LMSD Appeal Response 01-05-11

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

TABLE OF CONTENTS
Page
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 .................................................. 8
F. The Redistricting Process........................................................ 11
1. Non–Negotiables .......................................................... 11
2. Community Values ....................................................... 12
3. Redistricting Planning Stages ....................................... 13
4. Proposed Plan 1 ............................................................ 15
5. Proposed Plan 2 ............................................................ 18
6. Proposed Plan 3 ............................................................ 21
7. 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 District’s
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
-i-
TABLE OF CONTENTS
(continued)
Page
2. Appellants’ Contention That The District’s

Actions Were Not Narrowly Tailored And/Or
Limited 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 District’s 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
ii
TABLE OF AUTHORITIES
Page
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
iii
(continued)
Page
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
iv
(continued)
Page
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
v
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 District’s 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?
1
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 District’s (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 District’s 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
1
The 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 District
does 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.
2
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 lives
within the official LMHS walk zone. As Mr. Andre, the District’s
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.
3
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 Board’s 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,
4
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
2
The District’s elementary schools include kindergarten through grade five,
its middle schools include grades six through eight, and its high schools
include grades nine through twelve.
5
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 District’s Superintendent
since June 2008. The Board Members voted to hire Dr. McGinley in part
because he was a “true educator” who was “student–focused” 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
3
According 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. Research
on the achievement gap across the nation, as well as specifically in the
District, shows that African–American and Latino students as a whole
perform significantly poorer than their White and Asian–American peers.
“Combating the achievement gap,” therefore, refers to valid and appropriate
educational policies aimed at minimizing and eradicating the achievement
gap. Appendix A7.
6
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 District’s 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,
7
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 African–American 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 District’s 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 District’s 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 District’s 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
8
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
9
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 CAC’s 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
700–student disparity between the two high schools. Appendix A13. It was
clear that merely having voluntary magnet programs to attract students to
10
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 CAC’s 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 District’s 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. Non–Negotiables
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
11
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 Non–Negotiables did not reference race or
minority student assignments, and each stated a valid, educational purpose
that was legitimate and non–discriminatory. 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.
12
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 non–walkers should be
minimized;” (4) “Children learn best in environments when they are
comfortable—socially as well as physically”; and (5) “explore and cultivate
whatever diversity–ethnic, social, economic, religious and racial—there is in
Lower Merion.” The Board voted to accept Dr. Sokoloff and Ms. Petersen’s
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
4
Dr. McGinley and several Board Members testified that the Community
Values, unlike the Non–Negotiables, were never mandates that had to be met
by proposed redistricting plans, but merely informed the redistricting
process, 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 community’s input and could not
preclude discussions of race. There is nothing inappropriate about having a
Community Value respecting diversity. Appendix A18.
13
A19. Dr. Haber was selected to be the District’s 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 directed
to create or change a redistricting scenario based on its diversity outcome.
Appendix A22.
6
Toward the end of the redistricting process, Dr. Haber’s involvement had
decreased substantially. Appendix A52, n.23.
14
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.
7
The 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.
8
Appellants mischaracterize the District’s 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.
15
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 District’s 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
16
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 Harriton’s projected student enrollment by drawing from students
who lived closer to Harriton, and the community’s expressed desire to see
that all children remained together for grades six through twelve. Appendix
A32; A2133.
9
Appellants 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.
10
During 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.
17
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.
18
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 elementary
school 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.
19
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 District’s 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 community’s
12
One group of students also made accusations that Proposed Plan 2 had a
disparate impact on Asian–American students by increasing Harriton’s
Asian–American student population by redistricting students in Shortridge.
Appendix A33-A34.
20
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,
21
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
22
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 zone’s official, historical designations, which at times measures
13
By “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.
23
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.
24
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
25
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
African–American. 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
African–American. Appendix A50.14
14
Because 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.
26
SUMMARY OF ARGUMENT
Appellants seek reversal of the District Court’s ruling that the Lower
Merion School District’s 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 Court’s ruling
should stand.
Appellants appeal from the District Court’s 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 Court’s
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 Court’s decision in Parents Involved in Community Schools v.
27
Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) (“Seattle”). To the extent that
some of the District Court’s 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 Court’s factual findings are based on sufficient record evidence, the
District Court’s ultimate legal conclusion – that the District did not
discriminate against Appellants in violation of the Fourteenth Amendment –
is correct.
The District’s Court’s 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
28
interests.15 As the District Court concluded, “considering racial
demographics alongside numerous race–neutral, valid educational
interests—similar 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
characteristics—has 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 District’s 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.
15
The 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.
29
Finally, Appellants argue that the District Court’s decision to allow
certain witnesses to testify is reversible error. The District Court’s 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.
30
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
District’s 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.
31
These facts do not add up to race being a “motivating factor” and,
therefore, the District respectfully submits that this Court’s 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-
32
American students to Harriton, are simply that – e-mails demonstrating Dr.
McGinley’s 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 District’s 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. Haber’s 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
33
[Lower Merion] but many fewer A[frican-American] kids at Harriton,” and
Ms. Pliskin’s 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 District’s Administration and Board
were sensitive to that fact. There is nothing nefarious or impermissible
about that.
34
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
35
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 Board’s
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. McGinley’s
decisions not to present or publish to the public certain information
references to racial diversity data provided to the Administration suggested
16
Interestingly, 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 whom
they 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.
36
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. Dep’t 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 CAC’s recommendation and the Non-Negotiables adopted by the Board,
had to reduce the 700-student disparity between the two high schools by
37
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 Area’s 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.
17
If 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.
38
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 Court’s 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
39
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 Board’s
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
neighborhood’s 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 Court’s finding that race was a factor in the
redistricting process, the District considered race in an entirely permissible
40
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 District’s 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).
41
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 plaintiff’s 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 plaintiff’s evidence that school board
reviewed information about redistricting plan’s effect on racial composition
of elementary schools during consideration of various alternative plans was
insufficient to establish impermissible use of race as motivating factor in
board’s conduct).
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:
42
In the administration of public schools by the state

and local authorities, it is permissible to consider
the racial makeup of schools and to adopt general
policies to encourage a diverse student body, one
aspect of which is its racial composition. If school
authorities are concerned that the student-body
compositions of certain schools interfere with the
objective of offering an equal educational
opportunity to all of their students, they are free
to devise race-conscious measures to address
the problem in a general way and without
treating each student in different fashion solely
on the basis of a systematic, individual typing
by race.
Id. at 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 site
selection of new schools; drawing attendance
zones with general recognition of the
demographics of neighborhoods; allocating
resources for special programs; recruiting students
and faculty in a targeted fashion; and tracking
enrollments, performance, and other statistics
by race. These mechanisms are race conscious
but do not lead to different treatment based on
a classification that tells each student he or she
is to be defined by race, so it is unlikely any of
them would demand strict scrutiny to be found
permissible.
Id. at 789 (emphasis added) (citing Bush v. Vera, 517 U.S. 952, 958 (1996)).
43
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 school’s supply and
another’s demand.” Id at 798. Justice Kennedy cautioned, however, that the
Court’s 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 Kennedy’s 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.
44
B. Assuming Strict Scrutiny Applies, The District’s

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 Ass’n, 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 Seattle’s focus on applying strict scrutiny to
student assignment and placement programs, only involving individual racial
classifications, called into question whether Pryor’s pronouncement on the
45
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 Court’s 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,
46
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 District’s 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 District’s educational
interests of equalized high school populations, minimized student travel,
educational continuity, and walkability, but it similarly recognized as
compelling the District’s 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 District’s 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 African–American students
and their peers of other racial and ethnic backgrounds in the District and in
47
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 Court’s recognition of certain interests as “compelling” does not
48
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 Kennedy’s 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 Kennedy’s separate
concurrence strongly embracing Grutter’s holding that cultivating broad
diversity by using race as one of many factors is a compelling educational
49
goal even in secondary education received the support of the four dissenters
and, in this sense, five justices have expressed support for school districts’
consideration of broad diversity in assigning students to high school as a
compelling state interest.
Furthermore, contrary to Appellants’ argument, the District was not
precluded from arguing both that race was not a factor in the redistricting
decision and that, to the extent that it did consider race during the process, it
did so to achieve a compelling state interest. The District has maintained
throughout this case that race was not a factor in determining which of the
District’s two high schools students would attend, but that to the extent that
it did consider race in the redistricting process, it did so in an appropriate
and legally permissible manner. This position does not preclude it from
arguing, and is entirely consistent with its position, that Plan 3R and any
consideration of race in connection with Plan 3R were narrowly tailored to
achieve compelling government interests. Appellants fail to proffer any
applicable case law holding otherwise. The one case they do cite in
purported support of their argument that these defenses are mutually
exclusive, G-I Holdings, Inc. v. Reliance Insurance Co., 586 F.3d 247 (3d
Cir. 2009), is inapposite, as it did not involve an equal protection analysis, or
any claim of discrimination, for that matter. Instead, in G-I Holdings the
50
defendant first claimed that a particular policy did not apply to the matter at
issue but later attempted to invoke a provision of the same policy. The court
ultimately found that judicial estoppel did not apply, and noted that in the
Third Circuit, judicial estoppel is generally not appropriate where the
defending party did not convince the District Court to accept its earlier
position. 586 F.3d at 262. Here, the District Court found that race was one
of several motivating factors in the Administration’s consideration and
formulation of redistricting plans; therefore, judicial estoppel does not
operate to preclude the District from arguing that Plan 3R and any
consideration of race in redistricting were narrowly tailored to achieve
compelling government interests.18
18
Appellants boldly assert that “[i]t would appear as a matter of law that in
those instances when a court has found that a defendant used race as a factor
in decision-making after an Arlington Heights/Pryor review, as in this case,
then said defendant will always lose a strict scrutiny challenge.” Appellants’
Brief at 49. Appellants cite no authority in support of this statement, and the
Supreme Court’s precedents contradict it. Even under Pryor, a defendant
can prevail after race has been found to have been a factor by showing that
its action was narrowly tailored to a compelling state interest, see Pryor, 288
F.3d at 562, and under Arlington Heights a defendant can prevail even after
it has been found to have been motivated in part by a racially discriminatory
purpose where it establishes that the same decision would have resulted even
had the impermissible purpose not been considered. 429 U.S. at 271 n.21.
51
2. Appellants’ Contention That The District’s Actions

Were Not Narrowly Tailored And/Or Limited In
Duration Is Without Merit
Appellants contend that there is no evidence in the trial record
regarding how many African-American students needed to be redistricted to
achieve the District’s goals or whether this number were in fact moved or
scheduled to be moved in future. The District, however, was not required to
demonstrate a specific number of students that needed to be moved or that
were in fact moved to show that its redistricting plan is constitutional. The
undisputed testimony of Dr. McGinley, Dr. Jarvis, and Dr. Lyles was that
because racial isolation is not formulaic, any effective method of combating
racial isolation similarly must not be formulaic or “by the numbers.” Far
from indicating, as Appellants contend, that the redistricting plan adopted by
the District cannot be narrowly tailored to the interests of combating the
achievement gap and racial isolation, this fact instead demonstrates the
appropriateness of the District’s plan.
Appellants similarly contend that there is no evidence that once the
African-American student population at both high schools “becomes equal,”
there will be more African-American children taking classes with their non-
African-American peers. The District Court, however, never found that the
African-American student populations would at some point be equal at both
52
high schools. The District Court instead relied on evidence that the District
implemented initiatives such as clustering to address racial isolation and
achievement gap issues by, for example, encouraging African-American
students to take advanced-level courses and not select courses below their
individual abilities. On that basis, the District Court found legitimate
educational reasons for having African-American students at both high
schools. Plan 3R, in addition to fulfilling the District’s goals of equalizing
the overall student populations at the two high schools, minimizing travel
time and transportation costs, fostering educational continuity K-12, and
fostering walkability, achieved that.
In addition, Appellants’ contention that there is no record evidence as
to whether race-neutral programs, including targeted magnet programs, were
seriously considered simply is wrong. Appellants ignore the undisputed
testimony of Dr. McGinley and Board Members that magnet programs were,
in fact, considered, but because additional magnet programs at Harriton
would interfere with the legitimate educational goal of having equal
curricular opportunities at both high schools, and because the use of magnet
programs in the past failed to result in a significant number of students
choosing to attend Harriton instead of Lower Merion, the District
determined, in its discretion, that the implementation of additional magnet
53
programs at Harriton would not achieve its redistricting goals. Appendix
A1170-1174, A1176. Moreover, as the District Court noted, “narrow
tailoring does not require exhaustion of every conceivable race neutral
alternative.” A92 (quoting Grutter, 539 U.S. at 339).
Finally, the mere fact that Plan 3R may not have a definitive end point
does not render it insufficiently narrowly tailored. First, the language of
Grutter wherein Justice O”Connor referenced duration, on which Plaintiffs
rely, appears to be mere dicta. Second, Justice O’Connor went on to state
that “[e]nshrining a permanent justification for racial preferences would
offend this fundamental equal protection principle.” Grutter, 539 U.S. at
341-42. These concerns simply do not exist here, where there is no ongoing
government use of racial preferences or racial classifications. Here, to the
extent that there was any use of race, that use ended once Plan 3R was
implemented – there is no ongoing use of race. Moreover, there is no
constitutional requirement that a plan or policy involving considerations of
race have a sunset provision, particularly where the government is not
selecting or excluding people, because of their race. Here, the District did
not group together African-American students on one hand and non-African-
American students on the other and decide, for example, that it was going to
assign a specific number of African-American students to one school and a
54
specific number of non-African American students to another school. The
District did not provide or deny students a high school education because of
their race. All District students are being providing an exceptional high
school education. The only question is where students are going to receive
that education – at Lower Merion or Harriton – which the District, through
its Board, has the authority to determine.
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
The District Court concluded that, “[a]ssuming that the District’s
consideration of the Affected Area’s racial demographics in assigning
students from that neighborhood to Harriton is considered evidence that race
was a motivating factor during redistricting, the appropriate inquiry for this
Court is whether Plan 3R would have been adopted regardless of the racial
composition of the Affected Area.” Appendix A80 (emphasis added).
Notably, this so-called “inevitability defense” only becomes a relevant
defense if strict scrutiny applies and, therefore, if strict scrutiny does not
apply here, Appellants’ argument that the District waived and/or did not
prove such a defense is immaterial.
The District asserted from the very beginning and throughout the case
that the Affected Area was districted to Harriton because of geography and
55
existing feeder patterns. Students living in the Affected Area attend Penn
Valley Elementary School and Welsh Valley Middle School and reside
outside the official LMHS walk zone; consequently, under Plan 3R, which
utilized a 3-1-1 feeder pattern, they were districted to Harriton, along with
all other students, regardless of race, who similarly attend Penn Valley and
Welsh Valley and live outside the official LMHS walk zone. Consequently,
Appellants clearly were on notice of the District’s position that even apart
from any consideration of race, the Affected Area would attend Harriton
under Plan 3R.
Appellants also were on notice of the District’s position that the
Administration developed and presented, and the Board ultimately adopted,
Plan 3R because it simultaneously fulfilled the overarching objective of
redistricting, i.e., to equalize the overall student enrollments between the two
high schools, and because it fulfilled the K-12 continuity goal the Board
recognized as a priority in mid-November 2008, and restored walkability for
those students living within the official LMHS walk zone, another priority
identified by the Board.
The mere fact that the District did not label these facts and arguments
as an “affirmative defense” does not alter the fact that they were sufficiently
alleged, and that Appellants were on notice of them. Appellants cannot
56
demonstrate any prejudice to them resulting from the District’s failure to
assert this as an affirmative defense in its answer or other pleading. The
Third Circuit has held “that the failure to assert an affirmative defense in an
answer will not result in waiver if the opposing party has notice of the
defense sufficient to avoid prejudice.” Woodson v. Scott Paper Co., 109
F.3d 913, 925 n. 9 (3d Cir. 1997) (citing Charpentier v. Godsil, 937 F.2d
859, 864 (3d Cir. 1991) (“It has been held that a defendant does not waive an
affirmative defense if he raised the issue at a pragmatically sufficient time,
and [the plaintiff] was not prejudiced in its ability to respond.”) (internal
quotations omitted).
Appellants’ hyperbolic contentions that the District cannot prove the
inevitability defense because the “deck was racially ‘stacked’ in this case
from the outset” and in light of the District Court’s finding that the Affected
Area had been “targeted” in part because of its racial composition are
without merit and should be rejected. Appellants appear to be arguing that
one can never prove the inevitability defense when race has been found to be
a factor in decisionmaking. This argument is absurd, as it would mean that
the inevitability defense is unavailable in such cases, which runs counter to
the very Supreme Court precedent enunciating the availability of an
inevitability defense in cases where race has been found to be a factor.
57
Moreover, the District Court’s finding that the District “targeted” the
Appellants’ neighborhood for redistricting to Harriton High School in part
because of its racial demographics does not negate the fact that the District
would have chosen Plan 3R, and the Affected Area would have been
districted to attend Harriton High School under Plan 3R, even in the absence
of such “targeting.”
In addition, Appellants’ contention that the District cannot prove
inevitability because of the “reduction” in the official Lower Merion High
School walk zone is both factually disingenuous and legally incorrect. As
Appellants are well aware, they have never lived within the official Lower
Merion High School walk zone, which has been in place in its current form
at least since the 1990s. Appendix A43, n.18. The District Court properly
found that there was no evidence in the record to support the Appellants’
assertion that not expanding the official LMHS walk zone to include the
Affected Area, even though part of the Affected Area is within one mile of
Lower Merion High School, was somehow discriminatory. Appendix A43-
44. It is Appellants’ burden to show that race motivated that decision, which
they failed to do. See, e.g., Davis v. Bandemer, 478 U.S. 109, 173 n.10
(1986) (“Our cases have construed the Equal Protection Clause to require
proof of intentional discrimination, placing the burden on plaintiffs to trace
58
the invidious quality of a law claimed to be racially discriminatory to a
racially discriminatory purpose.”) (citations, internal quotations, and ellipses
omitted).
Similarly, the Appellants’ fixation on the elimination of potential
scenarios because of racial considerations fails to show that Plan 3R was not
inevitable. What matters is what plan was adopted by the Board, not what
scenarios or plans were discarded. Consequently, the argument that Dr.
Haber unilaterally discarded potential scenarios because of racial
considerations is immaterial. Appellants’ argument that information was
withheld from the public is likewise immaterial. What is material is that
once the Board recognized that K-12 educational continuity, which required
a 3-1-1 feeder pattern, was a priority, and that it should maintain walkability
(as defined in relation to those students residing within the official LMHS
walk zone), Plan 3R was the only plan that could meet these requirements.
Moreover, as the District Court acknowledged, there was no evidence that
another neighborhood in the District could have been redistricted to attend
Harriton, while simultaneously meeting both the equalization and minimal
transportation goals of the District. Appendix A88.
Specifically, prior to redistricting, there were six elementary schools,
three of which (Penn Valley, Gladwyne, and Belmont Hills) fed into Welsh
59
Valley Middle School, and three of which (Cynwyd, Merion, Penn Wynne)
fed into Bala Cynwyd Middle School. These students were then split at the
high school level – (1) most of the students attending Penn Valley and
Belmont Hills Elementary Schools and all students attending Gladwyne
Elementary School were districted to Harriton; and (2) students attending
Cynwyd, Merion, and Penn Wynne Elementary Schools, along with small
areas of the Penn Valley and Belmont Hills feeder areas (including South
Ardmore and Narberth Borough), were districted to Lower Merion.
Consequently, the only way to fulfill the goal of educational continuity from
kindergarten through grade twelve was, therefore, to have students attending
the three elementary schools that fed into Welsh Valley together attend one
high school, and to have the students attending the three elementary schools
that fed into Bala Cynwyd together attend the other high school. Since most
of the students attending the three elementary schools that fed into Welsh
Valley already attended Harriton, it only made sense for them to be
districted to attend Harriton together.
In addition, to fulfill the District’s goals of reducing travel time for
students, not creating a need for new buses, and maintaining walkability as
defined by the official LMHS walk zone, it was only natural that the
Affected Area, which was one of the areas closest to Harriton that was not
60
already districted to Harriton, and which did not fall within the official
Lower Merion High School walk zone, would be redistricted to Harriton.
As the District Court noted, students in all other neighborhoods
districted for Penn Valley were already districted to Harriton. Thus,
redistricting students in the Affected Area to Harriton enabled those students
to attend high school with their peers from Penn Valley Elementary and
Welsh Valley Middle School (with the exception of those in the historic
Lower Merion High School walk zone who elect to attend that high school),
whereas redistricting North Ardmore to Harriton would result in students
from Penn Wynne Elementary School and Bala Cynwyd Middle School
being split between the two high schools. Appendix A89-A90.
The irony is that if the District had never looked at any race data
during the redistricting process, it still would have ended up with Plan 3R,
knowing full well that a significant number of African-American students
reside within Ardmore. As the Court found, both North Ardmore and the
Affected Area were “natural candidates for redistricting” because they were
the two areas geographically closest to Harriton that were not already
districted to attend Harriton prior to the adoption of Plan 3R. Appendix
A87. Of these two areas, the Affected Area ultimately was chosen for
61
redistricting to Harriton High School, because redistricting students in that
area fostered K-12 educational continuity from elementary school to middle
school to high school, whereas redistricting students in North Ardmore
would not have done so, since it would have split kids from the same
elementary and middle schools to attend different high schools. Appendix
A89-A90.
D. Appellants’ Argument That § 1981 And Title VI Prohibit

The District’s 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
The District Court appropriately found that Appellants’ remaining
claims pursuant to Title VI and 42 U.S.C. § 1981 fail because those statutes’
prohibitions against discrimination are coextensive with the Equal Protection
Clause, as the Supreme Court repeatedly has held. See Grutter, 539 U.S. at
343 (finding that because the Equal Protection Clause was not violated by
the law school admissions’ use of race, the petitioner’s statutory claims
under Title VI and § 1981 must also fail); Gratz, 539 U.S. at 276
(“[D]iscrimination that violates the Equal Protection Clause of the
Fourteenth Amendment committed by an institution that accepts federal
funds also constitutes a violation of Title VI.”); Sandoval v. Alexander, 532
U.S. 275, 280 (2001) (explaining that Title VI “proscribe[s] only those racial
62
classifications that would violate the Equal Protection Clause”) (internal
citations omitted); Gen. Bldg. Contractors Ass’n, Inc. v. Pa., 458 U.S. 375,
391 (1982) (applying same analysis for Equal Protection and § 1981). See
also Yelverton v. Lehman, No. CIV.A. 94-6114, 1996 WL 296551, at *7
(E.D. Pa. June 3, 1996) (noting that to establish claim under § 1981, plaintiff
must allege facts showing intent to discriminate on basis of race, and finding
that because all of plaintiff’s equal protection claims were dismissed, he
could not establish that defendants intended to discriminate on basis of race).
E. The District Court Did Not Commit An Abuse Of

Discretion In Allowing Dr. Robert Jarvis And Dr. Claudia
Lyles to Testify
While Appellants contend that the District Court erred in admitting
the testimony of Dr. Robert Jarvis and Dr. Claudia Lyles, they fail to show
how the ruling on such testimony prejudiced them and how a different ruling
would have changed the outcome of this case. The decision to admit or
preclude witness testimony should not be disturbed absent a clear abuse of
discretion, which Appellants have not shown – and cannot show – in this
matter. See, e.g., Biessel v. Pittsburgh and Lake Erie R.R. Co., 801 F.2d
143 (3d Cir. 1986) (finding no abuse of discretion in trial court’s admission
of testimony of witness, even where witness’ name did not appear on list of
witnesses required by pretrial order). Counsel for the District did not learn
63
of Dr. Robert Jarvis and Dr. Claudia Lyles until March 11, 2010, just one
day before it was required to file its Pretrial Memorandum, which listed
these and other proposed witnesses. Nevertheless, even if the District had
been aware of these witnesses beforehand, it is not clear that it was required
to disclose them in its Rule 26(a)(1) initial disclosures. Rule 26(a)(1)
requires parties to disclose the identities of individuals likely to have
discoverable information concerning the claims and defenses at issue in the
lawsuit. Fed. R. Civ. P. 26(a)(1). These witnesses had no such personal
knowledge regarding the subject matter of this litigation, i.e., the District’s
redistricting process and redistricting plan. Rather, each witness is an
educator who had worked with Dr. McGinley, and who had personal
knowledge concerning his reputation as an educator, his work concerning
issues such as the “achievement gap,” his advocacy for children of color and
children with disabilities, and his commitment to ensuring greater access to
challenging coursework for minority students and students with disabilities.
Notably, Counsel for Appellants questioned Dr. McGinley during his
deposition regarding these areas of inquiry, and the jobs he had held and the
districts within which had worked since college. Appellants could have
sought the identities of individuals with whom Dr. McGinley has worked,
but they chose not to do so. Indeed, Appellants never propounded
64
interrogatories to the District which would have called for information
relating to the challenged witnesses.
Appellants alleged in their Complaint that the District – including its
Superintendent and Board of School Directors – intentionally discriminated
against them on the basis of race “by mandating that they attend Harriton
High School because they are minorities.” See Compl., ¶¶ 70, 75, 82.
Consequently, the testimony elicited from these witnesses goes to motive or
intent and, therefore, is properly characterized as rebuttal testimony. See,
e.g., Ansell v. Green Acres Contracting Co., Inc., 347 F.3d 515 (3d Cir.
2003) (affirming, in ADEA case, district court’s decision denying motion in
limine to exclude testimony concerning employer’s treatment of employees
over age of forty, where testimony was offered to rebut plaintiffs’ argument
that termination was motivated by overarching plan to eliminate older
workers and to establish that employer did not have a discriminatory intent
when it discharged plaintiff); Terrell v. Richter-Rosin, Inc., 81 F.3d 161,
1996 WL 122639, at * 4 (6th Cir. Mar. 19, 1996) (ruling, in housing
discrimination case, that district court properly allowed African-American
home buyers to testify regarding their experiences with defendants for
purpose of rebutting inference that defendants discriminated against
plaintiffs).
65
In general, rebuttal lay witnesses are not required to be disclosed.
Moreover, courts in this Circuit have allowed parties to call witnesses in
rebuttal even when they were not disclosed in a pretrial memorandum or
order, as long as the witness and his testimony are within the scope of proper
rebuttal. See, e.g., Upshur v. Shepherd, 538 F. Supp. 1176, 1180 (E.D. Pa.
1982). The District identified the challenged witnesses in its Pretrial
Memorandum filed on March 12, 2010, in accordance with the District’s
Court’s scheduling order and the Local Rules of Civil Procedure, allowing
Appellants ample time to depose such witnesses if it chose to do so.
Moreover, the preclusion of witness testimony is an extreme sanction
that should be employed only in rare circumstances. See Meyers v.
Pennypack Woods, 559 F.2d 894, 904-905 (3d Cir. 1977) (reversing, in
racial discrimination case under Civil Rights Act of 1866 and Fair Housing
Act of 1968, district court’s refusal to admit testimony of witnesses not
named in pre-trial memoranda); DeMarines v. KLM Royal Dutch Airlines,
580 F.2d 1193, 1202 (3d Cir. 1978) (holding that exclusion of expert
testimony was reversible error, even though subject of testimony was not
included in expert report in accordance with court order, where testimony
did not disrupt trial, and there was no assertion that defendant exercised bad
faith).
66
Consequently, even if the identities of Dr. Jarvis and Dr. Lyles were
subject to disclosure under Rule 26(a)(1), the District Court appropriately
exercised its discretion in admitting their testimony in the absence of such
disclosure, as courts routinely do. See, e.g., Cunningham v. Town of
Ellicott, No. 04CV301, 2007 WL 1040013, at *3 (W.D.N.Y. April 3, 2007)
(permitting defendant in discrimination case to call character witnesses not
disclosed pursuant to Rule 26(a)(1) or (e)); The Globe Savings Bank, F.S.B.
v. U.S., 61 Fed. Cl. 91, 100-101 (2004) (denying motion in limine to
preclude government from calling witnesses who were not disclosed under
Rule 26(a)(1) or (e) in case brought by thrift alleging that government
breached promises of regulatory forbearance, where witnesses were not
considered to have “discoverable information” because anticipated
testimony was not directly related to their regulation of plaintiff specifically,
but rather their regulation of other particular thrifts); Cary Oil Co. v. MG
Ref. & Mktg., Inc., No. 99 Civ. 1725, 2003 WL 1878246, at *4-5 (S.D.N.Y.
April 11, 2003) (denying motion to strike expert opinion testimony even
though it was not contained in initial report in accordance with Fed. R. Civ.
P. 26(a)(2)(B), as defendants had ample time to prepare effective cross
examination and consider possible witnesses to counter supplemental expert
opinions that defendants were only on notice of one month before trial).
67
In sum, the District disclosed the identities of the challenged
witnesses in its Pretrial Memorandum, just one day after it learned of them,
and one month before trial. The District also provided Appellants with
notice of the anticipated subject matter of these witnesses’ testimony.
Appellants therefore were not prejudiced by the District’s failure to disclose
the identities of these witnesses prior to the filing of its Pretrial
Memorandum, particularly given that Appellants could have deposed these
witnesses before or even during trial, as the District Court suggested, but
chose not to do so.
CONCLUSION
In asserting that the District Court erred in granting judgment in favor
of the District, Appellants appear to contend that the fact that the
Administration and/or the Board knew that the Affected Area has a high
concentration of African-American students made the Affected Area off
limits for redistricting because then any decision to redistrict the Affected
Area would be racially discriminatory. As the District Court found,
however, Appellants are being treated the same as all other students – of all
races – in their neighborhood, as well as all other students – of all races –
within the same elementary and middle school feeder patterns who similarly
live outside the official Lower Merion High School walk zone. Therefore,
68
there is no legitimate reason to exempt Appellants from redistricting.
Appellants would have this Court rule that any consideration of race is
impermissible. Taken to its logical conclusion, such a ruling would severely
impede school districts everywhere in their ability to provide quality
education to all students by having the absurd result of rendering
unconstitutional all race-conscious measures to address the well-documented
achievement gap and racial isolation, including but not limited to clustering
on a voluntary basis, as well as the No Child Left Behind Act of 2001, 20
U.S.C. § 6301 et seq. (whose stated purpose is to “close the achievement
gap,” and which requires the disaggregation of student performance and
enrollment data by race).
69
For these and the foregoing reasons, the District respectfully requests
that this Court affirm the decision of the District Court granting judgment in
favor of the District, and the decision of the District Court denying
Appellant’s Motion for New Trial.
Respectfully submitted,
/s/ Judith E. Harris

Judith E. Harris (PA I.D. No. 02358)
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103
215-963-5028
Attorney for Defendant-Appellee

Lower Merion School District
Dated: January 5, 2010
70
CERTIFICATE OF ADMISSION
I certify that I am a member of the bar of this Court.

Judith E. Harris
CERTIFICATES OF COMPLIANCE
I, Judith E. Harris, an attorney, pursuant to Fed. R. App. P. 32(a)(7)(C)(i),
certify that the foregoing Brief of Appellees, Lower Merion School District,
complies with the typeface requirements of Fed.R.App.P. 32(a)(5) and the type
style requirements of Fed.R.App.P. 32(a)(6).
This brief complies with the type-volume limitations of Federal Rule
Appellate Procedure 32(a)(7)(B). The Brief contains 14,586 words, excluding the
parts of the Brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), and was prepared
using Microsoft Word 2003.
L.A.R. 31.1(c) Certification: The text of the electronic version of this brief
is identical to the text in the paper copies of this brief. A virus detection program
(McAfee AntiVirus version 4.0) has been run on the file of this brief and no virus
was detected.

Judith E. Harris
January 5, 2011 Attorneys for Appellee
1
CERTIFICATE OF SERVICE
I hereby certify that on this 5th day January, 2011, a digital version of the
Brief, was delivered by electronic mail, and on the 6th day of January, 2011 two
copies of the Brief of Defendant-Appellee Lower Merion School District were
delivered via first class mail, to the following counsel:
David G.C. Arnold, Esq.

Suite 106
920 Matsonford Road
West Conshohocken, PA 19428
Email: davidgcarnold@aol.com
Attorneys for Plaintiffs
Christopher M. Arfaa, Esq.

Suite F-200
150 North Radnor Chester Road
Radnor, PA 19087
Email: carfaa@arfaalaw.com
Amicus Appellant

Judith E. Harris
January 5, 2011

LMSD Appeal Response 01-05-11

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

LMSD Appeal Response 01-05-11

Uploaded by

Copyright:

Available Formats

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

UNITED STATES COURT OF APPEALS

Case No. 10-3824

STUDENT DOE 1, ET AL.

LOWER MERION SCHOOL DISTRICT

On Appeal from the United States District Court

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

Attorneys for Lower Merion School

Dated: January 5, 2011

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

2. Appellants’ Contention That The District’s

Adarand Constructors v. Pena,

Albemarle Paper Co. v. Moody,

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

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

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

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

Concerned Citizens for Neighborhood Schools v. Pastel,

Cunningham v. Town of Ellicott,

DeMarines v. KLM Royal Dutch Airlines,

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

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

Mazus v. Department of Transport,

Meyers v. Pennypack Woods,

Parents Involved in Community Schools v.

Pryor v. National Collegiate Athletic Association,

Terrell v. Richter-Rosin, Inc.,

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

Village of Arlington Heights v. Metropolitan Housing

Woodson v. Scott Paper Co.,

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

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

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

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

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

Suggested Answer: No.

B. Are the District’s actions violative of 42 U.S.C. § 1981 and/or

are permissible under the Equal Protection Clause of the Fourteenth

Suggested Answer: No.

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

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

Suggested Answer: No.

Merion School District’s (the “District”) redistricting plan, Plan 3R, on

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

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

key findings from their brief.

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

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

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

to the Board’s 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

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

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

longest bus ride in the District. Appendix A40.

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

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

the District. Appendix A6.

D. Superintendent Dr. McGinley