students doe vs. lmsd defendants summary judgement motion

8/14/2019 Students Doe vs. LMSD Defendants Summary Judgement Motion

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Student Doe 1 by and through his :

Parents/Guardians Does 1 and 2, :

et al. ::

Plaintiffs, :

:

: CIVIL ACTION NO. 09-2095

v. :

:

:

Lower Merion School District, :

:

Defendant. :

DEFENDANTS MEMORANDUM OF LAW IN SUPPORT OF

MOTION FOR SUMMARY JUDGMENT

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

Christina Joy F. Grese (PA I.D. No. 200727)

Allison N. Suflas (PA I.D. No. 204448)Morgan, Lewis & Bockius LLP

1701 Market Street

Philadelphia, PA 19103215-963-5028/5085/5752

Michael D. Kristofco, Esquire

Kenneth A. Roos, EsquireWISLER PEARLSTINE, LLP

484 Norristown Road

Blue Bell, PA 19422610-825-8400

Attorneys for Defendant

Dated: December 31, 2009

Case 2:09-cv-02095-MMB Document 32-8 Filed 12/31/2009 Page 1 of 36


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TABLE OF CONTENTS

Page

i

I. INTRODUCTION ............................................................................................................. 1

II. FACTUAL BACKGROUND............................................................................................ 2

A. The Redistricting Process ...................................................................................... 3

B. The Redistricting Plan at Issue Plan 3R.............................................................. 5

1. Because Students Doe Attend Penn Valley Elementary School andWelsh Valley Middle School and Live Outside the Official Lower

Merion High School Walk Zone, They Are Zoned, Along with All

Other Students in the Affected Area, to Attend Harriton High

School ........................................................................................................ 7

2. Students Does and All Other Students Residing Outside the

Official Walk Zone Have Always Been Provided Bus

Transportation to School and Continue to Receive BusTransportation Under Plan 3R ................................................................... 8

III. LEGAL ARGUMENT....................................................................................................... 8

A. The Standard of Review......................................................................................... 8

B. Plaintiffs Cannot Make Out a Case of Discrimination under the Equal

Protection Clause, Title VI, or 1981 ................................................................... 9

1. Plaintiffs Cannot Make Out A Claim for A Violation of The Equal

Protection Clause, Title VI, or 1981 Because They Cannot Makethe Requisite Showing of Intent to Discriminate..................................... 11

a. Plaintiffs Cannot Show That They Were TreatedDifferently, as Similarly Situated Students of Other Races

Have Been Affected by Plan 3R to the Same Degree.................. 13

b. Plaintiffs Cannot Show that the School Board Adopted Plan3R Because of Their Race............................................................ 14

c. Plaintiffs So-Called Evidence of Intentional

Discrimination Is Insufficient ...................................................... 16

(i) The District Is Required by Law to Maintain andReview Race Data for Each of Its Students..................... 17

(ii) Student Data, Including Race, SocioeconomicStatus, and Special Needs Status, Are Routinely

Collected for Enrollment Studies and RedistrictingProjects............................................................................. 18

(iii) The Race Data at Issue Were Compiled to Show the

Outcomes of Proposed Plans and Scenarios and

Were Presented in Conjunction with Other Data............. 19



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TABLE OF AUTHORITIES

(Continued)

Page

-ii-

(iv) The Board, in Taking the Official Action to AdoptPlan 3R, Did Not Consider Race ..................................... 20

d. There Is No Valid Statistical Evidence That Race Was a

Factor in the Redistricting Process .............................................. 22

e. If the District or Board Had Intended to Choose aRedistricting Plan that Would Diversify or Racially

Balance the High Schools, It Would Have Chosen aDifferent Plan............................................................................... 24

2. Plaintiffs Reliance on Parents Involved in Cmty. Schools v.

Seattle School District No. 1 Is Misplaced, as the Facts of that

Case Are Inapposite. ................................................................................ 25

a. Plan 3R Is Not Comparable to the Seattle Plan ........................... 25b. The District Did Not Consider Race in the Same Manner as

the School Districts in Seattle...................................................... 26

c. Rational Basis Scrutiny Is the Appropriate Standard of

Review ......................................................................................... 28

IV. CONCLUSION................................................................................................................ 31



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Page

iii

CASES

Alexander v. Sandoval, 532 U.S. 275, 280 (2001) ---------------------------------------------------------------------------- 10Andrews v. City of Phila., 895 F.2d 1469, 1478 (3d Cir. 1990) ---------------------------------------------------------10, 12

Antonelli v. New Jersey, 419 F.3d 267, 273-74 (3d Cir. 2005) ------------------------------------------------------------- 15

Armstrong v. Sch. Dist. of Phila., 597 F. Supp. 1309, 1312 (E.D. Pa. 1984)---------------------------------------------- 10

Barnes Found. v. Twp. of Lower Merion, 982 F. Supp. 970, 983 (E.D. Pa. 1997) --------------------------------------- 29

Bush v. Vero, 517 U.S. 952, 958 (1996) --------------------------------------------------------------------------------------- 29

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)------------------------------------------------------------------------ 9, 11

City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985)---------------------------------------- 13, 14, 29

City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194 (2003) ------------------------------------- 15

Concerned Citizens for Neighborhood Schools v. Pastel, No. 5:05-1070, 2007 WL 1220542, at *1 (N.D.N.Y. April

24, 2007) ------------------------------------------------------------------------------------------------------------------------ 21

Gen. Bldg. Contractors Assn v. Pa., 458 U.S. 375, 391 (1982)---------------------------------------------------------10, 11

Grutter v. Bollinger, 539 U.S. 306, 337 (2003)); 127 S.Ct. at 2789 ----------------------------------------------- 20, 27, 29

Hubicki v. ACF Indus., Inc., 484 F.2d 519, 522 (3d Cir 1973)----------------------------------------------------------------9

Hunt v. Cromartie, 526 U.S. 541, 546 (1999)---------------------------------------------------------------------------------- 28

Jefferson v. Wolfe, Civil Action No. 04-444, 2006 WL 1947721, at * 15 (W.D. Pa. July 11, 2006) ------------------ 12

Keenan v. City of Phila., 983 F.2d 459, 465 (3d Cir. 1992)) ------------------------------------------------------------10, 12

Keevan v. Smith, 100 F.3d 644, 648 (8th Cir. 1996) ------------------------------------------------------------------------- 12

Lavia v. Pennsylvania Dept. of Corrections, 224 F.3d 190, 199 (3d Cir. 2000)------------------------------------------- 30

Luz Maria Roberts v. GHS-Osteopathic, Inc., No. 96-5197, 1997 WL 338868, at *7 (E.D. Pa. June 19, 1997) ----- 11

Metro Broadcasting, Inc. v. F.C.C, 497 U.S. 547, 610 (1990)--------------------------------------------------------------- 20

Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) ------------------------------------------------------------------------------------ 13

Parents Involved in Community Schools v. Seattle Sch. Dist. No. 1, 55 U.S. 701, 127 S. Ct. 2738 (2007) ii, 2, 20, 25,

26, 27, 28, 29

Personnel Admr v. Feeney, 442 U.S. 256, 278-79 (1979)------------------------------------------------------------------- 15

Personnel Admin. of Mass. v. Feeney, 442 U.S. 256, 279 (1979) ------------------------------------------------------15, 29

Plyler v. Doe, 457 U.S. 202, 216 (1982) --------------------------------------------------------------------------------------- 28

Rotolo v. Borough of Charleroi, 532 F.2d 920, 922-23 (3d Cir. 1976)----------------------------------------------------- 10Shaw v. Reno, 509 U.S. 630, 642 (1993)--------------------------------------------------------------------------------------- 15

Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir. 2008)----------------------------------------------------------------- 13

Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-265 (1977) --------------------------24, 29

Washington v. Davis, 426 U.S. 229, 239 (1976) --------------------------------------------------------------------------20, 29

Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989)---------------------------------------------------- 11

Williams v. Pennsylvania State Police Bureau of Liquor Control Enforcement, 108 F. Supp.2d 460, 471 (E.D. Pa.

2000)-------------------------------------------------------------------------------------------------------------------- 10, 13, 14

STATUTES

1981 --------------------------------------------------------------------------------------------------------------------i, 10, 11, 12

1983 ---------------------------------------------------------------------------------------------------------------------- 10, 11, 12

601 -------------------------------------------------------------------------------------------------------------------------------- 10

20 U.S.C. 6311(b)(2)(C)(v)(II) ------------------------------------------------------------------------------------------------ 18

24 P.S. 13-1310(a) -------------------------------------------------------------------------------------------------------------- 30

24 P.S. 7-701; 13-1310-------------------------------------------------------------------------------------------------------- 30

42 U.S.C. 1981 --------------------------------------------------------------------------------------------------------- 10, 11, 12

42 U.S.C. 2000d----------------------------------------------------------------------------------------------------------------- 10



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(Continued)

Page

-iv-

RULES

Fed. R. Civ. P. 56(e) ----------------------------------------------------------------------------------------------------------------9



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1

I. INTRODUCTIONThis action involves nine District students (Students Doe) and their parents

(Parents/Guardians Doe) (collectively, Plaintiffs) who are unhappy with the outcome of the

Redistricting Plan adopted by the Lower Merion School District Board of School Directors

(Board) on January 12, 2009, which requires Students Doe to attend Harriton High School in

Lower Merion Township, rather than allowing them to choose between Harriton High School

and Lower Merion High School, as they previously were allowed to do. Only one (1) of the

Students Doe is of high-school age; the remaining students currently attend the first, third,

fourth, fifth, and sixth grades in the Lower Merion School District.

Notably, the Redistricting Plan, known as Plan 3R, does not require Students Doe to

attend a different elementary school than they previously attended, nor does it require them to

attend a different middle school. Moreover, the Redistricting Plan did not remove any current

high school students from the high school they previously attended. Most importantly, the

Redistricting Plan does not require Students Doe to attend one high school, while permitting

their neighbors1 to attend a different high school. Rather, under the Redistricting Plan, all

students who attended Penn Valley Elementary School and Welsh Valley Middle School, and

who live outside the official Lower Merion High School walk zone, are required to attend

Harriton High School.

Nevertheless, Plaintiffs brought this action alleging that the Redistricting Plan

discriminates against them on the basis of race. From the outset, Plaintiffs have attempted to

liken this case to Parents Involved in Community Schools v. Seattle Sch. Dist. No. 1, 55 U.S.

1 Neighbor in this context is used to describe all of the residents of the neighborhood defined by Plaintiffs in

their Complaint to include the area bounded by Athens Avenue, Wynnewood Road, County Line Road, and

Cricket Avenue in South Ardmore, Pennsylvania. (Compl., 8). This area is referred to in Defendants

Statement of Undisputed Material Facts and herein as the Affected Area.



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701, 127 S. Ct. 2738 (2007) (Seattle), yet Seattle has no bearing here, for the reasons set forth

herein based on the record and facts developed. Indeed, after months of discovery, including the

production of more than twenty thousand pages of documents by the District and the depositions

of twenty-five (25) witnesses, Plaintiffs cannot point to a single piece of evidence sufficient to

demonstrate that the Board, in adopting the Redistricting Plan, intentionally discriminated

against Plaintiffs because of their race.

II. FACTUAL BACKGROUND2The District operates two outstanding high schools, Lower Merion High School and

Harriton High School. In September 2009, Harriton High School was ranked by Philadelphia

magazine as the number one public high school in the region, and Lower Merion High School

was ranked as the number three public high school in the region. (See Article in September 2009

Issue ofPhiladelphia Magazine, at p. 69, attached hereto as Exhibit A).

In 1997, the District began a capital improvement program to modernize each of its ten

schools, including its high schools. As of 2004, Lower Merion High School and Harriton High

School, which the community as a whole recognized were outdated and required significant

physical plant investments, remained to be modernized to fulfill the Districts educational

requirements. (SMF, 22-23). To review all available options for addressing the Districts

high school situation, 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. (SMF, 24).

The CACs mission was to explore every alternative for modernizing the two District

high schools. (SMF, 25). It considered the following alternatives: a separate ninth grade

2The District incorporates by reference herein its Statement of Undisputed Material Facts, filed concurrently

with this Motion. Portions of the Statement of Undisputed Material Facts are cited herein as SMF, __.



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school; a single high school of 2,500 students; two high schools of unequal size (1,600/900

students; and two equal-size high schools of 1,250 students each. (SMF, 25).

In 2004, after considering all of the information before it, the CAC voted in support of a

plan to build two new high schools of equal size as the best alternative for serving the

educational needs of students and the community. (SMF, 29). Specifically, the CAC

concluded that building two new high schools of equal size was the best option for the following

reasons:

All students benefit from the smallest possible schools. The CAC heard from manyrespected sources that smaller schools provide a stronger sense of community, promote

better student/faculty interactions, and provide a better educational outcome for allstudents than large schools.

All students benefit from the most equitable access to programs and facilities. Inequitiesbetween the schools could be minimized. Both schools could offer the same range of

courses. Each would have its own sports, arts, and music programs, and its ownnewspaper, club, and other co-curricular activities.

Equal-size schools make best use of the existing school sites. The Lower Merion site isbadly overcrowded, with inadequate parking for faculty, staff, and visitors, and no

parking for students. This forces cars to seek parking in the surrounding residential areas.

Moving some students and faculty to the larger Harriton site, reconfigured to addresscurrent parking inadequacies there, will alleviate this problem.

(SMF, 30).

Pursuant to the CACs recommendations, plans were made to build a new Harriton High

School and a new Lower Merion High School to accommodate equal student populations. The

new Harriton High School opened for students on September 8, 2009, and the new Lower

Merion High School is scheduled to open for the 2010-2011 school year.

A. The Redistricting ProcessAs a result of the decision to build two new high schools of equal capacity, the District

was faced with the challenge of eliminating the 700 student disparity between Lower Merion and



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Harrition High Schools. (SMF, 31). Further complicating the process was the fact that the

majority of the Districts residents are concentrated along the City Avenue corridor. (SMF,

33).

The Districts actual redistricting decisions were formed throughout a three-phase

process. Phase I began in May, 2008, and centered on community engagement. (SMF, 38).

During Phase I, the District retained two outside consultants, Dr. Harris Sokoloff and Ms. Ellen

Petersen, to solicit input from the community and identify their values in the context of

redistricting. (SMF, 40). After facilitating a series of accessible and well-attended public

forums, as well as on-line surveys, Dr. Sokoloff and Ms. Petersen prepared a report summarizing

the values identified by the community. (SMF, 41). These community values included the

diversity, e.g., ethnic, social, economic, religious, and racial diversity, that exists within the

district. (SMF, 42). In addition, the community identified that it valued both academic and

extracurricular excellence, the preservation of existing zones for walkers, minimizing travel time

for non-walkers, and the maintenance of social networks. (SMF, 43).

In conjunction with the foregoing community values, the Board developed and

approved a set of guiding principles, known as Non-Negotiables,3 on or about April 21, 2008,

to direct the redistricting planning process:

The enrollment of the two high schools and two middle schools would be equalized; Elementary students would be assigned so that the schools are at or under the school

capacity;

The plan should not increase the number of buses required;

At a minimum, the class of 2010 would have the choice to either follow the redistrictingplan or stay at the high school of their previous year (i.e., implement the principle of

grandfathering); and

Redistricting decisions would be based upon current and expected future needs and notbased upon past redistricting outcomes or perceived past promises or agreements.

3These Non-Negotiables were referred to interchangeably throughout the redistricting process as Guiding

Principles.



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(SMF, 44-45). In April, 2008, the Board determined that these principles had to be included

and/or met in any of their subsequent redistricting recommendations. (SMF, 46).

In Phase II, which began in July 2008, the District engaged an outside consultant, Dr.

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

propose alternative redistricting plans in accordance with the Non-Negotiables and input

received during Phase I. (SMF, 48). Notably, Dr. Haber, who received a Doctorate in

Education (educational administration) from Teachers College, Columbia University, had vast

experience with school redistricting and more than 20 years of experience as an educator,

including ten years as a school principal. (SMF, 50). During Phase III, which began in

September 2008, the District presented its proposed plan(s) and variations thereon to the Board

and the community through a series of public presentations on the following dates: September 8,

2008; October 20, 2008; November 25, 2008; and December 15, 2008. (SMF, 61). Between

each scheduled presentation the District sought and reviewed feedback from the community.

(SMF, 62).

B. The Redistricting Plan at Issue Plan 3RBased upon its careful review of Plans 1, 2, and 3 and the public comments received

throughout the redistricting process, the District presented Plan 3R at a public Board meeting on

December 15, 2008.4 (SMF, 90). Plan 3R expanded the walk zone to its official, historical

designations, to address the communitys concerns regarding the smaller walk zone presented in

Plan 3. (SMF, 91). In addition, Plan 3R boosted the projected enrollment at Harriton High

4 Plan 1, 2, 3, and 3R are collectively referred to below as the Plans. It is important to note the distinctionbetween Plans 1, 2, and 3, which were presented to and publicly discussed by the Board; Plan 3R, which was

presented to, publicly deliberated upon, and ultimately adopted by the Board; and the scenarios, which were

prepared in the initial redistricting phase by the District and Dr. Haber and were never officially acted upon by

the Board.



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School by providing all students zoned for Lower Merion High School with the opportunity to

elect to attend Harriton. (SMF, 96). To further enhance Harritons appeal, the District

introduced new curricular opportunities at Harriton High School, including a dual enrollment

program with Penn State University in an effort to increase students selection of this school.

(SMF, 97). These changes were intended to attract new students in order to balance the

enrollment at the two schools as well as provide opportunities to preserve, and in some cases

expand, social networks established in middle school at the high school level. (SMF, 92-93,

95-97). In sum, Plan 3R contains the following highlights:

Students could elect to stay with peers by following assigned feeder patterns K-12;

The historic walk zones for elementary, middle and high schools were protected; The Districts current feeder patterns were followed, creating disruption for fewer

students;

A high school population at each school consisting of students from each middle schoolwas probable due to the option area and choice programs;

Grandfathering of all current high school students was maintained; and The community interest in maintaining elementary school attendance zones was

achieved.

(SMF 93).

Community feedback regarding Plan 3R was accepted via e-mail and regular mail

through January 6, 2009. (SMF, 100). On January 12, 2009, the Board approved Plan 3R by a

6-2 vote, at a public meeting. (SMF, 103). In making its official decision to adopt Plan 3R, the

Board did not consider and was not even provided data on race. (SMF, 99, 101, 104).

After the Board adopted Plan 3R, the District immediately began implementing the plan

in time for the beginning of the 2009-2010 school year and the opening of the new Harriton High

School. It provided transition services to parents and students and expended significant time,

effort, and money preparing for the increased number of students who would be attending

Harriton High School under Plan 3R. (SMF, 105).



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1. Because Students Doe Attend Penn Valley Elementary School andWelsh Valley Middle School and Live Outside the Official Lower

Merion High School Walk Zone, They Are Zoned, Along with All

Other Students in the Affected Area, to Attend Harriton High School

Plan 3R had a 3-1-1 component, which permitted students to elect to remain with their

peers by following assigned feeder patterns for grades K-12. (SMF, 92). As part of this 3-1-1

component, Plan 3R maintained the elementary and middle school attendance zones in existence

prior to its adoption. (SMF, 94). Consequently, under Plan 3R, students living in geographic

areas that were zoned to Belmont Hills, Gladwyne, and Penn Valley Elementary Schools and

Welsh Valley Middle School were districted to Harriton High School. Students living in

geographic areas that were zoned to Penn Wynne, Cynwyd, and Merion Elementary Schools and

Bala Cynwyd Middle School were districted to Lower Merion High School. (SMF, 95). The

only exception was that Penn Valley Elementary students who lived in the official, historic

Lower Merion High School walk zone,5 while zoned for Harriton High School, could choose

between attending Harriton High School and walking to Lower Merion High School. (Id.).6

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

School walk zone who attended Penn Valley Elementary School and Welsh Valley Middle

School to Harriton High School. (Id.). Consequently, because Students Doe attend Penn Valley

Elementary School and Welsh Valley Middle School, they are now districted to attend Harriton

5

Walk zone or walking zone is the term used by the District to designate the area within which it does notprovide bus transportation to students. The Boards policy is that it does not provide bus transportation to

secondary students residing within one mile of school; however, if a roadway on which a student must walk to

school has been certified as hazardous by PennDOT, the student is provided transportation regardless of how

close he or she resides to the school. (SMF, 103-104). In addition, because the one-mile distance could fall

in the middle of a block, rather than splitting a block in half the lines have been drawn at the nearest major

intersection resulting in a distance of slightly less than one mile in some cases. (SMF, 105).

6In addition, as previously noted, to increase the student enrollment level at Harriton High School, the District

maintained the option of District-wide choice for Harriton.. (SMF, 96).



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High School under Plan 3R. Because they live outside the official Lower Merion high School

walk zone, they do not have the option to attend Lower Merion High School. (Id.).

2. Students Does and All Other Students Residing Outside the OfficialWalk Zone Have Always Been Provided Bus Transportation to Schooland Continue to Receive Bus Transportation Under Plan 3R

The overwhelming majority of students in the District are bused to school. (SMF, 115).

In general, all students attending Harriton High School are bused because Harriton has no walk

zone. (SMF, 116). Similarly, all Lower Merion High School Students living outside the

official Lower Merion High School walk zone are provided bus transportation. (SMF, 117).

Students in the Affected Area are no exception, as they do not liveand never have lived

within the official Lower Merion High School walk zone. (SMF, 121-123). In fact, students

in the Affected Area have been provided bus transportation to high school, whether it be Lower

Merion High School or Harriton High School, for more than twenty years. (SMF, 122). In

addition, students in the Affected Area who attend Penn Valley Elementary School and Welsh

Valley Middle School currently are provided and historically have been provided bus

transportation to those schools. (SMF, 124).

Most recently, for the 2008-2009 school year, each of the high school students in the

Affected Areaboth those who chose to attend Harriton and those who chose to attend Lower

Merionwere provided bus transportation to high school. (SMF, 123). Notably, for the 2009-

2010 school year, high school students in the Affected Area who attend Harriton High School

have the second shortest bus ride of all students attending Harriton. (SMF, 125). Of the

twenty bus routes to Harriton, theirs is only 4.08 miles and 19 minutes long, whereas other

students ride the bus for up to 9.63 miles and 34 minutes. (Id.).



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III. LEGAL ARGUMENTA. The Standard of ReviewRule 56(c) of the Federal Rules of Civil Procedure mandates the entry of summary

judgment, after adequate time for discovery and upon motion, against a party who fails to make a

showing sufficient to establish the existence of an element essential to that partys case, and on

which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986). The purpose of the summary judgment rule is:

[T]o expeditiously determine cases without necessity for formal

trial where there is no substantial issue of fact ... If no factual

dispute exists ... [the case] should be disposed of by summaryjudgment rather than exposing the litigants to unnecessary delay,

work and expenses in going to trial when the trial judge would be

bound to direct a verdict in movants favor after all the evidence isadduced.

Hubicki v. ACF Indus., Inc., 484 F.2d 519, 522 (3d Cir 1973) (emphasis added, citation omitted).

In order to prove that a genuine issue of material fact exists, a plaintiff may not rest upon the

mere allegations or denials of the . . . pleadings, but must by affidavit or otherwise set forth

specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e).

Under Federal Rule of Civil Procedure 56, a defendant has no burden other than

pointing out to the district court [] that there is an absence of evidence to support [plaintiff's]

case. Celotex, 477 U.S. at 325. To survive summary judgment, a plaintiff must affirmatively

designate facts of record sufficient to establish every element upon which he bears the burden of

proof at trial. Celotex, 477 U.S. at 324. A mere scintilla of evidence in support of a plaintiff's

position is insufficient to defeat a properly supported motion for summary judgment. Id. Rather,

there must be sufficient evidence on which a factfinder could reasonably find for the plaintiff.



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Id. The failure to demonstrate probative evidence on any element is fatal and requires summary

judgment for the defendant. Id. at 322-23.

B. Plaintiffs Cannot Make Out a Case of Discrimination under the EqualProtection Clause, Title VI, or 1981

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

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

42 U.S.C. 1981. In order to prove discrimination under any of these three provisions, Plaintiffs

must show purposeful discrimination. See Williams v. Pennsylvania State Police Bureau of

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

Phila., 983 F.2d 459, 465 (3d Cir. 1992)); Andrews v. City of Phila., 895 F.2d 1469, 1478 (3d

Cir. 1990)) (The sine qua non of any successful Equal Protection claim under 1983 is

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

beyond dispute and no party disagrees that 601 prohibits only intentional discrimination.);

Gen. Bldg. Contractors Assn v. Pa., 458 U.S. 375, 391 (1982) (We conclude, therefore, that

1981, like the Equal Protection Clause, can be violated only by purposeful discrimination.).

In other words, to prevail on their claims of discrimination, Plaintiffs must show that they

were treated differently than other similarly situated students outside their protected class

because of their race. Keenan, 983 F.2d at 465. Plaintiffs are unable to do so. They have no

evidence of discrimination beyond their conclusory allegations and subjective beliefs, which

do not suffice to show intentional discrimination. See, e.g., Armstrong v. Sch. Dist. of Phila.,

597 F. Supp. 1309, 1312 (E.D. Pa. 1984) (citing Rotolo v. Borough of Charleroi, 532 F.2d 920,

922-23 (3d Cir. 1976)) (The criterion of purposeful or intentional discrimination cannot be

satisfied by vague and conclusory allegations in the complaint unsupported by affidavits,

depositions, or other admissible evidence dehors the complaint, stating the specific facts upon



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which claims of discrimination are based.); Luz Maria Roberts v. GHS-Osteopathic, Inc., No.

96-5197, 1997 WL 338868, at *7 (E.D. Pa. June 19, 1997) (stating that the plaintiffs general

feeling that the defendant discriminated against her is insufficient to discredit the defendant's

non-discriminatory reasons); Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir.

1989) (citing Celotex, 477 U.S. at 325 (1986)) (stating that the plaintiff must provide more than

unsupported assertions, conclusory allegations, or mere suspicions to survive summary

judgment).

Furthermore, the overwhelming evidence shows that the Boards objective in adopting

Plan 3R was to balance the overall student enrollment levels at the two new high schools, in

accordance with the CACs recommendations. Which individual students were districted to

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

School as a result of the adoption of Plan 3R was not an end the Board controlled. In fact, the

Board, in making its official decision to adopt Plan 3R, did not consider and was not even

provided data on race. (SMF, 99, 101, 104). In short, Plaintiffs have no evidence that the

Board intended to discriminate against them in adopting Plan 3R.

1. Plaintiffs Cannot Make Out A Claim for A Violation of The EqualProtection Clause, Title VI, or 1981 Because They Cannot Make the

Requisite Showing of Intent to Discriminate7

On their equal protection claim, asserted under 42 U.S.C. 1983, Plaintiffs contend that

Redistricting Plan Three Revised . . . discriminates against Students Doe on the basis of race by

7 Plaintiffs claims under 42 U.S.C. 1981 and Title VI are coextensive with their Equal Protection claim and,therefore, the same analysis applies to all three claims. See Sandoval, 532 U.S. at 581 (explaining that Title VI

proscribe[s] only those racial classifications that would violate the Equal Protection Clause) (internal

citations omitted); Gen. Bldg. Contractors Assn v. Pa., 458 U.S. 375, 391 (1982) (applying same analysis for

Equal Protection and 1981). Therefore, Plaintiffs claims under 42 U.S.C. 1981 and Title VI fail for the

same reasons as analyzed below consistent under the Equal Protection Clause. See also Yelverton v. Lehman,

No. CIV.A. 94-6114, 1996 WL 296551, at *7 (E.D. Pa. June 3, 1996) (noting that to establish claim under

1981, plaintiff must allege facts showing intent to discriminate on basis of race, and finding that because all of

plaintiffs equal protection claims were dismissed, he could not establish that defendants intended to

discriminate on basis of race).



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mandating that said students attend Harriton High School because they are minorities. (Compl.,

70). Plaintiffs make identical allegations under 1981 and Title VI. (Compl., 75, 82).8 In

order for Plaintiffs to demonstrate aprima facie case of race discrimination under the Equal

Protection Clause, they must establish not only that they were treated differently from

individuals similarly situated, but that the District acted with the intent to discriminate against

them. Keenan, 983 F.2d at 465. See also Andrews, 895 F.2d at 1478 (holding that [t]o bring a

successful claim under 42 U.S.C. 1983 for denial of equal protection, plaintiffs must prove the

existence of purposeful discrimination and, further, that the plaintiff must prove he received

different treatment from that received by other individuals similarly situated) (internal

quotations omitted); Jefferson v. Wolfe, Civil Action No. 04-444, 2006 WL 1947721, at * 15

(W.D. Pa. July 11, 2006) ([A]s a threshold matter, in order to establish an equal protection

violation, the plaintiff must ... demonstrate that [he has] been treated differently by a state actor

than others who are similarly situated simply because [he] belongs to a particular protected

class. ) (quoting Keevan v. Smith, 100 F.3d 644, 648 (8th Cir. 1996)). Plaintiffs cannot make

this requisite showing. They have no evidence that they were treated differently from similarly

situated students outside their protected class, nor do they have any evidence demonstrating

purposeful discrimination. Consequently, their race discrimination claims fail as a matter of law.

8 Plaintiffs also allege that Redistricting Plan Three also violates the Fourteenth Amendment to the United

States Constitution[, 42 U.S.C. 1981, and Title VI of the Civil Rights Act] in that it imposes an undue burden

on minority students. (Compl., 71 76, 83). To the extent that Plaintiffs intend to assert disparate impact

(as opposed to disparate treatment) claims of discrimination through these vague allegations, such claims

should be dismissed as a matter of law, as neither the Fourteenth Amendment to the United States Constitution,Section 1981, nor Title VI allows disparate impact claims. See, e.g., Crawford v. Marion County Election Bd.,

128 S. Ct. 1610, 1626 (holding that disparate impact claims are not available under the 14th Amendment's

Equal Protection clause); Sandoval, 532 U.S. at 281 (holding that private parties may not invoke Title VI

disparate impact regulations to obtain redress for disparate impact discrimination because Title VI itself

prohibits only intentional discrimination); S. Camden Citizens in Action v. N.J. Dept of Envtl. Protection, 274

F.3d 771, 783, 791 (3d Cir. 2001) (holding that that disparate impact regulations adopted pursuant to 602 of

Title VI do not create a right enforceable via 1983); Pryor v. National Collegiate Athletic Assn, 288 F.3d

548, 562-63 (3d Cir. 2002) (finding that both Section 1981 and Title VI provide a private cause of action for

intentional discrimination only).



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a. Plaintiffs Cannot Show That They Were Treated Differently,as Similarly Situated Students of Other Races Have Been

Affected by Plan 3R to the Same Degree

In providing that no State shall deny to any person within its jurisdiction the equal

protection of the laws, the Equal Protection Clause of the Fourteenth Amendment embodies

the general rule that all persons similarly situated should be treated alike. Williams v. Pa.

State Police, 108 F. Supp.2d 460, 471 (E.D. Pa. 2000) (quoting City of Cleburne v. Cleburne

Living Ctr., Inc., 473 U.S. 432, 439 (1985)). Thus, in order to assert a viable equal protection

claim, a plaintiff must first make a threshold showing that he was treated differently from others

who were similarly situated to him. See Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). Persons are

similarly situated under the equal protection clause when they are alike in all relevant aspects.

Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir. 2008) (citing Nordlinger v. Hahn, 505 U.S.

1, 10 (1992)).

Plaintiffs are unable to point to any similarly situated students outside their protected

class who were treated differently under Plan 3R. The District submits that for purposes of

Plaintiffs allegations, all persons similarly situated should encompass school-age children

who are registered to attend public school and who reside within the Affected Area, i.e., the

South Ardmore neighborhood described by Plaintiffs. (Compl., 8). The record evidence

demonstrates that all of the students who reside within the Affected Area were districted in Plan

3R to attend Harriton High School, irrespective of their race. Pursuant to Plan 3R, all of these

similarly situated children together attend Penn Valley Elementary School, Welsh Valley Middle

School, and, now, Harriton High School. As of September 2008, Plaintiffs neighborhood had

308 students in grades K through 12. Of these 308 students, 140 are African-American, and 140



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are white, 9 are Asian, and 18 are Hispanic.9

(SMF, 8). As these figures illustrate, similarly

situated African-American and white students are affected by Plan 3R to the same degree.10

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

geographic area, Plaintiffs claims still fail. For example, as of January 12, 2009, a total of 214

students in grades 5 through 8 lost the option to attend Lower Merion High School or Harriton

High School under Plan 3R, including 15 Asian students, 45 African-American students, nine

Hispanic students, one Indian student, and144 white students, which clearly demonstrates that

students of other races were similarly impacted by Plan 3R. (See January 12, 2009 E-mail from

Dr. McGinley to Board Members, attached hereto as Exhibit B, at LMSDLDA05280).

Furthermore, the population in North Narberth, which is also districted to Harriton High School

under Plan 3R, is overwhelmingly white, which again indicates that students of other races are

treated the same under Plan 3R as Plaintiffs. (See U.S. Census Bureau American FactFinder

Fact Sheet for Narberth Borough, Census Demographic Profile Highlights, attached hereto as

Exhibit C).

In sum, because similarly situated African-American and white students are being treated

alike under Plan 3R, Plaintiffs Equal Protection claim cannot stand.

9 Even if the number of similarly situated African-American and white students affected by Plan 3R was not as

evenly distributed, this Court still could not find Plan 3R unconstitutional. See Village of Arlington Heights v.

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

solely because it results in a racially disproportionate impact.)10

In addition, to the extent that Plaintiffs argue that they are being treated differently than white students who arepermitted under Plan 3R to attend either Harriton High School or Lower Merion High School because they live

within the official Lower Merion High School walk zone, this argument fails, as the two groups are not

similarly situated. The group of students who reside within the official Lower Merion High School walk zone

which includes students of all races are permitted to choose between the two high schools only because

they live within the walk zone, whereas Plaintiffs do not live within the official walk zone and never have.

Therefore, they are not similarly situated for purposes of the Equal Protection Clause, and any arguments to

that effect must be disregarded. See City of Cleburne, 473 U.S. at 439; Williams, 108 F. Supp.2d at 471.



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b. Plaintiffs Cannot Show that the School Board Adopted Plan3R Becauseof Their Race

The Equal Protection Clause of the Fourteenth Amendment prohibits states from

intentionally discriminating between individuals on the basis of race. Shaw v. Reno, 509 U.S.

630, 642 (1993). Proof of racially discriminatory intent is required to show a violation of the

Equal Protection Clause. City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S.

188, 194 (2003) (internal citations and quotations omitted). To prove intentional discrimination

by a facially neutral policy,11 a plaintiff must show that the relevant decisionmaker, here, the

Board, adopted the policy at issue because of, not merely in spite of, its adverse effects upon

an identifiable group. Antonelli v. New Jersey, 419 F.3d 267, 273-74 (3d Cir. 2005) (quoting

Personnel Admin. of Mass. v. Feeney, 442 U.S. 256, 279 (1979)). Discriminatory purpose, for

purposes of the Equal Protection Clause, implies more than intent as volition or intent as

awareness of consequences. Personnel Admr v. Feeney, 442 U.S. 256, 278-79 (1979). A

mere awareness of the consequences of an otherwise neutral policy will not suffice. Pryor, 288

F.3d at 562 (citing Feeney, 442 U.S. at 277-78)).

Plaintiffs have no evidence that the Board adopted Plan 3R because of its allegedly

adverse effects upon Plaintiffs, as African-American or minority students. Indeed, the evidence

shows, and Plaintiffs cannot rebut, that the Redistricting Plan was based on the ultimate goal of

evenly distributing the student population between Lower Merion and Harriton High Schools.

11

There can be no genuine dispute that Plan 3R is facially neutral, as the plan itself provides only that (1)students attending Gladwyne, Belmont Hills, and Penn Valley Elementary Schools are zoned to attend Welsh

Valley Middle School and then Harriton High School (with those Penn Valley students living in the Lower

Merion High School walk zone having the option to choose between Harriton High School and walking to

Lower Merion High School); (2) students attending Penn Wynne, Cynwyd, and Merion Elementary Schools

are zoned to attend Bala Cynwyd Middle School, and then Lower Merion High School; and (3) all students

zoned to Lower Merion High School have the option to elect to attend Harriton High School. (SMF, 95-96).

Plan 3R contains no racial classifications, nor does it even reference race. (Id.)



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At the same time, consistent with the themes elicited from the Community Values study

conducted by Dr. Sokoloff and Ms. Petersen, the Non-Negotiables, and the ongoing community

input, the District Administration chose to present Plan 3R to the Board for its consideration

because it provided the following:

Students could elect to stay with peers by following assigned feeder patterns K-12; The historic walk zones for elementary, middle and high schools were protected; The Districts current feeder patterns were followed, creating disruption for fewer

students;

A high school population at each school consisting of students from each middle schoolwas probable due to the option area and choice programs;

Grandfathering of all current high school students was maintained; and The community interest of maintaining elementary school attendance zones was

achieved.

(SMF, 93). Plaintiffs cannot show that it was because of their race and not the above

enumerated considerations that the Board adopted Plan 3R.

Notably, in developing Plan 3R (as well as the other plans and scenarios prior to Plan 3R)

the District did not select individual students for assignments to either high school. Rather,

under Plan 3R students were assigned to high school attendance zones based on the feeder

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

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

attended Penn Valley Elementary School and Welsh Valley Middle School to Harriton High

School (SMF, 95). There was no difference in the treatment of students in the Affected Area

based on race.

c. Plaintiffs So-Called Evidence of Intentional DiscriminationIs InsufficientAs indicated by the deposition testimony of Parents/Guardians Doe, Plaintiffs have no

evidence that the Board intentionally discriminated against them on the basis of race in adopting

Plan 3R. Indeed, beyond mere speculation about the Boards motivations in adopting Plan 3R



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and their subjective beliefs regarding the history of treatment of African-American students by

the District, which clearly fail to establish intentional discrimination, the only so-called

evidence that Parents/Guardians Doe pointed to as the basis for their belief that the Board

intentionally discriminated against them is the presentation of slides at the Board meetings

concerning the anticipated diversity make-up of the high school students under Plans 1, 2, and 3.

(See Exhibit 2 to SMF, Parent/Guardian Doe 1 Dep. at 26-27; Parent/Guardian Doe 2 Dep. at 29-

31; Parent/Guardian Doe 3 Dep. at 29-32; Parent/Guardian Doe 4 Dep. at 46-48;

Parent/Guardian Doe 5 Dep. at 30-32; Parent/Guardian Doe 6 Dep. at 24-25; Parent/Guardian

Doe 7 Dep. at 26-28); Parent/Guardian Doe 8 Dep. at 35-36, 55-56; Parent/Guardian Doe 9 Dep.

at 31-35; Parent/Guardian Doe 10 Dep. at 24-27).

In addition to these slides, the District anticipates that Plaintiffs Counsel will rely on the

fact that (1) Dr. Ross Haber, the outside consultant retained by the District to conduct an

enrollment projection study and assist in the redistricting process, requested student files from

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

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

classification, and socioeconomic status);and (2) Dr. Habergenerated documents in connection

with various redistricting scenarios that contained diversity data, including race data, and made

vague references to racial balance or imbalance. (SMF, 51, 57).

For the reasons set forth below, none of this so-called evidence supports Plaintiffs

conclusory allegations that they were intentionally discriminated against on the basis of race.

(i) The District Is Required by Law to Maintain andReview Race Data for Each of Its Students

Tracking student enrollments and performance data by race is hardly novel. Indeed, the

National Center for Education Statistics, a branch of the federal Department of Education,



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collects many data elements by race and ethnicity. See National Center for Education Statistics,

Common Core of Data, at http://nces.ed.gov/ccd. Moreover, the No Child Left Behind Act

requires school districts to collect and disaggregate student achievement data by race and

ethnicity for purposes of public reporting and accountability. 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).12

Consequently, there is nothing at all unusual or inappropriate about the

District maintaining and reviewing race data for its students. Indeed, as Board Member

DiBonaventuro testified, when the State does the PSSAs [Pennsylvania System of School

Assessment tests], they break information out that way. So the State thinks its important

information to know generally. (Exhibit 3 to SMF, DiBonaventuro Dep. at 103).

Moreover, in addition to fulfilling state and federal law requirements, the compilation and

review of diversity data, which includes special needs and socioeconomic status in addition to

race, serves valuable educational purposes, as it enables the District to anticipate what the

learning environment will be like at a particular school. (SMF, 52).

(ii) Student Data, Including Race, Socioeconomic Status,and Special Needs Status, Are Routinely Collected for

Enrollment Studies and Redistricting Projects

As the evidence shows, the District retained Dr. Ross Haber, an educational consultant, to

conduct an enrollment projection study and a redistricting project. (SMF, 48). As part of his

engagement, Dr. Haber requested student file data from the District, which included race and

ethnicity, as well as student name, address, current school attending, current grade level, special

needs status, and socioeconomic status. (SMF, 51). The inclusion of race or ethnicity data in

12Indeed, this data collection is authorized by the United States Department of Education under Title VI of the

Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation

Act of 1973, and the Department of Education Organization Act.



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this request was by no means unusual or inappropriate. Indeed, Dr. Haber typically includes

such information in his standard requests to his clients when starting enrollment and redistricting

projects such as those he conducted for the District, and he computes these figures as a regular

part of his professional practice. (Id.).

(iii) The Race Data at Issue Were Compiled to Show theOutcomesof Proposed Plans and Scenarios and Were

Presented in Conjunction with Other Data

The evidence shows that race data were not used as inputs to create any of the

redistricting scenarios or Plans actually presented to the Board. Indeed, Dr. Haber was never

given a guideline as to either a desirable, or, in the alternative, an unacceptable, racial

distribution, nor was he ever told to, nor did he, ever tweak or change a plan based upon the

diversity outcome. (SMF, 56). Rather, in generating documents that contained data regarding

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

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

the proposed scenarios that had been generated. Similarly, the race figures included in the

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

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

would be, given that the community had expressed an interest in preserving diversity in the

Redistricting Plan.13

Moreover, the figures addressing racial composition of the high school students under the

various redistricting scenarios and Plans 1 through 3 were not viewed alone, in a vacuum. For

example, in keeping with the Community Values, race data were included along with figures

regarding socioeconomic status and special needs status, as the diversity interest recognized by

13 See Exhibit 18 to SMF, McGinley Dep. at 75, 98-100, 103-104, 146, 203-204. Indeed, as District

Superintendent, Christopher McGinley, noted, the community value of diversity is what led the District to look

at diversity figures during the redistricting process. (Id. at 203-204).



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the community was not solely racial, but also included ethnic, socioeconomic, religious, and

special needs diversity. (SMF, 42, 51). See Seattle, 127 S. Ct. at 2753 (explaining diversity

interest in Grutter was not focused on race alone but encompassed all factors that may

contribute to student body diversity) (quoting Grutter v. Bollinger, 539 U.S. 306, 337 (2003));

127 S.Ct. at 2789 (J. Kennedy, concurring) (Diversity, depending on its meaning and definition,

is a compelling educational goal a school district may pursue.).

Furthermore, while Plaintiffs have narrowed the issue to African-American students

versus white students, that is not how the race data were compiled or presented. Rather, the data

were broken into categories defined as Asian, Black, Hispanic, American Indian/Pacific Islander,

and White. (See Exhibit 5 to SMF, at Students Doe 00294; Exhibit 10 to SMF, at Students Doe

00047, and Exhibit 25 to SMF, at Students Doe 00220). Compare with Seattle, 127 S. Ct. at

2754 (noting defendants looked at race exclusively in nonwhite/white and black/other

terms, making it hard to understand how the plans could be diverse) (citing Metro Broadcasting,

Inc. v. F.C.C, 497 U.S. 547, 610 (1990). At no point did the District consider African-American

students to the exclusion of students of any other race, nor did the District consider race data to

the exclusion of any of the other factors that encompass diversity.

(iv) The Board, in Taking the Official Action to Adopt Plan3R, Did Not Consider Race

Most importantly, the evidence shows that race was not a motivating factor in the

Boards decision to adopt Plan 3R. See Washington v. Davis, 426 U.S. 229, 239 (1976) (The

central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of

official conduct discriminating on the basis of race.) (emphasis added).14 Indeed, data

14 Pursuant to the Districts Policy Handbook, Local Board Procedures and Goals 005 School Board

Organization and Responsibility provides that Board policy is those actions, agreed to by formal majority

vote of Board of School Directors, that establish goals and objectives for the school district. (See Local



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concerning race were never even presented to the Board for Plan 3R. (SMF, 99). Nor did the

Board members take race into account in voting for or against Plan 3R. (SMF, 104). In fact,

the Board members were unaware as to whether Plan 3R even had an impact on the racial

diversity distribution at Harriton High School. (SMF, 102). Indeed, the Board members had

no discussions among themselves or with the Administration regarding racial diversity or racial

diversity in connection with either Plan 3 or Plan 3R. (SMF, 101).15

In sum, the District acknowledges that among the volumes of information and data

generated during the redistricting process, data concerning diversity issues including racial

diversity were provided. However, the Administrations and/or the Boards general awareness

of the effectof various redistricting scenarios or plans on racial and ethnic composition does not

constitute evidence that race was a motivating factor in selecting particular geographical areas to

be placed in different attendance zones. See, e.g., Concerned Citizens for Neighborhood Schools

v. Pastel, No. 5:05-1070, 2007 WL 1220542, at *1 (N.D.N.Y. April 24, 2007) (denying

plaintiffs motion for preliminary injunction, 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, finding that plaintiffs evidence that school board reviewed information

about redistricting plans effect on racial composition of elementary schools during consideration

Board Procedures and Goals 005 School Board Organization and Responsibility, at p. 3, attached hereto as

Exhibit D). Therefore, the official action at issue here is the Boards adoption, by 6-2 vote, of Plan 3R. The

initial investigatory and drafting process by the Administration and even the open meeting structure set up by

the Board was not Board policy and therefore should not be considered as part of the official conduct by thisCourt.

15As noted above, the District anticipates that Plaintiffs will focus on the fact that Dr. Haber created several

documents listing the diversity outcomes for potential redistricting scenarios that he had generated and

referencing the terms racial balance or imbalance. (SMF, 57). Significantly, however, when Plaintiffs

Counsel placed these documents before the Board members during their depositions, each of them testified that

they had never seen the documents or did not remember ever seeing the documents. (Id.). Consequently, these

documents have no bearing on the official action at issue here, i.e., the Boards adoption of Plan 3R, and are

insufficient to demonstrate discriminatory intent.



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of various alternative plans was insufficient to establish impermissible use of race as motivating

factor in boards conduct). Plainly, the Districts decision to keep track of the many factors that

encompass the diversity of its student population cannot, in and of itself, be considered as

sufficient evidence of discriminatory motive and/or intent.

d. There Is No Valid Statistical Evidence That Race Was a Factorin the Redistricting Process

Plaintiffs have no valid statistical evidence that race was a factor in the redistricting

process. While they presented an expert report from Dr. Pavel Greenfield concluding that the

probability that race was not a factor in the redistricting process was exceedingly small (Pavel

Greenfield Report, attached hereto as Exhibit E), Dr. Greenfields own statements in his report,

and the analysis provided by Dr. Bernard Siskin in rebuttal, conclusively demonstrate that Dr.

Greenfields data and his own analysis are inconsistent with a conclusion that race was a factor.

For example, Dr. Greenfields analysis assumed that if race were not a factor in the

decision process, on average, African-American and non-African-American students initially

districted to Lower Merion High School would have the same probability of being redistricted to

Harriton High School. As demonstrated in the expert report of Dr. Bernard Siskin, this

assumption ignores the actual decision-making process utilized by the District in this matter.

(July 24, 2009 Report of Dr. Bernard Siskin, attached hereto as Exhibit F, at 9). Here, any

redistricting plan presented to the Board first had to adhere to the Non-Negotiables. (Id. at

11). Second, individual students were not assigned to a specific school. Instead, all students in a

given geographic area were assigned to a specific set of schools, with those in a defined walking

area around Lower Merion High School given a choice of high schools and all students assigned



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

(Id. at 12).16

Notably, even Dr. Greenfield himself recognized the inappropriateness of this

assumption, stating that this is quite a strong and blanket assumption: complete randomness is

not possible to achieve due to many practical considerations (such as the need to arrange

efficient bus routes) and other basic realities, such as the fact that ethnic groups may tend to

cluster geographically. For example, if some African-American students were chosen to be

redistricted by a procedure completely random with regard to ethnicity, those students neighbors

(who are more likely to be African-American than another randomly selected group of students)

would also be redistricted out of practical considerations. (Exhibit E at p. 2) (emphasis added).

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

Plan 1 to present to the Board, Dr. Siskin compared the number of African-American students

who would be redistricted to Harriton in all the alternative scenarios created by Dr. Haber and

the Administration, as the total universe of possible plans to be considered for recommendation

to the Board. In 15 of the 32 alternative scenarios, at least as many African-American students

were redistricted to Harriton High School as were redistricted to Harriton High School in Plan 1;

thus, the likelihood of choosing an initial plan that would yield as many African American

students redistricted to Harriton High School purely by chance was 15 out of 32, or 46.9 percent.

(Exhibit F at 18). Consequently, the selection of Plan 1 from among all the alternative plans

considered clearly was not inconsistent with a decision making process which did not consider

race as a factor in selecting a plan. (Id.). Moreover, as Dr. Siskin noted, Plans 2 and 3 actually

16 Since the racial distribution of students within the Lower Merion School District is not uniform, these

conditions will result in an unintended correlation of outcomes by race. That is, one would expect that

African-Americans and whites will not have an equal probability of being affected by the redistricting, even

under a decision process that never considers race, because of the clusters of race by geographic area. (Exhibit

F at 13).



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lowered the number of African American students redistricted to Harriton, and Plan 3R, because

it differed from Plan 3 only by increasing the Lower Merion High School walk zone distance

back to the official walk zone parameters, could only further lowerthe number of African-

American students expected to be redistricted to Harriton High School. (Id. at 17).

In sum, there is no valid statistical evidence that race was a factor in the selection of a

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

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

other factors strongly correlated with race. (Exhibit E at p. 4). While he ultimately concludes

that the disproportionate effect on the African American students is statistically evident (Id. at

p. 4), the fact remains that, in order to prevail on their claims, Plaintiffs must show intentional

discrimination on the basis of race, not mere disproportionate impact. See Village of Arlington

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

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

e. If the District or Board Had Intended to Choose aRedistricting Plan that Would Diversify or Racially Balance

the High Schools, It Would Have Chosen a Different Plan

Plaintiffs allegations of intentional race discrimination are further belied by the fact that,

had the Board intended to choose a redistricting plan that would diversity or racially balance

the two high schools, as Plaintiffs appear to claim, it would have chosen a different plan. By

way of example, several of the scenarios created by Dr. Haber, and several of the Plans

considered by the Board, would have achieved a more equalized enrollment of African-

American students at the two high schools compared to the Redistricting Plan that was ultimately

adopted. (See Exhibit F, at 17-18).

Moreover, the neighborhood immediately adjacent to Plaintiffs (bounded by East

Lancaster Avenue, County Line Road, Cricket Avenue, and just below College Lane), is



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districted to attend Lower Merion High School, and yet it includes a higher percentage of

African-American students than does Plaintiffs neighborhood. For example, as of September

2008, there were 167 students living in this area, 107 of whom are African American, 32 of

whom are white, 12 of whom are Asian, and 16 of whom are Hispanic. (See Exhibit 1 to SMF,

Declaration of Michael Kelly, at 14). Yet because these students historically attended Penn

Wynne Elementary School and Bala Cynwyd Middle School, they were zoned to attend Lower

Merion High School under Plan 3R.

2. Plaintiffs Reliance on Parents Involved in Cmty. Schools v. SeattleSch. Dist. No. 1Is Misplaced, as the Facts of that Case Are Inapposite

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

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

demonstrates that the Districts Redistricting Plan is factually inapposite to the student

assignment plans at issue in Seattle, and that Plan 3R is not unconstitutional under the Supreme

Courts holding in that case. Consequently, Plaintiffs reliance on Seattle in support of their race

discrimination claim is misplaced.

a. Plan 3R Is Not Comparable to the Seattle PlanIn Seattle, the Court was asked whether a public school that has not operated legally

segregated schools . . . may choose to classify students by race and rely upon that classification

in making school assignments. 127 S. Ct. at 2746. The Seattle district adopted a plan to assign

students among its ten schools, which allowed incoming ninth graders to choose among its high

schools. Id. at 2747. In the event that too many children selected the same school, the Seattle

district employed a series of tiebreakers, the first of which was having an older sibling who

attended the school, and the second of which depended on the racial composition of the school

and the race of the individual student. Id. at 2747. In so doing, the Seattle district classified each



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of the students as either white or nonwhite. Id. If the particular school chosen by a student was

not within 10 percentage points of the Seattle districts overall 41% - white, 59% -nonwhite

racial balance, it was considered integration positive, which triggered the Seattle districts use

of the tiebreaker, admitting students on a basis that would bring the school into racial balance.

Id. In short, once any of the ten schools were out of sync with the Seattle districts overall racial

composition, the district looked to a students race on an individual, student-by-student basis to

admit or deny his or her election to attend a given high school.

In contrast to the Seattle plan, where the district selected individual students for

assignments and where selection hinged on a numeric value set by the Seattle districts overall

racial composition, the Districts Redistricting Plan did not select individual students for

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

divide its high school students by number, not by race, in an attempt to redistribute a previously

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

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

These feeder patterns assigned all students outside the official, historic Lower Merion High

School Walk Zone who attended Penn Valley Elementary School and Welsh Valley Middle

School to Harriton High School, regardless of race.

b. The District Did Not Consider Race in the Same Manner as theSchool Districts in Seattle

Furthermore, the District did not consider race in the same manner that the Seattle district

did. Here, the evidence shows that data concerning race included were broken down into the

following categories: Asian, Black, Hispanic, American Indian/Pacific Islander, and White.

Compare with Seattle, 127 S. Ct. at 2754 (Even when it comes to race, the plans here employ

only a limited notion of diversity, viewing race exclusively in white/nonwhite terms . . . It is hard



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to understand how a plan that could allow these results can be viewed as being concerned with

achieving enrollment that is broadly diverse.); Id. at 2790-91 ([The Seattle district] has failed

to explain why, in a district composed of a diversity of races, with fewer than half of the students

classified as white, it has employed the crude racial categories of white and non-white as the

basis for its assignment decisions.). Equally important is that race was never considered alone

and instead was viewed as just one component of a larger theme of diversity that included

socioeconomic and special needs components. See Seattle, 127 S. Ct. at 2753 (explaining

diversity interest in Grutter was not focused on race alone but encompassed all factors that may

contribute to student body diversity) (quoting Grutter, 539 U.S. 306, 337 (2003)).

Consistent with Justice Kennedys concurring opinion, the District did nothing more than

what it was permitted to do. The District was cognizant of what the racial composition of the

student populations would be under Plans 1, 2, and 3 in order to anticipate what the learning

environment would be like. (SMF, 52; supra note 13). See Seattle, 127 S. Ct. at 2792 (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.). It also viewed numbers to enable it to estimate the

number of students on free and reduced price lunches, and the number of children with IEPs that

would require accommodations. (SMF, 53). See Seattle, 127 S. Ct. at 2793 (School boards

may pursue the goal of bringing together students of diverse backgrounds and races through

other means, including . . . allocating resources for special programs).

The evidence also shows that the District is, in fact, required to compile and review

statistics based on race under the federal No Child Left Behind Act and its Pennsylvania state

counterpart. See Seattle, 127 S. Ct. at 2793 (explaining school boards may also pursue the goal



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of bringing together students of diverse backgrounds and races by tracking enrollments,

performance, and other statistics by race.) Additionally, the evidence shows that in presenting

data concerning the projected racial composition, as well as the special needs status and

socioeconomic status of the students under proposed Plans 1, 2, 3, the District merely was

recognizing the communitys interest of maintaining diversity in its schools, assuming it was

able to do so under a plan that would achieve its objective of equalizing the high school

enrollment. See id. at 2793 (stating that school boards may also pursue diversity by drawing

attendance zones with general recognition of the demographics of neighborhoods).

Thus, consistent with the majority holding and Justice Kennedys concurring opinion in

Seattle, Plan 3R does not violate Plaintiffs constitutional rights.

c. Rational Basis Scrutiny Is the Appropriate Standard of ReviewUnlike the student assignment plans at issue in Seattle, Plan 3R is facially neutral.

Consequently, it is subject to strict scrutiny review only if it can be proved that the law was

motivated by a racial purpose or object, or is unexplainable on grounds other than race. Hunt

v. Cromartie, 526 U.S. 541, 546 (1999). As explained above, Plaintiffs have no evidence that the

Boards adoption of Plan 3R was motivated by race. Consequently, Plan 3R is subject to simple

rational basis equal protection review. Id.

State and local governments generally possess the initial discretion to determine what in

fact is different and what is the same, and enjoy substantial latitude to establish

classifications that roughly approximate the nature of the problem perceived, that accommodate

competing concerns both public and private, and that account for limitations on the practical

ability of the State to remedy every ill. Plyler v. Doe, 457 U.S. 202, 216 (1982). [T]he

general rule is that state legislation or other official action is presumed to be valid and will be

sustained if the classification drawn by the statute is rationally related to a legitimate state



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interest. Barnes Found. v. Twp. of Lower Merion, 982 F. Supp. 970, 983 (E.D. Pa. 1997)

(quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985)) (citing F.C.C. v.

Beach Commcns, Inc., 508 U.S. 307, 313 (1993) (In areas of social or economic policy, a

statutory classification that neither proceeds along suspect lines nor infringes fundamental

constitutional rights must be upheld against equal protection challenge if any reasonably

conceivable state of facts that could provide a rational basis for the classification.)). Thus,

[w]hen official action taken pursuant to a facially neutral law is challenged under the Equal

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

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

strict scrutiny. Barnes, 982 F. Supp. at 983. In order to make this showing, the plaintiff must

demonstrate that the defendant acted with the purpose or intent to discriminate on the basis of

race. Id. See also Washington v. Davis, 426 U.S. 229, 239-42 (1976); Village of Arlington

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

U.S. 256, 272 (1979).

The rational basis test is appropriate here, where race was not a factor in the Boards

decision to adopt Plan 3R. As Justice Kennedy explained in his concurring opinion in Seattle,

the act of a school board drawing attendance zones with general recognition of the

demographics of neighborhoods, while race conscious, does not lead to different treatment

based on a classification defining by race, and therefore does not require strict scrutiny. 127 S.

Ct. at 2792 (citing Bush v. Vero, 517 U.S. 952, 958 (1996) (plurality opinion)).17

17 Even assuming one could find that the Redistricting Plan classified individual students on the basis of race

(which the evidence shows it did not) and is, therefore, subject to strict scrutiny, the District respectfully

submits that the United States Supreme Court would not find Plan 3R unconstitutional under its holding set

forth in Seattle. While the plurality opinion stated that its holding in Grutter, which found a compelling

interest in student body diversity in the context of higher education, did not govern the situation in Seattle,

Seattle, 127 S. Ct. at 2753 (quoting Grutter, 539 U.S. at 328), this does not preclude Grutters application to the



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The District can easily satisfy the rational basis test, as its Redistricting Plan clearly is

rationally related to a legitimate state interest. See, e.g., Lavia v. Pennsylvania Dept. of

Corrections, 224 F.3d 190, 199 (3d Cir. 2000) (Under rational basis scrutiny, state action will

survive as long as it merely furthers a legitimate state interest.). Indeed, Plaintiffs do not

dispute that redistricting is well within the Districts authority. The Pennsylvania Public School

Code of 1949 imposes on school districts and, specifically, their operating boards, mandatory

duties and discretionary powers in order to maintain and support a thorough and effective system

of public schools in accordance with Article X, Section I of the Pennsylvania Constitution. To

this end, the board of school directors for each district is explicitly vested with the duty to

provide the grounds and buildings upon which to accommodate their students, as well as the

attendant duty to assign pupils to those various schools. See24 P.S. 7-701; 13-1310. In

particular, Section 13-1310(a) provides, in pertinent part, that:

The board of school directors of every school district [ ] shall, for

the purposes of designating the schools to be attended by theseveral pupils in the district [ ] subdivide the district [ ] in such

manner that all the pupils in the district shall be assigned to, and

reasonably accommodated in, one of the public schools in thedistrict [ ]. The board of school directors may...classify and assign

the pupils in the district to any school or schools therein as it may

deem best, in order to properly educate them.

24 P.S. 13-1310(a). As made clear by this statute, it is well within a local school boards

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

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

present case. The Court explained that Grutter articulated key limitations on its holdings: (1) defining a

specific type of broad-based diversity; and (2) noting the unique context of higher education. Seattle, 127 S.

Ct. at 2754. However, a reading of Justice Kennedys concurring opinion indicates a clear belief on his behalf

that Grutter did not apply because of Seattles narrow view of diversity. Seattle 127 S. Ct. at 2790-91. Justice

Kennedy explicitly stated that Grutter can apply to lower education, stating that [d]iversity, . . . is a

compelling educational goal a school district may pursue. Seattle, 127 S. Ct. at 2789. This statement, while

made in Justice Kennedys concurring opinion, is significant because Justice Kennedys vote is the one that

created the majority.



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redistricting the Districts high school students so as to achieve equalized student enrollments at

its two new high schools. Plan 3R was rationally related to that interest, as it fulfilled the

objective of equalizing student enrollments in accordance with the Boards Non-Negotiables and

in awareness of the Community Values. Consequently, the Redistricting Plan withstands rational

basis review and is constitutional.

IV. CONCLUSIONFor the foregoing reasons, Plaintiffs claims of race discrimination are legally

insufficient, and the Court should grant summary judgment in Defendants favor, dismissing the

Complaint in its entirety with prejudice.

Respectfully submitted,

/s/ Judith E. Harris

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

Christina Joy F. Grese (PA I.D. No. 200727)Allison N. Suflas (PA I.D. No. 204448)

Morgan, Lewis & Bockius LLP1701 Market Street

Philadelphia, PA 19103

215-963-5028/5085/5752

Michael D. Kristofco, Esquire

Kenneth A. Roos, EsquireWISLER PEARLSTINE, LLP

484 Norristown Road

Blue Bell, PA 19422

610-825-8400

Dated: December 31, 2009 Attorneys for Defendant

Lower Merion School Distri

students doe vs. lmsd defendants summary judgement motion

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