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Case 2:09-cv-02095-MMB Document 39 Filed 01/22/2010 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Student Doe 1 by and through his :


Parents/Guardians Does 1 and 2, :
et al. :
:
Plaintiffs, :
:
: CIVIL ACTION NO. 09-2095
v. :
:
:
Lower Merion School District, :
:
Defendant. :

DEFENDANT’S REPLY IN FURTHER SUPPORT OF


MOTION FOR SUMMARY JUDGMENT

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


Christina Joy F. Grese (PA I.D. No. 200727)
Allison N. Suflas (PA I.D. No. 204448)
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103
215-963-5028/5085/5752

Michael D. Kristofco, Esquire


Kenneth A. Roos, Esquire
WISLER PEARLSTINE, LLP
484 Norristown Road
Blue Bell, PA 19422
610-825-8400

Attorneys for Defendant

Dated: January 22, 2010


Case 2:09-cv-02095-MMB Document 39 Filed 01/22/2010 Page 2 of 18

TABLE OF CONTENTS

Page

I. INTRODUCTION...............................................................................................................................1
II. LEGAL ARGUMENT .......................................................................................................................2
A. Plan 3R Is Facially Neutral....................................................................................................2
B. The Community Value of Diversity Was Not a Requirement or Mandate......................3
C. None of the Documents, Testimony, or Other “Evidence” Cited by Plaintiffs
Demonstrates Intentional Discrimination ............................................................................5
1. Discussions and Documents Concerning Proposed Non-Negotiables
That Never Were Adopted by the Board Do Not Evidence Intentional
Discrimination...........................................................................................................6
2. Dr. Haber’s Request for Student Race and Ethnicity Data as Part of His
Standard Data Requests Does Not Evidence Intentional Discrimination...........7
3. Dr. Haber’s Documents Reporting on Race Do Not Evidence
Intentional Discrimination .......................................................................................8
4. Mere Discussions or Communications During the Redistricting Process
that Reference Race, Diversity, or Racial Isolation Do Not Evidence
Intentional Discrimination .................................................................................... 11
5. The Opinion of Plaintiffs’ Counsel or Anyone Else as to the Legality of
Plan 3R Is Irrelevant to the Court’s Determination............................................ 12
6. The Simple Fact that the Number of African-American Students at
Harriton High School Increased under Plan 3R Does Not Evidence
Intentional Race Discrimination........................................................................... 13
7. Plaintiffs’ Assertion that the District Tried to “Hide” Its Actions During
the Redistricting Process Is Contradicted by the Record and Should Be
Rejected .................................................................................................................. 14
D. Plaintiffs Have No Evidence to Refute That Students Doe Were Zoned to
Attend Harriton High School Because They Attended Penn Valley Elementary
School and Welsh Valley Middle School and Live Outside the Official Lower
Merion High School Walk Zone ....................................................................................... 14
III. CONCLUSION ................................................................................................................................ 16

i
Case 2:09-cv-02095-MMB Document 39 Filed 01/22/2010 Page 3 of 18

I. INTRODUCTION

Plaintiff’s Brief in Opposition to Defendant’s Motion for Summary Judgment (“Opposition” or

“Opp.”) is riddled with non-material, extraneous factual allegations, subjective interpretations,

mischaracterizations of testimony, conjecture, and other red herrings. As demonstrated herein, no

evidence exists to create a triable issue of material fact as to the claims of intentional race

discrimination asserted by Plaintiffs. Indeed, the essential, undisputed facts are quite simple and reveal

the following: (1) 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 of School Directors (“Board”); (2)

the District did not select individual students for assignments to either Lower Merion High School or

Harriton High School under Plan 3R; (3) student assignment under Plan 3R was based on the feeder

patterns from the elementary schools to the middle schools and on to a high school; (4) these feeder

patterns assigned all students, irrespective of race or ethnicity, outside the official Lower Merion High

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

Harriton High School; and (5) Students Doe, along with all other students in the Affected Area (see

Defendant’s Statement of Undisputed Material Facts (“SMF”), at ¶ 7), regardless of race, attend Penn

Valley Elementary School and Welsh Valley Middle School and reside outside of the official Lower

Merion High School walk zone.

Plaintiffs’ Opposition focuses on everything but these material, undisputed points, and this

Reply Memorandum seeks to show the Court how irrelevant their arguments are to the Court’s

determination here. Their basic position seems to be that because the Administration and Board were

mindful of diversity during the redistricting process, and because diversity information was reported by

the Administration and/or its consultants, the Board’s adoption of Plan 3R was “tainted.” If one were

to accept Plaintiffs’ theory, then the mere mention of “race” or “diversity” (including any discussion of

the law regarding diversity) within the redistricting context is unlawful. Not surprisingly, Plaintiffs fail
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Case 2:09-cv-02095-MMB Document 39 Filed 01/22/2010 Page 4 of 18

to cite any authority in support of this tenuous argument. The reality is that there are valid educational

reasons why school districts should be aware of race and diversity and, therefore, it is not inappropriate

simply to discuss race or diversity when determining how best to deliver education to students.

The bottom line is that Plaintiffs have no evidence that Plan 3R assigned any students to a high

school on the basis of their race. The Board Members’ sworn testimony unequivocally demonstrates

that they did not take race into account in voting to adopt Plan 3R, and their public statements, made

contemporaneously with the Board’s adoption of Plan 3R and providing the reasons for their decisions,

make no mention of race, diversity, or racial isolation. Plaintiffs do not dispute this fact, and, on this

record, their claims fail. Accordingly, Defendant respectfully requests that the Court grant summary

judgment in its favor on all of Plaintiffs’ claims

II. LEGAL ARGUMENT

A. Plan 3R Is Facially Neutral

Plaintiffs erroneously conclude that Plan 3R is a “racially-based policy.” Plan 3R, which was

adopted by the Board on January 12, 2009, expressly provides that:

(1) Students attending Gladwyne, Belmont Hills, and Penn Valley Elementary Schools are zoned
to attend Welsh Valley Middle School and then Harriton High School (with those Penn Valley
students living in the official, historic Lower Merion High School walk zone having the option
to choose between Harriton High School or walking to Lower Merion High School);

(2) Students attending Penn Wynne, Cynwyd, and Merion Elementary Schools are zoned to attend
Bala Cynwyd Middle School, and then Lower Merion High School; and

(3) To better equalize student enrollments between the two high schools, all students zoned for
Lower Merion High School continue to have the opportunity to elect to attend Harriton High
School.

(See Exhibit 7 to SMF, at Students Doe 00192, 00196).

In addition, Plan 3R explicitly states as follows:

 Students may elect to stay with peers by following assigned feeder patterns K-12;
 [The Plan] [p]rotects the official Walk Zones for Elementary, Middle and High School;
 [The Plan] [f]ollows the current feeder patterns and creates disruption for fewer students; and
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Case 2:09-cv-02095-MMB Document 39 Filed 01/22/2010 Page 5 of 18

 [The Plan] [a]llows for a mixed high school population at each school through the option area
or the choice programs.1

(Id., at Students Doe 00190).

By its very terms, Plan 3R assigns students to high schools based on elementary and middle

school feeder patterns. It does not classify or assign individual students on the basis of race. Indeed,

nowhere does Plan 3R even mention race or any item that could be deemed a proxy for race.

Consequently, Plan 3R is a facially neutral policy. Plaintiffs’ attempt to argue otherwise by pointing to

documents beyond Plan 3R itself and that do not form any part of Plan 3R should be rejected.

B. The Community Value of Diversity Was Not a Requirement or Mandate

It is clear from Plaintiffs’ Opposition that they either have a fundamental misunderstanding of

the role that the community value of “explor[ing] and cultivat[ing] whatever diversity-ethnic, social,

economic, religious and racial-there is in Lower Merion” (Students Doe Ex. 2, at p. 5) played in the

redistricting process, or they are intentionally misrepresenting that role. Dr. Harris Sokoloff, one of the

consultants engaged by the District to solicit input from the community and identify its values in the

context of redistricting, explained that the community values—which included the community value as

described above, as well as academic and extracurricular excellence, the preservation of existing zones

for walkers, minimizing travel time for non-walkers, and the maintenance of social networks—simply

were guidelines. There was no expectation or requirement that they be followed, and it was recognized

that there inevitably would be a trade-off between any values-based principles. (See Deposition of

Harris Sokoloff, attached hereto as Ex. A, at 23-24, 59-60, 72; Pliskin Dep. at 31-33; Doucette-Ashman

1
The “option area” is the geographic area within which students have the option to attend either Lower Merion High
School or Harriton High School. Under Plan 3R, the “option area” is the official Lower Merion High School walk zone.
Students residing in the official Lower Merion High School walk zone, although zoned to attend Harriton High School
due to the fact that they attend Penn Valley Elementary School and Welsh Valley Middle School, are given the option
to choose between Harriton High School or walking to Lower Merion High School. (See Exhibit 7 to SMF). “Choice
programs” refers to the fact that Plan 3R, in an effort to better equalize the overall student enrollment numbers at
Harriton High School and Lower Merion High School, continued to allow students zoned to attend Lower Merion High
School the choice to attend Harriton High School. (Id., at Students Doe 00192).

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Case 2:09-cv-02095-MMB Document 39 Filed 01/22/2010 Page 6 of 18

Dep. at 30, 32-33; Guthrie Dep. at 38; Lorenz Dep. at 34-35; Students Doe Ex. 42, Ebby Dep., at 34).2

Specifically, there was no intention or requirement that the District or Board do anything with the

community value of diversity, much less actively seek to increase it. (Id.). Rather, the community

value of diversity simply meant that the District was to be mindful of the community’s comments about

diversity, and to report on it, which is what the District and the Board did. (Id. See also Exhibit 18 to

SMF, McGinley Dep., at 75, 91, 98-100).

Plaintiffs attempt to make much of the fact that, for Plans 1 through 3,3 the District presented

PowerPoint slides concerning the projected diversity make-up (of which racial diversity was only a

part) of each high school in the event that the particular plan at issue was adopted by the Board. As a

preliminary matter, Plans 1 through 3 were not adopted or even voted upon by the Board. (Opening

Mem. at n.4). Moreover, the undisputed facts demonstrate that the diversity information was included

in the PowerPoint presentations simply to inform the public what the outcomes of the proposed Plans

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

Redistricting Plan. (Opening Mem. at 19 and n.13). Consequently, Dr. McGinley’s statement, in

response to a community member’s claim of racial bias in connection with Plan 1 (which was never

2
Relevant portions of the depositions of Lisa Pliskin (“Pliskin Dep.”), Linda Doucette-Ashman (“Doucette-Ashman
Dep.”), Susan Guthrie (“Guthrie Dep”), and Ted Lorenz (“Ted Lorenz”), are attached hereto as Exhibits B, C, D, and E,
respectively.
3
There is no dispute that the public presentation of Plan 3R, which was adopted by the Board on January 12, 2009, did
not include any projected diversity data. Plaintiffs contend that Dr. McGinley provided Board Members with racial
diversity information for Plan 3R via e-mail just hours before the vote on Plan 3R (Opp. at 24); however, the only racial
diversity information that Dr. McGinley provided was the racial make-up of middle school students who would no
longer have the option to attend Lower Merion High School under Plan 3R. (Students Doe Ex. 56, at
LMSDLFP00049). This data was provided in direct response to a document circulated by some parents opposed to
Plan 3R in which they claimed that Plan 3R was “artificially designed to create token diversity at Harriton” and
presented what they claimed was the racial breakdown of students transferred to Harriton High School under Plan 3R.
(Ex. B to Defendant’s Memorandum of Law in Support of Motion for Summary Judgment (“Opening Mem.”), at
LMSDLA05279-LMSDLA05281). Dr. McGinley did not provide, and the Board Members were not aware of, the
overall projected racial make-up of the high school student populations at Harriton and Lower Merion High Schools
under Plan 3R. (SMF, ¶¶ 99, 102).

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Case 2:09-cv-02095-MMB Document 39 Filed 01/22/2010 Page 7 of 18

acted upon, much less adopted by the Board4), that the diversity data were presented “only in

relationship to that community value of valuing diversity . . . [a]nd . . . included . . . socioeconomic

data, special education data and ethnic diversity,” does not reveal any improper motive. (Students Doe

Ex. 9, at p. 6-7; Opp. at 14). Indeed, and as noted in the District’s Opening Memorandum, the

community value of diversity is what led the District to report on the diversity figures during the

redistricting process, but some members of the public—including Plaintiffs—clearly misinterpreted its

reasons for doing so. (See Ex. 18 to SMF, McGinley Dep., at 203-204; Students Doe Ex. 56, at

LMSDLFP00049).

C. None of the Documents, Testimony, or Other “Evidence” Cited by Plaintiffs


Demonstrates Intentional Discrimination

Plaintiffs contend that “Redistricting Plan Three Revised . . . discriminates against Students

Doe on the basis of race by mandating that said students attend Harriton High School because they are

minorities.” (Compl., ¶¶70, 75, 92) (emphasis added). It is beyond dispute that the Board decided

which redistricting plan to adopt and ultimately adopted Plan 3R. Plaintiffs do not dispute that the

Board’s decision is the operative event at issue. Throughout their Opposition, Plaintiffs contend that

the Board adopted Plan 3R to “diversify” Harriton High School and/or to prevent “racial isolation.”

Yet Plaintiffs have absolutely no evidence indicating that this was the case. Indeed, at the public Board

meeting on January 12, 2009, the six Board members who voted in favor of Plan 3R stated their

reasons for doing so, and the two Board members who voted against Plan 3R similarly provided their

4
Counsel for Plaintiffs claims that the District’s counsel is “irredeemably conflicted” because it is arguing that the
Administration, consultants, and/or Superintendent acted inappropriately, but the Board did not. (Opp. at 24-25). This
assertion is a gross misstatement of the District’s arguments and another red herring created by counsel for Plaintiffs in
an apparent attempt to detract this Court from the real matters at issue in this case. Similarly, Plaintiffs’ claim in
connection with this argument that Dr. McGinley told the Board at a public meeting that he took racial isolation/racial
diversity into account when formulating the proposed Plans is yet another blatant mischaracterization of the record.
(Opp. at 24, n.7). Dr. McGinley clearly stated at this Board meeting that any consideration of isolation (which he did
not limit to “racial” isolation) was “used as a reality check after each plan.” (Students Doe Ex. 12, at p. 15) (emphasis
added).

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Case 2:09-cv-02095-MMB Document 39 Filed 01/22/2010 Page 8 of 18

reasons for voting against the plan. None of the Board Members’ reasons—either for or against Plan

3R—included race, racial diversity, or racial isolation.5 Plaintiffs do not dispute this fact.

In addition, counsel for Plaintiffs deposed each of the Board Members and asked them whether

they took “racial diversity” or “racial isolation” into account in voting for Plan 3R, to which the Board

members emphatically responded, “no.” (SMF, ¶ 104). As illustrated below, Plaintiffs have not

pointed to—and cannot point to—any evidence disputing these statements.

1. Discussions and Documents Concerning Proposed Non-Negotiables That Never


Were Adopted by the Board Do Not Evidence Intentional Discrimination

Because they did not obtain the answers they wanted during the depositions of the Board

Members, Plaintiffs essentially ask this Court to disregard the Board Members’ testimony that they did

not consider race in voting for (or against) Plan 3R, and now attempt to manufacture discriminatory

intent where there is none, pointing to the following documents, all of which predate the April 21, 2008

adoption of the Non-Negotiables by the Board (SMF, ¶ 44) and are unrelated to any of the Plans

proposed to the Board. These documents do not implicate conduct by the Board and, therefore, cannot

demonstrate intentional discrimination by the Board:

 Former Superintendent Jamie Savedoff’s comments at March 31, 2008 Board meeting,
Students Doe Ex. 6;

 March 2008 Memorandum by former Superintendent Jamie Savedoff regarding his personal
list of proposed criteria to be considered in choosing the process for redistricting, Students Doe
Ex. 1, at LMSD02975;6

 April 12, 2008 E-mail exchange between Scott Shafer and other Administrators, Students Doe
Ex. 3; and

5
Similarly, the written comments of then-Board President Lisa Pliskin (who was ill and could not attend the January 12
Board meeting), which were read aloud at the January 12 meeting and expressed approval of Plan 3R, did not reference
race, diversity or racial isolation. (SMF, at p. 19, n.14). A transcription of the Board Members’ statements during the
January 12 meeting is attached hereto as Exhibit F. A video of this Board meeting is included on the external hard drive
submitted by Plaintiffs to the Court in connection with the filing of their Opposition.
6
At or shortly after this time period, Dr. Savedoff stopped attending the Board meetings concerning redistricting, and Dr.
Michael Kelly became the point person for redistricting until Dr. McGinley began his employment as Superintendent
on July 1, 2008. (Ex. B, Pliskin Dep., at 13-15).

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Case 2:09-cv-02095-MMB Document 39 Filed 01/22/2010 Page 9 of 18

 April 15, 2008 Redistricting Recommendations, Students Doe Ex. 4.7

None of these documents or statements supports Plaintiffs’ contention that they were mandated

to attend Harriton High School under Plan 3R because of their race. Indeed, Dr. Savedoff’s comments

made at the March 31, 2008 Board meeting, and each of the documents cited above, concern proposed

non-negotiables. Even assuming that such a non-negotiable would require students to be assigned to a

particular school based on their individual race (which it does not), no non-negotiable regarding

minority student assignment was adopted by the Board and, consequently, no such non-negotiable

played any role in the redistricting process. Plaintiffs’ unjustifiable leap to conclude that these

statements and documents, which were never acted upon or considered by the Board, somehow tainted

the redistricting process should be rejected.8

2. Dr. Haber’s Request for Student Race and Ethnicity Data as Part of His Standard
Data Requests Does Not Evidence Intentional Discrimination

As noted in the District’s Opening Memorandum, Dr. Ross Haber, an educational consultant

with years of experience as an educator and administrator, and with school redistricting in particular,

was engaged by the District to conduct both an enrollment projection study and a redistricting.

(Opening Mem. at 25; SMF, ¶ 48). As part of his engagement, Dr. Haber requested student data from

the District, which included race and ethnicity, as well as student name, address, current school

7
When placed before them by Plaintiffs’ counsel, the Board Members testified that they had never seen or did not recall
having seen the April 15, 2008 Redistricting Recommendations or the April 12, 2008 e-mail exchange between Mr.
Shafer and other members of the Administration. (Students Doe Ex. 42, Ebby Dep., at 85-86; Ex. B, Pliskin Dep., at
20; Ex. D, Guthrie Dep., at 117-118; Ex. E, Lorenz Dep., at 74, 76; Deposition of Gary Friedlander (“Friedlander
Dep.”), attached hereto as Ex. G, at 92-93; Deposition of Lyn Kugel (“Kugel Dep.”), attached hereto as Exhibit H, at
97-99; Deposition of Diane DiBonaventuro (“DiBonaventuro Dep.”), attached hereto as Exhibit I, at 133; Deposition of
Jerry Novick (“Novick Dep.”), attached hereto as Ex. J, at 72).
8
In one of their many attempts to discredit the testimony of the District’s witnesses without pointing to any actual
evidence that would justify doing so, Plaintiffs contend that Scott Shafer’s testimony concerning the meaning of the
proposed non-negotiable regarding minority student assignment is unworthy of belief. As Mr. Shafer testified, in
positing “address minority student assignments” as a potential non-negotiable, he meant only that the District could not
assign minority students on the basis of race, and that it needed to be cognizant of minority student enrollment, because
the public would ask for such data, and because the state required such data to be reported. (Ex. 13 to SMF, Shafter
Dep., at 44-46). Plaintiffs have no evidence refuting this testimony.

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Case 2:09-cv-02095-MMB Document 39 Filed 01/22/2010 Page 10 of 18

attending, current grade level, special needs status, and socioeconomic status. (SMF, ¶ 51). While

Plaintiffs concede that the District did nothing wrong in maintaining student race and ethnicity data

(Opp. at 28), they unjustifiably infer nefarious purposes behind Dr. Haber’s standard request for such

routine data as part of his engagement to conduct enrollment projections and the redistricting project.

Dr. Haber’s request for such data was by no means unusual or inappropriate, and Plaintiffs cite no

authority indicating otherwise.9 Instead, Plaintiffs resort to mere conjecture, asking, “Why would a

school district that is setting attendance zones in a ‘color blind’ fashion spend public money for this

type of service unless it was districting, in part, based on race, or in order to comply with the

community’s desire to see increased diversity at its high schools?” (Opp. at 12). Such speculation on

the part of Plaintiffs’ counsel does not constitute facts or evidence and, therefore, is wholly insufficient

to demonstrate intentional discrimination.10

3. Dr. Haber’s Documents Reporting on Race Do Not Evidence Intentional


Discrimination

Plaintiffs suggest that because Dr. Haber generated documents listing what Plaintiffs

characterize as “racial profiles” for various redistricting scenarios, race must have been a factor in the

redistricting process. (Opp. at 12-13). This claim is mere conjecture and without evidentiary support.

9
Plaintiffs cite to Bush v. Vera, 517 U.S. 952 (1996), in purported support or their claims of intentional discrimination.
Vera, however, is a congressional redistricting case and is inapposite here. In Vera, the district court found that the
borders of the congressional districts changed from block to block, from one side of the street to the other, and traversed
streets, bodies of water, and commercially developed areas in seemingly arbitrary fashion until one realized that the
corridors connected minority populations. Id. at 962. The Supreme Court concluded that race was the predominant
consideration when Texas drew its district lines because the state: (i) had substantially neglected traditional redistricting
criteria, such as compactness; (ii) had intentionally created majority-minority districts by its own admissions to the
Department of Justice; and (iii) had selected and used a computer program more sophisticated and detailed with respect
to racial data than to other demographic data, such as party registration and voting history. Even assuming that this case
is applicable outside the congressional redistricting context, it has no bearing here, as the District relied on historically
established lines for elementary and middle school attendance and a historic walk zone without making any changes to
them.
10
Moreover, Dr. Haber’s June 25, 2008 contract was executed before the preparation and subsequent adoption by the
Board of the July 11, 2008 URS Community Values report (Students Doe Ex. 2); therefore, the assertion that the
District requested such data “to comply with the community’s desire to see increased diversity at its high schools” is
without merit. In addition, Plaintiffs mischaracterize the role of the community value of diversity as identified in the
URS Report. See infra section IIB.

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Each of these documents simply reports the outcomes of proposed redistricting scenarios in terms of

the numbers of African-American and white students who would be attending each high school.

Moreover, the overwhelming majority of the documents that describe redistricting scenarios and the

Plans do not limit data to African-American students and include other diversity data in addition to

race, such as socioeconomic status and special needs status. Plaintiffs conveniently ignore this fact.11

Indeed, far from indicating any nefarious purpose, Dr. Haber’s response during his deposition that to

the best of his recollection he and Dr. McGinley did not think it was necessary to produce scenarios

that did not report on race (Opp. at 13) indicates, if anything, that race data was reported for innocuous

reasons, not as an indicator that race was used to develop the particular scenario at issue.

Similarly, the documents prepared by Dr. Haber that discuss the implications of particular

redistricting scenarios in terms of “diversity” (Opp. at 14) do not evidence intentional discrimination.

The very fact that Dr. Haber noted the diversity implications for these redistricting scenarios reveals

that neither diversity nor race was used as an input to create the scenarios. Indeed, had diversity or race

been used as an input, there would be no reason to note the diversity outcomes, e.g., that Scenario 2

produced a “good balance” in terms of diversity and that Scenario 3A produced a “major difference in

diversity in virtually all categories,” as Dr. Haber would have been able to use the race data to generate

a scenario that created a desired diversity outcome. In reality, however, that simply did not happen, and

Plaintiffs have no evidence demonstrating otherwise.

Finally, Dr. Haber’s notation on the Scenario 1 document, indicating that Scenario 1 was

“eliminated due to inequitable racial balancing,” similarly provides no evidence of intentional

11
See, e.g., Students Doe Ex. 26, at LMSDRH0163; Students Doe Ex. 29, at LMSDLDA00374; Students Doe Ex. 30, at
LMSDLDA00557, LMSDLDA00563, LMSDLDA00567; Students Doe Ex. 32, at LMSDDDB00328,
LMSDDDB00329, LMSDDDB00345, LMSDDDB00352, LMSDDDB00414; Students Doe Ex. 33, at
LMSDTL00033, LMSDTL00035- LMSDTL00037, LMSDTL00211- LMSDTL00212; Students Doe Ex. 34, at
Students Doe 00047; Students Doe Ex. 36, at Students Doe 00294; Students Doe Ex. 37, at LMSD00401; Students Doe
Ex. 38, at Students Doe 00220; Students Doe Ex. 39; Students Doe Ex. 69, at LMSD02852, LMSD02854,
LMSD02860, LMSD02858; Students Doe Ex. 70, at LMSD03803, LMSD03798; Students Doe Ex. 73.

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Case 2:09-cv-02095-MMB Document 39 Filed 01/22/2010 Page 12 of 18

discrimination, nor does the indication that Scenario 4A was not selected in part because it did not

support the community value of diversity as did other scenarios.12 Significantly, when Plaintiffs’

Counsel placed the scenario documents with Dr. Haber’s notations regarding “racial balance” before

the Board members during their depositions, each of them testified that they had never seen the

documents or did not remember ever seeing the documents. (SMF, ¶ 57). While Plaintiffs illogically

conclude that the Board Members “must” have received these documents, the undisputed facts

demonstrate otherwise.13 Consequently, these documents have no bearing on the official action at issue

here, i.e., the Board’s adoption of Plan 3R, and are insufficient to demonstrate discriminatory intent.

Furthermore, in contending that these documents evidence intentional race discrimination,

Plaintiffs fail to make the important distinction between deciding to forego a particular scenario

because it would result in a “racial imbalance” in student populations, and the Board’s affirmatively

choosing to adopt a particular redistricting plan because it would result in a “racial balance.” Even

assuming, arguendo, that the Board Members did not choose a proposed plan because of its diversity

outcome, Plaintiffs have no evidence that they adopted Plan 3R, the redistricting plan at issue here,

because of its diversity outcome.

12
Indeed, the document cited by Plaintiffs, which is a draft PowerPoint slide that was not included in any of the
PowerPoint presentations to the Board and public (see Exhibits 5, 7, 10, and 25 to SMF), also indicates that Scenario 4A
was not selected because it “impose[d] the same issue of travel time from Cynwyd to Harriton as the First Scenario
(September 9th) imposed on Penn Wynne,” and because it “[c]hanges feeder patters from elementary to high school in
greater student numbers that [sic] does Scenario 8.” (Students Doe Ex. 26, at LMSDRH0164). Not surprisingly,
Plaintiffs conveniently ignore this information. In addition, Plaintiffs mischaracterize Board Member David Ebby’s
testimony during his deposition concerning what Dr. McGinley told him were the reasons why the scenario on which
Plan 1 was based was chosen over scenario 4 or 4B. Mr. Ebby testified that while Dr. McGinley did indicate that there
was more racial diversity with Plan 1, he also stated that the transportation time from the Cynwyd area to Harriton High
School was longer than the transportation time from the Penn Wynne area, and that was another reason for favoring
Plan 1. (Students Doe Ex. 42, Ebby Dep., at 39).
13
The District and the Board Members produced tens of thousands of pages of documents. None of the Board Members
ever received and, therefore, none of the Board Members produced, Dr. Haber’s scenario documents set forth in
Students Doe Exs. 25, 35, 65-68, and 74. (SMF, ¶ 57). Plaintiffs’ speculation to the contrary should be rejected as just
that—mere speculation.

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Case 2:09-cv-02095-MMB Document 39 Filed 01/22/2010 Page 13 of 18

4. Mere Discussions or Communications During the Redistricting Process that


Reference Race, Diversity, or Racial Isolation Do Not Evidence Intentional
Discrimination

The bulk of Plaintiffs’ so-called “evidence” of discrimination amounts to nothing more than

mere references to “diversity,” “race,” or “racial isolation,” oftentimes in connection with proposed

plans that never were considered by or officially acted upon by the Board. (Opp. at 15-16; Students

Doe Exs. 48, 51-54, 75, 82). 14 Indeed, at one point Plaintiffs incredibly suggest that the mere fact that

Board Member DiBonaventuro was “thinking” about diversity issues in connection with a proposed

plan that she developed, and which was never considered by the Board as a collective unit, is evidence

of intentional discrimination. (Opp. at 15-16).15 Moreover, in their Opposition, and throughout their

responses to the District’s Statement of Undisputed Material Facts, Plaintiffs repeatedly suggest that the

mere fact that community members made comments regarding diversity or racial isolation during the

redistricting process is evidence of the Board’s discriminatory intent. This is absurd, particularly where

the Board is required by law to take public comment. See 65 Pa. C. S. A. § 710.1.

14
Once again, Plaintiffs mischaracterize e-mails submitted by Board Member David Ebby in response to a member of the
public in which he stated that “diversity is looked at in total” and that “redistricting is an opportunity to mix the
population.” (Opp. at 16). Notably, Mr. Ebby’s e-mail stating that “diversity is looked at in total” was in response to a
claim made by a community member and also stated that “I can assure you that Dr. McGinley is not trying to use
diversity of the Penn Wynne attendance area to benefit a homogenous group in the western end of the township by
making their school more diverse.” (Student Does Ex. 82). As Mr. Ebby testified during his deposition, by “diversity
in total”, he meant that whenever diversity was considered, it included not only racial diversity, but also socioeconomic
diversity and diversity with children with IEPs. (Students Doe Ex. 42, Ebby Dep., at 102-103). Moreover, “mixing”
had nothing to do with any racial or socioeconomic profiling whatsoever; rather he was referring to his belief that it
would be better to distribute the middle school student populations between Harriton and Lower Merion High Schools
so that students from both Bala Cynwyd and Welsh Valley Middle Schools attended each high school (as opposed to
one middle school feeding one high school). (Students Doe Ex. 42, Ebby Dep., at 110-111; Ex. I, DiBonaventuro Dep.
at 117-118).
15
Notably, Students Doe Ex. 52, the December 9, 2008 e-mail from Board Member Diane DiBonaventuro to Board
Member Ted Lorenz, expresses Ms. DiBonaventuro’s thoughts concerning diversity issues in connection with
“Modified September Plan,” the plan that she herself created, and which was never acted upon by the Board. (Ex. B,
Pliskin Dep. at 81-85). Moreover, Ms. DiBonaventuro’s inquiry regarding “diversity numbers” in Students Doe Ex. 54
was not an argument in favor of diversity as much as an attempt in an indirect way to advance her proposed plan as an
alternative to Plan 3R, which she did not favor, for reasons unrelated to diversity or race. (Ex. I, DiBonaventuro Dep.,
at 125).

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Case 2:09-cv-02095-MMB Document 39 Filed 01/22/2010 Page 14 of 18

Plaintiffs essentially are asking this Court to censor discussions by the Administration and

Board Members—and, indeed, the public—simply because the terms “race” or “diversity” or

“isolation” may have been used. In order to find liability based on what Plaintiffs proffer as evidence

of intentional race discrimination, one would have to believe: (1) that communications, discussions,

references, and even mere thoughts by the Administration and/or Board Members regarding race,

“diversity,” or “racial isolation” are inappropriate, and (2) even if the Board took no affirmative, official

action as a result of these discussions, communications, or thoughts, they nonetheless “tainted” the

process and made the Board’s action in adopting Plan 3R illegal. Such reasoning is absurd and should

be rejected. Plaintiffs have the burden of proving, as they alleged in their Complaint, that Plan 3R

discriminates against them by mandating that they attend Harriton High School because of their race.

Their reliance on mere discussions or references to race, diversity, or racial isolation clearly fails to

demonstrate that the Board adopted Plan 3R because of its adverse effects on Students Doe as African-

American or minority students.16

5. The Opinion of Plaintiffs’ Counsel or Anyone Else as to the Legality of Plan 3R Is


Irrelevant to the Court’s Determination

Plaintiffs would also have this Court find evidence of intentional race discrimination based

merely on the fact that Plaintiffs’ counsel and the Public Interest Law Center “warned” the District that

race-based redistricting was illegal. (Opp. at 4). Simply because Plaintiffs’ counsel—or anyone else,

for that matter—believes that Plan 3R is a race-based redistricting plan does not make it so. Plaintiffs

have cited no authority suggesting that such “warnings” and opinions not authored by a court of law are

of any relevance to the Court’s determination here.

16
Plaintiffs cite two e-mails between Dr. McGinley and Board Member Lisa Pliskin in purported support of their claims
of intentional race discrimination. (Student Does Exs. 46-47). Neither of these e-mails evidence discrimination.
Moreover, while Plaintiffs selectively quote from Ex. 47, it is clear that the discussion between Dr. McGinley and Ms.
Pliskin in that e-mail focused on the fact that providing high school choice to students in all parts of Ardmore would
result in a untenable disparity between the total student enrollment numbers at Lower Merion High School and Harriton
High school, when equalizing those numbers was the very object of redistricting. (Student Does Ex. 47).

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Case 2:09-cv-02095-MMB Document 39 Filed 01/22/2010 Page 15 of 18

Similarly, Plaintiffs attempt to make much out of the fact that at one point during the

redistricting process, Dr. McGinley became aware of the Supreme Court’s decision in Parents Involved

in Community Schools v. Seattle Sch. Dist. No. 1, 55 U.S. 701 (2007) (“Seattle”), and discussed that

decision with the District’s consultant, Dr. Haber. (Opp. at 16-17). There is nothing nefarious about

two educators discussing a legal decision that came to their attention during the redistricting process

6. The Fact that the Number of African-American Students at Harriton High School
Increased under Plan 3R Does Not Evidence Intentional Race Discrimination

In another futile attempt to show intentional race discrimination, Plaintiffs point to the simple

fact that the number of African-American students currently attending Harriton High School under Plan

3R has “nearly doubled” from those attending Harriton High School in 2008-2009, prior to the

implementation of Plan 3R. (Opp. at 20). The logic behind this argument is inherently suspect,

however, because the purpose in redistricting was to equalize the overall student enrollment numbers at

Harriton and Lower Merion High Schools, which required increasing the total number of students at

Harriton High School, and decreasing the number of students at Lower Merion High School. The very

fact that overall student enrollment levels at Harriton High School increased under Plan 3R (or any

other scenario or proposed plan) necessarily means the number of African-American students would

increase. (Ex. 18 to SMF, McGinley Dep., at 109. See additional portions of McGinley Dep, attached

hereto as Exhibit K, at 105-106). Not surprisingly, the number of white, Asian, Hispanic, and

American Indian students at Harriton High School also increased under Plan 3R. (Student Does Ex.

40; SMF, ¶ 107). In short, the mere fact that the number of African-American students at Harriton

High School increased under Plan 3R does not evidence intentional race discrimination.

7. Plaintiffs’ Assertion that the District Tried to “Hide” Its Actions During the
Redistricting Process Is Contradicted by the Record and Should Be Rejected

The remaining “evidence” of discrimination relied upon by Plaintiffs is their unsupported

assertion that the District somehow tried to “hide” its actions during the redistricting process. (Opp. at

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Case 2:09-cv-02095-MMB Document 39 Filed 01/22/2010 Page 16 of 18

19). Nothing could be further from the truth. At every step of the redistricting process, the District held

public meetings, sought and reviewed public comment and feedback, and disseminated information to

the public regarding the process. The fact that a certain draft press release stated that proposed Plan 1,

which was not acted upon or adopted by the Board, resulted in student enrollments that reflected

balance with regard to all diversity factors, does not demonstrate intentional race discrimination.

Moreover, Plaintiffs’ mischaracterize the September 19, 2008 e-mail from Dr. McGinley, erroneously

asserting that Dr. McGinley directed that any information published on the Redistricting website should

omit commentary and information concerning diversity. (Opp. at 19). The e-mail speaks for itself and

clearly does not direct that any information concerning diversity should be excluded from the website.

(Student Does Ex. 81). Moreover, Plaintiffs’ assertion is belied by the fact that the District provided

diversity data during the public presentations of Plans 1, 2, and 3, as well as information concerning the

ethnicity make-up of the District’s schools via the “Frequently Asked Questions” published on its

website. (Students Doe Ex. 17).

D. Plaintiffs Have No Evidence to Refute That Students Doe Were Zoned to Attend
Harriton High School Because They Attended Penn Valley Elementary School
and Welsh Valley Middle School and Live Outside the Official Lower Merion
High School Walk Zone

The record evidence demonstrates that under Plan 3R, Lower Merion School District did not

select individual students for assignments to either High School. Instead, student assignment was

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

All students living in geographic areas that were zoned to Belmont Hills, Gladwyne, and Penn Valley

Elementary Schools and Welsh Valley Middle School were districted to Harriton High School. The

only exception is that Penn Valley Elementary School/Welsh Valley Middle School students who live

in the official, historic Lower Merion High School walk zone, can choose between attending Harriton

High School and walking to Lower Merion High School. (SMF, ¶ 95). Because Students Doe attend

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Case 2:09-cv-02095-MMB Document 39 Filed 01/22/2010 Page 17 of 18

Penn Valley Elementary School and Welsh Valley Middle School, and because they live outside the

official Lower Merion High School walk zone, they, along with all others so situated, regardless of

race, do not have the option to attend Lower Merion High School. (Id.). Plaintiffs have pointed to no

evidence disputing these facts.

Moreover, contrary to their assertion, Students Doe are not the only children who no longer

have the option to choose between Lower Merion and Harriton High Schools under Plan 3R. (Opp. at

19). As stated in the District’s Opening Brief, all students, of all races, living in the Affected Area must

attend Harriton High School. Moreover, students living in other sections of the Penn Valley

community, as well as students living in sections of the Belmont Hills community, previously had the

option of attending Lower Merion High School, but must attend Harriton High School under Plan 3R

because they attend Penn Valley or Belmont Hills Elementary School and Welsh Valley Middle

School and live outside the official Lower Merion High School walk zone. (See Declaration of

Christopher McGinley, attached hereto as Ex. L, at ¶¶ 7-14). For example, students living in North

Narberth, which is a predominantly white area, previously had the option to attend Lower Merion High

School but now must attend Harriton High School under Plan 3R, as they too attend Belmont Hills

Elementary School and Welsh Valley Middle School and do not live within the official Lower Merion

High School walk zone. (Id. at ¶¶ 10-11; Opening Mem. at 14). It is particularly telling that Plaintiffs

make no attempt to address these facts.

In sum, Plaintiffs have failed to show any similarly situated students outside their protected

class who were treated differently under Plan 3R, and, as explained above, they have failed to point to

any evidence demonstrating that the Board adopted Plan 3R because of its allegedly adverse effects

upon Plaintiffs, as African-American or minority students. Consequently, their claims of intentional

discrimination fail as a matter of law. (See Opening Mem. at 11-22).

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Case 2:09-cv-02095-MMB Document 39 Filed 01/22/2010 Page 18 of 18

III. CONCLUSION

For the foregoing reasons, and those set forth in Defendant’s Opening Memorandum of Law in

support of its Motion for Summary Judgment, Plaintiffs’ claims of race discrimination are legally

insufficient, and the Court should grant summary judgment in Defendant’s favor, dismissing the

Complaint in its entirety with prejudice.

Respectfully submitted,

/s/ Judith E. Harris


Judith E. Harris (PA I.D. No. 02358)
Christina Joy F. Grese (PA I.D. No. 200727)
Allison N. Suflas (PA I.D. No. 204448)
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103
215-963-5028/5085/5752

Michael D. Kristofco, Esquire


Kenneth A. Roos, Esquire
WISLER PEARLSTINE, LLP
484 Norristown Road
Blue Bell, PA 19422
610-825-8400

Dated: January 22, 2010 Attorneys for Defendant


Lower Merion School District

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