Case 2:09-cv-02095-MMB Document 127-2 Filed 07/22/10 Page 1 of 14

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’ BRIEF IN SUPPORT OF THEIR MOTION FOR A NEW TRIAL

Plaintiffs, Students Doe 1 through 9, by and through their undersigned counsel, file the

present Brief in order to comply with Rule 7.1 of the Rules of Civil Procedure of the United

States District Court for the Eastern District of Pennsylvania, and in order to further explain the

positions taken in their pending Motion for a New Trial pursuant to Rule 59 of the Federal Rules

of Civil Procedure.

FACTUAL BACKGROUND

On May 14, 2009, Students Doe, by and through their Parents/Guardians, filed a Three

Count Complaint in the United States District Court for the Eastern District of Pennsylvania

seeking to enjoin, both preliminarily and permanently, defendant, Lower Merion School

District’s school redistricting plan adopted on January 12, 2009. 1 Students Doe contend in their

Complaint that Lower Merion’s redistricting plan improperly used racial criteria in order to

mandate that they be bused to a non-neighborhood school, Harriton High School, instead of

1
Shortly after filing its Complaint, Students Doe filed a Motion for Preliminary Injunction. Said Motion was
scheduled to be heard in August of 2009. Students Doe later withdrew said Motion prior to the Preliminary
Injunction Hearing.
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allowing them to continue to voluntarily choose to attend their neighborhood high school, Lower

Merion High School, or Harriton High School. See Students Doe's Civil Action Complaint filed

on May 14, 2009.

Students Doe are all minority students who live in a neighborhood bounded by Athens

Avenue, Wynnewood Road, County Line Road, and Cricket Avenue in South Ardmore,

Pennsylvania, hereinafter referred to as the "Affected Area." 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, and 42 U.S.C.

Section 2000d et. seq. See Students Doe's Civil Action Complaint filed on May 14, 2009.

Following a nine (9) day non-jury trial, this Honorable Court filed its Memorandum of

Factual Findings on May 13, 2010. Of critical importance to this case is the Court’s finding “that

race was one of several factors motivating the School Administration, as it developed and

recommended redistricting plans.” Student Doe 1 v. Lower Merion School District, slip op. page

3 (E.D. Pa. May 13, 2010) (hereinafter referred to as "Doe I"). This Court also found that “the

process of redistricting repeatedly embraced the goal of achieving racial parity between [Harriton

High School and Lower Merion High School].” Id.; See also Id. at pages 52-53.

Thereafter, on June 24, 2010, this Court filed its Memorandum on Conclusions of Law.

In its Conclusions of Law, the Court found, "the District has satisfied its burden of showing that

Plan 3R was narrowly tailored to meet numerous race-neutral compelling interests-namely,

having two equally sized high schools, minimizing travel time and costs, maintaining educational

continuity, and fostering students' ability to walk to school. The District's mere consideration of

the racial demographics of Plaintiffs' neighborhood does not warrant an opposite conclusion

2
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under existing Supreme Court or Third Circuit precedent." Student Doe 1 v. Lower Merion

School District, slip op. pages 5-6 (E.D. Pa. June 24, 2010) (hereinafter referred to as "Doe II").

For the reasons set forth herein at length, Students Doe respectfully contest the manner in

which the Court applied the strict scrutiny test in Doe II, and contend that based on this error the

Court improperly entered a verdict in favor of Lower Merion. Students Doe further respectfully

contest the Court's application of the "inevitability" defense as set forth in Village of Arlington

Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), in Doe II. Students

Doe also contend that based on this error, the Court improperly entered a verdict in favor of

Lower Merion. Students Doe further contend that these manifest errors of law and/or fact

prejudiced their individual Constitutional Rights in that they resulted in an adverse verdict

against them, and that said errors may also adversely impact the Constitutional Rights of non-

parties living in the Affected Area whose interests may be controlled by Doe II.

ARGUMENT

Motions for a New Trial are controlled by Rule 59 of the Federal Rules of Civil

Procedure. In accordance with Rule 59, when a case is tried non-jury, a Trial Court upon the

filing of a Motion for a New Trial may: (1). grant a new trial; (2). open a judgment and amend

conclusions of law; (3). open a judgment and make new conclusions of law; and/or (4). direct the

entry of a new judgment. Motions for a New Trial must be filed within twenty eight (28) days

after the entry of a judgment. F.R.Civ.P. 59(b). The filing of a Motion for a New Trial tolls the

running of the thirty (30) day appeal period. F.R.App.P. 4. Relief is appropriate in those

instances, as in this case, where there are manifest errors of law, or errors of fact. See Ball v.

3
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Interoceanica Corporation, 71 F.3d 73, 76 (2d Cir. 1995); United States of America v. Schiffer,

836 F. Supp. 1164, 1169 (E.D. Pa. 1993).

A. Application of Strict Scrutiny in the Present Case

While Students Doe agree with the Court that the United States Court of Appeals for the

Third Circuit's decision in Pryor v. National Collegiate Athletic Association, 288 F. 3d 548 (3d

Cir. 2002), mandates the application of strict scrutiny in the present case, they disagree with the

legal conclusion that the application of strict scrutiny is not required by a number of recent

Supreme Court decisions regarding the Fourteenth Amendment.

The language in these recent Supreme Court decisions directing the application of

strict scrutiny is extremely broad, and demands its use whenever race is a factor in government

decision-making. See e.g. Parents Involved in Community Schools v. Seattle School District No.

1, 551 U.S. 70, 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.); Johnson v. California, 543 U.S. 499, 506 (2005) ("We therefore apply strict

scrutiny to all racial classifications to 'smoke out' illegitimate uses of race by assuring that

[government] is pursuing a goal important enough to warrant use of a highly suspect tool." Id.

(emphasis added)); Adarand Constructors, Inc. v. Pena, 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. (emphasis

added)); Gratz v. Bollinger, 539 U.S. 244, 270 (2003) ("It is by now well established that all

racial classifications reviewable under the Equal Protection Clause must be strictly

scrutinized." Id. (emphasis added) (internal citations and quotations omitted)).

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It should be noted that 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 their racial classifications should be subject to less exacting scrutiny.” Id. at

743.); Pryor, 288 F.3d at 562.

B. Lower Merion Has Failed to Identify a Compelling State Interest

Contrary to the holding of the Court in Doe II, Lower Merion cannot survive a strict

scrutiny challenge because it has never articulated a compelling state interest related to its use of

race in redistricting. In order to defeat a strict scrutiny challenge, Lower Merion must

demonstrate that its use of racial classifications is “narrowly tailored” to achieve a “compelling”

government interest. Seattle School District, 551 U.S. at 720. When considering Lower Merion's

conduct, it must also be kept in mind that all ambiguities in the policy at issue are to be construed

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

Lower Merion’s defense at trial, i.e. that race was not a factor in its decision-making,

precluded it from identifying a compelling state interest related to its use of race in the

redistricting process; therefore, when the Court found in Doe I that race was a factor in

redistricting, Lower Merion could not satisfy its burden of proof as a matter of law.

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Lower Merion's Administration repeatedly denied in vain that it did not use race as a

factor in formulating, selecting, and recommending redistricting plans. Specifically, Dr.

Christopher McGinley repeatedly denied that race played any part in his actions. See trial

testimony of Dr. McGinley April 8, 2010 at 12:22 P.M.-12:23 P.M., 12:26 P.M.-12:27 P.M.,

2:08 P.M.-2:09 P.M., 2:41-2:42 P.M., 2:48 P.M.-2:50 P.M., 4:23 P.M.-4:24 P.M.; April 9, 2010,

at 10:20 A.M., 10:27 A.M.-10:33 A.M., 10:41 A.M.-10:55 A.M., 12:25 P.M.-12:27 P.M.; April

14, 2010, at 3:23 P.M.-3:33 P.M., 4:06 P.M.-4:09 P.M., 4:23 P.M.; April 15, 2010, at 9:48 A.M.-

9:49 A.M., 9:51 A.M.-9:53 A.M., 10:08 A.M.-10:09 A.M. Scott Schafer, Lower Merion's

Business Manager, specifically testified during his direct examination that the consideration of

race in the redistricting process was against the law. Doe I page 5.

Portions of opposing counsel's cross examination also indicates that Lower Merion never

conceded that race was a factor in redistricting. See trial testimony April 12, 2010, at 11:47

A.M.-11:48 A.M., 11:52 A.M., 11:54 A.M., 11:56 A.M.-12:08 P.M. In fact, a review of the

entire trial record will indicate no instance where any Lower Merion witness testified about a

compelling state interest that justified Lower Merion's use of race as a factor in the redistricting

process. Lower Merion adopted the same strategy of denial in: (1). its Answer and Separate

Defenses to Plaintiff’s Complaint filed on July 6, 2009; (2). its summary judgment filings on

December 31, 2009, January 22, 2010, and February 12, 2010; (3). its Trial Brief filed on March

23, 2010; (4). its Proposed Findings of Fact filed on April 5, 2010; (5). its Proposed Conclusions

of Law filed on April 6, 2010; (6). and its Amended proposed Findings of Fact filed on May 4,

2010.

Furthermore, it would appear as a matter of law, that in those instances when a Court has

found that a defendant used race as a factor in decision-making after an Arlington Heights/Pryor

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review, as in this case, then said defendant will always lose a strict scrutiny challenge. This is

due to the fact that said defendant's litigation strategy to defend on the basis that race was not a

factor in its actions, is mutually exclusive of a defense premised on the claim that race was a

factor in a defendant's actions, but that such actions were taken to advance a goal that satisfied a

compelling state interest. 2 Interestingly, in the recent Supreme Court decisions involving race

based admissions policies, each of the defendants readily admitted that race was a factor in

decision-making. See Seattle School District, 551 U.S. 701; Gratz v. Bollinger, 539 U.S. 244;

Grutter v. Bollinger, 539 U.S. 306.

C. The Interests Identified by the Court are not Compelling as a Matter of Law

While the interests identified by the Court in Doe II, i.e. equal sized high schools,

minimizing travel times and transportation costs, fostering educational continuity, and fostering

walkability, may be sound, and well reasoned, they have not been recognized as "compelling"

by the Supreme Court in the educational context. 3 The Chief Justice of the United States

Supreme Court, John Roberts, noted in his plurality opinion in Parents Involved in Community

Schools v. Seattle School District No. 1, 551 U.S. 701, that there are only two (2) instances

when student assignments based upon race have survived the Court’s 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. See Id. at 720. The second instance was when an institution of

2
Allowing a defendant to assert that race was not a factor in decision-making while at the same time preserving the
defendant’s right to contest a strict scrutiny challenge is simply an invitation to a party to play “fast and loose” with
the facts. Gamesmanship of this type is not appreciated in the Third Circuit. See e.g. G-1 Holdings, Inc. v. Reliance
Insurance Company, 586 F.3d 247, 261 (3d Cir. 2009) ("Under the doctrine of judicial estoppel a court can defend
the integrity of the judicial process by barring a party from taking contradictory positions during the course of
litigation." Id.).
3
It is also critical to remember that the stated goal has to bear a relationship to a race based policy in order to
survive a strict scrutiny challenge. See Seattle School District, 551 U.S. at 720. None of the goals identified above
bear such a relationship.

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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 Id. at 722.

Moreover, the aforementioned interests identified by the Court in Doe II cannot be

considered "compelling" when considered in light of other interests that have more impact on

society, but which have nonetheless been found not to be "compelling." For instance, taking

action to remedy past societal discrimination is not a "compelling" state interest. Seattle School

District, 551 U.S. at 731 (citing Shaw v. Hunt, 517 U.S. 899, 909-910 (1996) and other cases). In

another context, assuring the impartiality of judges has been found to be not "compelling"

enough in a First Amendment case. Republican Party of Minnesota v. White, 536 U.S. 765

(2002). Ensuring that criminals do not profit from selling the story about their crimes before their

victims have an opportunity to be compensated for their injuries was likewise found not to be

"compelling" in another First Amendment case. Simon & Schuster, Inc. v. Members of the New

York State Crime Victims Board, 502 U.S. 105 (1991).

Supreme Court Justice Scalia's remarks in his concurring opinion in Richmond v. Croson,

488 U.S. 469 (1989), lend appropriate context to the aforementioned discussion, "At least where

state or local action is at issue, only a social emergency rising to the level of imminent danger to

life and limb--for example, a prison riot, requiring temporary segregation of inmates...can justify

an exception to the principle embodied in the Fourteenth Amendment that our Constitution is

colorblind, and neither knows nor tolerates classes among citizens." Id. at 521 (internal citations

and quotations omitted).

The Court in Doe II cites to Lower Merion's Memorandum on Proposed Conclusions of

Law for the proposition that Lower Merion claims that it established at trial that it took race into

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account to address achievement gap and racial isolation issues. Doe II page 29. Lower Merion,

without citation to the trial record, makes such a claim in its Memorandum. See Lower Merion's

Memorandum of Law on Proposed Conclusions of Law pages 15-16.

However, Lower Merion never took such a position at trial, and a review of the trial

record will prove that Lower Merion persistently advocated that race played no part in its

redistricting decision-making. See citations to the trial record and procedural record set forth in

Subsection B of the present Brief. In fact, it was Lower Merion's steadfast refusal to

acknowledge that it used race as a factor in redistricting decision-making that resulted in the use

of so much time and resources in this case, i.e. the filing and disposition of a Motion for

Summary Judgment, the filing and disposition of Motions in Limine, and the bulk of the trial

days recently concluded. Any claim that Lower Merion consciously adopted a policy which was

in fact "compelling" would appear to contradict the finding in Doe I that "The Board members

who voted to approve Plan 3R were not aware that racial considerations had played such a

significant role within the Administration." Doe I page 3.

As noted in Subsection B of the present Brief, Lower Merion cannot have it both ways

because the defenses it wishes to pursue are mutually exclusive. Lower Merion made a strategy

decision to argue that it did not consider race when conducting redistricting, and now it is

"stuck" with that choice. The only thing the trial record demonstrates is that Lower Merion

sought to have equal numbers of African American students in each of its high schools. Doe I

pages 3 and 52-53. This goal is patently unconstitutional. See Grutter, 539 U.S. 330.

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D. Lower Merion Cannot Meet the Tailoring Prong of the Strict Scrutiny Test

Because Lower Merion has failed to articulate a "compelling" state interest related to its

use of race as a factor in the redistricting process, and because none of the goals identified above

constitute "compelling" state interests, it impossible for Lower Merion to meet the narrow

tailoring required by a strict scrutiny challenge, i.e. whether the means used to achieve the

compelling state interest are either under-inclusive or over-inclusive. There is no evidence in the

trial record regarding how many African American students needed to be redistricted, and

whether this number of students were in fact moved or scheduled to be moved in the future.

There is also no evidence in the record regarding whether race neutral programs were seriously

considered, whether targeted magnet programs were seriously considered, or whether other

"choice" based programs were seriously considered. Predictably, there also is nothing in the trial

record demonstrating that these programs could not work. There is also no evidence whatsoever

in the trial record which would support the conclusion that once the African American student

population at both high schools becomes equal there will be more African American children

taking classes with their non-African American counterparts.

Lower Merion in a sense concedes the fact that it cannot meet the narrow tailoring prong

of a strict scrutiny challenge as outlined above in footnote 6 on page 18 of its Memorandum of

Law on Proposed Conclusions of Law. Lower Merion states in the footnote, “Indeed, as Dr.

McGinley, Dr. Lyles, and Dr. Jarvis testified, racial isolation is not triggered or combated with a

specific threshold number of students of a particular background in a given classroom or school.”

The net impact of this statement is that anyone seeking to remedy the aforementioned problem as

described by Lower Merion, a problem which Lower Merion consistently argued that it did not

seek to resolve through redistricting, will never have any idea how many students it needs to

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move based on race. The Fourteenth Amendment to the United States Constitution demands a

little more clarity before the rights it secures are infringed.

E. Lower Merion's Redistricting Plan is Illegal Because it is not Limited in Duration

Even if Lower Merion had identified at trial a compelling state interest it sought to

address, and even if Lower Merion could point to some evidence in the trial record that would

establish narrow tailoring, its redistricting plan still violates the Fourteenth Amendment because

it contains no limitations on its duration. In order to survive strict scrutiny, programs that use

race as a factor in their development must be limited in duration. See Grutter, 539 U.S. at 341-

342 ("This requirement reflects that racial classifications, however compelling their goals, are

potentially so dangerous that they may be employed no more broadly than the interest demand.

Enshrining a permanent justification for racial preferences would offend this fundamental equal

protection principle. We see no reason to exempt race-conscious admission programs from the

requirement that all governmental use of race must have a logical end point." Id. at 342.).

The trial record establishes that the redistricting plan at issue has no “sunset” provision,

and will stay in place for an undetermined time into the future, i.e. it has no "logical end point."

See trial testimony of Dr. McGinley April 9, 2010, at 3:26 P.M.-3:28 P.M.; trial testimony of

School Director Novick April 15, 2010, at 2:16 P.M.-2:17 P.M.; trial testimony of School

Director Doucette-Ashman April 16, 2010, at 12:30 P.M.-12:31 P.M.; trial testimony of School

Director DiBonaventuro April 16, 2010, at 2:25 P.M.; trial testimony of School Director Pliskin

April 26, 2010, at 11:06 A.M.; trial testimony of School Director Friedlander April 26, 2010, at

12:38 P.M.; trial testimony of School Director Lorenz April 26, 2010, at 2:07 P.M.-2:08 P.M.;

and trial testimony of School Director Guthrie April 26, 2010, at 2:50 P.M.

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F. The Conclusion that Plan 3R Would Have Been Adopted Anyway is Improper

In Doe II the Court also found that Students Doe were not entitled to relief because

Lower Merion had established that Plan 3R would have been adopted even if race was not a

factor in its selection citing footnote 21 in Arlington Heights, 429 U.S. 252. Lower Merion

should not prevail on this position for three (3) distinct reasons.

Initially, the “inevitably” argument set forth in footnote 21 in Arlington Heights is an

affirmative defense under the Federal Rules of Civil Procedure in that it requires a defendant to

argue that a certain outcome would come about even if the defendant acted as the plaintiff had

claimed. “An affirmative defense is an assertion by the defendant of new facts or arguments that,

if true, would defeat plaintiff’s claim, even if all [of plaintiff’s] allegations were presumed

correct.” S. Backer-McKee, W. Janssen, J. Corr, Federal Civil Rules Handbook 2010 page 341.

Under Rule 8(c) of the Federal Rules of Civil Procedure, a defendant has to plead in its Answer

all of its affirmative defenses; any defense not plead is waived.

Lower Merion, despite a clear obligation to do so, never plead an “inevitability” defense

in its Answer and Separate Defenses to Plaintiff’s Complaint filed on July 6, 2009. Lower

Merion thereafter never moved to amend its Answer to include the defense. Moreover, Lower

Merion makes no reference to the defense in its summary judgment filings on December 31,

2009, January 22, 2010, or February 12, 2010. Furthermore, there is no reference to the defense

in Lower Merion’s Trial Brief filed on March 23, 2010, or in its Memorandum of Law on

Proposed Conclusions of Law filed on May 27, 2010. Lower Merion also failed to identify the

defense in its Proposed Findings of Fact filed on April 5, 2010, in its Proposed Conclusions of

Law filed on April 6, 2010, or in its Amended Proposed Findings of Fact filed on May 4, 2010.

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Invocation of the “inevitability” defense at this late date is prejudicial to Students Doe. If

Lower Merion had timely and properly plead the defense, Students Doe would have had an

opportunity to conduct extensive discovery on the issue, and would have been prepared to

introduce additional evidence at trial that Plan 3R would not have been inevitably adopted.

Secondly, the legal conclusion that Lower Merion proved the defense is incorrect in light

of Doe I, and Lower Merion’s admissions at trial concerning the "walk zone." The Court

correctly found in Doe I that the Lower Merion walk zone does not extend (1) mile into Students

Doe’s neighborhood. Doe I page 11, and 11n 7. The Court also correctly found in Doe I that

Lower Merion’s reduction of the walk zone in Students Doe’s neighborhood is inconsistent with

Lower Merion’s Transportation Policy. Id. at 43 n 18; Exhibit P-129; and Exhibit P-141.

Additionally, the Court correctly found in Doe I that Students Doe’s neighborhood had

been targeted due to its racial composition. Doe I page 3. Mike Andre, Lower Merion’s Director

of Transportation, admitted during his testimony at trial that if the walk zone extended one (1)

mile into Students Doe’s neighborhood, Students Doe 7, 8, and 9 would definitely live within the

walk zone, and Students Doe, 1, 3, and 4 may live within the walk zone. See trial testimony of

Mike Andre April 15, 2010, at 10:58 A.M.-11:15 A.M.; Exhibit P-129; Doe I page 11 n 7.

Finally, the legal conclusion that the defense can ever be proven in this case is at best

highly speculative. The trial record, if nothing else, indicates that the redistricting process in

Lower Merion was dynamic, contentious, and controversial. Lower Merion’s Administration

chose among a variety of possible scenarios using race as a factor in making their selection. Doe

I page 3. Lower Merion’s Administration "purged" information to keep it from the public. Doe I

pages 30 and 52. Lower Merion’s redistricting consultant, Dr. Ross Haber, even admitted at trial

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that he nixed potential scenarios without even showing them to anyone because of racial

considerations. See trial testimony of Dr. Ross Haber April 12, 2010, at 10:24 A.M.-10:28 A.M.

Concluding that Plan 3R would have been inevitably adopted in an interactive situation

involving numerous variables dependent on information that was manipulated and controlled by

Lower Merion’s Administration is simply not appropriate, and only serves to reward improper

conduct.

CONCLUSION

For all the foregoing reasons, it is respectfully requested that this Honorable Court grant

the pending Motion, and order that a new trial be conducted in the present case.

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: July 22, 2010

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