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Case 2:09-cv-02095-MMB Document 17 Filed 07/10/2009 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYL VANIA

Student Doe 1 by and through hisParents/Guardians Does 1and 2,et. al.Plaintiffs Civil Action No. 09-2095

V.

The School District of Lower MerionDefendant

PLAINTIFFS' REPLY BRIEF TO DEFENDANT'S MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Plaintiffs, Students Doe 1 through 9, now file the present Reply Brief in order to respondto certain factual inaccuracies, and arguments, raised in defendant, The School District of LowerMerion's Memorandum of Law in Support of its Opposition to Plaintiffs Motion for PreliminaryInjunction.

Lower Merion's Memorandum contains four (4) factual inaccuracies that need to becorrected. First, Lower Merion indicates on page 4 of its Memorandum that the CommunityValues used as a basis for the various redistricting plans were arrived at prior to the SchoolBoard adopting its Non-Negotiables. This is not correct, the Community Values were actuallyarrived at after the School Board adopted its Non-Negotiables. See Paragraphs 30 through 36 ofthe Civil Rights Complaint filed on May 14,2009.

Second, Lower Merion asserts on page 8 of its Memorandum that it instituted an optionprogram as part of its Redistricting Plan whereby students who were districted to Lower MerionHigh School could choose to attend Harriton High School. This "option programll is not a new


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Case 2:09-cv-02095-MMB Document 17 Filed 07/10/2009 Page 2 of4

program, children districted to Lower Merion High School have had the option to attend HarritonHigh School for years.

Third, Lower Merion incorrectly asserts throughout its Memorandum that the pendingMotion for Preliminary Injunction seeks to enjoin the entire Redistricting Plan adopted onJanuary 12, 2009. In fact, Lower Merion premises a number of arguments in its Memorandum onthis assumption.

Students Doe do not seek to enjoin the entire Redistricting Plan. As the proposed Orderfiled with the pending Motion for Preliminary Injunction makes clear, Students Doe only seek toenjoin that portion ofthe Redistricting Plan that pertains to children residing in the neighborhoodbounded by Athens Avenue, Wynnewood Road. County Line Road, and Cricket Avenue inSouth Ardmore, Pennsylvania. According to Lower Merion's Answers to Interrogatories, onlyeighteen (18) children would be subject to the injunction during the 2009-2010 school year. SeeLower Merion's Answer to Interrogatory No. 1 which is appended hereto as Exhibit IIA." Ofcourse this number would climb in subsequent school years as the grandfathering provisions inthe Redistricting Plan phased out.

Lower Merion's final inaccuracy is made in conjunction with its laches argument.Essentially, Lower Merion contends that Students Doe waited too long to seek equitable reliefbecause they choose to conduct extensive pre-suit investigation under the Pennsylvania Right toKnow Act. See Lower Merion's Memorandum of Law at pages 12 and 13. Lower Merion assertsthat it responded to Students Doe Right to Know Request on or before March 3, 2009. Id. at page12. Lower Merion cites New Dana Per:fumes Corp. v. The Disney Store. Inc., 131 F. Supp.2d616 (M.D. Pa. 2001), and Orson v. Miramax Film Corp., 836 F. Supp. 309 (E.D. Pa. 1993) insupport of its position.

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This is not a case where Students Doe rested on their rights. The undersigned counsel hada professional responsibility under the Rules of Professional Conduct and Rule 11 of the Federal

Rules of Civil Procedure to conduct a thorough investigation prior to filing suit. Unfortunately,all of the key documents were in the possession ofLower Merion, and the only way to get themwas through filing a Right to Know Request

Students Doe served a Right to Know Request on Lower Merion in late February 2009.Although it is true that Lower Merion responded to said Request on March 3, 2009, almost all ofthe initial responses that it provided sought an extension to March 25, 2009, to provide moresubstantive infonnation. A true and correct copy of Lower Merion's March 3, 2009, Response isappended hereto as Exhibit "B." The undersigned counsel had to review thousands of pages ofdocuments in March, April, and May of2009, before filing suit.

The case law cited is simply inapplicable to the situation presented. New Dana PerfumesCorp. is a trade mark infringement case, and the opinion clearly indicates that said area of thelaw has its own rules that govern when legal action must be taken. See New Dana Perfumes

131 F. Supp.2d at 630. Orson presents a situation where no pre-Complaint investigationwas necessary. That was simply not the situation herein where massive investigation of anopposing party's documents needed to take place.

Another one of Lower Merion's arguments needs to be addressed as well. Lower Merionasserts in its Memorandum that Students Doe will suffer no harm if the Preliminary Injunction isnot granted because they will be attending a new, "state of the art" high school with all of theamenities. See Lower Merion's Memorandum of Law at page 12. It must be recognized that thisis a modem day variant of the separate, but equal, argument that the United States SupremeCourt rejected over fifty (50) years ago in Brown v. Board of Education. 347 U.S. 483 (1954). In

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this country. no child has to "check" his/her civil rights at the school house door in order toreceive a public education.

One fmal comment about Lower Merion's legal position in its Memorandum is in order.Throughout the Memorandum. Lower Merion states that decisions on redistricting were based atleast in part on Community Values. See Lower Merion's Memorandum of Law at pages 2, 3,5,and 15. One of the Community Values at issue involved promoting diversity, including racialdiversity. See Paragraph 36 of the Civil Rights Complaint. This admission in and of itself shouldshift the burden of proof in this case, and should require Lower Merion to defend itsRedistricting Plan under a strict scrutiny analysis. See BriefofStudents Doe in Support ofTheirPending Motion for a Preliminary Injunction at pages 5-7.

ConclusionFor all of the reasons set forth herein as well as the reasons set forth in the pending

Motion for Preliminary Injunction and accompanying Brief, it is respectfully requested that aPreliminary Injunction be entered by this Honorable Court.

Respectfully submitted,

Pe sylvania Attorney Identification No. 49819Suite 109, Royal Plaza915 Montgomery AvenueNarberth, Pennsylvania 19072(484) 5620008Attorney for Plaintiffs

Dated: July 10, 2009

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Case 2:09-cv-02095-MMB Document 17-2 Filed 07/10/2009 Page 1 of 2

EXHIBIT A


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IN TH E UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF PENNSYLVANIA

STUDENT DO E et al.Plaintiffs

v. Civil Action No. 09-2095THE SCHOOL DISTRICT OF LOWERMERION

Defendant.DEFENDANT, LOWER MERION SCHOOL DISTRICT'S ANSWERS TO

PLAINTIFFS ' FIRST SET OF INTERROGATORIES Defendant, Lower Merion Schoo) District (the "District"), by and through itsundersigned attorneys. answers Plaintiffs' Inte.trOgatories subject to the District'sObjections served on or about June 2 3 ~ 2009 (herein, the "District's Objections"), as setforth below.

INTERROGATORY NO.1How many children from the neighborhood described in Paragraph 8 ofthe Civil ActionComplaint filed in this matter on May 14.2009, are projected to attend Harriton HighSchool for the 2009-2010 school year as a result of the redistricting plan adopted byLower Merion on January 12,20091

Answer: Notwithstanding the' District's Objections, and without prejudicethereto, the District responds eighteen (18).INTERROGATORY NO.2State the following regarding each meeting held concerning student redistricting inMarch, April. and/or May of 2008 which was attended by Lower Merion school districtpersolJIlel and/or a Lower Merion school board member:

(a). The date ofeach meeting;(b). The name, current business address, and current home address, of each personthat attended each meeting; and(c). What was discussed at each meeting.


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EXHIBITB


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Case 2:09-cv-02095-MMB Document 17-3 Filed 07{10/2009 Page 2 of 8 ."

LOWER MERION SCHOOL DISTRICTRESPONSE TO REQUEST

I. Description ofRecord ReQuested and Name ofReguesterName ofRequester: David G. C. Arnold, Esquire915 Montgomery Avenue, Suite 109,Narberth, PA 19072Records Requested:

See Attachement A for List II. Date ofResponse (Within 5 days ofdate of request)

Request granted in part and denied in part. See Attachment A.Date request was granted, in part March 3. 2009and

Date form with Section III completed sent to requester March 3. 2009III. Basis for Review (Circle all applicable reasons and ftll in additional informationin space provided)"1. Request may require redaction ofpublic record

Requests must undergo review in order to ascertain whatrecords are being requested, whether each record is a publicrecord and whether each record is subject to an exception, aprivilege or redaction under applicable law.2. Request for access requires retrieval of record stored in remote location(identify location)3. Timely response cannot be made due to bona fide and specified staffinglimitations (state specific staffing limitations )" 4. Legal review required to determine whether record is a publicrecord

Requests must undergo review in order to ascertain whatrecords are being requested, whether each record is a publicrecord and whether each record is subject to an exception, aprivilege or redaction under applicable law.5. Requester failed to comply with Policy 1123 in the followingrespect:

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6. Requester refused to pay applicable fees. AmOllllt owed:

;J 7. The extent or nature of the request precludes a response within therequired time period.Requests are extensive in that they cover many years, involve variedindividuals and organizations, and the records involved are or may belocated in different locations. The Distrid does not compile, maintainor organize all of its records in each manner requested. The recordsthemselves must also undergo review to determine whether eachrecord is a public record, whether each record is subject to anexception, a privilege and/or redaction in accordance with applicablelaw.

IV. Basis for Denial of ReguestRequest denied by:

Name Fran KeavenevTitle Open Records OfficerlBoard SecretaryBusiness Telephone Number (610)-6451800Business Address Lower Merion School District301 E. Montgomery Ave.Ardmore. PA 19003Date of Denial March 3, 2009Citation of Supporting Legal Authority See Attachement "A"

V. AppealI f requester chooses to appeal denial of access, the requester may appeal to the State'sOffice ofOpen Records by filing exceptions within fifteen business days of the mailingdate of the date set forth in IV or within fifteen business days of deemed denial. Theexceptions shall state grounds upon which the requester asserts that the record is a publicrecord and shall address any grounds stated by the School District for delaying ordenying the request.

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Attachment A1. Request: Any documents ofany type in any format which pertain to the SchoolDistrict's decision to build Harriton High School and Lower Merion HighSchool to house the same number ofstudents.Response: The District is reviewing this request in an attempt to ascertain whatrecords are being requested. Also, records requested must undergolegal review in order to determine whether each record is a publicrecord and whether each record is subject to an exception, a privilegeand/or redaction under applicable law. The expected date of responsefor this request is March 25, 2009.2. Request: Reports of any consultants the School District hired to determine whetherto build Haniton High School and Lower Merion High School to housethe same number of students as well as any drafts of said reports.Response: The District is reviewing this request in an attempt to ascertain whatrecords are being requested. Also, records requested must undergolegal review in order to determine whether each record is a publicrecord and whether each record is subject to an exception, a privilegeand/or redaction under applicable law. The expected date of responsefor this request is March 25, 2009.3. Request Correspondence from any consultant to the School District, andcorrespondence from the School District to any consultant, concerning thedecision to build Harriton High School and Lower Merion High School tohouse the same number ofstudents.Response: The District is reviewing this request in an attempt to ascertain whatrecords are being requested. Also, records requested must undergolegal review in order to determine whether each record is a publicrecord and whether each record is subject to an exception, a privilegeand/or redaction under applicable law. The expected date of responsefor this request is March 25, 2009.4. Request Written minutes and videotape recordings of all open meetings conductedto determine whether to build Harriton High School and Lower Merion

High School to house the same number of students.Response: Request granted. The District does not maintain its meeting minutesby category or subject matter; however, the written minutes of allopen meetings and copies of available video recordings of openmeetings are available for inspection by making an appointment withthe Open Records Officer by calling (610) 645-1800.5. Request Any documents in any format prepared in 2004, 200S, 2006, 2007,2008,

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and/or 2009 which pertain to the School Districfs decision to redistrictstudents in the Lower Merion School District.Response: The District is reviewing this request in an attempt to ascertain whatrecords are being requested. Also, records requested must undergoJegal review in order to determine whether each record is a publicrecord and whether each record is subject to an exception, a privilegeand/or redaction under applicable law. The expected date of responsefor this request is March 25, 2009.6. Request The reports of any consultants the School District hired in 2004, 2005,2006,2007,2008, and/or 2009, which pertain to the School District'sdecision to redistrict students in the Lower Merion School District as wellas any drafts of said ,reports.Response: The District is reviewing this request in an attempt to ascertain whatrecords are being requested. Also, records requested must undergolegal review in order to determine whether each record is a publicrecord and whether each record is subject to an exception, a privilegeand/or redaction under applicable law. The expected date of responsefor this request is March 25, 2009.7. Request Correspondence from any consultant to the School District, andcorrespondence from the School District to any consultant, which wasauthored in 2004, 2005, 2006, 2007, 2008, and/or 2009, and whichpertains to the School District's decision to redistrict students in the LowerMerion School District.Response: The District is reviewing this request in an attempt to ascertain whatrecords are being requested. Also, records requested must undergolegal review in order to determine whether each record is a publicrecord and whether each record is subject to an exception, a privilegeand/or redaction under applicable law. The expected date of responsefor this request is March 25, 2009.8. Request All redistricting proposals considered by the School District in 2004,2005,2006,2007,2008, and/or 2009.Response: The District is reviewing this request in an attempt to ascertain whatrecords are being requested. Also, records requested must undergolegal review in order to determine whether each record is a pubJicrecord and whether each record is subject to an exception, a privilegeand/or redaction under applicable law. The expected date of responsefor this request is March 25,2009.9. Request: The written minutes and videotape recordings of all opening meetingsconducted in 2004, 2005, 2006, 2007, 2008, and/or 2009 during which the

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Case 2:09-cv-0209S-MMB Document 17-3 Filed 07/10/2009 Page 6 of 8

Lower Merion School District discussed the redistricting of students.Response: Request granted. The District does not maintain its meeting minutesby category or subject matter; however, the written minutes of allopen meetings and copies of available video recordings of openmeetings are available for inspection by making an appointment withthe Open Records Officer by calling (610) 645-1800.10. Request: Any documents in any fonnat such as reports, h a n d o u t s ~ power point

p r e s e n t a t i o n s ~ tables, graphs, maps and/or any other type of docwnentavailable to the public which were created in 2004,2005,2006,2007,2008,and/or 2009, and which pertain to the School District's decision toredistrict students in the Lower Merion School District.Response: The District is reviewing this request in an attempt to ascertain whatrecords are being requested. Also, records requested must undergolegal review in order to determine whether each record is a publicrecord an d whether each record is subject to an exception, a privilege

and/or redaction under applicable law. The expected date of responsefor this request is March 25,2009.

11. Request: The minutes and/or swnmaries of any "focus group meetings" conductedin 2 0 0 4 ~ 2 0 0 5 ~ 2006, 2007, 2008, and/or 2009 where there was anydiscussion about the School District's redistricting ofstudents;

Response: The District is reviewing this request in an attempt to ascertain whatrecords are being requested and whether such records exist I f suchrecords exist, they must undergo legal review in order to determinewhether each record is a public record an d whether each record issubject to an exception, a privilege and/or redaction under applicablelaw. The expected date of response for this request is March 25, 2009.

12. Request: The minutes and/or summaries of any Community Advisory Committeemeetings conducted in 2004,2005,2006,2007,2008, and/or 2009 wherethere was any discussion about the School District's redistricting ofstudents;

Response: The District is reviewing this request in an attempt to ascertain whatrecords are being requested and whether such records exist I f suchrecords exist, they must undergo legal review in order to determinewhether each record is a public record and whether each record issubject to an exception, a privilege and/or redaction under applicablelaw. The expected date of response for this request is March 25, 2009.

13. Request: All materials of any type provided by the School District to any consultantreferenced in Requests 2, 3, 6, and/or 7 as well as all materials ofany type

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provided by the School District for any "focus group meetings" and/orCommunity Advisory Committee meetings referenced in Requests 11and/or 12Response: The District is reviewing this request in an attempt to ascertain whatrecords are being requested. Also, records requested must undergolegal review in order to determine whether each record is a publicrecord and whether each record is subject to an exception, a privilegeand/or redaction under applicable law. The expected date of responsefor this request is March 25,2009.14. Request: All Act 34 test capacity calculations and/or documents referencing said

calculations prepared by any architects during the design of the newHarriton High School and/or the new Lower Merion High School.

Response: The District is reviewing this request in an attempt to ascertain whatrecords are being requested and whether such records exist. I f suchrecords exist, they must undergo legal review in order to determinewhether each record is a public record and whether each record issubject to an exception, a privilege and/or redaction under applicablelaw. The expected date of response for this request is March 25, 2009.

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Case 2:09-cv-0209S-MMB Document 17-3 Filed 07/10/2009 Page 8 of 8 .

Attachment BFees:Fees for duplication and other forms of document response and, where applicable,document retrieval will be charged according to the following fee schedule whichshall be periodically updated.

Postage Actual cost for mailingCertification costs $1 per record, not per pageDuplication costs

Paper copying charge $0.25 per pageFacsimile charge Actual cost to DistrictElectronic recordscopied to native media Actual cost to DistrictConversion to paper If a record is only maintainedelectronically or in other non-paper media, duplication feesshall be limited to the lesser ofthe fee for duplication on paper

or fee for duplication in theoriginal media unless therequester specifically requests forthe record to be duplicated in themore expensive medium.Enhanced electronic access To be determined i f and whenoffered.Scanning Same as copying fee (Notimposed if record already existsin electronic form.)

Complex and extensive Reasonable Market Valuedata setsRetrieval fee (for records which $60 per hour for administrative anddo not qualify as public records) clerical time.

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UNITED STATES DISTRICf COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Student Doe 1 by and through hisParents/Guardians Does 1 and 2.et. a1.Plaintiffs Civil Action No. 09-2095

v.

The School District of Lower MerionDefendant

CERTIFICATE OF SERVICE

I, David G. C. Arnold, Esquire, hereby certify that I electronically filed Plaintiffs' ReplyBrief to Defendant's Memorandum of Law in Support of Defendant's Opposition to PlaintiffsMotion for Preliminary Injunction on July 10, 2009, and said document has been available forviewing and downloading on the ECF System since that date. The below listed counsel wereserved electronically through the ECF System on July 10, 2009.Judith E. Harris, EsquireChristina Joy F. Greese, EsquireAllison N. Suflas, EsquireMorgan, Lewis & Bokius LLP1701 Market StreetPhiladelphia, Pennsylvania 19103

Michael D. Kristofco, EsquireKenneth A. Roos, EsquireMegan A. Guernsey, EsquireWisler Pearlstine, LLP484 Norristown RoadBlue Bell, Pennsylvania 19422

plaintiffs resposne prelim student doe 7-10-09

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