Doe Reply Brief DOJ 2-22-11

Case: 10-3824 Document: 003110445383 Page: 1 Date Filed: 02/22/2011
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Case No. 10-3824
STUDENT DOE 1, BY AND THROUGH HIS PARENTS/GUARDIANS DOES

1 AND 2; STUDENT DOE 2, BY AND THROUGH HER
PARENT/GUARDIAN DOE 3; STUDENT DOES 3 AND 4, BY AND
THROUGH THEIR PARENT/GUARDIAN DOE 4; STUDENT DOE 5, BY
AND THROUGH HIS PARENT/GUARDIAN DOE 5; STUDENT DOE 6, BY
AND THROUGH HIS PARENTS/GUARDIANS DOES 6 AND 7; STUDENT
DOE 7, BY AND THROUGH HIS PARENT/GUARDIAN DOE 8; STUDENT
DOES 8 AND 9, BY AND THROUGH THEIR PARENTS/GUARDIANS DOES
9 AND 10,
Appellants,
-v.-
LOWER MERION SCHOOL DISTRICT,

Appellee.
Appeal from an Order entered from the

United States District Court for the Eastern District ofPennsylvania
SUPPLEMENTAL REPLY BRIEF

FOR APPELLANTS
DA VIDG. C. ARNOLD, ESQ.

920 Matsonford Road, Suite 106
West Conshohocken, Pennsylvania 19428
610-397-0722
davidgcamold@aol.com
Attorney for Appellants
_ COUNSEL PRESS. (888) 700-3226

TABLE OF CONTENTS
Page
ARGUMENT.................................................................................................... 1
CONCLUSION ................................................................................................. 19
TABLE OF AUTHORITIES
Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995) ....................................................................................... 12,13
Bush v. Vera,
517 U.S. 952 (1996) ............................................................................. 7, 12, 13, 14
LaVerdure v. County of Montgomery,

324 F.3d 123 (3d Cir. 2003) .......................................................................... 17
Marks v. United States,

430 U.S. 188 (1977)....................................................................................... 8
Miller v. Johnson,
515 U.S. 900 (1993) ....................................................................................... 13,14
Parents Involved in Community Schools v. Seattle School District No.1,

551 U.S. 70 1 (2007) ...................................................................................... passim
Pembaur v. Cincinnati,
475 U.S. 469 (1986)....................................................................................... 17
Pryor v. National Collegiate Athletic Association,

288 F.3d 548 (3d Cir. 2002) .......................................................................... 7
Rogers v. Lodge,
458 U.S. 613 (1982) ....................................................................................... 12,13
Shaw v. Reno,
509 U.S. 630 (1993) ................................................................................... 7, 13, 14
i
Village of Arlington Heights v.

Metropolitan Housing Development Corporation,
429 U.S. 252 (1977) ....................................................................................... 12,13
White v. Regester,
412 U.S. 755 (1973) ....................................................................................... 12,13
ii
ARGUMENT
On February 2, 2011, the United States of America filed an Amicus Curiae
Brief in this matter urging affirmance of the United States District Court for the
Eastern District of Pennsylvania's judgment in favor of Appellee, Lower Merion
School District. The United States was granted permission to file its Amicus Brief
on February 2, 2011, in a Court Order dated January 19, 2011. Appellants,
Students Doe 1 through 9, now file the present Supplemental Reply Brief in
accordance with the Federal Rules of Appellate Procedure, and in accordance with
the Court Order dated January 19, 2011.
Students Doe will discuss and rebut each of the United States' arguments
momentarily; however, there are several factual errors in the United States'
Amicus Brief which need to be addressed before the United States' arguments can
be discussed. On page 1 of its Brief, the United States represents that Lower
Merion's school officials merely "considered the racial impact of various zoning
alternatives .... " during the redistricting process. On page 13 of its Brief, the United
States represents that Lower Merion's school officials "considered race
incidentally." On page 22 of its Brief, the United States represents that Lower
Merion "school officials did consider racial attendance patterns to a limited
extent .... "

In its Memorandum on Factual Findings, the District Court concluded that
Lower Merion's "school officials" race related decision-making was neither
casual, nor limited, as the United States suggests. To the contrary, the District
Court clearly summarized it conclusions regarding the actions of Lower Merion's
school officials stating, "The Administration's recommendation to the Board, to
redistrict [Students Doe] to Harriton High School, was based largely on the fact
that [Students Doe's] neighborhood of residence has a heavy concentration of
African-American students, and that Harriton had a significantly lower African-
American student population than Lower Merion High School prior to
redistricting. Like a leitmotif in a Wagner opera, a recurring theme with variations,
the process of redistricting repeatedly embraced the goal of achieving racial parity
between the two high schools ... The circumstantial evidence introduced at trial
leads, like a well-worn path through the woods, inescapably to the finding that race
was a motivating factor for the Administration." Appendix A3 (Memorandum on
Factual Findings).
On page 4 of its Brief, the United States represents that one of the "non-
negotiables" adopted by the Lower Merion School Board was that all "high school
students could stay in their present high school. ... " no matter what happened in
redistricting. This statement is incorrect. The non-negotiable adopted by the School
Board was that the class of 2010 would have the choice to either stay in their
2
present high school, or to follow the redistricting plan. Appendix A16
(Memorandum on Factual Findings).
On page 5 of its Brief, the United States discusses the development of
proposed Plan 1, proposed Plan 2, proposed Plan 3, and Plan 3R. In its discussion,
the United States neglects to mention the District Court's finding that racial
considerations played a part in eliminating two (2) scenarios that were under
consideration to become Proposed Plan 1, that North Ardmore and the Affected
Area were always separated in each of the proposed plans and Plan 3R, and that
each proposed plan and Plan 3R significantly increased African American
enrollment at Harriton High School. Appendix A24-A25, A27, A33, A40, A51-
A53, and A52 n.23 (Memorandum on Factual Findings).
On page 6 of its Brief, the United States represents that "school officials
became reluctant to assign both North and South Ardmore to the same high school;
because Ardmore had the highest residential concentration of African-American
students in the district .... " The use of the term "reluctant" is somewhat curious in
that Lower Merion's Administration unequivocally rejected all scenarios which
placed North Ardmore and South Ardmore at the same high school, and "targeted"
the Affected Area for redistricting in part due to its racial make-up. Appendix A24-
A25, A51-A52, A52n.3 (Memorandum on Factual Findings), and A65
(Memorandum on Conclusions of Law).

3
On pages 6, 7, and 26 of its Brief, the United States indicates that under the
adopted redistricting plan, students districted to Lower Merion High School could
choose to attend Harriton High School in order to take advantage of two (2)
educational programs offered there, i.e. the International Baccalaureate Program
and the Penn State Program. These statements are incorrect. Under the adopted
redistricting plan, any student assigned to Lower Merion High School could
choose to attend Harriton High School for any reason whatsoever. The students do
not have to enroll in either the International Baccalaureate Program or the Penn
State Program. Appendix A43 (Memorandum on Factual Findings), and A2161-
A2176 (Students Doe's Trial Exhibit P-4 Plan 3R).
On page 7 of its Brief, the United States seems to indicate that the Lower
Merion High School "walk zone" is uniformly less than a mile around the high
school. Although the "walk zone" is supposed to be a uniform mile, the District
Court unequivocally found that the "walk zone" was less than a mile in the
Affected Area, that if the "walk zone" were a mile in the Affected Area at least
three (3) of the Students Doe would live within the "walk zone," and that Lower
Merion's truncation of the "walk zone" violated the School District's own
transportation policy. Testimony at trial indicated that three (3) additional Students
Doe may live within the "walk zone" if it were in fact one (1) mile. Appendix
Alln.7, A43, A43n.18 (Memorandum on Factual Findings); See also Appendix
4
A81-A82 (Memorandum on Conclusions of Law), A1301-A1303 (Trial Testimony
of Lower Merion's Director of Transportation), A2189-A2190 (Students Doe's
Trial Exhibit P-129 Map), and A2191-A2195 (Students Doe's Trial Exhibit P-141
Lower Merion Transportation Policy).
On page 22 of its Brief, the United States represents that Lower Merion has
not challenged on appeal the District Court's factual conclusion that its
Administration engaged in race based decision-making. While it is certainly true
that Lower Merion never filed a cross-appeal in the present case, and thereby
should be foreclosed from contesting the District Court's adverse factual findings
on this point, Lower Merion has seen fit to argue that the District Court's findings
on race based decision-making were in fact incorrect. See Lower Merion's Brief at
pages 31-40, and Students Doe's initial Reply Briefpages 2-3.
Now that the record has been clarified, Students Doe will address the United
States' arguments at length. In its Brief, the United States argues that the District
Court should not have applied the strict scrutiny standard in this case because
benign classification cases do not require the application of strict scrutiny, because
the application of strict scrutiny should only be applied when racial decision-
making is made on an individual basis, and because application of strict scrutiny in
this case is inconsistent with Justice Kennedy's concurrence in Parents Involved in
Community Schools v. Seattle School District No.1, 551 U.S. 701 (2007). See
5
United States' Amicus Brief pages 13, 17, and 18. The United States' argument
regarding the level of scrutiny to be applied in non-individual discrimination cases,
and its argument concerning the level of scrutiny Justice Kennedy's concurrence in
Seattle School District requires, are essentially the same argument, i.e. that strict
scrutiny should only be applied in individual racial classification cases. In light of
this fact, they will be discussed together. In support of its contentions, the United
States cites to a number of racial gerrymandering cases. See United States' Amicus
Brief page 25.
Initially, any argument that the United States raises that strict scrutiny does
not apply in the present case is of course subject to the procedural objection
Students Doe raised in their initial Reply Brief, i.e. Lower Merion waived the right
to raise this issue on appeal because it failed to cross appeal the District Court's
adverse ruling on this point. See Students Doe's initial Reply Brief pages 2-3.
Certainly the various Amici Curiae who filed Briefs in support of Lower Merion
cannot rectify this procedural shortcoming.
However, in the event that this Honorable Court wishes to resolve the strict
scrutiny issue, Students Doe would counter the United States' arguments with the
following positions. Regarding the United States' contention that strict scrutiny
should not be applied in benign classification cases, a review of the binding
precedent indicates that the United States' position is legally wrong.

6
As noted in Students Doe's initial Reply Brief, this Honorable Court, after
considering controlling Supreme Court precedent, concluded in Pryor v. National
Collegiate Athletic Association, 288 F.3d 548 (3d Cir. 2002), that the United
States' approach was completely wrong. See Id. at 560-561; See also Students
Doe's initial Reply Brief pages 9-10. This Honorable Court's resolution of the
benign classification argument in Pryor is correct. See Seattle School District, 551
U.S. at 742 ("This argument that different rules should govern racial classifications
designed to include rather than exclude is not new; it has been repeatedly pressed
in the past ... , and has been repeatedly rejected." Id. (Roberts C.J.)(citations
omitted)); Bush v. Vera, 517 U.S. 952, 984 (1996)("we subject racial
classifications to strict scrutiny precisely because that scrutiny is necessary to
determine whether they are benign ... We see no need to revisit our prior debates."
Id.); Shaw v. Reno, 509 U.S. 630,650-651 (1993)(" We have made clear, however,
that equal protection analysis is not dependent on the race of those burdened or
benefited by a particular classification ... Indeed, racial classifications receive close
scrutiny even when they may be said to burden or benefit the races equally." Id.
(internal citations and quotations omitted)).
Regarding the United States' argument that strict scrutiny should not be
applied in non-individualized cases, and the United States' Justice Kennedy
concurrence argument, these positions have been addressed in Students Doe's
7
initial Reply Brief at pages 3-10. Out of respect for this Honorable Court's time,
the arguments will not be repeated herein. However, three (3) additional comments
are necessary.
First, while the United States, Lower Merion, and the other Amici tout the
impact of Justice Kennedy's concurrence in Seattle School District citing Marks v.
United States, 430 U.S. 188 (1977), it is critical to appreciate just how far Justice
Kennedy distances himself from the dissenters in Seattle School District. Justice
Kennedy explicitly states at the very beginning of his concurring opinion, "Justice
Breyer's dissenting opinion '" rests on what in my respectful submission is a
misuse and mistaken interpretation of our precedents. This leads it to advance
propositions that, in my view, are both erroneous and in fundamental conflict with
basic equal protection principles. As a consequence, this separate opinion is
necessary to set forth my conclusions in the two cases before the Court." Seattle
School District, 557 U.S. at 783.
Second, Lower Merion's actions in the present case are certainly not the type
of narrowly tailored, race based action of which Justice Kennedy approved. In his
concurrence in Seattle School District, Justice Kennedy takes Jefferson County to
task for its inability to explain exactly how and when it applies its race based plan.
Id. at 784-785. Justice Kennedy, in a similar fashion, takes Seattle to task for
8
limiting its racial classifications to "white" and "non-white" when it developed its
race based plan. Id. at 786-787.
Unlike Jefferson County and Seattle, Lower Merion, despite the District
Court's factual findings to the contrary, persistently refuses even to admit to this
very day that it even engaged in race based decision-making. See Lower Merion's
Brief pages 31-40. In light of this fact, it would appear that Lower Merion has
already run afoul of Justice Kennedy's most basic of rules. See Seattle School
District, 551 U.S. at 786 ("When a court subjects governmental action to strict
scrutiny, it cannot construe ambiguities in favor of the State." Id.).
Moreover, Justice Kennedy clearly stresses in his concurrence that the race
conscious means used to achieve greater diversity should "not lead to different
treatment based on a classification that tells each student he or she is to be defined
by race .... " Id. at 789. Lower Merion's actions in this case clearly violated this
rule. The District Court found that Students Doe's neighborhood was "targeted" in
part because of its racial make-up. Appendix A65 (Memorandum on Conclusion of
Law).
Contemporaneous statements made by those involved in the redistricting
process confirm just how race defining Lower Merion's conduct turned out to be.
Superintendent Christopher McGinley wrote in an e-mail to School Director Lisa
9
Pliskin on November 20, 2008, "I wish there was a way to extend the option area
into the [Affected Area] but doing so would not only mean another hundred at
[Lower Merion High School] but many fewer A[ frican] A[ merican] kids at
[Harriton High School]." Appendix A2187 (Students Doe's Trial Exhibit P-92).
Equally as disappointing is School Director Diane DiBonaventuro's e-mail
to School Director Ted Lorenz dated December 9, 2008, in which she stated, "I
believe that moving any of the low income and African American students to
Harriton when they can walk to [Lower Merion High School] simply creates an
additional stressor that doesn't need to be there. We are basically asking the
A[ frican] A[merican] kids in Ardmore to 'take one for the team' for the A[ frican]
A[ merican] kids in other areas of the district. The A[ frican] A[ merican] families
that moved into the district outside the Ardmore area knew they were moving into
a fairly white community. Perhaps they chose that for their family. If they wanted
an African American community they would have chosen Ardmore." Appendix
A1645-A1646, and Students Doe's Trial Exhibit P-104.
School Director DiBonaventuro goes on to state, " Furthermore, I am still
not convinced that there is a significant difference between 50 and 80 kids-or
even between 50 and 100 kids. There just aren't a lot of A[frican] A[merican]
families in L[ower] M[erion] S[chool] D[istrict] to begin with, so I don't think
increasing the diversity numbers marginally at H[arriton] H[igh] [School] in return

10
for a reduced walk zone is worth the effect it has on all the other families
(including the non minority families who are getting caught up in the sweep to
bring kids to H[arriton] H[igh] [School].)" Id.
As the caselaw cited in the present Brief as well as the caselaw cited in all of
the other Briefs filed in this case to date clearly demonstrate, it matters what means
are used to achieve even the most noble of goals. Chief Justice Roberts explained
in Seattle School District, "In Brown v. Board of Education ... we held that
segregation deprived black children of equal educational opportunities regardless
of whether school facilities and other tangible factors were equal, because
government classification and separation on grounds of race themselves denoted
inferiority .. .It was not the inequality of the facilities but the fact of legally
separating children on the basis of race on which the Court relied to find a
constitutional violation in 1954." Seattle School District, 551 U.S. at 746 (citations
omitted).
Third, a careful review of that portion of Justice Kennedy's concurrence
upon which the United States relies in asserting its argument will reveal that the
District Court properly applied strict scrutiny in this case. In the course of his
concurrence, Justice Kennedy discusses race conscious measures, including the
drawing of school attendance zones, and comments thereafter that "it is unlikely
11
any of them would demand strict scrutiny to be found permissible." Id. at 789. As
support for his position, Justice Kennedy cites Bush v. Vera, 517 U.S. 952.
The portion of Bush v. Vera which Justice Kennedy cites in fact quotes
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). The portion of Adarand
that is quoted discusses "the additional difficulties posed by laws that, although
facially race neutral, result in racially disproportionate impact and are motivated by
a racially discriminatory purpose." Id. at 213. The Supreme Court then refers the
reader to Village of Arlington Heights v. Metropolitan Housing Development
Corporation, 429 U.S. 252 (1977), as the controlling authority when this situation
arises. Adarand, 515 U.S. at 213.
The District Court in this case found itself faced with the very "difficulties"
discussed in the aforementioned passage from Adarand. As required by Arlington
Heights, the District Court conducted an extensive review of the situation, and
properly applied strict scrutiny after it found that race was a factor in Lower
Merion's decision-making. Arlington Heights, 429 U.S. 252; Pryor, 288 F.3d 548.
The United States' reliance on racial gerrymandering cases in order to
support the proposition that strict scrutiny should not be applied in this case is
somewhat questionable. At the outset, reference to Rogers v. Lodge, 458 U.S. 613
(1982), and White v. Regester, 412 U.S. 755 (1973), is entirely unhelpful because
12
the cases substantially pre-dated the Supreme Court's adoption of the relevant
standard of review which now governs Fourteenth Amendment cases, and which is
at issue in this case. As Chief Justice Roberts noted in Seattle School District, the
Supreme Court did not definitively determine until Adarand, decided in 1995-
thirteen (13) years after Rogers and twenty two (22) years after White, that "all
racial classifications ... must be analyzed by a reviewing court under strict
scrutiny." Seattle School District, 551 U.S. at 739n.16 (citing Adarand, 515 U.S. at
227).
The United States' reliance on Bush v. Vera, 517 U.S. 952, Miller v.
Johnson, 515 U.S. 900 (1993), and Shaw v. Reno, 509 U.S. 630, raises even more
questions for two (2) reasons. First, each of the aforementioned cases confirms the
controlling nature of the Supreme Court's holding in Arlington Heights, i.e. that
race neutral statutes/policies can be subjected to strict scrutiny if race was a factor
in their creation. See Bush v. Vera, 517 U.S. at 958 ("Electoral district lines are
'facially race neutral' so a more searching inquiry is necessary before strict
scrutiny can be found applicable in redistricting cases than in cases of
'classifications based explicitly on race. '" rd. (citations omitted)); Miller v.
Johnson, 515 U.S. at 913 ("We recognized in Shaw that, outside the districting
context, statutes are subject to strict scrutiny under the Equal Protection Clause not
just when they contain express racial classifications, but also when, though race
13
neutral on their face, they are motivated by a racial purpose or object." Id.); Shaw
v. Reno, 509 U.S. at 643 ("These principles apply not only to legislation that
contains explicit racial distinctions, but also to those 'rare' statutes that, although
race neutral, are, on their face unexplainable on grounds other than race." Id.
(quotations and citations omitted)).
Second, in each of the aforementioned cases, the Supreme Court found that
strict scrutiny had to be applied once it was proven that racial gerrymandering
occurred. See Bush v. Vera, 517 U.S. at 962 ("These findings -- that the State
substantially neglected traditional districting criteria such as compactness, that it
was committed from the outset to creating majority-minority districts, and that it
manipulated district lines to exploit unprecedentedly detailed racial data -- together
weigh in favor of the application of strict scrutiny." Id. ); Miller v. Johnson, 515
U.S. at 903 and 920 ("As a result, Georgia's congressional redistricting plan cannot
be upheld unless it satisfies strict scrutiny, our most rigorous and exacting standard
of constitutional review." Id. at 920); Shaw v. Reno, 509 U.S. at 653 ("Thus, if
appellants' allegations of a racial gerrymander are not contradicted on remand, the
District Court must determine whether the General Assembly'S reapportionment
plan satisfies strict scrutiny." Id.).
As the foregoing clearly demonstrates, Bush, Miller, and Shaw, all represent
instances where the Supreme Court imposed the strict scrutiny test in cases
14
involving a facially neutral government statute/policy which did not discriminate
on an individual basis. These cases simply confirm Students Doe's long held
position that Seattle School District is indistinguishable from the present case
because focusing on individual student assignment plans versus targeting an entire
neighborhood "raises a distinction that simply makes no difference." Students
Doe's initial Briefpage 39.
Alternatively, the United States argues that increasing racial diversity, and
combating racial isolation constitute compelling state interests. See United States'
Amicus Briefpages 17,20, and 29. This argument has been thoroughly analyzed in
Students Doe's initial Brief at pages 36-57, and in Students Doe's initial Reply
Brief at pages 10-13. Out of respect for this Honorable Court's time, only one point
needs to be briefly emphasized. The argument only makes sense if the United
States or Lower Merion can identify in the trial record where Lower Merion took
the position that it engaged in race based decision-making in order to prevent racial
isolation and/or to deal with the achievement gap.
As Students Doe's prior Briefs clearly demonstrate, Lower Merion never
took such a position at trial, and in fact took the opposite position. Students Doe's
initial Brief pages 36-57, and Students Doe's initial Reply Brief page 10; See also
Appendix A2187 ("I hate the fact that the quest is publicly tied to the achievement
gap issue by some of the speakers. Nothing could be further from the truth." 1d.
15
(Superintendent McGinley's November 20, 2008, e-mail to School Director Lisa
Pliskin, Students Doe's Trial Exhibit P-92). Although everyone opposing Students
Doe have taken the position that Lower Merion engaged in race based decision-
making to deal with racial isolation and/or the achievement gap, no one has ever
referenced where in the trial record Lower Merion actually took such a position.
The United States' emphasis on the District Court's finding that although
Lower Merion's Administration engaged in race based decision-making when
developing and selecting redistricting plans, the School Directors who voted to
approve Plan 3R did not consider race deserves a brief comment. United States'
Amicus Curiae Brief page 9. Initially, it is obvious that the School Directors did
not have to take race into account when voting on the redistricting plan at issue,
because Lower Merion's Administration had already screened out all proposed
plans that failed to give the District the racial attendance profiles it was seeking.
Moreover, the District Court noted that the evidence presented at trial persuaded
"the Court that Dr. McGinley and various Board Members also had an intent to
increase the African-American population at Harriton." Appendix A36-A37
(Memorandum on Factual Findings); See also Appendix A37-A38, and A47-A49
(Memorandum on Factual Findings). Furthermore, Lower Merion has never cross
appealed the District Court's disposition of its potential liability for its
Administrators' actions.
16
Notwithstanding the foregoing, Lower Merion is liable for the race based
actions of its Administration. The School Directors clearly testified at trial that the
Administration had the responsibility to research, develop, and select redistricting
plans for the School Directors' approval. Appendix A1360, A1447, A1561,
A1604-A1605, A1670-A1671, A1786-A1787, A1790-A1791, A1808-A1809, and
A1852; See also Appendix A50 ("As for the specific facts of this case and the
process of redistricting, the Administration developed the Scenarios and Plans .... "
Id.)(Memorandum on Factual Findings), and A-51 ("Nonetheless, the development
of the Scenarios and Proposed Plans was the work and responsibility of the
Administration, not the Board." Id.)(Memorandum on Factual Findings).
The Administration's improper racial decision-making in performing its task
clearly subjects Lower Merion to liability. See Pembaur v. Cincinnati, 475 U.S.
469 (1986)("With this understanding, it is plain that municipal liability may be
imposed for a single decision by municipal policymakers under appropriate
circumstances." Id. at 4.80); LaVerdure v. County of Montgomery, 324 F.3d 123
(3d Cir. 2003); Third Circuit Model Jury Instruction 4.6.5.
Finally, it is interesting to note that the United States has taken two (2)
positions that are entirely consistent with Students Doe's positions in the present
case. First, the United States acknowledges that race was a factor in Lower
Merion's decision-making. See United States' Amicus Brief at page 28. Second,
17
the United States acknowledges that Lower Merion's consideration of school
capacities, deployment of school buses, minimizing travel times, and fostering
continuity had nothing to do with race, which is the very point Students Doe made
in their initial Brief. Compare United States' Amicus Brief at pages 1 and 28, and
Students Doe's initial Brief at page 50.
18
CONCLUSION
For all the foregoing reasons as well as for the reasons set forth in Students
Doe's previously filed Briefs, it is respectfully requested that this Honorable Court
reject the arguments set forth in the United States of America's Amicus Brief, and
grant the relief requested in Students Doe's initial Brief.
Respectfully submitted,
lSI David G. C. Arnold
Suite 106, 920 Matsonford Road

West Conshohocken, Pennsylvania 19428
(610) 397-0722
Email: Davidgcarnold@aol.com
Attorney for Appellants
Dated: February 22,2011
19
CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF

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/s/ David G. C. Arnold

David G. C. Arnold
February 22, 2011

AFFIDAVIT OF SERVICE
DOCKET NO. 10-3824

-------------------------------------------------------------------------------X
Student Doe
vs.
Lower Merion School District
-------------------------------------------------------------------------------X
I, , swear under the pain and penalty of perjury, that according to law and
being over the age of 18, upon my oath depose and say that:
on February 22, 2011
I served the Supplemental Reply Brief for Appellants within in the above captioned matter upon:
See Attached Service List
via electronic filing and electronic service.
Unless otherwise noted, copies have been sent to the court on the same date as above for filing via Express
Mail.
Sworn to before me on February 22, 2011
/s/ Robyn Cocho

_______________________________
Robyn Cocho
Notary Public State of New Jersey
No. 2193491
Commission Expires January 8, 2012
Job # 234908
SERVICE LIST
Christina IF. Grese, Esq. Kimberly A. Liu, Esq.

215-963-5085 212-965-2250
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Judith E. Harris, Esq. NAACP Legal Defense & Educational Fund
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Allison N. Suflas, Esq. New York, NY 10013
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Christopher M. Arfaa, Esq.

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Mark L. Gross, Esq.

202-514-2172
Email: mark.l.gross@usdoj.gov
Erin H. Flynn, Esq.
Email: erin.flynn@usdoj.gov
United States Department of Justice
Civil Rights Division, Appellate Section
P.O. Box 14403
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Joshua I. Civin, Esq.

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NAACP Legal Defense & Educational Fund
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Washington, DC 20005
Kenneth A. Roos, Esq.

610-825-8400
Email: kroos@wispearl.com
Megan E. Shafer, Esq.
Email: mshafer@wispearl.com
Wisler, Pearlstine, Talone, Craig, Garrity & Potash
484 Norristown Road, Suite 100
Blue Bell, PA 19422

Doe Reply Brief DOJ 2-22-11

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Doe Reply Brief DOJ 2-22-11

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Case: 10-3824 Document: 003110445383 Page: 1 Date Filed: 02/22/2011

1ttnittb ~tatts Qtourt of l\pptals

Case No. 10-3824

STUDENT DOE 1, BY AND THROUGH HIS PARENTS/GUARDIANS DOES

LOWER MERION SCHOOL DISTRICT,

Appeal from an Order entered from the

SUPPLEMENTAL REPLY BRIEF

DA VIDG. C. ARNOLD, ESQ.

Attorney for Appellants

_ COUNSEL PRESS. (888) 700-3226

Adarand Constructors, Inc. v. Pena,

LaVerdure v. County of Montgomery,

Marks v. United States,

Parents Involved in Community Schools v. Seattle School District No.1,

Pryor v. National Collegiate Athletic Association,

Village of Arlington Heights v.

On February 2, 2011, the United States of America filed an Amicus Curiae

Eastern District of Pennsylvania's judgment in favor of Appellee, Lower Merion

on February 2, 2011, in a Court Order dated January 19, 2011. Appellants,

the Court Order dated January 19, 2011.

States represents that Lower Merion's school officials "considered race

Merion "school officials did consider racial attendance patterns to a limited

extent .... "

In its Memorandum on Factual Findings, the District Court concluded that

Lower Merion's "school officials" race related decision-making was neither

Court clearly summarized it conclusions regarding the actions of Lower Merion's

school officials stating, "The Administration's recommendation to the Board, to

that [Students Doe's] neighborhood of residence has a heavy concentration of

African-American students, and that Harriton had a significantly lower African-

American student population than Lower Merion High School prior to

redistricting. Like a leitmotif in a Wagner opera, a recurring theme with variations,

was a motivating factor for the Administration." Appendix A3 (Memorandum on

redistricting. This statement is incorrect. The non-negotiable adopted by the School

present high school, or to follow the redistricting plan. Appendix A16

(Memorandum on Factual Findings).

On page 5 of its Brief, the United States discusses the development of

each proposed plan and Plan 3R significantly increased African American

A53, and A52 n.23 (Memorandum on Factual Findings).

because Ardmore had the highest residential concentration of African-American

that Lower Merion's Administration unequivocally rejected all scenarios which

A25, A51-A52, A52n.3 (Memorandum on Factual Findings), and A65

(Memorandum on Conclusions of Law).

educational programs offered there, i.e. the International Baccalaureate Program

State Program. Appendix A43 (Memorandum on Factual Findings), and A2161-

A2176 (Students Doe's Trial Exhibit P-4 Plan 3R).

Alln.7, A43, A43n.18 (Memorandum on Factual Findings); See also Appendix

A81-A82 (Memorandum on Conclusions of Law), A1301-A1303 (Trial Testimony

of Lower Merion's Director of Transportation), A2189-A2190 (Students Doe's

Lower Merion Transportation Policy).

Administration engaged in race based decision-making. While it is certainly true

pages 31-40, and Students Doe's initial Reply Briefpages 2-3.

making is made on an individual basis, and because application of strict scrutiny in

this case is inconsistent with Justice Kennedy's concurrence in Parents Involved in

regarding the level of scrutiny to be applied in non-individual discrimination cases,

scrutiny should only be applied in individual racial classification cases. In light of

Brief page 25.

cannot rectify this procedural shortcoming.

should not be applied in benign classification cases, a review of the binding

precedent indicates that the United States' position is legally wrong.

considering controlling Supreme Court precedent, concluded in Pryor v. National

classifications to strict scrutiny precisely because that scrutiny is necessary to

benefited by a particular classification ... Indeed, racial classifications receive close

(internal citations and quotations omitted)).