Plaintiffs Resposne Prelim Student Doe 7-10-09

Case 2:09-cv-02095-MMB Document 17 Filed 07/10/2009 Page 1 of 4
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Student Doe 1 by and through his

Parents/Guardians Does 1 and 2,
et. al.
Plaintiffs Civil Action No. 09-2095
V.
The School District of Lower Merion
Defendant
PLAINTIFFS' REPLY BRIEF TO DEFENDANT'S MEMORANDUM OF LAW
IN SUPPORT OF DEFENDANT'S OPPOSITION TO PLAINTIFFS'
MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs, Students Doe 1 through 9, now file the present Reply Brief in order to respond
to certain factual inaccuracies, and arguments, raised in defendant, The School District of Lower
Merion's Memorandum of Law in Support of its Opposition to Plaintiffs Motion for Preliminary
Injunction.
Lower Merion's Memorandum contains four (4) factual inaccuracies that need to be
corrected. First, Lower Merion indicates on page 4 of its Memorandum that the Community
Values used as a basis for the various redistricting plans were arrived at prior to the School
Board adopting its Non-Negotiables. This is not correct, the Community Values were actually
arrived at after the School Board adopted its Non-Negotiables. See Paragraphs 30 through 36 of
the Civil Rights Complaint filed on May 14,2009.
Second, Lower Merion asserts on page 8 of its Memorandum that it instituted an option
program as part of its Redistricting Plan whereby students who were districted to Lower Merion
High School could choose to attend Harriton High School. This "option programll is not a new
Case 2:09-cv-02095-MMB Document 17 Filed 07/10/2009 Page 2 of4
program, children districted to Lower Merion High School have had the option to attend Harriton
High School for years.
Third, Lower Merion incorrectly asserts throughout its Memorandum that the pending
Motion for Preliminary Injunction seeks to enjoin the entire Redistricting Plan adopted on
January 12, 2009. In fact, Lower Merion premises a number ofarguments in its Memorandum on
this assumption.
Students Doe do not seek to enjoin the entire Redistricting Plan. As the proposed Order
filed with the pending Motion for Preliminary Injunction makes clear, Students Doe only seek to
enjoin that portion ofthe Redistricting Plan that pertains to children residing in the neighborhood
bounded by Athens Avenue, Wynnewood Road. County Line Road, and Cricket Avenue in
South Ardmore, Pennsylvania. According to Lower Merion's Answers to Interrogatories, only
eighteen (18) children would be subject to the injunction during the 2009-2010 school year. See
Lower Merion's Answer to Interrogatory No. 1 which is appended hereto as Exhibit IIA." Of
course this number would climb in subsequent school years as the grandfathering provisions in
the Redistricting Plan phased out.
Lower Merion's final inaccuracy is made in conjunction with its laches argument.
Essentially, Lower Merion contends that Students Doe waited too long to seek equitable relief
because they choose to conduct extensive pre-suit investigation under the Pennsylvania Right to
Know Act. See Lower Merion's Memorandum of Law at pages 12 and 13. Lower Merion asserts
that it responded to Students Doe Right to Know Request on or before March 3, 2009. Id. at page
12. Lower Merion cites New Dana Per:fumes Corp. v. The Disney Store. Inc., 131 F. Supp.2d
616 (M.D. Pa. 2001), and Orson v. Miramax Film Corp., 836 F. Supp. 309 (E.D. Pa. 1993) in
support of its position.
This is not a case where Students Doe rested on their rights. The undersigned counsel had
a professional responsibility under the Rules of Professional Conduct and Rule 11 of the Federal
Rules of Civil Procedure to conduct a thorough investigation prior to filing suit. Unfortunately,
all of the key documents were in the possession of Lower Merion, and the only way to get them
was through filing a Right to Know Request
Students Doe served a Right to Know Request on Lower Merion in late February 2009.
Although it is true that Lower Merion responded to said Request on March 3, 2009, almost all of
the initial responses that it provided sought an extension to March 25, 2009, to provide more
substantive infonnation. A true and correct copy of Lower Merion's March 3, 2009, Response is
appended hereto as Exhibit "B." The undersigned counsel had to review thousands of pages of
documents in March, April, and May of2009, before filing suit.
The case law cited is simply inapplicable to the situation presented. New Dana Perfumes
Corp. is a trade mark infringement case, and the opinion clearly indicates that said area of the
law has its own rules that govern when legal action must be taken. See New Dana Perfumes
~ 131 F. Supp.2d at 630. Orson presents a situation where no pre-Complaint investigation
was necessary. That was simply not the situation herein where massive investigation of an
opposing party's documents needed to take place.
Another one of Lower Merion's arguments needs to be addressed as well. Lower Merion
asserts in its Memorandum that Students Doe will suffer no harm if the Preliminary Injunction is
not granted because they will be attending a new, "state of the art" high school with all of the
amenities. See Lower Merion's Memorandum of Law at page 12. It must be recognized that this
is a modem day variant of the separate, but equal, argument that the United States Supreme
Court rejected over fifty (50) years ago in Brown v. Board of Education. 347 U.S. 483 (1954). In
this country. no child has to "check" his/her civil rights at the school house door in order to
receive a public education.
One fmal comment about Lower Merion's legal position in its Memorandum is in order.
Throughout the Memorandum. Lower Merion states that decisions on redistricting were based at
least in part on Community Values. See Lower Merion's Memorandum of Law at pages 2, 3,5,
and 15. One of the Community Values at issue involved promoting diversity, including racial
diversity. See Paragraph 36 of the Civil Rights Complaint. This admission in and of itself should
shift the burden of proof in this case, and should require Lower Merion to defend its
Redistricting Plan under a strict scrutiny analysis. See Briefof Students Doe in Support of Their
Pending Motion for a Preliminary Injunction at pages 5-7.
Conclusion
For all of the reasons set forth herein as well as the reasons set forth in the pending
Motion for Preliminary Injunction and accompanying Brief, it is respectfully requested that a
Preliminary Injunction be entered by this Honorable Court.
Respectfully submitted,
Pe sylvania Attorney Identification No. 49819
Suite 109, Royal Plaza

915 Montgomery Avenue
Narberth, Pennsylvania 19072
(484) 562·0008
Attorney for Plaintiffs
Dated: July 10, 2009
Case 2:09-cv-02095-MMB Document 17-2 Filed 07/10/2009 Page 1 of 2
EXHIBIT A
IN THE UNITED STATES DISTRICT COURT

STUDENT DOE 1~ et al.
Plaintiffs
v. Civil Action No. 09-2095
THE SCHOOL DISTRICT OF LOWER

MERION
Defendant.
DEFENDANT, LOWER MERION SCHOOL DISTRICT'S ANSWERS TO
PLAINTIFFS' FIRST SET OF INTERROGATORIES
Defendant, Lower Merion Schoo) District (the "District"), by and through its
undersigned attorneys. answers Plaintiffs' Inte.trOgatories subject to the District's
Objections served on or about June 23~ 2009 (herein, the "District's Objections"), as set
forth below.
INTERROGATORY NO.1
How many children from the neighborhood described in Paragraph 8 ofthe Civil Action
Complaint filed in this matter on May 14.2009, are projected to attend Harriton High
School for the 2009-2010 school year as a result of the redistricting plan adopted by
Lower Merion on January 12,20091
Answer: Notwithstanding the' District's Objections, and without prejudice

thereto, the District responds eighteen (18).
INTERROGATORY NO.2
State the following regarding each meeting held concerning student redistricting in
March, April. and/or May of 2008 which was attended by Lower Merion school district
persolJIlel and/or a Lower Merion school board member:
(a). The date ofeach meeting;
(b). The name, current business address, and current home address, of each person
that attended each meeting; and
(c). What was discussed at each meeting.

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

."
LOWER MERION SCHOOL DISTRICT

RESPONSE TO REQUEST
I. Description of Record ReQuested and Name ofReguester
Name ofRequester: David G. C. Arnold, Esquire
915 Montgomery Avenue, Suite 109,
Narberth, PA 19072
Records Requested:
See Attachement A for List
II. Date of Response (Within 5 days ofdate of request)

Request granted in part and denied in part. See Attachment A.
Date request was granted, in part March 3. 2009
and
Date form with Section III completed sent to requester March 3. 2009
III. Basis for Review (Circle all applicable reasons and ftll in additional information
in space provided)
"1. Request may require redaction ofpublic record

Requests must undergo review in order to ascertain what
records are being requested, whether each record is a public
record and whether each record is subject to an exception, a
privilege or redaction under applicable law.
2. Request for access requires retrieval ofrecord stored in remote location

(identify location)
3. Timely response cannot be made due to bona fide and specified staffing
limitations (state specific staffing limitations )
" 4. Legal review required to determine whether record is a public

record
Requests must undergo review in order to ascertain what
records are being requested, whether each record is a public
record and whether each record is subject to an exception, a
privilege or redaction under applicable law.
5. Requester failed to comply with Policy 1123 in the following
respect:
Page loU
6. Requester refused to pay applicable fees. AmOllllt owed:
;J 7. The extent or nature ofthe request precludes a response within the

required time period.
Requests are extensive in that they cover many years, involve varied
individuals and organizations, and the records involved are or may be
located in different locations. The Distrid does not compile, maintain
or organize all of its records in each manner requested. The records
themselves must also undergo review to determine whether each
record is a public record, whether each record is subject to an
exception, a privilege and/or redaction in accordance with applicable
law.
IV. Basis for Denial of Reguest
Request denied by:
Name Fran Keavenev

Title Open Records OfficerlBoard Secretary
Business Telephone Number (610)-645·1800
Business Address Lower Merion School District
301 E. Montgomery Ave.
Ardmore. PA 19003
Date of Denial March 3, 2009
Citation of Supporting Legal Authority See Attachement "A"
V. Appeal
If requester chooses to appeal denial of access, the requester may appeal to the State's
Office of Open Records by filing exceptions within fifteen business days ofthe mailing
date of the date set forth in IV or within fifteen business days of deemed denial. The
exceptions shall state grounds upon which the requester asserts that the record is a public
record and shall address any grounds stated by the School District for delaying or
denying the request.
Page 2 of8
Attachment A
1. Request: Any documents ofany type in any format which pertain to the School
District's decision to build Harriton High School and Lower Merion High
School to house the same number ofstudents.
Response: The District is reviewing this request in an attempt to ascertain what

records are being requested. Also, records requested must undergo
legal review in order to determine whether each record is a public
record and whether each record is subject to an exception, a privilege
and/or redaction under applicable law. The expected date of response
for this request is March 25, 2009.
2. Request: Reports ofany consultants the School District hired to determine whether
to build Haniton High School and Lower Merion High School to house
the same number ofstudents as well as any drafts of said reports.

3. Request Correspondence from any consultant to the School District, and

correspondence from the School District to any consultant, concerning the
decision to build Harriton High School and Lower Merion High School to
house the same number ofstudents.

4. Request Written minutes and videotape recordings ofall open meetings conducted
to determine whether to build Harriton High School and Lower Merion
High School to house the same number ofstudents.
Response: Request granted. The District does not maintain its meeting minutes
by category or subject matter; however, the written minutes of all
open meetings and copies of available video recordings of open
meetings are available for inspection by making an appointment with
the Open Records Officer by calling (610) 645-1800.
5. Request Any documents in any format prepared in 2004, 200S, 2006, 2007,2008,
Page30f8
and/or 2009 which pertain to the School Districfs decision to redistrict

students in the Lower Merion School District.

Jegal review in order to determine whether each record is a public
6. Request The reports ofany consultants the School District hired in 2004, 2005,
2006,2007,2008, and/or 2009, which pertain to the School District's
decision to redistrict students in the Lower Merion School District as well
as any drafts ofsaid ,reports.
7. Request Correspondence from any consultant to the School District, and

correspondence from the School District to any consultant, which was
authored in 2004, 2005, 2006, 2007, 2008, and/or 2009, and which
pertains to the School District's decision to redistrict students in the Lower
Merion School District.

8. Request All redistricting proposals considered by the School District in 2004,

2005,2006,2007,2008, and/or 2009.

legal review in order to determine whether each record is a pubJic
for this request is March 25,2009.
9. Request: The written minutes and videotape recordings ofall opening meetings
conducted in 2004, 2005, 2006, 2007, 2008, and/or 2009 during which the
Page 4 of8
Case 2:09-cv-0209S-MMB Document 17-3 Filed 07/10/2009 Page 6 of 8
Lower Merion School District discussed the redistricting of students.
Response: Request granted. The District does not maintain its meeting minutes
by category or subject matter; however, the written minutes of all
open meetings and copies of available video recordings of open
meetings are available for inspection by making an appointment with
the Open Records Officer by calling (610) 645-1800.
10. Request: Any documents in any fonnat such as reports, handouts~ power point
presentations~ tables, graphs, maps and/or any other type ofdocwnent
available to the public which were created in 2004,2005,2006,2007,2008,
and/or 2009, and which pertain to the School District's decision to
redistrict students in the Lower Merion School District.

11. Request: The minutes and/or swnmaries of any "focus group meetings" conducted
in 2004~ 2005~ 2006, 2007, 2008, and/or 2009 where there was any
discussion about the School District's redistricting ofstudents;

records are being requested and whether such records exist If such
records exist, they must undergo legal review in order to determine
whether each record is a public record and whether each record is
subject to an exception, a privilege and/or redaction under applicable
law. The expected date of response for this request is March 25, 2009.
12. Request: The minutes and/or summaries of any Community Advisory Committee
meetings conducted in 2004,2005,2006,2007,2008, and/or 2009 where
there was any discussion about the School District's redistricting of
students;

records are being requested and whether such records exist If such
13. Request: All materials of any type provided by the School District to any consultant
referenced in Requests 2, 3, 6, and/or 7 as well as all materials ofany type
Page 5 or8
provided by the School District for any "focus group meetings" and/or
Community Advisory Committee meetings referenced in Requests 11
and/or 12

14. Request: All Act 34 test capacity calculations and/or documents referencing said
calculations prepared by any architects during the design of the new
Harriton High School and/or the new Lower Merion High School.

records are being requested and whether such records exist. If such
Page 6 ofS
Case 2:09-cv-0209S-MMB Document 17-3 Filed 07/10/2009 Page 8 of 8 .
Attachment B
Fees:
Fees for duplication and other forms of document response and, where applicable,
document retrieval will be charged according to the following fee schedule which
shall be periodically updated.
Postage Actual cost for mailing
Certification costs $1 per record, not per page
Duplication costs
Paper copying charge $0.25 per page
Facsimile charge Actual cost to District
Electronic records
copied to native media Actual cost to District
Conversion to paper If a record is only maintained

electronically or in other non
paper media, duplication fees
shall be limited to the lesser of
the fee for duplication on paper
or fee for duplication in the
original media unless the
requester specifically requests for
the record to be duplicated in the
more expensive medium.
Enhanced electronic access To be determined if and when

offered.
Scanning Same as copying fee (Not

imposed if record already exists
in electronic form.)
Complex and extensive Reasonable Market Value

data sets
Retrieval fee (for records which $60 per hour for administrative and
do not qualify as public records) clerical time.
Page 7 of8
UNITED STATES DISTRICf COURT
Student Doe 1 by and through his

Parents/Guardians Does 1 and 2.
et. a1.
Plaintiffs Civil Action No. 09-2095
v.
The School District of Lower Merion
Defendant
CERTIFICATE OF SERVICE
I, David G. C. Arnold, Esquire, hereby certify that I electronically filed Plaintiffs' Reply
Brief to Defendant's Memorandum of Law in Support of Defendant's Opposition to Plaintiffs

Motion for Preliminary Injunction on July 10, 2009, and said document has been available for
viewing and downloading on the ECF System since that date. The below listed counsel were
served electronically through the ECF System on July 10, 2009.
Judith E. Harris, Esquire

Christina Joy F. Greese, Esquire
Allison N. Suflas, Esquire
Morgan, Lewis & Bokius LLP
1701 Market Street
Philadelphia, Pennsylvania 19103
Michael D. Kristofco, Esquire

Kenneth A. Roos, Esquire
Megan A. Guernsey, Esquire
Wisler Pearlstine, LLP
484 Norristown Road
Blue Bell, Pennsylvania 19422

Plaintiffs Resposne Prelim Student Doe 7-10-09

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

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Student Doe 1 by and through his

Plaintiffs Civil Action No. 09-2095

The School District of Lower Merion

PLAINTIFFS' REPLY BRIEF TO DEFENDANT'S MEMORANDUM OF LAW

IN SUPPORT OF DEFENDANT'S OPPOSITION TO PLAINTIFFS'

MOTION FOR PRELIMINARY INJUNCTION

the Civil Rights Complaint filed on May 14,2009.

High School for years.

South Ardmore, Pennsylvania. According to Lower Merion's Answers to Interrogatories, only

the Redistricting Plan phased out.

support of its position.

Case 2:09-cv-02095-MMB Document 17 Filed 07/10/2009 Page 3 of 4

was through filing a Right to Know Request

documents in March, April, and May of2009, before filing suit.

~ 131 F. Supp.2d at 630. Orson presents a situation where no pre-Complaint investigation

opposing party's documents needed to take place.

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

receive a public education.

Pending Motion for a Preliminary Injunction at pages 5-7.

Preliminary Injunction be entered by this Honorable Court.

Pe sylvania Attorney Identification No. 49819

Suite 109, Royal Plaza

Attorney for Plaintiffs

Dated: July 10, 2009

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

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

IN THE UNITED STATES DISTRICT COURT

STUDENT DOE 1~ et al.

v. Civil Action No. 09-2095

THE SCHOOL DISTRICT OF LOWER

DEFENDANT, LOWER MERION SCHOOL DISTRICT'S ANSWERS TO

PLAINTIFFS' FIRST SET OF INTERROGATORIES

Answer: Notwithstanding the' District's Objections, and without prejudice

(a). The date ofeach meeting;

(c). What was discussed at each meeting.

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

LOWER MERION SCHOOL DISTRICT

See Attachement A for List

II. Date of Response (Within 5 days ofdate of request)

"1. Request may require redaction ofpublic record

2. Request for access requires retrieval ofrecord stored in remote location

" 4. Legal review required to determine whether record is a public

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

;J 7. The extent or nature ofthe request precludes a response within the

IV. Basis for Denial of Reguest

Request denied by:

Name Fran Keavenev

Citation of Supporting Legal Authority See Attachement "A"

Response: The District is reviewing this request in an attempt to ascertain what

Response: The District is reviewing this request in an attempt to ascertain what

3. Request Correspondence from any consultant to the School District, and

Response: The District is reviewing this request in an attempt to ascertain what

and/or 2009 which pertain to the School Districfs decision to redistrict

Response: The District is reviewing this request in an attempt to ascertain what

7. Request Correspondence from any consultant to the School District, and

Response: The District is reviewing this request in an attempt to ascertain what

8. Request All redistricting proposals considered by the School District in 2004,

Response: The District is reviewing this request in an attempt to ascertain what

Lower Merion School District discussed the redistricting of students.

Response: The District is reviewing this request in an attempt to ascertain what

Response: The District is reviewing this request in an attempt to ascertain what