). its Summary Judgment filings on December 31, 2009, January
22, 2010, and February 12, 2010; (3). its Trial Brief filed on March 23, 2010; (4).
its Proposed Findings of Fact filed on April 5, 2010; and (5). its Proposed
Conclusions of Law filed on April 6, 2010. See Appendix A165-A250, A266-
A286, and A325-A373.
When called to testify at trial, Lower Merion's Administration repeatedly
denied under oath, in vain, that they used race as a factor in formulating, selecting,
and recommending redistricting plans. Specifically, Dr. Christopher McGinley
denied at least a dozen times during his trial testimony that race played any part in
his actions. Appendix A609-A610, A612-A613, A636-A637, A661, A666, A746-
A747, A756, A758, A760-A762, A766, A1199, A1200-A1201, A1250-A1251,
A1265, and A1276. The only time Dr. McGinley reluctantly admitted that race
played any part in his consideration was when he was questioned why Scenario 1,
a potential candidate to become the First Proposed Redistricting Plan, was rejected
in July of 2008. Appendix A664-A668.
When questioned extensively on the topic of minority redistricting, Scott
Schafer, Lower Merion's Business Manager, specifically testified during his direct
examination, "Whenever you redistrict, one of the big questions you always get is
about minority students. So the School Board must understand, how do you district
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with minority students? And the answer is, you don't consider minority students.
And the lawyer has to address the board and explain that to them. So the Board has
to understand, that's a policy decision." Appendix A1394-A1395.
The District Court in its Memorandum on Factual Findings specifically
found Mr. Schafer's aforementioned self serving testimony about racial
redistricting not credible in that it blatantly contradicted the plain language of the
Administration's recommendations, and also contradicted the testimony of Patrick
Guinnane, another Lower Merion Administrator, who testified that "'someone' in
the cabinet had the goal of addressing minority student assignments." Appendix
A15. Lower Merion persisted in its denial of race related decision-making even
after trial in its Amended Proposed Findings of Fact filed on May 4, 2010.
Appendix A374-A406. In fact, a review of the entire trial record will indicate no
instance where any Lower Merion witness testified about a race related
compelling state interest that justified Lower Merion's use of race as a factor in the
redistricting process.
The District Court seems to indicate in its Memorandum on Conclusions of
Law that Lower Merion's race based decision-making was somehow related to
resolving the achievement gap, and racial isolation. The District Court noted in its
Memorandum on Factual Findings that the achievement gap "refers to the observed
and pervasive disparity in measurable educational achievement among groups of
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students." Appendix A7. The District Court further noted that racial isolation "is
the isolation a student feels because he or she is one only a few students of his or
her particular background in the class." Appendix A8. It is respectfully submitted
that this interpretation of the record is incorrect. Although there was testimony at
trial about the achievement gap, and racial isolation, at no time did Lower Merion
ever state that its race based decision-making was in way related to these issues.
As noted above, the pre-trial and trial record clearly indicates that Lower
Merion's position is that it never took race into account in its redistricting decision-
making. When questioned directly on the point at trial, Dr. McGinley stated time
and again that he did not use race as a factor in redistricting to solve the
achievement gap, and to prevent racial isolation. Appendix A756, A758, A760-
A762, and 766. The experts that testified at trial on racial isolation and the
achievement gap, Dr. Claudia Lyles and Dr. Robert Jarvis, admitted on cross
examination that they never worked with Lower Merion on its redistricting project.
Appendix A1891, and A1910-A1911.
It is respectfully submitted that Drs. Lyles and Jarvis never should have been
allowed to testify in the first place. Neither witness was ever identified during the
course of discovery, and only became known to Students Doe when Lower Merion
identified them in its Pre-Trial Memorandum filed on March 12, 2010. Students
Doe never had an opportunity to depose Drs. Lyles and Jarvis. Students Doe timely
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filed a Motion in Limine to preclude their testimony on March 19, 2010. Appendix
A251-A265. The District Court subsequently denied Students Doe's Motion.
Appendix A59-A62.
Furthermore, it would appear as a matter of law, that in those instances when
a District Court has found that a school district used race as a factor in its decision-
making after conducting an Arlington Heights/Pryor review, a school district
should always lose a strict scrutiny challenge. The school district's litigation
strategy, to defend on the basis that race was not a factor in its actions, is legally,
mutually exclusive of a defense premised on the claim that race was a factor in a
school district's actions, but that such actions were taken to advance a goal that
satisfied a compelling state interest. Allowing a school district to assert that race
was not a factor in decision-making, while at the same time preserving the school
district's right to contest a strict scrutiny challenge, is simply an invitation to a
school district to play “fast and loose” with the facts.
Gamesmanship of this type is not permitted in this Circuit. See e.g. G-1
Holdings, Inc. v. Reliance Insurance Company, 586 F.3d 247, 261 (3d Cir. 2009)
("Under the doctrine of judicial estoppel, a court can defend the integrity of the
judicial process by barring a party from taking contradictory positions during the
course of litigation." Id.). Interestingly, in the recent Supreme Court cases
involving race based student assignment policies, and race based admissions
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policies, each of the defendants readily admitted that race was a factor in its
decision-making. See Seattle School District, 551 U.S. 701; Gratz v. Bollinger, 539
U.S. 244; Grutter v. Bollinger, 539 U.S. 306.
2. Any interests are unrelated to race, and not compelling.
Statement of the Standard of Review
(This Honorable Court should review this claim to determine whether
the District Court erred in formulating or applying a legal precept, in which case
review is plenary)
According to the District Court in its Memorandum on Conclusions of Law,
Lower Merion articulated the following interests it sought to pursue in
redistricting: equal sized high schools; minimizing travel times and transportation
costs; fostering educational continuity; and fostering walk-ability. Appendix A67.
Initially, none of these interests bear any relationship to the race based decision-
making at issue in this case. In order to survive a strict scrutiny challenge, the
alleged compelling state interest has to bear a relationship to a race based policy.
See Seattle School District, 551 U.S. at 720.
Even if the aforementioned "interests" had some relationship to the race
based redistricting at issue, none of the interests identified are "compelling" under
controlling law. Chief Justice Roberts noted in his plurality opinion in Seattle
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School District, that there are only two (2) instances when student assignments
based upon race have survived the strict scrutiny test. The first instance was when
a school district used racial classifications in order to remedy the effects of its own
past segregationist policies. See Id. at 720. The second instance was when an
institution of higher learning, i.e. one above the high school level, sought to use
race in conjunction with a number of other factors in order to truly diversify its
student body. See Id. at 722. A review of Lower Merion's stated "interests"
indicates that they do not address past segregationist policies; therefore, the first
instance noted above is inapplicable. The second instance is also inapplicable
because Lower Merion was redistricting at the high school level.
Moreover, the aforementioned "interests" identified by Lower Merion,
cannot be considered "compelling" when analyzed in light of other interests that
have far more impact on society, but which have nonetheless been found not to be
"compelling." For instance, taking action to remedy past societal discrimination is
not a "compelling" state interest, Seattle School District, 551 U.S. at 731 (citing
Shaw v. Hunt, 517 U.S. 899, 909-910 (1996) and other cases), nor is taking action
to remedy generalized instances of societal discrimination. Seattle School District,
551 U.S. at 731. In another context, assuring the impartiality of judges has been
found to be not "compelling" enough in a First Amendment case. Republican Party
of Minnesota v. White, 536 U.S. 765 (2002). Ensuring that criminals do not profit
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from selling the story about their crimes before their victims have an opportunity to
be compensated for their injuries was likewise found not to be "compelling" in
another First Amendment case. Simon & Schuster, Inc. v. Members of the New
York State Crime Victims Board, 502 U.S. 105 (1991).
Supreme Court Justice Scalia's remarks in his concurring opinion in
Richmond v. Croson, 488 U.S. 469 (1989), lend appropriate context to, and inform
the aforementioned discussion, "At least where state or local action is at issue, only
a social emergency rising to the level of imminent danger to life and limb--for
example, a prison race riot, requiring temporary segregation of inmates...can justify
an exception to the principle embodied in the Fourteenth Amendment that our
Constitution is colorblind, and neither knows nor tolerates classes among citizens."
Id. at 521 (internal citations and quotations omitted).
When Lower Merion's actions are carefully reviewed and analyzed, the only
conclusion that can be reached is that Lower Merion's race based decision-making
was related to its unarticulated goal to have equal numbers of African American
students in each of its high schools. Appendix A52-A53. The Supreme Court has
already determined that this goal does not serve a compelling state interest, and is
patently unconstitutional. See Grutter, 539 U.S. 329-330.
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C. Lower Merion's Redistricting Plan is not narrowly tailored.
Statement of the Standard of Review
(This Honorable Court should review this claim to determine whether
the District Court erred in formulating or applying a legal precept, in which case
review is plenary)
Because Lower Merion has failed to articulate a legally recognized
"compelling" state interest related to its use of race, and because none of the goals
identified above constitute "compelling" state interests even if they are somehow
found to be related to the race based decision-making at issue, it is impossible for
Lower Merion to meet the narrow tailoring required by a strict scrutiny challenge,
i.e. whether the means used to achieve the compelling state interest are either
under-inclusive or over-inclusive.
There is simply no evidence in the trial record regarding how many African
American students Lower Merion needed to redistrict to achieve its unarticulated
goal, and whether Lower Merion in fact moved this number of students, or whether
Lower Merion will move this number of students in the future. Additionally, there
is no evidence in the trial record whether racially targeted magnet programs were
seriously considered, whether other "choice" based programs were seriously
considered, and/or whether these programs could or would not work to achieve
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Lower Merion's unarticulated goal. There is also no evidence whatsoever in the
trial record which would support the conclusion that once the African American
student population at both high schools becomes equal, there will in fact be more
African American children taking classes with their non-African American
counterparts. The aforementioned ambiguities in the record are disappointing, and
serve to marginalize the Civil Rights of Students Doe who are being bused to a
non-neighborhood school to serve some unarticulated goal simply because they are
African American.
Even if this Honorable disregards the arguments in Section B(1) of the
present Brief regarding racial isolation and the achievement gap, and this
Honorable assumes proper and persuasive evidence had been presented at trial,
Lower Merion still fails the narrow tailoring prong of the strict scrutiny test on the
racial isolation and/or achievement gap claims. As noted above, no witness ever
testified as to how many African American children needed to be redistricted to
stop racial isolation, or to resolve the achievement gap. In fact, the only testimony
on these points at trial indicates that these educational challenges do not lend
themselves to quantification in the least. Appendix A1889-A1890, and A1911-
A1935.
The District Court stated in its Memorandum on Factual Findings that
"Witnesses including Dr. McGinley testified that racial isolation is not triggered by
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a particular 'threshold' of students, or lack thereof, from a particular background in
a given classroom, and is not necessarily affected by the number of minorities in a
given school." Appendix A8. Lower Merion concedes this point in its
Memorandum of Law on Proposed Conclusions of Law. Appendix A441 ("... there
is no formulaic solution to racial isolation and the related achievement gap. Indeed,
as Dr. McGinley, Dr. Lyles, and Dr. Jarvis testified, racial isolation is not triggered
or combated with a specific threshold number of students of a particular
background in a given classroom or school.” Id. at Appendix A441n.6).
The net impact of this statement coupled with the dearth of evidence of
record is that anyone seeking to remedy racial isolation and the achievement gap,
challenges which Lower Merion consistently argued that it did not seek to resolve
through redistricting, will never have any idea how many students it needs to move
based on race. The fundamental rights secured by the Fourteenth Amendment to
the United States Constitution, and the strict scrutiny test imposed by the Supreme
Court to protect them, demand more clarity.
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D. The Redistricting Plan is improperly unlimited in duration.
Statement of the Standard of Review
(This Honorable Court should review this claim to determine whether
the District Court erred in formulating or applying a legal precept, in which
case review is plenary)
Even if this Honorable finds that all of the aforementioned arguments are
unpersuasive, Lower Merion's race based redistricting plan still violates the
Fourteenth Amendment because it contains no limitations on its duration. In order
to survive strict scrutiny, programs that use race as a factor in their development
must be limited in duration. See Grutter, 539 U.S. at 341-342 ("This requirement
reflects that racial classifications, however compelling their goals, are potentially
so dangerous that they may be employed no more broadly than the interest
demands. Enshrining a permanent justification for racial preferences would offend
this fundamental equal protection principle. We see no reason to exempt race-
conscious admission programs from the requirement that all governmental use of
race must have a logical end point." Id. at 342.).
The trial record establishes that the redistricting plan at issue has no “sunset”
provision; therefore, it will stay unconstitutionally in place for an undetermined
time into the future, i.e. it has no "logical end point." See trial testimony of School
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Directors at Appendix A1385, A1593, A1625-A1626, A1803, A1821-A1822, and
1851.
II. Lower Merion Should Not Win An Inevitability Defense.
Statement of the Standard of Review
(This Honorable Court should review this claim to determine whether
the District Court erred in formulating or applying a legal precept, in which case
review is plenary)
In addition to its determination that Lower Merion met the strict scrutiny
test, the District Court also found that Students Doe were not entitled to relief
because Lower Merion had established that Plan 3R would have been adopted even
if race was not a factor in its selection citing Arlington Heights, 429 U.S. at 270
n.21. It is respectfully submitted that this legal conclusion is improper for two (2)
distinct reasons.
Initially, Lower Merion waived its right to assert an inevitability defense in
this case; therefore, said defense cannot be cited as a basis for denying Students
Doe's claims. The “inevitably” defense recognized by the Supreme Court in
Arlington Heights is an affirmative defense under the Federal Rules of Civil
Procedure in that it requires a defendant to prove that a certain outcome would
have inevitably come about despite the fact that the defendant acted as plaintiff
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claimed. Id. This is a textbook example of an affirmative defense. See S. Backer-
McKee, W. Janssen, J. Corr, Federal Civil Rules Handbook 2010 page 341 (“An
affirmative defense is an assertion by the defendant of new facts or arguments that,
if true, would defeat plaintiff’s claim, even if all [of plaintiff’s] allegations were
presumed correct.” Id.) Under Rule 8(c) of the Federal Rules of Civil Procedure, a
defendant has to plead in its Answer all of its affirmative defenses; any defense not
plead is waived. See F.R.Civ.P. 8.
Lower Merion, despite a clear obligation to do so, never plead an
“inevitability” defense in its Answer and Separate Defenses to Plaintiff’s
Complaint filed on July 6, 2009. Appendix A165-A179. Lower Merion thereafter
never moved to amend its Answer to include the defense. Appendix A104-A123.
Moreover, Lower Merion makes no reference to the defense in its Summary
Judgment filings on December 31, 2009, January 22, 2010, or February 12, 2010.
Appendix A180-A250. Furthermore, there is no reference to the defense in Lower
Merion’s Trial Brief filed on March 23, 2010, or in its Memorandum of Law on
Proposed Conclusions of Law filed on May 27, 2010. Appendix A266-A286, and
A423-A443. Lower Merion also failed to identify the defense in its Proposed
Findings of Fact filed on April 5, 2010, in its Proposed Conclusions of Law filed
on April 6, 2010, or in its Amended Proposed Findings of Fact filed on May 4,
2010. Appendix A325-A406.
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Secondly, even if the defense was not waived, it is respectfully submitted
that the District Court improperly came to the legal conclusion that Lower Merion
proved the defense at trial. Initially, the legal conclusion that the defense could
ever be proven in this case is at best speculative. The entire record in this case
proves, if nothing else, that the redistricting process in Lower Merion was
dynamic, very contentious, and highly controversial. Lower Merion's
Administration chose what the School Directors and public were allowed to see
and vote on, and race was a factor in that selection process. Appendix A1-A58.
Lower Merion's redistricting consultant, Dr. Ross Haber, admitted at trial that he
nixed potential redistricting plans without showing them to anyone because of
racial considerations. Appendix A961-A964. The District Court even found that
Lower Merion's Administration purged information to hide its race related actions
from the public. Appendix A30.
In short, the deck was racially "stacked" in this case from the outset;
therefore, concluding that a certain outcome would occur is not surprising, but
assuming that the same outcome would have been arrived at in an open, fair, and
untainted process is something else altogether. Reaching the latter legal conclusion
is even more unlikely in light of the fact that Lower Merion has the burden of
proof regarding the defense, Arlington Heights, 429 U.S. at 270 n.21, and in light
of the fact that all ambiguities in the record are properly construed against Lower
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Merion. Seattle School District, 551 U.S. at 786 (Kennedy J.). Concluding that a
"rigged" outcome does not violate the Fourteenth Amendment only serves to
reward those who acted improperly.
Moreover, the legal conclusion that the inevitably defense bars relief ignores
the importance of the Lower Merion High School Walk Zone issue that was so
vehemently contested at trial. The District Court correctly found in its
Memorandum on Factual Findings that the Lower Merion walk zone does not
extend one (1) mile into Students Doe’s neighborhood. Appendix A11. The
District Court also correctly found in its Memorandum on Factual Findings that
Lower Merion’s reduction of the walk zone in Students Doe’s neighborhood is
inconsistent with Lower Merion’s Transportation Policy. Appendix A43, and
A2189-A2195. Additionally, the District Court correctly found in its Memorandum
on Factual Findings that Students Doe’s neighborhood had been targeted due to its
racial composition. Appendix A1-A57.
Mike Andre, Lower Merion’s Director of Transportation, admitted during
his testimony at trial that if the walk zone extended one (1) mile into Students
Doe’s neighborhood, Students Doe 7, 8, and 9 would definitely live within the
walk zone, and Students Doe, 1, 3, and 4 may live within the walk zone. Appendix
A11, A1301-A1303, and A2189-A2190. When these facts are considered in
conjunction with Dr. McGinley's e-mail to School Director Pliskin of November
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20, 2008, it would appear that the adoption of Lower Merion's Redistricting Plan
was not inevitable if the process had truly been "color blind." Dr. McGinley states
in the aforementioned e-mail, "I wish there was a way to extend the option area
into the [Affected Area] but doing so would not only mean another hundred at
[Lower Merion High School] but many fewer [African American] kids at [Harriton
High School]. Perhaps I am just venting frustration at this point." Appendix
A2187.
In considering the walk zone issue, it is respectfully submitted that the
District Court improperly imposed the burden of proof concerning the
configuration of the walk zone on Students Doe. The District Court Stated in its
Memorandum on Factual Findings, "[Students Doe] argued that because of the
expansion of the walk zone from Proposed Plan 3 to Proposed Plan 3R did not
include the Affected Area even though part of the Affected Area is within one mile
of Lower Merion High School, the Court should conclude that the change was a
'subterfuge.' There is insufficient evidence in the record to support this
conclusion." Appendix A43-A44.
As noted at length in the preceding section of this Brief, once Students Doe
proved that race was a factor in redistricting, as the District Court found that
Students Doe did indeed prove, the burden of proof on the "walk zone" issue
shifted to Lower Merion. See Section I.A. of the present Brief as well as the
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caselaw cited therein. Additionally, the Supreme Court clearly articulated in
Arlington Heights that the defendant, i.e. Lower Merion, has the burden of proof
whenever an inevitability defense is asserted. Arlington Heights, 429 U.S. 270 n.
21 ("Proof that the decision by the Village was motivated in part by a racially
discriminatory purpose would not necessarily have required invalidation of the
challenged decision. Such proof would, however, have shifted to the Village the
burden of establishing that the same decision would have resulted even had the
impermissible purpose not been considered." Id.).
III. Students Doe Should Have Won Their Federal Statutory Claims.
Statement of the Standard of Review
(This Honorable Court should review this claim to determine whether
the District Court erred in formulating or applying a legal precept, in which case
review is plenary)
Even if Lower Merion can somehow survive the strict scrutiny review of its
redistricting plan mandated by the Fourteenth Amendment, and even if Lower
Merion is allowed to prevail on an inevitability defense, Lower Merion should still
be found liable for its race based decision-making under 42 U.S.C. § 1981, and
under Title VI of the Civil Rights Act, 42 U.S.C. § 2000d et. seq. The plain
wording of these Federal Statutes clearly bar Lower Merion’s race based actions.
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See 42 U.S.C. § 1981 (“All persons within the jurisdiction of the United States
shall have the same right in every State and Territory … to the full and equal
benefit of all laws and proceedings ….” Id. at § 1981(a); 42 U.S.C. § 2000d (“No
person in the United States shall, on the ground of race, color, or national origin, be
excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial
assistance.” Id.). In its Answer and Separate Defenses to Plaintiffs' Complaint,
Lower Merion admitted that it received Federal Funding. Appendix A127 and
A167.
The law is clear that a private cause of action exists under 42 U.S.C. § 1981,
and that a private cause of action also exists under Title VI. This Honorable has
previously held that a private right of action is available under 42 U.S.C. § 1981
against a state actor so long as the action is brought under 42 U.S.C. § 1983. See
McGovern v. Philadelphia, 554 F.3d 114 (3d Cir. 2009). Students Doe properly
brought their Section 1981 action under 42 U.S.C. § 1983. See Count III of
Students Doe's Complaint Appendix A124-A164. The Supreme Court has also held
that a private right of action exists under Title VI. See Gonzaga University v. John
Doe, 536 U.S. 273, 284 (2002)("We have recognized, for example, that Title VI of
the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972
create individual rights…." Id. (internal citations omitted)); Barnes v. Gorman, 536
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U.S. 181, 185 (2002) ("Although Title VI does not mention a private right of
action, our prior decisions have found an implied right of action...and Congress has
acknowledged this right in amendments to the statute, leaving it beyond dispute
that private individuals may sue to enforce Title VI...." Id. (internal quotations and
citations omitted)).
Students Doe acknowledge that the Supreme Court did not address the
impact of 42 U.S.C. § 1981 and/or Title VI in Seattle School District although a
Title VI cause of action was asserted in the case. Students Doe further
acknowledge, and place this Honorable and Lower Merion on notice, that the
Supreme Court did address this issue in Grutter v. Bollinger, 539 U.S. 306, and
came to the conclusion that 42 U.S.C. § 1981 and Title VI offered no protections in
addition to those afforded by the Fourteenth Amendment. Id. at 343.
However, Students Doe respectfully argue that this conclusion is incorrect,
and contend that 42 U.S.C. § 1981 and/or Title VI afford greater protection, and
bar broader conduct, than the Fourteenth Amendment would allow. Initially, a re-
examination of the ruling in Grutter is warranted in light of the Supreme Court's
subsequent decision in Ricci v. DeStefano, 129 S. Ct. 2658 (2009). In Ricci,
firemen in Connecticut filed suit under the Fourteenth Amendment to the United
States Constitution, and Title VII of the Civil Rights Act, after the City of New
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Haven invalidated promotion test scores because minority candidates had not
performed as well as their non-minority counterparts.
Instead of deciding the case on constitutional grounds, the Supreme Court
decided to overturn New Haven's actions under Title VII. The Supreme Court
stated, "Petitioners raise a statutory claim, under the disparate-treatment
prohibition of Title VII, and a constitutional claim, under the Equal Protection
Clause of the Fourteenth Amendment. A decision for petitioners on their statutory
claim would provide the relief sought, so we consider it first." Id. at 2672.
Moreover, the Supreme Court's decision in Grutter calls into question what
role a collateral branch of government can play in Civil Rights jurisprudence.
While Congress may pass no law which would afford a citizen less protection than
the United States Constitution and its Amendments, it is perfectly free to pass laws
which afford citizens greater protections than the Constitution and its
Amendments. In fact, Congress takes on this task every day, See e.g. The
Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et. seq., and Section
504 of the Rehabilitation Act, 29 U.S.C. § 794, and Congress clearly undertook
this task when it passed 42 U.S.C. § 1981 and Title VI.
Limiting the interpretation of 42 U.S.C. § 1981 and Title VI improperly
relegates Congressional action in the area of Civil Rights to a mere nullity.
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Additionally, the aforementioned statutes, because of their clearly remedial nature,
have to be interpreted broadly to effectuate their stated purpose, i.e. to eliminate all
racial discrimination. See Sutton v. United Airlines, 527 U.S. 471, 504 (1999)(“It
has long been a familiar canon of statutory construction that remedial legislation
should be construed broadly to effectuate its purposes.” Id. (internal quotation and
citation omitted))(Steven J.).
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CONCLUSION
For all of the foregoing reasons, Lower Merion School District's redistricting
plan adopted on January 12, 2009, should be enjoined to the extent that it
redistricts students in the Affected Area, because said plan violates the Fourteenth
Amendment to the United States Constitution, 42 U.S.C. § 1981, and/or Title VI of
the Civil Rights Act, 42 U.S.C. § 2000d et. seq. This matter should be remanded
to the United States District Court for the Eastern District of Pennsylvania for the
determination of appropriate remedial action. Attorneys' fees and costs should be
awarded in accordance with 42 U.S.C. § 1988 and Rule 108.1 of the Local
Appellate Rules of the United States Court of Appeals for the Third Circuit.
Respectfully submitted,
/S/ David G. C. Arnold
____________________________________
David G. C. Arnold
Suite 106, 920 Matsonford Road
West Conshohocken, Pennsylvania 19428
(610) 397-0722
Email: davidgcarnold@aol.com
Attorney for Appellants
Dated: December 6, 2010
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CERTIFICATION OF ADMISSION TO BAR
I, David G. C. Arnold, certify as follows:
1. I am a member in good standing of the bar of the United States Court of
Appeals for the Third Circuit.
2. Pursuant to 28 U.S.C. § 1746, I certify under penalty of perjury that the
foregoing is true and correct.
/s/ David G. C. Arnold
____________________________________David G. C. Arnold
Date: December 6, 2010
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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 13,945 words, excluding the parts of the brief exempted by Rule
32(a)(7)(B)(iii) of the Federal Rules of Appellate Procedure.
This brief complies with the typeface requirements of Rule 32(a)(5) of
the Federal Rules of Appellate Procedure and the type style requirements of
Rule 32(a)(6) of the Federal Rules of Appellate Procedure because this brief
has been prepared in a proportionally spaced typeface using the 2008 version
of Microsoft Word in 14 point Times New Roman font.
This brief complies with the electronic filing requirements of Local
Rule 31.1(c) because the text of this electronic brief is identical to the text of
the paper copies, and the Vipre Virus Protection, version 3.1 has been run
on the file containing the electronic version of this brief and no viruses have
been detected.
/s/ David G. C. Arnold____________________________________
David G. C. Arnold
Dated: December 6, 2010
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ADDENDUM
Const. Amend. 14, § 1
Sec. 1. [Citizens of the United States.]
All persons born or naturalized in the United States, and subject to the jurisdic-
tion thereof, are citizens of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any per-
son of life, liberty, or property, without due process of law; nor deny to any per-
son within its jurisdiction the equal protection of the laws.
42 USC § 1981
Equal rights under the law
(a) Statement of equal rights. All persons within the jurisdiction of the United States
shall have the same right in every State and Territory to make and enforce contracts,
to sue, be parties, give evidence, and to the full and equal benefit of all laws and pro-
ceedings for the security of persons and property as is enjoyed by white citizens, and
shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
(b) "Make and enforce contracts" defined. For purposes of this section, the term
"make and enforce contracts" includes the making, performance, modification, and
termination of contracts, and the enjoyment of all benefits, privileges, terms, and
conditions of the contractual relationship.
(c) Protection against impairment. The rights protected by this section are protected
against impairment by nongovernmental discrimination and impairment under color
of State law.
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42 USC § 2000d
§ 2000d. Prohibition against exclusion from participation in, denial of benefits of,
and discrimination under federally assisted programs on ground of race, color, or na-
tional origin
No person in the United States shall, on the ground of race, color, or national origin,
be excluded from participation in, be denied the benefits of, or be subjected to dis-
crimination under any program or activity receiving Federal financial assistance.
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Case: 10-3824 Document: 003110370013 Page: 107 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 108/185A27
Case: 10-3824 Document: 003110370013 Page: 108 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 109/185A28
Case: 10-3824 Document: 003110370013 Page: 109 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 110/185A29
Case: 10-3824 Document: 003110370013 Page: 110 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 111/185A30
Case: 10-3824 Document: 003110370013 Page: 111 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 112/185A31
Case: 10-3824 Document: 003110370013 Page: 112 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 113/185A32
Case: 10-3824 Document: 003110370013 Page: 113 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 114/185A33
Case: 10-3824 Document: 003110370013 Page: 114 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 115/185A34
Case: 10-3824 Document: 003110370013 Page: 115 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 116/185A35
Case: 10-3824 Document: 003110370013 Page: 116 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 117/185A36
Case: 10-3824 Document: 003110370013 Page: 117 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 118/185A37
Case: 10-3824 Document: 003110370013 Page: 118 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 119/185A38
Case: 10-3824 Document: 003110370013 Page: 119 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 120/185A39
Case: 10-3824 Document: 003110370013 Page: 120 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 121/185A40
Case: 10-3824 Document: 003110370013 Page: 121 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 122/185A41
Case: 10-3824 Document: 003110370013 Page: 122 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 123/185A42
Case: 10-3824 Document: 003110370013 Page: 123 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 124/185A43
Case: 10-3824 Document: 003110370013 Page: 124 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 125/185A44
Case: 10-3824 Document: 003110370013 Page: 125 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 126/185A45
Case: 10-3824 Document: 003110370013 Page: 126 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 127/185A46
Case: 10-3824 Document: 003110370013 Page: 127 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 128/185A47
Case: 10-3824 Document: 003110370013 Page: 128 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 129/185A48
Case: 10-3824 Document: 003110370013 Page: 129 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 130/185A49
Case: 10-3824 Document: 003110370013 Page: 130 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 131/185A50
Case: 10-3824 Document: 003110370013 Page: 131 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 132/185A51
Case: 10-3824 Document: 003110370013 Page: 132 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 133/185A52
Case: 10-3824 Document: 003110370013 Page: 133 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 134/185A53
Case: 10-3824 Document: 003110370013 Page: 134 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 135/185A54
Case: 10-3824 Document: 003110370013 Page: 135 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 136/185A55
Case: 10-3824 Document: 003110370013 Page: 136 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 137/185A56
Case: 10-3824 Document: 003110370013 Page: 137 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 138/185A57
Case: 10-3824 Document: 003110370013 Page: 138 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 139/185A58
Case: 10-3824 Document: 003110370013 Page: 139 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 140/185A59
Case: 10-3824 Document: 003110370013 Page: 140 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 141/185A60
Case: 10-3824 Document: 003110370013 Page: 141 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 142/185A61
Case: 10-3824 Document: 003110370013 Page: 142 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 143/185A62
Case: 10-3824 Document: 003110370013 Page: 143 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 144/185
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 145/185A64
Case: 10-3824 Document: 003110370013 Page: 145 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 146/185A65
Case: 10-3824 Document: 003110370013 Page: 146 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 147/185A66
Case: 10-3824 Document: 003110370013 Page: 147 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 148/185A67
Case: 10-3824 Document: 003110370013 Page: 148 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 149/185A68
Case: 10-3824 Document: 003110370013 Page: 149 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 150/185A69
Case: 10-3824 Document: 003110370013 Page: 150 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 151/185A70
Case: 10-3824 Document: 003110370013 Page: 151 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 152/185A71
Case: 10-3824 Document: 003110370013 Page: 152 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 153/185A72
Case: 10-3824 Document: 003110370013 Page: 153 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 154/185
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 155/185A74
Case: 10-3824 Document: 003110370013 Page: 155 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 156/185A75
Case: 10-3824 Document: 003110370013 Page: 156 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 157/185A76
Case: 10-3824 Document: 003110370013 Page: 157 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 158/185A77
Case: 10-3824 Document: 003110370013 Page: 158 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 159/185A78
Case: 10-3824 Document: 003110370013 Page: 159 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 160/185A79
Case: 10-3824 Document: 003110370013 Page: 160 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 161/185A80
Case: 10-3824 Document: 003110370013 Page: 161 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 162/185A81
Case: 10-3824 Document: 003110370013 Page: 162 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 163/185A82
Case: 10-3824 Document: 003110370013 Page: 163 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 164/185A83
Case: 10-3824 Document: 003110370013 Page: 164 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 165/185A84
Case: 10-3824 Document: 003110370013 Page: 165 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 166/185A85
Case: 10-3824 Document: 003110370013 Page: 166 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 167/185A86
Case: 10-3824 Document: 003110370013 Page: 167 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 168/185A87
Case: 10-3824 Document: 003110370013 Page: 168 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 169/185A88
Case: 10-3824 Document: 003110370013 Page: 169 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 170/185A89
Case: 10-3824 Document: 003110370013 Page: 170 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 171/185A90
Case: 10-3824 Document: 003110370013 Page: 171 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 172/185A91
Case: 10-3824 Document: 003110370013 Page: 172 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 173/185A92
Case: 10-3824 Document: 003110370013 Page: 173 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 174/185A93
Case: 10-3824 Document: 003110370013 Page: 174 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 175/185A94
Case: 10-3824 Document: 003110370013 Page: 175 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 176/185A95
Case: 10-3824 Document: 003110370013 Page: 176 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 177/185A96
Case: 10-3824 Document: 003110370013 Page: 177 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 178/185A97
Case: 10-3824 Document: 003110370013 Page: 178 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 179/185A98
Case: 10-3824 Document: 003110370013 Page: 179 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 180/185A99
Case: 10-3824 Document: 003110370013 Page: 180 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 181/185A100
Case: 10-3824 Document: 003110370013 Page: 181 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 182/185A101
Case: 10-3824 Document: 003110370013 Page: 182 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 183/185A102
Case: 10-3824 Document: 003110370013 Page: 183 Date Filed: 12/06/2010
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 184/185
8/8/2019 Student Doe Brief - 3rd Circuit
http://slidepdf.com/reader/full/student-doe-brief-3rd-circuit 185/185
AFFIDAVIT OF SERVICE
DOCKET NO. 10-3824
-------------------------------------------------------------------------------X
Student Doe 1
vs.
Lower Merion School District
-------------------------------------------------------------------------------X
I, , swear under the pain and penalty of perjury, that according to law and
being over the age of 18, upon my oath depose and say that:
on December 6, 2010
I served the Brief and Appendix Volume I for Appellant within in the above captioned matterupon:
Case: 10-3824 Document: 003110370013 Page: 185 Date Filed: 12/06/2010
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