Case 2:09-cv-02095-MMB Document 84 Filed 04/04/10 Page 1 of 19

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 :

PLAINTIFFS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

Plaintiffs, Students Doe, by and through their undersigned counsel, now submit the

following Proposed Findings of Fact and Conclusions of Law in accordance with this Honorable

Court’s published Pretrial and Trial Procedures-Civil Cases.

I. PROPOSED FINDINGS OF FACT

1. Student Doe 1 is an African American and attends Middle School in the Lower Merion

School District. Exhibit P-152 (Civil Action Complaint pages 2 and 3).

2. Student Doe 2 is an African American and attends Middle School in the Lower Merion

School District. Exhibit P-152 (Civil Action Complaint pages 2 and 3).

3. Student Doe 3 is an African American and attends Elementary School in the Lower

Merion School District. Exhibit P-152 (Civil Action Complaint pages 2 and 3).

4. Student Doe 4 is an African American and attends Harriton High School in the Lower

Merion School District. Exhibit P-152 (Civil Action Complaint pages 2 and 3).
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5. Student Doe 5 is an African American and attends Elementary School in the Lower

Merion School District. Exhibit P-152 (Civil Action Complaint pages 2 and 3).

6. Student Doe 6 is an African American and attends Elementary School in the Lower

Merion School District. Exhibit P-152 (Civil Action Complaint pages 2 and 3).

7. Student Doe 7 is an African American and attends Middle School in the Lower Merion

School District. Exhibit P-152 (Civil Action Complaint pages 2 and 3).

8. Student Doe 8 is an African American and attends Elementary School in the Lower

Merion School District. Exhibit P-152 (Civil Action Complaint pages 2 and 3).

9. Student Doe 9 is an African American and attends Elementary School in the Lower

Merion School District. Exhibit P-152 (Civil Action Complaint pages 2 and 3).

10. Students Doe live in a neighborhood bounded by Athens Avenue, Wynnewood Road,

County Line Road, and Cricket Avenue, in South Ardmore, Pennsylvania. Exhibit P-152 (Civil

Action Complaint pages 2 and 3).

11. Students Doe all live within one (1) mile of Lower Merion High School; therefore,

they should live within the Lower Merion High School “walk zone.” See Exhibit P-138 and

Exhibit P-193.

12. Lower Merion has received in the past, and continues to receive ongoing Federal

Funding. Exhibit P-152 (Civil Action Complaint page 4).

13. Lower Merion is in the process of completing two equally sized high schools, i.e.

Lower Merion High School and Harriton High School. Harriton High School was opened in the

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Fall of 2009, and the new Lower Merion High School is expected to be opened in September of

2010.

14. Redistricting in the Lower Merion School District became necessary because prior to

the reconstruction of the high schools, Harriton High School was a smaller facility while Lower

Merion High School was a larger facility.

15. Lower Merion began the process of redistricting in the early Spring of 2008 by

figuring out exactly what process it would use to formulate a redistricting plan. Eventually,

Lower Merion decided that the administration would formulate the proposed redistricting plans

for School Board approval using a set of School Board adopted Non-Negotiables, and a set of

Community Values elicited from the community in a series of community meetings and by

conducting an on-line survey.

16. The Former Superintendent of Lower Merion, Dr. Jamie Savedoff, indicated to the

Lower Merion School Board that in formulating criteria to develop redistricting plans they

should consider issues such as “racial balance and/or clustering,” and “racial isolation.” Exhibit

P-35 and Exhibit P-156.

17. Lower Merion’s Administration urged the Lower Merion School Board to take into

account “minority student assignments” as well as the “distribution of minority students” when

formulating criteria for the development of redistricting plans. Exhibit P-36, Exhibit P-37, and

Exhibit P-38.

18. The Lower Merion School Board adopted a set of Non-Negotiables on April 21,

2008. The following Non-Negotiables were adopted: (1). Enrollment in the two high schools and

two middle schools would be equalized; (2). Elementary school students would be assigned so

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that the schools are at or under the school capacity; (3). The plan could not increase the number

of buses required; (4). The class of 2010 would have the option to either follow the redistricting

plan, or stay at the high school they attended the previous year; and (5). Redistricting decisions

would be based on current and expected future needs, and not based on past promises. Exhibit P-

5.

19. In order to gather community input to formulate the Community Values, the Lower

Merion School Board retained the services of Dr. Harris Sokoloff and Ms. Ellen Peterson. Dr.

Sokoloff and Ms. Peterson conducted four (4) community meetings, and conducted an on-line

survey in order to perform their task. Exhibit P-144.

20. Dr. Sokoloff and Ms. Peterson’s findings regarding Community Values are set forth

in a report dated July 11, 2008. According to the report, the community felt the following issues

needed to be taken into account in the redistricting process: (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 where 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. Exhibit P-144.

21. The Lower Merion School Board unanimously adopted Dr. Sokoloff and Ms.

Peterson’s report on July 21, 2008, and the Community Values set forth therein, including the

Community Value requiring cultivating diversity, thereafter became part of the criteria for

developing redistricting plans. Exhibit P-144 and Exhibit P-158.

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22. Shortly before adopting Dr. Sokoloff and Ms. Peterson’s report, the Lower Merion

School Board retained the services of a redistricting consultant, Dr. Ross Haber, to assist the

administration in producing proposed redistricting plans. Exhibit P-142.

23. Dr. Haber used a proprietary computer program called the Geographic Information

System. This program allowed him to district students based on any number of criteria including

racial criteria. Exhibit P-143 page 2.

24. Dr. Haber produced a number of scenarios throughout the redistricting process. All of

these scenarios contained information concerning racial make-ups for Lower Merion’s high

schools under any given proposed scenario. See Exhibit P-6 through Exhibit P-26.

25. A number of the aforementioned scenarios only contain information regarding the

projected number of Caucasian Students in each high school, and the projected number of

African American Students in each high school. Exhibit P-6 through Exhibit P-10.

26. Some of the aforementioned scenarios only contain information regarding the

projected number of Caucasian Students, the projected number of African American Students,

and the projected number of socioeconomically disadvantaged students in each high school.

Exhibit P-21 and Exhibit P-26.

27. Dr. Haber advised Lower Merion that he could create “color blind” scenarios, but

Lower Merion declined to use such scenarios. Exhibit P-54 and Exhibit P-182 page 133.

28. Dr. Haber used the Community Values, including the Community Value of

cultivating diversity, as guidelines when developing his scenarios. See Exhibit P-146 pages 1,

15, and 20, and Exhibit P-182 pages 24-41, 49-60, 69-71, 82-83, 87-94, 107, 127, and 150-202.

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29. Dr. Haber met with Lower Merion School Administrators and Lower Merion School

Board Members during the Summer of 2008. Specifically, meetings were held on June 9, 2008,

June 24, 2008, July 9, 2008, July 23, 2008, August 7, 2008, and August 27, 2008. During the

course of these meetings the aforementioned individuals discussed student enrollment data,

various proposed scenarios, and diversity issues. See Exhibit P-40 through Exhibit P-46, Exhibit

48 through Exhibit P-49, and Exhibit P-52 through Exhibit P-53.

30. During the meeting held on July 23, 2008, Dr. Haber, Lower Merion School

Administrators, and Lower Member School Board Members eliminated scenario 1 from

consideration because of inequitable racial balancing. Exhibit P-6 and Exhibit P-146.

31. Lower Merion was aware of the United States Supreme Court’s holding in Parents

Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007), prior to

publicly proposing any redistricting plans. Exhibit P-53

32. Lower Merion intended to split the Ardmore Community for high school from the

very beginning of the redistricting process in order to achieve better racial balance in its high

schools. See Exhibit P-54.

33. The Ardmore Community has the highest concentration of African Americans in the

Lower Merion School District. See Exhibit P-192.

34. Throughout the redistricting process, Lower Merion told the public that it was using

the Community Values, including the Community Value of cultivating diversity, as guidelines

when formulating redistricting plans. Exhibit P-51, Exhibit P-63, Exhibit P-89, Exhibit P-133,

Exhibit P-137, Exhibit P-151 pages Students Doe 0064 and 0067, and Exhibit P-165.

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35. Throughout the redistricting process, Lower Merion School Board Members told each

other that the Community Values, including the Community Value of cultivating diversity, were

being used as guidelines when formulating redistricting plans. Exhibit P-64, Exhibit P-113, and

Exhibit P-136.

36. Lower Merion never retained the services of a diversity consultant to assist with the

redistricting of the high schools.

37. Lower Merion presented its first proposed redistricting plan to the public on

September 8, 2008. Exhibit P-1.

38. During the presentation of the first proposed redistricting plan, it was publicly stated

that the Community Values, including the Community Value of cultivating diversity, were taken

into account when formulating the proposed plan. Exhibit P-159 and Exhibit P-161.

39. The power-point presentation for the first proposed redistricting plan contained a

slide specifically setting forth the racial make-up of Lower Merion’s high schools under the

proposed plan. Exhibit P-1.

40. The first proposed redistricting plan did not affect Students Doe. Exhibit P-1and

Paragraph 10 of the Proposed Findings of Fact.

41. The first proposed redistricting plan if adopted would have drastically altered the

racial make-up of Lower Merion’s high schools. See Exhibit P-1 and Exhibit P-140.

42. The first proposed redistricting plan was based on Scenario 3 prepared by Dr. Haber.

Compare Exhibit P-8 and Exhibit P-1.

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43. Scenario 3 was chosen as the basis for the first proposed redistricting plan in part,

because it provided better racial diversity in Lower Merion’s high schools. Exhibit P-11.

44. In response to questioning, Dr. McGinley stated publicly that the racial diversity

numbers were included in the presentation of the first proposed redistricting plan to confirm that

the administration complied with the Community Value of cultivating diversity. Exhibit P-160.

45. Lower Merion presented its second proposed redistricting plan to the public on

October 20, 2008. Exhibit P-2.

46. During the presentation of the second proposed redistricting plan it was publicly

stated that the Community Values, including the Community Value of cultivating diversity, were

taken into account when formulating the proposed plan. Exhibit P-162.

47. The power-point presentation for the second proposed redistricting plan contained a

slide specifically setting forth the racial make-up of Lower Merion’s high schools under the

proposed plan. Exhibit P-2.

48. The second proposed redistricting plan did not affect Students Doe. Exhibit P-2 and

Paragraph 10 of the Proposed Findings of Fact.

49. The second proposed redistricting plan if adopted would have drastically altered the

racial make-up of Lower Merion’s high schools. See Exhibit P-2 and Exhibit P-140.

50. The second proposed redistricting plan was based on Scenario 7C-5 prepared by Dr.

Haber. Compare Exhibit P-13 and Exhibit P-2.

51. Lower Merion presented its third proposed redistricting plan to the public on

November 24, 2008. Exhibit P-3.

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52. During the presentation of the third proposed redistricting plan it was publicly stated

that the Community Values, including the Community Value of cultivating diversity, were taken

into account when formulating the proposed plan. Exhibit P-171.

53. The power-point presentation for the third proposed redistricting plan contained a

slide specifically setting forth the racial make-up of Lower Merion’s high schools under the

proposed plan. Exhibit P-3.

54. The third proposed redistricting plan affected Students Doe in that under the proposed

plan, all high schools students residing in Students Doe’s neighborhood had to attend Harriton

High School instead of having the choice to attend either Harriton High School or Lower Merion

High School. Exhibit P-3 and Paragraph 10 of the Proposed Findings of Fact.

55. The third proposed redistricting plan if adopted would have drastically altered the

racial make-up of Lower Merion’s high schools. See Exhibit P-3 and Exhibit P-140.

56. The third proposed redistricting plan was based on Scenario 8 prepared by Dr. Haber.

Compare Exhibit P-16 and Exhibit P-3.

57. Lower Merion presented its third revised proposed redistricting plan to the public on

December 15, 2008. Exhibit P-4.

58. During the presentation of the third revised proposed redistricting plan it was publicly

stated that the Community Values, including the Community Value of cultivating diversity, were

taken into account when formulating the proposed plan. Exhibit P-172 .

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59. Unlike the previous presentations, the power-point presentation for the third revised

proposed redistricting plan did not contain a slide specifically setting forth the racial make-up of

Lower Merion’s high schools under the proposed plan. Exhibit P-4.

60. Just days before the presentation of the third revised proposed redistricting plan,

Lower Merion was notified by opposing counsel that the redistricting plans proposed were

unconstitutional and illegal in light of the fact that race was being used as a basis for the

redistricting of students. Exhibit P-110.

61. However, Dr. McGinley communicated the racial make-up of Lower Merion’s high

schools under the third revised proposed redistricting plan to the Lower Merion School Board

Members just hours before the vote on the proposed plan. Exhibit P-119.

62. The third revised proposed redistricting plan affected Students Doe in that under the

proposed plan, all high schools students residing in Students Doe’s neighborhood had to attend

Harriton High School instead of having the choice to attend either Harriton High School or

Lower Merion High School. Exhibit P-4 and Paragraph 10 of the Proposed Findings of Fact.

63. The difference between the third revised proposed redistricting plan and the third

proposed redistricting plan, was that the third revised proposed redistricting plan restored the

historic Lower Merion High School “walk zone.” Children in the “walk zone” were once again

given the choice to attend either Harriton High School or Lower Merion High School. Compare

Exhibit P-3 and Exhibit P-4.

64. The third revised proposed redistricting plan drastically altered the racial make-up of

Lower Merion’s high schools. See Exhibit P-4, Exhibit P-119, and Exhibit P-140.

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65. The Lower Merion School Board was warned by opposing counsel and attorneys

from PILCOP prior to its vote on the third revised proposed redistricting plan that its action were

unconstitutional and illegal in light of the fact that race was being used as a basis for the

redistricting of students. See Exhibit P-115 and P-117.

66. The third revised proposed redistricting plan was adopted by the Lower Merion

School Board on January 12, 2009. Exhibit P-152 (Civil Action Complaint pages 13 and 14).

67. Based on a statistical analysis performed by Pavel Greenfield, Ph.D., Students Doe

were not assigned to Harriton High School on the basis of chance. See Exhibit P-194 and Exhibit

P-195.

68. E-mails and other documents exchanged between Lower Merion School Board

Members, Dr. McGinley, and Dr. Haber, throughout the redistricting process clearly indicate that

race was a motivating factor in the redistricting process. See Exhibit P-64, Exhibit P-75, Exhibit

P-78, Exhibit P-79, Exhibit P-80, Exhibit P-82, Exhibit P-83, Exhibit P-85, Exhibit P-86, Exhibit

P-90, Exhibit P-92, Exhibit P-93, Exhibit P-101, Exhibit P-104, Exhibit P-106, Exhibit P-109,

Exhibit P-112, Exhibit P-114, Exhibit P-118, Exhibit P-119 through Exhibit P-124, Exhibit P-

126, Exhibit P-130 through Exhibit P-132, and Exhibit P-147 through Exhibit P-150.

69. Notes of Lower Merion School Board Members and Dr. McGinley throughout the

redistricting process clearly indicate that race was a motivating factor in the redistricting process.

See Exhibit P-74, Exhibit P-76, Exhibit P-77, Exhibit P-94, Exhibit P-102, Exhibit P-107,

Exhibit P-108, and Exhibit P-135.

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70. The testimony at trial by Dr. Haber, Lower Merion Administrators, and Lower

Merion School Board Members clearly indicates that race was a motivating factor in the

redistricting process.

71. Dr. McGinley clearly told the Lower Merion School Board Members that race was a

motivating factor in the redistricting process. See Exhibit P-166 through Exhibit P-169.

72. Lower Merion actively concealed from the public the fact that race was a motivating

factor in the redistricting process. See Exhibit P-60, Exhibit P-61, Exhibit P-65, and Exhibit P-

125.

73. Parents/Guardians Doe filed suit on behalf of Students Doe on May 14, 2009, in the

United States District Court for the Eastern District of Pennsylvania. Students Doe contend that

Lower Merion’s redistricting actions violate the Fourteenth Amendment to the United States

Constitution, 42 U.S.C. Section 1981, and Title VI of the Civil Rights Act, 42 U.S.C. Section

2000d et. seq. Exhibit P-152.

74. Each of the proposed redistricting plans affected African American students from

Ardmore. Compare Exhibit P-1, Exhibit P-2, Exhibit P-3, Exhibit P-4, and Exhibit P-192.

75. The children in every neighborhood within the Lower Merion School District that

borders Students Doe's neighborhood are permitted to choose between attending Harriton High

School and Lower Merion High School, while the students in Students Doe's neighborhood are

required to go to Harriton High School See Exhibit P-4.

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76. Lower Merion’s argument that it did nothing illegal because the redistricting plan at

issue also redistricted non-African American children is factually flawed in that any redistricting

plan would have had to redistrict non-African American children.

II. PROPOSED CONCLUSIONS OF LAW

1. In light of this Honorable Court’s ruling on Lower Merion's Motion for Summary

Judgment that Lower Merion's redistricting plan is facially neutral, Students Doe are entitled to

prevail if they can establish that race was a motivating factor in the adoption of the redistricting

plan at issue. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429

U.S. 252, 265-266 (1977); See also Pryor v. National Collegiate Athletic Association, 288 F.3d

548, 560-561 (3d Cir. 2002) (Plaintiffs are entitled to succeed in cases involving facially neutral

policies and statutes if they can prove purposeful discrimination. Id.).

2. The legal issue tried in this case is whether race was a motivating factor in Lower

Merion's decision-making process, and not whether race was the motivating factor in Lower

Merion's decision-making process. Village of Arlington Heights , 429 U.S. at 265-266.

3. In order to determine “whether invidious discriminatory purpose was a motivating

factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may

be available." Village of Arlington Heights, 429 U.S. at 265-266.

4. This “sensitive” inquiry may include, but is not limited to, investigation about: (1). the

historical background of the decision; (2). the sequence of events leading up to the decision; (3).

the statements made by those involved in the decision making process; (4). the records of

meetings; (5). the reports that the process generated; (6). the testimony of those involved in the

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decision making process; and (7). the overall impact of the governmental action. See Id. at 265-

268; See also Pryor, 288 F.3d at 562-563.

5. When conducting the “sensitive” inquiry at issue, the fact finder should bear in mind

that "people usually intend the natural consequences of their actions." Pryor, 288 F.3d at 563

(internal citations omitted).

6. Once it is established that race was a motivating factor in Lower Merion's decision-

making, the burden of proof shifts to Lower Merion, and Lower Merion has to prove that its

actions meet the strict scrutiny test. See Parents Involved in Community Schools v. Seattle

School District No. 1, 551 U.S. 701, 720 (2007)(“It is well established that when the government

distributes burdens or benefits on the basis of individual racial classifications, that action is

reviewed under strict scrutiny.” Id.); See also Adarand Constructors, 515 U.S. 200, 227

(1995)(“Accordingly, we hold today that all racial classifications, imposed by whatever federal,

state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny.”

Id.).

7. It is irrelevant whether Lower Merion acted with good intention or bad intention when

creating the redistricting plan at issue; the only thing relevant to the inquiry is whether Lower

Merion was motivated by discriminatory purpose. See Seattle School District, 551 U.S. at 732

(“The principle that racial balancing is not permitted is one of substance, not semantics. Racial

balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest

simply by relabeling it ‘racial diversity.’” Id.) (“Simply because the school districts may seek a

worthy goal does not mean they are free to discriminate on the basis of race to achieve it, or that

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their racial classifications should be subject to less exacting scrutiny.” Id. at 743.); Pryor, 288

F.3d at 562.

8. In order to satisfy the strict scrutiny standard, Lower Merion must demonstrate that the

use of individual racial classifications is “narrowly tailored” to achieve “compelling”

government interest. Seattle School District, 551 U.S. at 720.

9. When applying the strict scrutiny test, all ambiguities in the policy at issue are to be

construed against the school district. See Id. at 786 (Kennedy J.).

10. There are only two (2) instances when student assignments based upon race have

survived the strict scrutiny test. The first instance was when a school district used racial

classifications in order to remedy the effects of its own past segregationist policies. The second

instance was when an institution of higher learning, i.e. one above the high school level, sought

to use race in conjunction with a number of other factors in order to truly diversify its student

body. See Seattle School District, 551 U.S. at 720 and 722.

11. Redistricting plans implemented to rectify racial imbalances in schools without a

showing of improper past segregation do not satisfy the strict scrutiny standard. Seattle School

District, 551 U.S. at 721.

12. Redistricting plans implemented to achieve outright racial balance are patently

unconstitutional. Seattle School District, 551 U.S. at 726; Grutter v. Bollinger, 539 U.S. 306,

329-330 (2003).

13. Redistricting plans implemented to remedy generalized instances of societal

discrimination will not survive strict scrutiny. Seattle School District, 551 U.S. at 730-731.

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14. Redistricting plans which use quota systems also fail the strict scrutiny test. Grutter,

539 U.S. 336.

15. Redistricting plans where race was a motivating factor in their creation fail the strict

scrutiny test if they do not contain a “sunset” provision. See Grutter, 539 U.S. 341-342.

16. The use of strict scrutiny to review government action “‘has proven automatically

fatal’ in most cases.” Seattle School District, 551 U.S. 752 (Thomas J.).

17. In light of the fact that race was a motivating factor in the development of Lower

Merion’s redistricting plan, and Lower Merion cannot meet its burden under the strict scrutiny

test, said plan must be struck down as unconstitutional. See Parents Involved in Community

Schools v. Seattle School District No. 1, 551 U.S. 701 (2007).

18. Lower Merion's conduct in this matter constitutes clear violations of 42 U.S.C.

Section 1981, and Title VI. 42 U.S.C. Section 1981 ("All persons within the jurisdiction of the

United States shall have the right in every State and Territory ...to the full and equal benefit of all

laws and proceedings...”Id. at Section 1981(a)); Title VI of the Civil Rights Act, 42 U.S.C.

Section 2000d et. seq. ("No person in the United States shall, on the grounds of race, color, or

national origin, be excluded from participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal financial assistance." Id. at

2000d).

19. 42 U.S.C. Section 1981 and/or Title VI afford greater protection, and regulate broader

conduct, than the Fourteenth Amendment would allow. See 42 U.S.C. Section 1981; 42 U.S.C.

Section 2000d et. seq.

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20. 42 U.S.C. Section 1981 and/or Title VI have to be interpreted broadly because of

their clearly remedial nature in order to effectuate their stated purpose, i.e. to eliminate racial

discrimination. See Sutton v. United Airlines, 527 U.S. 471, 504 (1999) ("It has long been a

'familiar canon of statutory construction that remedial legislation should be construed broadly to

effectuate its purposes.'" Id.)(Stevens J.).

21. In light of the fact that race was a motivating factor in the development of Lower

Merion’s redistricting plan, it violates 42 U.S.C. Section 1981 and Title VI of the Civil Rights

Act, 42 U.S.C. Section 2000d et. seq. Accordingly, it must be enjoined under Federal Law. 42

U.S.C. Section 1983.

22. Plaintiffs in discrimination cases are entitled to rely on circumstantial evidence in

order to prove their claims. See Holcomb v. Iona College, 521 F.3d 130, 141 (2d Cir. 2008)

("Direct evidence of discrimination, 'a smoking gun,' is typically unavailable....It is well settled,

however, that employment discrimination plaintiffs are entitled to rely on circumstantial

evidence. In this respect, we have noted the need to be 'alert to the fact that employers are rarely

so cooperative as to include a notation in the personnel file that the firing is for a reason

expressly forbidden by law.'" Id. (internal citations omitted)).

23. Students Doe have established that race was indeed a motivating factor in the

redistricting process; therefore the School Board Members' statements to the contrary are

irrelevant. See Shaw v. Reno, 509 U.S. 630 (1993)("No inquiry into legislative purpose is

necessary when the racial classification appears on the face of the statute." Id. at 642.); See also

Adarand Constructors, 515 U.S. at 213 ("We note incidentally, that this case concerns only

classifications based explicitly on race, and presents none of the additional difficulties posed by

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laws that, although facially neutral, result in racially disproportionate impact and are motivated

by a racially discriminatory purpose." Id.).

24. Each of Students Doe's causes of action was brought under 28 U.S.C. Section 1983. It

is clear under Section 1983 that a governmental entity cannot escape liability in those instances

in which it creates a racially based policy or custom, and then a subordinate dutifully acts

pursuant to that policy or custom. See Pembaur v. Cincinnati, 475 U.S. 469 (1986); See also

Monell v. New York City Department of Social Services, 436 U.S. 658 (1978).

25. Lower Merion’s argument that Students Doe's equal protection claim is barred

because they were treated like everyone else living in their neighborhood has already been

rejected by the Supreme Court. Williams v. Vermont, 472 U.S. 14 (1985) ("A state cannot

deflect an equal protection challenge by observing that in light of the statutory classification all

those within the burdened class are similarly situated. The classification must reflect pre-existing

differences; it cannot create new ones that are supported by only their own bootstraps." Id. at

27); See also Rinaldi v. Yeager, 384 U.S. 305 (1966) ("The Equal Protection Clause requires

more of a state law than nondiscriminatory application within the class it establishes." Id. at

308).

26. Lower Merion’s argument that it is not liable in this matter because it chose a

redistricting plan that did not create as much diversity as other proposed redistricting plans is

legally unavailing. See The Fourteenth Amendment to the United States Constitution, 42 U.S.C.

Section 1981, and Title VI of the Civil Rights Act, 42 U.S.C. Section 2000d et. seq.

27. Lower Merion clearly violated 29 U.S.C. Section 794 when it redistricted special

needs children on the basis of their handicap.

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28. Lower Merion’s Student Transportation Policy does not permit it to truncate the

Lower Merion High School “walk zone” in South Ardmore. Exhibit P-141.

Respectfully submitted,

/S/ David G. C. Arnold

____________________________________
David G. C. Arnold

Pennsylvania Attorney Identification No. 49819

Suite 106, 920 Matsonford Road

West Conshohocken, Pennsylvania 19428
(610) 397-0722

Attorney for Plaintiffs

Dated: April 5, 2010

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