lmsd appeal response 01-05-11

8/8/2019 LMSD Appeal Response 01-05-11

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Case No. 10-3824

_____________________________________________________________

_

STUDENT DOE 1, ET AL.

Plaintiffs-Appellants,

v.

LOWER MERION SCHOOL DISTRICT

Defendant-Appellee.

_____________________________________________________________

_

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

Civ. No. 09-2095

BRIEF OF APPELLEE

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

Morgan, Lewis & Bockius LLP

1701 Market Street

Philadelphia, PA 19103

215-963-5028

Attorneys for Lower Merion School

District Defendant-Appellee

Dated: January 5, 2011

Case: 10-3824 Document: 003110399782 Page: 1 Date Filed: 01/05/2011


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TABLE OF CONTENTS

Page

-i-

STATEMENT OF ISSUES ........................................................................... 1

STATEMENT OF FACTS ............................................................................ 2

A. Introduction ............................................................................... 2

B. Appellants.................................................................................. 4

C. Lower Merion School District .................................................. 5

D. Superintendent Dr. McGinley ................................................... 6

E. The Community Advisory Committee Recommended

Construction of Two Equal-Size High Schools, Which

Made Redistricting Necessary .................................................. 8F. The Redistricting Process........................................................ 11

1. NonNegotiables .......................................................... 11

2. Community Values ....................................................... 12

3. Redistricting Planning Stages ....................................... 13

4. Proposed Plan 1 ............................................................ 15

5. Proposed Plan 2 ............................................................ 18

6. Proposed Plan 3 ............................................................ 217. Proposed Plan 3R.......................................................... 23

8. Adoption and Implementation of Proposed Plan 3R.... 24

SUMMARY OF ARGUMENT................................................................... 27

ARGUMENT............................................................................................... 31

A. Race Was Not An Impermissible Motivating Factor In

The Redistricting Process........................................................ 31

B. Assuming Strict Scrutiny Applies, The Districts

Redistricting Plan Withstands Such Review........................... 45

1. Appellants Contention That The District Never

Identified A Compelling State Interest Related To

Its Purportedly Race-Based Decisionmaking Is

Incorrect ........................................................................ 47



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TABLE OF CONTENTS

(continued)

Page

ii

2. Appellants Contention That The Districts

Actions Were Not Narrowly Tailored And/OrLimited In Duration Is Without Merit .......................... 52

C. The District Did Not Waive And, In Fact, Proved, That

Plan 3R Would Have Been Adopted Regardless Of The

Racial Composition Of The Affected Area ............................ 55

D. Appellants Argument That 1981 And Title VI Prohibit

The Districts Redistricting Actions, Even Though The

Fourteenth Amendment May Not Do So, Have Been

Soundly Rejected By The Supreme Court And Should

Again Be Rejected Here.......................................................... 62

E. The District Court Did Not Commit An Abuse Of

Discretion In Allowing Dr. Robert Jarvis And Dr.

Claudia Lyles to Testify.......................................................... 63

CONCLUSION............................................................................................ 68



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TABLE OF AUTHORITIES

Page

iii

CASES

Adarand Constructors v. Pena,515 U.S. 200 (1995)................................................................................. 45

Albemarle Paper Co. v. Moody,

422 U.S. 405 (1975)................................................................................. 39

Ansell v. Green Acres Contracting Co., Inc.,

347 F.3d 515 (3d Cir. 2003) .................................................................... 65

Biessel v. Pittsburgh and Lake Erie R.R. Co.,

801 F.2d 143 (3d Cir. 1986) .................................................................... 63

Bush v. Vera,

517 U.S. 952 (1996)................................................................................. 43

Cary Oil Co. v. MG Refining & Marketing, Inc.,

No. 99 Civ. 1725, 2003 WL 1878246 (S.D.N.Y. April 11, 2003).......... 67

Charpentier v. Godsil,

937 F.2d 859 (3d Cir. 1991) .................................................................... 57

City of Richmond v. J.A. Croson Co.,

488 U.S. 469 (1998)................................................................................. 45

Concerned Citizens for Neighborhood Schools v. Pastel,

No. 5:05-1070, 2007 WL 1220542 (N.D.N.Y. Apr. 24, 2007)............... 42

Cunningham v. Town of Ellicott,

No. 04CV301, 2007 WL 1040013 (W.D.N.Y. April 3, 2007)................ 67

Davis v. Bandemer,

478 U.S. 109 (1986)................................................................................. 58

DeMarines v. KLM Royal Dutch Airlines,

580 F.2d 1193 (3d Cir. 1978) .................................................................. 66



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TABLE OF AUTHORITIES(continued)

Page

iv

G-I Holdings, Inc. v. Reliance Insurance Co.,

586 F.3d 247 (3d Cir. 2009) .............................................................. 50, 51

General Building Contractors Association, Inc. v. Pa.,

458 U.S. 375 (1982)................................................................................. 63

Gratz v. Bollinger,

539 U.S. 244 (2003)........................................................................... 45, 62

Grutter v. Bollinger,

539 U.S. 306 (2003)............................................................... 45, 49, 54, 62

Johnson v. California,543 U.S. 499 (2005)................................................................................. 45

Mazus v. Department of Transport,

629 F.2d 870 (3d Cir. 1980) .................................................................... 37

Meyers v. Pennypack Woods,

559 F.2d 894 (3d Cir. 1977) .................................................................... 66

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

551 U.S. 701 (2007).......................................................................... passim

Pryor v. National Collegiate Athletic Association,

288 F.3d 548 (3d Cir. 2002) .............................................................. 45, 51

Sandoval v. Alexander,

532 U.S. 275 (2001)................................................................................. 62

Terrell v. Richter-Rosin, Inc.,81 F.3d 161, 1996 WL 122639 (6th Cir. Mar. 19, 1996)........................ 65

The Globe Savings Bank, F.S.B. v. U.S.,

61 Fed. Cl. 91 (2004)............................................................................... 67

Upshur v. Shepherd,

538 F. Supp. 1176 (E.D. Pa. 1982).......................................................... 66



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TABLE OF AUTHORITIES(continued)

Page

v

Village of Arlington Heights v. Metropolitan Housing

Development Corp.,429 U.S. 252 (1977)........................................................................... 46, 51

Woodson v. Scott Paper Co.,

109 F.3d 913 (3d Cir. 1997) .................................................................... 57

Yelverton v. Lehman,

No. CIV.A. 94-6114, 1996 WL 296551 (E.D. Pa. June 3, 1996) ........... 63

STATUTES

20 U.S.C. 6301 et seq ................................................................................ 69

20 U.S.C. 6311(b)(2)(C)(v)(II).................................................................. 41

42 U.S.C. 1981................................................................................. 1, 29, 62

42 U.S.C. 2000d et seq ................................................................................ 1

RULES

Fed. R. Civ. P. 26(a)(1)................................................................................. 64



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STATEMENT OF ISSUES

A. Did the District Court commit reversible legal error in

concluding that the District did not discriminate against Appellants on the

basis of race in violation of the Equal Protection Clause of the Fourteenth

Amendment?

Suggested Answer: No.

B. Are the Districts actions violative of 42 U.S.C. 1981 and/or

Title VI of the Civil Rights Act, 42 U.S.C. 2000d et seq., even though they

are permissible under the Equal Protection Clause of the Fourteenth

Amendment?


C. Did the District Court abuse its discretion in admitting the

testimony of Dr. Claudia Lyles and Dr. Robert Jarvis?




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STATEMENT OF FACTS

A. Introduction

The essential, material facts of this case can be distilled to the

following: (1) the Board of School Directors (Board) adopted the Lower

Merion School Districts (the District) redistricting plan, Plan 3R, on

January 12, 2009, and did not consider race in doing so; (2) the purpose of

Plan 3R was to achieve equal enrollment in the Districts two high schools,

as set forth in the Non-Negotiables adopted by the Board; (3) the District did

not select individual students for assignments to either Lower Merion High

School (Lower Merion or LMHS) or Harriton High School (Harriton)

under Plan 3R; (4) student assignment under Plan 3R was based on existing

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

a high school; (5) these feeder patterns assigned all students, irrespective of

race or ethnicity, outside the official LMHS walk zone1

who attended any of

1The official, historic LMHS walk zone did not originate with redistricting

and had been in place, in its current form, for many years prior to

redistricting. A walk zone is simply the area within which the Districtdoes not provide bus transportation to students. That is how the District

defines walking. Appendix A2133. Every school within the District, with

the exception of Harriton (which had a walk zone until PennDOT certified

Ithan Avenue as hazardous for student walking) has a walk zone. Appendix

A1313.



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the three elementary schools feeding into Welsh Valley Middle School to

Harriton; and (6) Appellants, along with all other students in the Affected

Area (as hereinafter defined), regardless of race, have lost the option of

attending Lower Merion because all attend Penn Valley Elementary School

and Welsh Valley Middle School and reside outside of the official LMHS

walk zone. Appellants mischaracterize, oversimplify, or simply omit these

key findings from their brief.

Although the District Court also found that the Administration desired

racial diversity in both high schools, and that the Affected Area was

targeted for redistricting in part because of its racial demographics, it

concluded that the District did not invidiously discriminate against any

individual student on the basis of his or her race, and that the Board

The LMHS walk zone is one mile in some places and less than one mile in

other places. As with all walk zones in the District, it is measured as the car

drives or as the student walks, not as the crow flies. Appendix A1295-

A1296. The shape of the walk zone takes into consideration the location of

streets and cross streets (e.g., walk zones are not intended to split a block in

the middle of a block), obstacles, and hazardous walking areas. Appendix

A687-A688. Consequently, the LMHS walk zone does not extend in a

perfect one-mile radius from the high school. While a few of the Appellants

may live within a mile of Lower Merion High School, none of them liveswithin the official LMHS walk zone. As Mr. Andre, the Districts

Transportation Supervisor, testified at trial, the LMHS walk zone extends

less than a full mile in areas other than the Affected Area as well. Appendix

A1296.



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Members, in voting to approve Plan 3R, did not consider race. Appendix

A53, A55.

B. Appellants

Appellants include nine African-American students (Students Doe)

and ten parents (Parents/Guardians Doe) who reside in the District in an

area known as South Ardmore, which is bounded by Athens Avenue,

Wynnewood Road, County Line, and Cricket Avenue. This area has been

referred to throughout this case as the Affected Area. The Affected Area

is one of the areas closest to Harriton that was not districted to Harriton prior

to the Boards adoption of Plan 3R. Appendix A87.

The Affected Area is adjacent to another area referred to at trial as

North Ardmore, which, like the Affected Area, has a significant

concentration of African-American residents. Appendix A9-A10. With the

exception of Student Doe 4, who elected to attend Harriton for the 2009

2010 academic year, Students Doe attend Penn Valley Elementary School or

Welsh Valley Middle School. Students Doe are bused to their current

schools, along with students of all races from the Affected Area, and have

always received bus transportation provided by the District because they live

outside any official walk zone, which is the designated area within which the

District does not provide bus transportation to students. Appendix A11,



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A14, A81-A82. See also footnote 1, infra. In terms of travel time, students

in the Affected Area travel eighteen to nineteen minutes on District buses to

Harriton High School, which is half the distance and half the time of the

longest bus ride in the District. Appendix A40.

Under Plan 3R, Appellants and all other students in the Affected Area

are districted to attend Penn Valley Elementary School and Welsh Valley

Middle School, as they were prior to redistricting, but now they are

districted to Harriton for high school. Prior to redistricting, they had the

option of attending either Lower Merion or Harriton. All students in North

Ardmore are districted to attend Penn Wynne Elementary School, Bala

Cynwyd Middle School, and Lower Merion, as they were prior to

redistricting. Appendix A10-A11.

C. Lower Merion School District

The District operates six elementary schools (Belmont Hills, Cynwyd,

Gladwyne, Merion, Penn Valley, and Penn Wynne), two middle schools

(Bala Cynwyd and Welsh Valley), and two high schools (Harriton High

School and Lower Merion High School).2

Both of the high schools are

ranked as being among the best in the state, if not the nation. The Board is

2The Districts elementary schools include kindergarten through grade five,

its middle schools include grades six through eight, and its high schools

include grades nine through twelve.



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composed of nine elected School Directors (Board Members) who are

vested, by state law, with the authority to assign students to schools within

the District. Appendix A6.

D. Superintendent Dr. McGinley

Dr. Christopher McGinley has been the Districts Superintendent

since June 2008. The Board Members voted to hire Dr. McGinley in part

because he was a true educator who was studentfocused and

personable, and because he had a wealth of experience and success in

combating the minority student achievement gap.3

Appendix A7.

Prior to working for the District, Dr. McGinley was Assistant

Superintendent and then Superintendent at Cheltenham School District in

Montgomery, Pennsylvania, where he was known as a pioneer and

leader in combating the achievement gap, a national educational issue. In

particular, Dr. McGinley helped implement initiatives to eliminate class

3According to Dr. McGinley, Dr. Claudia Lyles, who worked with Dr.

McGinley in the Cheltenham School District, and Dr. Robert Jarvis, who

heads the Delaware Valley Minority Student Achievement Consortium, the

achievement gap refers to the observed and pervasive disparity in

measurable educational achievement among groups of students. Researchon the achievement gap across the nation, as well as specifically in the

District, shows that AfricanAmerican and Latino students as a whole

perform significantly poorer than their White and AsianAmerican peers.

Combating the achievement gap, therefore, refers to valid and appropriate

educational policies aimed at minimizing and eradicating the achievement

gap. Appendix A7.



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tracking after second grade, and to use demonstrated performance, such as

test scores and report cards, to place students, thereby taking away teacher

subjectivity. Both initiatives resulted in a significant decrease in the

achievement gap in Cheltenham School District. In addition to this work,

Dr. McGinley helped form a partnership with the University of Pennsylvania

to create the Delaware Valley Minority Student Achievement Consortium

(Consortium), which is an organization dedicated to eliminating the

achievement gap by educating educators on the subject, and studying

techniques to combat, and the causes of, this phenomenon. Appendix A7-

A8.

As part of combating the achievement gap, Dr. McGinley and the

Consortium have done work to minimize racial isolation, which is the

isolation a student may feel when, for example, he or she is one of only a

few students of his or her particular background in the class. Racial

isolation is not triggered by a particular threshold number 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. Since

becoming the Districts Superintendent, Dr. McGinley has overseen a

clustering program in which the District places students of a given

minority background, who have agreed to participate in the program,



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together in language and language honors classes. This clustering

program has been successful at increasing the number of minorities, and in

particular, the number of AfricanAmerican students, in language programs

in the District. Appendix A8.

E. The Community Advisory Committee Recommended

Construction of Two Equal-Size High Schools, Which Made

Redistricting Necessary

In 1997, the District began a capital improvement program to

modernize each of its ten schools. As of 2004, Lower Merion and Harriton

remained to be modernized to fulfill the Districts educational requirements.

The community as a whole recognized that both high schools were outdated

and required significant physical plant investments. In order to review and

study all options available for addressing the Districts high school situation,

in 2004, the Board established a forty-five member Community Advisory

Committee (CAC) comprised of a broad cross-section of school,

community, and other interested individuals with a wide range of

perspectives. The CAC considered the following alternatives for

modernizing the Districts two high schools: (1) creating one separate

school for ninth grade students only and one school for students in grades

10-12; (2) building a new, single high school of 2,500 students; (3) building

two new high schools while keeping their present student populations (1,600



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Lower Merion/900 Harriton students) intact; and (4) building two new high

schools but balancing their student enrollment levels (1,250 students each).

Appendix A12.

The CAC rejected the first three proposals. It decided against

establishing a separate ninth grade school because it heard no strong

educational arguments in favor of such a school, the proposal would add

another transition for students, from ninth to tenth grade, and co-curricular

activities would be adversely affected. The CAC also decided against a

single high school of 2,500 students due to the advantages of smaller

schools, including a greater sense of community, better relations between

students and faculty, more opportunities for co-curricular activities, and

better educational outcomes, and also because a school of 2,500 students

would not fit on either existing high school site, would create major traffic

problems, would require students to be bused to off-site athletic fields at

additional cost, and would violate impervious coverage allowances. The

CAC decided against two high schools of unequal size because this option

would not address differences in the educational offerings at the two high

schools, the evidence indicated that smaller schools produce better

educational outcomes, and if the larger Lower Merion High School



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continued to be the larger school, traffic and parking problems at that site

would be perpetuated. Appendix A12-13.

Ultimately, the CAC voted in favor of a plan for two new high schools

of equal enrollment capacity, designed for 1,250 students each, and the

Board subsequently adopted the CACs recommendation. Specifically, the

CAC concluded that this was the best option because it allowed all students

to benefit from the smallest possible schools, which provide a stronger sense

of community, promote better student/faculty interactions, and provide a

better educational outcome for all students than larger schools. In addition,

this option provided students across the District with the most equitable

access to programs and facilities, because each school would be able to offer

the same range of courses and would have its own co-curricular activities.

Finally, the CAC determined that equal-size schools would make the best

use of the existing school sites by alleviating the overcrowding, traffic, and

parking problems at Lower Merion. Appendix A13.

The Board accepted this recommendation; however, because the

District had to keep the high schools at their existing locations, equalizing

enrollment at the two high schools required redistricting to eliminate the

700student disparity between the two high schools. Appendix A13. It was

clear that merely having voluntary magnet programs to attract students to



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Harriton would be insufficient to draw the requisite number of students to

Harriton. Indeed, even prior to redistricting Harriton had in place an

International Baccalaureate (IB) program that aimed to attract more

students to Harriton, yet Lower Merion always had had a substantially

higher student enrollment than Harriton. Appendix A14. Consequently, to

implement the CACs recommendation that the District build two new high

schools of equal student enrollment, it was inevitable that a number of

students who would have attended Lower Merion prior to any redistricting

plan would now have to attend Harriton.

In addition to being constrained by geography, the process was also

constrained by the residential location of students in the District. Because

the overwhelming majority of the Districts students live much closer to

Lower Merion than to Harriton, in order to achieve an equal student

population at Harriton, significant redistricting would be required.

Appendix A14; A51, n.22.

F. The Redistricting Process

1. NonNegotiables

On April 21, 2008, the Board adopted the following set of guiding

principles, known as Non-Negotiables, to govern the redistricting process:

(1) The enrollment of the two high schools and two middle schools will be



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equalized; (2) Elementary students will be assigned so that the schools are at

or under the school capacity; (3) The plan may not increase the number of

buses required; (4) The class of 2010 will have the choice to either follow

the redistricting plan or stay at the high school of their previous year (i.e. the

principle of grandfathering); and (5) Redistricting decisions will be based

upon current and expected future needs and not based on past practices.

Appendix A15-16. These NonNegotiables did not reference race or

minority student assignments, and each stated a valid, educational purpose

that was legitimate and nondiscriminatory. Appendix A16.

2. Community Values

Beginning in May 2008, the District hired two outside consultants, Dr.

Harris Sokoloff and Ms. Ellen Petersen, who held a series of public forums

and collected online surveys to solicit input from the community and

identify their values in the context of redistricting. This process involved

asking citizens a hypothetical question unrelated to redistricting: you have a

friend contemplating moving to the District what would you tell her about

what you like or do not like about Lower Merion to help her make a

decision? Appendix A16; Appendix A1837-A1838. Notably, this question

was posed to citizens before any proposed redistricting plan had been

presented or even formulated.



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On July 11, 2008, Dr. Sokoloff and Ms. Petersen presented to the

Board their report, which identified five Community Values: (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 nonwalkers should be

minimized; (4) Children learn best in environments when they are

comfortablesocially as well as physically; and (5) explore and cultivate

whatever diversityethnic, social, economic, religious and racialthere is in

Lower Merion. The Board voted to accept Dr. Sokoloff and Ms. Petersens

report. Appendix A17.4

3. Redistricting Planning Stages

In June 2008, the School Board engaged a redistricting consultant, Dr.

Ross Haber, of Ross Haber Associates, Inc., to review and analyze District

enrollment data, and to propose alternative redistricting plans. Appendix

4Dr. McGinley and several Board Members testified that the Community

Values, unlike the NonNegotiables, were never mandates that had to be met

by proposed redistricting plans, but merely informed the redistrictingprocess, and many of them, including the value respecting diversity, were

applicable only at the implementation phase, after a redistricting plan had

been selected by the Board. Appendix A17. As the District Court noted, the

District cannot be faulted for soliciting the communitys input and could not

preclude discussions of race. There is nothing inappropriate about having a

Community Value respecting diversity. Appendix A18.



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A19. Dr. Haber was selected to be the Districts redistricting consultant

primarily because he had proprietary Geographic Information Software

(GIS) that allowed him to move school attendance lines and then report

how many students would be within those lines. Appendix A944. In prior

redistrictings, the District used push-pins on a map to represent students, an

extremely onerous process. Appendix A1671. In connection with his work,

Dr. Haber requested and received standard student file data maintained by

the district namely the students identification numbers, names, addresses,

race, ethnicity, special needs status, and socioeconomic status, as measured

by participation in free and reduced lunch programs. Appendix A19.

During July and August 2008, Dr. Haber worked with the Administration to

create various redistricting plans, called Scenarios. Appendix A19.5

Over the course of the redistricting process, eight sets of Scenarios, of

which some had additional variations, were prepared by Dr. Haber, and

considered by the Administration.6

Of the Scenarios, the Administration

chose four Proposed Plans (1, 2, 3, and 3R) to present to the Board at public

5 As the District Court noted, Dr. Haber testified that he was never directedto create or change a redistricting scenario based on its diversity outcome.

Appendix A22.

6Toward the end of the redistricting process, Dr. Habers involvement had

decreased substantially. Appendix A52, n.23.



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Board meetings, where they were presented to both the Board and members

of the community, and after which public comments on each proposed plan

were solicited. Only Plan 3R was voted upon by the Board. Appendix

A19.7

4. Proposed Plan 1

On September 8, 2008, Proposed Plan 1 (Plan 1) was presented at a

public Board meeting. As part of this presentation (and also as part of the

subsequent presentations of Plans 2 and 3), the District presented a

PowerPoint slide concerning the projected diversity make-up (of which racial

diversity was a part, along with socioeconomic status, as measured by

participation in free and reduced price lunch programs, and special needs status)

of each high school in the event that the proposed plan was adopted by the

Board.8 Appendix A28; A2118, A2141, A2158.

7The Scenarios were not presented to, considered, or voted upon by, the

Board, nor did the Board Members at the meeting recall the initial Scenarios

that Dr. Haber presented to them. Accordingly, the District Court rightly

determined that the Scenarios were of minor importance to the determination

of whether race was a motivating factor in the redistricting process.

Appendix A20.

8Appellants mischaracterize the Districts intentions in presenting such

information, arguing that it prominently displayed its diverse high school

populations (Appellants Brief at 20, 22, and 25, and thereby suggesting

that merely providing this information to the public, which the public itself

had sought, was improper and/or that the District had intended to produce a

certain diversity outcome, neither of which is accurate.



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Plan 1 required no redistricting at the elementary school level, and

allowed students to remain with their cohorts from kindergarten through to

grade 8. Plan 1 changed the Districts middle school feeder patterns so that

Penn Wynne Elementary School students (which included not only North

Ardmore but all other Penn Wynne students) would attend Welsh Valley

Middle School (and then Harriton), and Penn Valley Elementary School

students would attend Bala Cynwyd Middle School (and then Lower

Merion). Appendix A2116, A2119. Students districted to attend Lower

Merion under Plan 1 retained the option of attending Harriton to enroll in its

IB program. In addition, Plan 1 had a grandfathering component, meaning

that all current high school students were given the option of remaining at

the high school they presently attended. Appendix A27. Plan 1 satisfied

each of the Non-Negotiables. It maintained all elementary school

boundaries and changed feeder patterns based on elementary schools moving

together to middle school as a community unit. Appendix A2119-A2120,

A2130.

During the public comment period following the presentation of Plan

1, the Board received criticisms of the plan, namely from the Penn Wynne



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school community.9

Questions and concerns were raised about middle

school assignments and the possibility of grandfathering eighth graders to

their planned high schools. Appendix A2131. Ultimately, the

Administration was not satisfied with Plan 1 primarily because it resulted in

excessive travel times for students, particularly those Penn Wynne students

who lived along the City Avenue corridor, the eastern-most boundary of the

District.10

Appendix A2132. Accordingly, the Administration and Dr.

Haber investigated alternate plans with an eye toward creating new ways to

expand Harritons projected student enrollment by drawing from students

who lived closer to Harriton, and the communitys expressed desire to see

that all children remained together for grades six through twelve. Appendix

A32; A2133.

9Appellants focus solely on comments raised by a few community members

that the proposed plans were based on race is an apparent attempt to make it

seem as though race-based concerns were the primary concerns expressed

and that the proposed plans were rejected because of such concerns. As

demonstrated herein, however, the record reveals other, race-neutral

concerns expressed by the community.

10During the summer, the District tested bus travel times under Proposed

Plan 1 to assess student impact. After the 2008 to 2009 school year began,

the District again tested the bus travel times, this time finding that bus travel

times were significantly longer than they had been during the summer.

Appendix A32, n. 14; A2131.



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5. Proposed Plan 2

On October 28, 2008, Proposed Plan 2 (Plan 2) was presented at a

public Board Meeting. Like Plan 1, Plan 2 set forth which high school each

student must attend, based on where each student lived in the District.

Under Plan 2, students districted to attend Lower Merion had the option of

attending Harriton to enroll in its IB program, and students living in the

official LMHS walk zone that were zoned to attend Harriton had the option

of attending Lower Merion for any reason. Appendix A2140.

Plan 2 addressed concerns expressed during the public comment

period that followed the presentation of Plan 1. Appendix A2131-A2134.

The foundations of the plan included: (1) keeping all children together from

grades six through twelve; (2) avoiding drawing students from communities

adjacent to City Avenue; and (3) avoiding, to the extent possible, reducing

the official walking area for middle and high school. Appendix A2133.

Plan 2 again provided numerically balanced enrollments at the high school

and middle school levels in order to ensure program equity as a driving

principle. Appendix A2134. In many cases, Plan 2 shortened high school

students bus times from those indicated and/or anticipated under Plan 1, as

students from the furthest corridor of the District were no longer affected,

thereby eliminating their commute to Harriton. Appendix A2134.



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Under Plan 2, Gladwyne Elementary School students continued to

attend Welsh Valley Middle School and Harriton; all Belmont Hills

Elementary School students were districted to Welsh Valley and Harriton;

the Penn Valley and Haverford areas of the Penn Valley Elementary feeder

area were districted to Welsh Valley and Harriton; part of the Penn Wynne

Elementary feeder area (including North Ardmore) was districted to Welsh

Valley and Harriton; and part of the Merion Elementary feeder area was

districted to Welsh Valley and Harriton. The remaining areas of the Penn

Valley, Merion, and Cynwyd Elementary feeder areas were districted to

Bala Cynwyd Middle School and Lower Merion. Consequently, under Plan

2 students were split after elementary school and then remained together for

middle and high school. Appendix A2136-A2137.11

During the subsequent public comments period, the community raised

various concerns about Plan 2, including that any plan should maximize

continuity in general, both K-12 and 6-12, that the plan split up communities

that were part of the same elementary school, and that the plan posed

11 The District Court found that Plan 2 kept students with their elementaryschool peers for middle school and separated them at high school but, in

fact, the record demonstrates that Plan 2 split students after elementary

school and then kept them together with their peers for middle school and

high school, providing continuity only for grades six through twelve.

Appendix A2136-A2137.



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difficulties for the transition to middle school, particularly since each middle

school would be working with students from four or five different

elementary schools. Appendix A2153.12

After the public presentation of Plan 2, the Board brought Dr.

Sokoloff and Ms. Petersen back to provide clarification as to what factors

were important to the community in redistricting. The Board understood the

primary community concern expressed during the Plan 2 comment period to

be that of educational continuity from kindergarten through high school,

meaning that students who attend the same kindergarten, continue through to

grade twelve, rather than having the group of students who attend one

elementary school split up between the Districts two middle schools, or

having the group of students who attend one middle school split up between

Harriton and Lower Merion High Schools. In addition to educational

continuity, the Board noted the following three primary concerns: (1)

distance and access, (2) walkability, and (3) community. Appendix A34;

A2150-A-2151.

In light of these concerns, the District extended the timeline for

redistricting in order to allow for fuller consideration of the communitys

12One group of students also made accusations that Proposed Plan 2 had a

disparate impact on AsianAmerican students by increasing Harritons

AsianAmerican student population by redistricting students in Shortridge.

Appendix A33-A34.



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input, and to allow the community to express concerns about Proposed Plan

3 and any modifications to that plan. The District also scheduled additional

public meetings to allow for further discussion concerning the priorities

moving forward. Appendix A34.

6. Proposed Plan 3

On November 24, 2008, Proposed Plan 3 (Plan 3) was presented at

a public Board Meeting. Consistent with the aim of maintaining educational

continuity from kindergarten through to grade twelve to the maximum extent

possible, Plan 3 employed a 3-1-1 Feeder Pattern whereby the students

that were districted for three elementary schools were assigned to attend a

single middle school and a single high school. The 3-1-1 plan enabled

students to transition more easily from elementary school, to middle school

and high school, because it permitted teachers at the middle and high schools

to become knowledgeable about what their students previously had learned

and to build upon that foundation. Appendix A38. Plan 3 also protected the

walk zones for the elementary and middle schools and followed the then-

current feeder patterns to middle school. Appendix A2154.

Under Proposed Plan 3, students districted for Cynwyd, Merion, and

Penn Wynne Elementary Schools were assigned to Bala Cynwyd Middle

School and Lower Merion, while students districted for Belmont Hills,



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Gladwyne, and Penn Valley Elementary Schools were assigned to Welsh

Valley Middle School and Harriton. The feeder patterns under Plan 3

assigned all students, irrespective of race or ethnicity. The only exception

Plan 3 made to the 3-1-1 Feeder Pattern was to create an abbreviated Lower

Merion High School walk zone that allowed students living within it the

choice of which high school to attend. The only other students who retained

a choice of high school under Plan 3 were students districted to attend Lower

Merion, but who wanted to attend Harriton to enroll in its IB program.

Appendix A2155-A2156.

Under Plan 3, students in the Affected Area, all other areas districted

for Penn Valley Elementary School (with the exception of those residing

within the abbreviated walk zone), and the Narberth Borough of Belmont

Hills, would no longer have a choice of high schools. Appendix A2155-

A2156.

During the public comment period following Plan 3, the Board

understood the main concern expressed by the community to be that of

walkability, because Plan 3 only allowed a limited number of students to

choose to walk to Lower Merion. Appendix A40. Other concerns included

overall student enrollment balance and the expansion of social networks at

the high school level. Appendix A2168. The Administration thus decided



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to maintain the official, historical LMHS walk zone to allow more students

who lived within walking distance of Lower Merion but who were

redistricted for Harriton under Plan 3 to have the choice of walking to Lower

Merion. The revised Plan 3 became Proposed Plan 3R. Appendix A40-A41.

7. Proposed Plan 3R

Proposed Plan 3R (Plan 3R) was presented at a public board

meeting on December 15, 2008. Like Plan 3, Plan 3R put in place a 3-1-1

feeder pattern under which students districted for Penn Valley Elementary

School, including the Affected Area, as well as students districted for

Gladwyne and Belmont Hills Elementary Schools, were districted to attend

Welsh Valley Middle School and Harriton. Appendix A41-A42.

Under Plan 3R, students could remain with their peers by following

assigned feeder patterns K-12, the official walk zones for elementary,

middle, and high school were maintained, current feeder patterns were

followed, and the plan allowed for a mixed13

high school population at each

school through the option area or choice programs. Appendix A2170.

Plan 3R restored the abbreviated walk zone in Plan 3 back to the

LMHS walk zones official, historical designations, which at times measures

13By mixed high school population, the District meant only that each

high school would have students from both Welsh Valley and Bala Cynwyd

Middle Schools, as opposed to students from only one of those middle

schools.



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one mile (not as the crow flies but as students walk to school) and which is

constrained by areas designated as hazardous. While the official LMHS

walk zone includes some areas districted for Penn Valley and Belmont Hills

Elementary Schools, it does not include and never has included the Affected

Area. Appendix A43; A514; A531; A536. To offset the restoration of the

official LMHS walk zone and better equalize overall student enrollment

numbers at Harriton and Lower Merion, Plan 3R also allowed all students

districted for Lower Merion, as well as students residing in the historic walk

zone, to have the choice of attending either Harriton or Lower Merion;

however, students in the Affected Area and other areas districted for

Harriton did not have a choice of high school. Appendix A2171-A2172.

8. Adoption and Implementation of Proposed Plan 3R

At a public board meeting on the evening of January 12, 2009, the

Board voted to adopt Plan 3R. This was the only formal action taken by the

Board respecting redistricting. Appendix A51. Six Board Members voted in

favor of the Plan, and only two Board Members voted against the plan. The

then-Board President could not vote because she was ill and in the hospital,

but prior to the vote, she sent over her thoughts to the Board, which were

read to the Board before the vote, indicating that she supported Plan 3R.

Appendix A46-A47.



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Of the seven Board Members who voted for, or in the case of the

then-Board President, who expressed support for, Plan 3R, many voted in

large part because they, like the community, believed that educational

continuity provided substantial pedagogical and psychological benefits.

None of the Board Members considered race in voting to adopt Plan 3R.

Appendix A55. One Board Member, who voted against the plan, did so for

valid pedagogical reasons unrelated to race, namely, that he did not believe

that educational continuity was in students best interest, but did believe that

mixing students via the feeder patterns added to students educational

experiences. Another Board Member, who also voted against the plan, did

not believe the Board was discriminating on the basis of race in considering

and adopting Plan 3R. She simply had other priorities. Appendix A48-50.

After Plan 3R went into effect, all students in Appellants

neighborhood a majority of whom are not African-American were

redistricted to Harriton. Appendix A53-A54. Moreover, under Plan 3R all

other neighborhoods that were not districted to Harriton before the adoption

of Plan 3R but which also, like the Affected Area, were zoned to one of the

three elementary schools that feed into Welsh Valley Middle School (i.e.,

Penn Valley, Belmont Hills, and Gladwyne) and did not fall within the

official LMHS walk zone, were districted to Harriton without choice of



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attending Lower Merion. Appendix A2176. Appellants ignore these crucial

facts. Twenty-one rising ninth grade students from the Affected Area were

redistricted to Harriton for the 2009-2010 school year, of which twelve were

AfricanAmerican. Appendix A1204-A1205. In addition, twenty-three

students were redistricted from the Narberth and Penn Valley geographic

areas districted for Penn Valley Elementary School, none of whom was

AfricanAmerican. Appendix A50.14

14Because all current high school students were grandfathered under Plan

3R, only incoming ninth grade students were affected by the redistricting in

the 2009-2010 school year.



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SUMMARY OF ARGUMENT

Appellants seek reversal of the District Courts ruling that the Lower

Merion School Districts redistricting plan did not discriminate against them

on the basis of their race. In doing so, they argue that they were redistricted

because of race, since it was known that the Affected Area has a significant

African-American population. They ignore the fact that they were not

singled out for redistricting and that students of all races in the Affected

Area, as well as students of all races who attend the same elementary and

middle schools as Appellants and who, like them, live outside the official

LMHS walk zone, were redistricted to Harriton. If this Court were to

provide Appellants with the result they desire, it would have to treat them

differently from similarly situated non-African-American students because

of their race. For the reasons set forth below, the District Courts ruling

should stand.

Appellants appeal from the District Courts ruling that the District did

not discriminate against them on the basis of race in violation of the Equal

Protection Clause of the Fourteenth Amendment, but the District Courts

ruling should only be reversed if legally erroneous. Although there is no

case directly on point, the District Court was appropriately guided by the

Supreme Courts decision in Parents Involved in Community Schools v.



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Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) (Seattle). To the extent that

some of the District Courts factual findings were, as the District

respectfully submits, unsupported by the record evidence, that does not alter

the result here, as the kinds of race-conscious action that the District Court

found are the kinds of action that Justice Kennedy (along with the four

dissenting Justices in Seattle) expressly sanctioned. Consequently,

regardless of whether strict scrutiny is applied, and regardless of whether the

District Courts factual findings are based on sufficient record evidence, the

District Courts ultimate legal conclusion that the District did not

discriminate against Appellants in violation of the Fourteenth Amendment

is correct.

The Districts Courts factual finding that the District considered

racial demographics in redistricting the Affected Area to Harriton does not

render Plan 3R unconstitutional. Any such race-conscious action on behalf

of the District is permissible and not subject to strict scrutiny. Seattle, 551

U.S. at 789 (Kennedy, J., concurring). Even assuming, as the District Court

did, that such conduct does require the application of strict scrutiny, the

District demonstrated sufficient, narrowly tailored compelling government



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interests.15

As the District Court concluded, considering racial

demographics alongside numerous raceneutral, valid educational

interestssimilar to the goal of achieving general diversity in higher

education admissions programs, with reference to multiple factors such as

race, gender, economic background, religion, and other individual

characteristicshas never been held unconstitutional (Appendix A66), and

there is no basis for this Court to find so now. Moreover, the District

showed that it would have adopted Plan 3R regardless of any racial

considerations, as there was no other redistricting plan that could have met

all of the Districts educational objectives.

Appellants contention that 42 U.S.C. 1981 and/or Title VI of the

Civil Rights Act provide them recourse, when the District Court concluded

that the District did not discriminate against them in violation of the Equal

Protection Clause of the Fourteenth Amendment, has been soundly rejected

on numerous occasions by the Supreme Court. Appellants do not provide,

nor can they provide, any sufficient reason why this Court should depart

from these well-established precedents.

15The District Court acknowledged that if Plan 3R survived strict scrutiny,

it certainly would meet lower standards of review, i.e., rational basis review

and intermediate scrutiny. Since the District court concluded that Plan 3R

survived strict scrutiny, inherent in that conclusion is that it would have

survived rational basis review or intermediate scrutiny.



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Finally, Appellants argue that the District Courts decision to allow

certain witnesses to testify is reversible error. The District Courts decision

to allow the testimony is subject to review by this Court under the abuse of

discretion standard, and Appellants have failed to identify any such abuse,

nor have they explained how they were prejudiced by this decision,

including how the admission of such testimony affected the outcome of the

case.



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ARGUMENT

A. Race Was Not An Impermissible Motivating Factor In

The Redistricting Process

The District Court concluded that the Affected Area was targeted

for redistricting in part because of its racial demographics, and that the

District sought some kind of racial parity between the two high schools.

However, the District respectfully submits that the District Court did not

provide a factual predicate for such findings, and that there is insufficient

record support for such findings.

The District Court seemed to base its factual finding that racial

considerations factored into the redistricting process on the following: (1) e-

mails and conversations discussing the inclusion of the Affected Area and

North Ardmore; (2) the candid elimination of two scenarios due to their

racial implications before they reached the Board, and the rejection by the

Administration of the sole redistricting scenario that did not include either

the Affected Area or North Ardmore; (3) testimony by Dr. Haber, the

Districts redistricting consultant, that race was considered throughout the

redistricting process; (4) the inclusion of African-American-specific data;

(5) decisions not to present certain information concerning diversity to the

public; and (6) the increase in African-American students at Harriton under

each of the proposed redistricting plans.



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These facts do not add up to race being a motivating factor and,

therefore, the District respectfully submits that this Courts decision should

not be made in reliance upon them. As a preliminary matter, the District

Court noted 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.

Appendix A54 (emphasis added). There is nothing inherently suspect about

such awareness. Indeed, record testimony from Dr. McGinley indicated that

race data was reviewed by him during the redistricting process for the

purpose of understanding the racial consequences or impact of any

redistricting plan. He believed that it was important for him as an educator

to know what the student population at any school was going to look like,

not only in terms of race, but also in terms of socioeconomic status and

special needs status, because there are educational and programmatic

consequences as a result. Appendix A609-A610, A635, A1184, 1188.

First, none of the e-mails relied upon by Appellants or referenced by

the District Court demonstrate that the Affected Area was redistricted to

Harriton because of racial considerations. The e-mails between Dr.

McGinley and Dr. Haber indicating that Dr. McGinley was mindful that

splitting Ardmore effectively redistricted a significant number of African-



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American students to Harriton, are simply that e-mails demonstrating Dr.

McGinleys sensitivity to the effects of redistricting on Ardmore. The fact

that Dr. McGinley and/or Dr. Haber also questioned whether the Seattle

decision might have implications on the Districts redistricting process, is

immaterial, as the District Court recognized. Appellants ignore the fact that

the District Court found that Dr. McGinley wanted to be informed as to how

to ensure that the redistricting process did not violate the law, and reflected a

good faith effort to examine an issue that had been brought to his attention.

Appendix A26.

Appellants also focus on Dr. Habers e-mail response to Dr. McGinley

in which he stated that he could create color-blind scenarios. While the

District Court assumed that this e-mail indicated that Dr. Haber considered

redistricting plans that split Ardmore to not be color-blind (Appendix

A26), in fact, Dr. Haber testified that by color-blind, he simply meant that

racial diversity information or data would not have appeared in the scenario

documents. Appendix A999.

In addition, the November 20, 2008 e-mail correspondence between

Dr. McGinley and Board Member Pliskin in which Dr. McGinley expressed

that he wish[ed] 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] but many fewer A[frican-American] kids at Harriton, and

Ms. Pliskins reply, in which she stated, what happened to no racial

isolation? (Appendix A2187), does not indicate that the District targeted

the Affected Area for redistricting. The tenor of these comments shows that

Dr. McGinley and Ms. Pliskin were considering whether there was a way to

avoid sending the Affected Area students to Harriton given that they did not

want to go there, but the answer to that question was no. The mere fact

that the Administration and/or Board Members attempted to find a way to

provide the Affected Area with the option to attend Lower Merion but

recognized that doing so would result in many more students overall at

Lower Merion, which violated the overarching goal of equalizing student

enrollment between the two high schools, and fewer African-American

students at Harriton, does not mean the Affected Area was chosen for

districting because it contained African-American students. Rather, Dr.

McGinley was simply acknowledging what the outcome would be if the

District extended choice to the Affected Area. It was common knowledge

throughout the District that Ardmore had a significant concentration of

African-American students, and the Districts Administration and Board

were sensitive to that fact. There is nothing nefarious or impermissible

about that.



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Second, Dr. Haber clarified on cross-examination that he considered

the community value of diversity in what he was doing because he had data

that allowed him to report on diversity outcomes and in that way only, race,

for him, was a factor. Appendix A1021. Consequently, in testifying that

race was considered throughout the redistricting process, Dr. Haber meant

only that race data was reviewed and considered during the process not

that the redistricting was based on race or was a motivating factor in the

process or the outcome.

Third, with the one exception of the small concentrated group of

Asian-American students residing within the Shortridge neighborhood,

African-American students were more concentrated geographically than

students of other races and, therefore, in terms of addressing the well-

documented achievement gap between African-American students and

students of other races, such a focus is both logical and necessary.

Fourth, while scenarios 1 and 4A, which were never submitted to the

Board for its consideration, were eliminated from consideration in part

because of their effects upon the racial make-up of the high schools (e.g.,

Scenario 1 essentially would have removed all African-American students

from Lower Merion High School, and Scenario 4A did not support the



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community value of diversity as much as other scenarios), Appellants fail to

make the important distinction between deciding to forego a particular

scenario because it would result in a certain racial outcome, and the Boards

affirmatively choosing to adopt a particular redistricting plan because it

would result in a particular racial outcome, which did not occur here.

Moreover, while Appellants contend that Scenarios 1 and 4A were the only

scenarios that kept the Affected Area and North Ardmore together for high

school, that is not surprising since the redistricting plans were based on

existing elementary and middle school feeder patterns, and keeping these

two areas together for high school would disturb the continuity of these

feeder patterns, since the Affected Area and North Ardmore attend different

elementary schools and different middle schools.16

Fifth, while the District Court concluded that Dr. McGinleys

decisions not to present or publish to the public certain information

references to racial diversity data provided to the Administration suggested

16Interestingly, Appellants offer no educational or pedagogical reasons for

attending high school with North Ardmore, their desired outcome. They

simply want to be with their non-school, neighborhood peers, with whomthey have never attended school. They have made no showing that this is a

valid educational purpose. Moreover, in such circumstances, if the Affected

Area and North Ardmore were districted to attend either Harriton together or

Lower Merion together, they would have been separated from their

elementary and middle school peers, which would have interfered with the

goal of educational continuity. Appendix A89-A90.



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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, the District respectfully submits that such a conclusion was

unwarranted, given the lack of testimony or other evidence supporting such

a conclusion, particularly in light of the fact that the District repeatedly

presented diversity information to the public in connection with its proposed

redistricting plans, which belies any suggestion that it sought to hide

information from the public.

Finally, the District Court seemed to place importance on statistical

evidence that the African-American student population at Harriton increased

significantly under each proposed plan, but such evidence is not statistically

probative and cannot be relied on as evidence of discrimination. See, e.g.,

Mazus v. Dept of Transp., 629 F.2d 870, 875 (3d Cir. 1980) (Statistical

comparisons, if they are to have any value, must be between comparable

groups and free from variables which would undermine the reasonableness

of discrimination inferences to be drawn.). The District, to achieve equal

student enrollments between Lower Merion and Harriton in accordance with

the CACs recommendation and the Non-Negotiables adopted by the Board,

had to reduce the 700-student disparity between the two high schools by



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approximately 50 percent. It is, therefore, not surprising that the number of

African-American students at Harriton would also increase, particularly

when one takes into account the geographic location of various student

populations, the concentration of African-Americans in Ardmore, and the

Affected Areas geographic proximity to Harriton compared to other

communities. As the District Court itself recognized, it is not uncommon

in major urban, as well as suburban, areas throughout the United States, that

some racial, ethnic, or religious groups are concentrated in particular

geographic areas. Appendix A53.17

Consequently, because Plan 3R

assigned geographic areas of students to the high schools rather than

selecting among individual students it logically follows that the number of

African-American students at Harriton would increase significantly if a

particular geographic area zoned to attend Harriton had a significant

population of African-American students, even apart from any consideration

of race. In fact, Appellants own statistical expert, Dr. Greenfield,

acknowledged that geographic locations of students of a particular race

could account for any observed statistics. A1063-A1064, A1067-A1068.

17If the District truly were using race figures or data to increase the African-

American student population at Harriton, it would have redistricted North

Ardmore to Harriton, given that North Ardmore had a greater number of

African-American students. Appendix A10, n.2.



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The purpose of statistical evidence in a case such as this is to determine

whether the observed outcome is due to chance or is more likely based on

something else, and the question then becomes whether that something

else is an impermissible factor, i.e., redistricting on the basis of race. In

order to be able to rely on statistics as probative of the issue of

discrimination, Appellants would have to show that those statistics were

significant. See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975).

They have this burden, and only after they satisfy this burden would the

District be obligated to explain why the statistics appear as they do. Id. at

425. Appellants, however, never met this burden, as their statistics, which

are the basis for the District Courts finding, do not raise an inference of

discrimination.

In focusing solely upon the above-enumerated factual findings,

Appellants ignore the fact that under Plan 3R, Appellants are treated the

same as every other student who attends Penn Valley Elementary School or

any of the other two elementary schools that feed into Welsh Valley Middle

School, regardless of race. Essentially, Appellants position is that they

should be exempted from the 3-1-1 feeder pattern established under Plan 3R

and should have been given the option of attending Lower Merion, even

though all students, of all races in their neighborhood are similarly districted



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to Harriton without choice, and even though all other areas outside the

official LMHS walk zone that are zoned to attend an elementary school that

feeds into Welsh Valley Middle School are similarly districted to Harriton.

For this Court to provide Appellants the redistricting outcome they desire, it

would have to treat Appellants as they wish because of their race.

In addition, the District has always maintained that it was the official

action of the Board in voting to adopt Plan 3R that is dispositive of this

matter. Significantly, after an exhaustive review of all of the evidence, the

District Court concluded that the Board Members did not adopt Plan 3R on

the basis of race. Appendix A55. The above-enumerated facts ultimately

are therefore immaterial, as each of them occurred prior to the Boards

adoption of Plan 3R.

Despite these factual findings, the District Court recognized that no

statute or Supreme Court case has found that mere consideration of a

neighborhoods racial demographics in assigning students to schools equates

to decisionmaking in which race has been a motivating factor. Appendix

A80, n.18. Nevertheless, assuming, arguendo, that there is sufficient record

support for the District Courts finding that race was a factor in the

redistricting process, the District considered race in an entirely permissible



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and constitutional manner, as the District Court found. The District never

argued that it did not review race data or that it never had any discussion of

the racial consequences of redistricting. Therefore, Appellants contention

that the District denied that race was a factor is grossly oversimplified, and

their assertion that the District is therefore precluded from arguing that it had

compelling reasons for considering race should be rejected. Rather, the

District has always maintained that to the extent that race was considered

during the redistricting process, it was done permissibly. The distinction

between race as a factor or consideration in the informal sense, and race as a

motivating factor in the legal sense cannot be overstated. Appellants

appear to argue that any and all consideration of race, including review of

race data or discussions of the racial implications of any redistricting plan,

constitute race being an impermissible motivating factor. The law,

however, does not support such a conclusion. In fact, the law supports such

a review, and the Districts performance is measured on its ability to

effectively address the achievement gap, which requires a review of racial

data. See No Child Left Behind Act, 20 U.S.C. 6311(b)(2)(C)(v)(II)

(requiring disaggregation of data regarding students from major racial and

ethnic groups, among other groups).



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Indeed, any consideration of race during the process was the very kind

of race-conscious action that Justice Kennedy addressed in Seattle and, as

Justice Kennedy observed, does not have to satisfy strict scrutiny to be found

permissible. Seattle, 551 U.S. at 789. See also Concerned Citizens for

Neighborhood Schools v. Pastel, No. 5:05-1070, 2007 WL 1220542, at *1

(N.D.N.Y. Apr. 24, 2007) (granting defendants motion for judgment on the

pleadings and denying plaintiffs motion to amend complaint, in case where

plaintiff asserted that elementary school students were selected by

defendants because of their race to be districted out of their academically

successful neighborhood school and placed into a more distant school that

was failing academically, noting that plaintiffs evidence that school board

reviewed information about redistricting plans effect on racial composition

of elementary schools during consideration of various alternative plans was

insufficient to establish impermissible use of race as motivating factor in

boards conduct).

In Seattle, Justice Kennedy parted with the plurality because he felt

that it implied an all-too-unyielding insistence that race cannot be a

factor in instances when, in [his] view, race may be taken into account .

551 U.S. at 787. (emphasis added) He recognized the following:



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In the administration of public schools by the state

and local authorities, it is permissible to consider

the racial makeup of schools and to adopt general

policies to encourage a diverse student body, one

aspect of which is its racial composition. If school

authorities are concerned that the student-body

compositions of certain schools interfere with the

objective of offering an equal educational

opportunity to all of their students, they are free

to devise race-conscious measures to address

the problem in a general way and without

treating each student in different fashion solely

on the basis of a systematic, individual typingby race.

Id. at 788-89 (emphasis added) (internal citations omitted).

Furthermore, and perhaps most importantly for purposes of this case,

Justice Kennedy explained:

School boards may pursue the goal of bringing

together students of diverse backgrounds and races

through other means, including strategic siteselection of new schools; drawing attendance

zones with general recognition of the

demographics of neighborhoods; allocating

resources for special programs; recruiting students

and faculty in a targeted fashion; and tracking

enrollments, performance, and other statistics

by race. These mechanisms are race conscious

but do not lead to different treatment based on

a classification that tells each student he or she

is to be defined by race, so it is unlikely any of

them would demand strict scrutiny to be foundpermissible.

Id. at 789 (emphasis added) (citing Bush v. Vera, 517 U.S. 952, 958 (1996)).



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Justice Kennedy further stated that executive and legislative branches,

which for generations now have considered these types of policies and

procedures, should be permitted to employ them with candor and with

confidence that a constitutional violation does not occur whenever a

decisionmaker considers the impact a given approach might have on

students of different races. Id. at 789 (emphasis added).

What the government is not permitted to do, Justice Kennedy wrote,

absent a showing of necessity not made [in Seattle], is to classify every

student on the basis of race and to assign each of them to schools based on

that classification, as crude measures of this sort threaten to reduce children

to racial chits valued and traded according to one schools supply and

anothers demand. Id at 798. Justice Kennedy cautioned, however, that the

Courts decision should not prevent school districts from continuing the

important work of bringing together students of different racial, ethnic, and

economic backgrounds. Id. What the District did in this case is consistent

with Justice Kennedys admonition against racial classifications and is also

consistent with his recognition of the important work of school districts in

bringing together students of different backgrounds.



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B. Assuming Strict Scrutiny Applies, The Districts

Redistricting Plan Withstands Such Review

The District Court assumed, on the record, that strict scrutiny applied

and therefore analyzed the redistricting process under that framework. The

District Court did not, however, as the Appellants would have this Court

believe, hold that strict scrutiny was mandated in this case. Rather,

interpreting the facts in the light most favorable to Appellants and giving

them every benefit of the doubt, it concluded that racial considerations were

a factor in the redistricting process and therefore applied strict scrutiny in

light of the broad holding in Pryor v. National Collegiate Athletic Assn, 288

F.3d 548 (3d Cir. 2002) that strict scrutiny applies to any policy motivated in

part by race.

Notably, however, the District Court expressed serious reservations

about applying strict scrutiny, noting that Seattle and other Supreme Court

precedents relied upon by the Appellants (Gratz v. Bollinger, 539 U.S. 244

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

Pena, 515 U.S. 200 (1995), City of Richmond v. J.A. Croson Co., 488 U.S.

469 (1998), and Johnson v. California, 543 U.S. 499 (2005) did not require

strict scrutiny in this case; that Seattles focus on applying strict scrutiny to

student assignment and placement programs, only involving individual racial

classifications, called into question whether Pryors pronouncement on the



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broad applicability of strict scrutiny to policies motivated in part on race

applies to student assignment plans that do not involve individual

classifications; and that language in Adarand (noting that that case

concern[ed] only classifications based explicitly on race, and presents none

of the additional difficulties posed by laws that, although facially race

neutral, result in racially disproportionate impact and are motivated by a

racially discriminatory purpose) indicated that the Supreme Court did not

intend for strict scrutiny to be applied to cases such as Village of Arlington

Heights v. Metro Housing Dev. Corp., 429 U.S. 252 (1977), Pryor, or this

case, in which the challenged policies do not expressly employ individual

racial classifications. Appendix A77-A78.

In short, the District Court applied a more stringent standard than was

necessary, exercising caution and providing Appellants every benefit of the

doubt. Pryor was the District Courts only basis for applying strict scrutiny

in this case, and now the Third Circuit has the opportunity to determine

whether strict scrutiny does, in fact, apply to this case. Given that Pryor

predates Seattle, it stands to reason that the most recent application of the

equal protection principle by the Supreme Court in the school context would

control and, therefore, Pryor is not controlling here and cannot be relied

upon to decide this case. Indeed, Seattle does not prohibit and, in fact,



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contains language that would permit, what the District Court concluded the

District did in this case.

Nevertheless, even after interpreting the facts in the light most

favorable to the Appellants and applying the most stringent form of review,

the District Court properly found that the Districts redistricting process was

constitutional.

1. Appellants Contention That The District Never

Identified A Compelling State Interest Related To Its

Purportedly Race-Based Decisionmaking Is Incorrect

The District Court recognized as compelling the Districts educational

interests of equalized high school populations, minimized student travel,

educational continuity, and walkability, but it similarly recognized as

compelling the Districts interests in addressing the achievement gap and

racial isolation. Even if the race-neutral educational interests identified by

the District and acknowledged by the District Court are not compelling

government reasons for purposes of the strict scrutiny analysis because they

are not tied to the Districts purported use of race, there was sufficient record

evidence for the District Court to conclude that the District took race into

account in connection with the compelling interests in addressing the

empirically measured achievement gap between AfricanAmerican students

and their peers of other racial and ethnic backgrounds in the District and in



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addressing racial isolation. This conduct is consistent with the No Child

Left Behind Act, which requires the District to understand the differences in

achievement levels among students of different races in order to be able to

address and eliminate the gap. At trial Dr. McGinley testified at length as to

the reasons why he, as an educator, would look at race in connection with

providing educational opportunities to all students, and testified concerning

a number of programs and initiatives that he and the District had

implemented to specifically combat the achievement gap and ameliorate

racial isolation. Appendix A1177-A1185. Appellants themselves

introduced evidence demonstrating that, to the extent race was taken into

account during redistricting, it was done so in connection with these

educational issues. A756-A758.

Appellants contention that the interests identified by the District (a)

do not fall within the categories of compelling state interests recognized by

the Supreme Court in situations where student school assignments are based

upon race, and (b) cannot be considered compelling when measured

against other interests recognized by the Supreme Court, should be rejected.

As an initial matter, and as the District Court found, this case does not

involve individual student assignments based upon race. Moreover, the

Supreme Courts recognition of certain interests as compelling does not



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preclude the existence of other compelling interests, and Appellants fail to

cite any authority that would indicate otherwise. Seattle did not rule out

diversity as a compelling government interest outside the higher education

context, and, indeed, according to Justice Kennedys concurring opinion in

Seattle, achieving a diverse student population and avoiding racial isolation

are compelling interests that a school district, in its discretion and expertise,

may pursue. 551 U.S. at 798. Indeed, a majority of justices Justice

Kennedy and the four dissenters, i.e., Justices Breyer, Stevens, Ginsberg,

and Souter concluded that such interests are compelling. See 551 U.S. at

788, 790, 864-66.

Indeed, while the Supreme Court placed limits on when and how

school districts can consider the race of individual students, it did not rule

out any and all consideration of race. At the time Seattle was decided,

diversity as a compelling government interest had been recognized by the

Court only in the higher education context. See Grutter, 539 U.S. 306.

While the Seattle Court very easily could have stated definitively that

diversity is not a compelling interest in the primary and/or secondary

education context, it did not do so. Instead, Justice Kennedys separate

concurrence strongly embracing Grutters holding that cultivating broad

diversity by using race as one of many factors is a compelling educational


lmsd appeal response 01-05-11

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