Student Doe v. Lower Merion School District Motion Package Filed January 15, 2010

8/14/2019 Student Doe v. Lower Merion School District Motion Package Filed January 15, 2010

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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. 09-2095v.

Lower Merion School DistrictDefendant

ORDERAND NOW THIS __ day of____ , 2010, upon consideration of Defendant,

Lower Merion School District's Motion for Summary Judgment, and the response filed thereto, itis hereby ordered and decreed that said Motion is denied.

BY THE COURT

The Honorable Michael M. Baylson

9 ~ ',Wd '11 NtJf Ol;u:ry ' , (1 "'3u., 0 ........ .......r ~ J .... Q V d 0 3 ~ ~ ) ( J S n


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Student Doe 1 by and through hisParents/Guardians Does 1 and 2,et. al.


Lower Merion School DistrictDefendantPLAINTIFFS' RESPONSE TO DEFENDANT'S

MOTION FORSUMMARY JUDGMENT

SEALED AS CONDIDENTIAL CONFIDENTIAL: This envelope contains documents, testimony or infonnation filed under a

Confidentiality Agreement between the Parties. This envelope shall not be opened or its contentsrevealed except: (1) by and to the Court; (2). by written agreement of the parties; or (3) by prior

Order of the Court.Respectfully submitted,

Pennsylvania Attorney Identification No. 49819Suite 109, Royal Plaza915 Montgomery AvenueNarberth, Pennsylvania 19072(484) 562,.0008Attorney for Plaintiffs

Dated: January 15,2009


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Lower Merion School DistrictDefendantPLAINTIFFS' RESPONSE TO DEFENDANT'S

MOTION FOR SUMMARY JUDGMENTPlaintiffs, Students Doe 1 through 9, by and through their undersigned counsel now

respond to defendant, Lower Merion School District's Motion for Summary Judgment. In lightof the discovery record in this case, the exhibits produced herewith, and the legal authorities setforth in the in the accompanying Brief, summary judgment should not be granted in the presentmatter. Students Doe incorporate herein by reference their Response to Defendant's Statement ofUndisputed Facts and their Brief filed herewith.

Wherefore, Students Doe respectfully request that the present Motion for SummaryJudgment be denied.


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Respectfully submitted,

Pennsylvania Attorney Identification No. 49819Suite 109, Royal Plaza915 Montgomery AvenueNarberth, Pennsylvania 19072(484) 562-0008Attorney for Plaintiffs


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Lower Merion School DistrictDefendant

PLAINTIFFS' BRIEF IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

SEALED AS CONDIDENTIAL C O N F ~ N T I A L : This envelope contains documents, testimony or information filed under a

~ p c j , i d e n T f a l i t y Agreement between the Parties. This envelope shall not be opened or its contents: ' t - t ( ~ e ~ l e < @ c e p t : (1) by and to the Court; (2). by written agreement of the parties; or (3) by prior~ . - - . J ,," .!.l,-i () Q - Order of the Court." ....:-:=:; 0 .::1"t-)U Respectfully submitted,:=;W........

Pennsy vania Attorney Identification No. 49819Suite 109, Royal Plaza915 Montgomery AvenueNarberth, Pennsylvania 19072(484) 562-0008Attorney for Plaintiffs



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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 OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Introduction

In May of 1954, the United States Supreme Court rectified one of the most embarrassingchapters in this Country's Civil Rights Jurisprudence by overruling Plessey v. Ferguson, 163U.S. 5376 (1896). The Supreme Court held in Brown v. Board of Education, 347 U.S. 483

0'1. ~ ~ 1M 'i 1 1 ~ 4 ) ~ . t h a t "Separate educational facilities are inherently unequaL Therefore, ... plaintiffs andy-' L....f_l "... - - l ...--5 :c : : 9 b : t ~ r s ~ r m i l a r l y situated for whom the actions have been brought are, by reason of the0 0 .:J'g t t t eg . n complained of, deprived of the equal protection of the laws guaranteed by the

cr. JF o u r t e ~ h Amendment." Id. at 495. The legal principle emanating from Brown is that studentscannot be aSsigned to schools based upon their race.

The Chief Justice of the United States Supreme Court, John Roberts, noted in hisplurality opinion in Parents Involved in Community Schools v. Seattle School District No.1,551 U.S. 701 (2007), that there are only two (2) instances when student assignments based uponrace have survived the Court's strict scrutiny test. The first instance was when a school district


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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 higher learning, i.e. one above thehigh school level, sought to use race in conjunction with a number of other factors in order totruly diversify its student body. See Id. at 722. Because neither of the aforementioned situationsapply in the present case, Students Doe have corne before this Honorable Court, and ask it toreaffirm and apply the holding in Brown.

Factual Background

On May 14, 2009, Students Doe, by and through their Parents/Guardians, filed a ThreeCount Complaint in the United States District Court for the Eastern District of Pennsylvaniaseeking to enjoin, both preliminarily and permanently, defendant, Lower Merion SchoolDistrict's school redistricting plan adopted on January 12, 2009. 1 Students Doe contend in theirComplaint that Lower Merion's redistricting plan improperly used racial criteria in order tomandate that they be bused to a non-neighborhood school, Harriton High School, instead ofallowing them to continue to voluntarily choose to attend their neighborhood high school, LowerMerion High School, or Harriton High School. See Students Doe Exhibit 59.

Students Doe are all minority students who live in a neighborhood bounded by AthensA venue, Wynnewood Road, County Line Road, and Cricket Avenue in South Ardmore,Pennsylvania, hereinafter referred to as the "Ardmore Island." Students Doe contend that LowerMerion's redistricting actions violate the Fourteenth Amendment to the United StatesConstitution, 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 Exhibit 59.

Shortly after filing its Complaint, Students Doe filed a Motion for Preliminary Injunction. Said Motion wasscheduled to be heard in August of 2009. Students Doe later withdrew said Motion prior to the PreliminaryInjunction Hearing.2

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On December 31, 2009, Lower Merion timely filed a Motion for Summary Judgment.Students Doe file the present Brief in order to comply with Rille 7.1 of the Rules of CivilProcedure of the United States District Court for the Eastern District of Pennsylvania, and tofurther explain why the pending Motion should be denied.

Argument

Motions for Summary Judgment are governed by Rule 56 of the Federal Rules of CivilProcedure. In accordance with Rule 56, judgment should not be granted for the moving partyunless "the pleadings, the discovery and disclosure materials on file, and any affidavits show thatthere is no genuine issue as to any material fact and that the movant is entitled to a judgment as amatter oflaw. F.R.Civ.P. 56(c)(2). When determining the outcome of the Motion, the reviewingCourt must view all evidence, and draw all inferences, in the light most favorable to the non-moving party. Startzell v. Philadelphia, 533 F.3d 183, 192 (3d CiT. 2008). The reviewing Courtat the summary judgment stage should not weigh the credibility of witnesses, or other evidence,in ruling on the Motion. Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986). Discriminationcases rarely lend themselves to summary adjudication. See Pryor v. National Collegiate AthleticAssociation, 288 F.3d 548, 563 (2002).

When Lower Merion's Motion is analyzed and deconstructed, it appears that its argumentis that Student Doe have uncovered no evidence during the course of discovery substantiatingthat Lower Merion purposefully discriminated against them. Lower Merion's assertions areincorrect; the record developed during discovery overwhelmingly supports the conclusion thatLower Merion redistricted using race as a criteria in violation of the law.

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I. Lower Merion Adopted a Racially Based Policy

It would appear that in law, like in so many other things, where you end up is partly

determined by where you begin. Lower Merion begins its argument, without any analysiswhatsoever, stating that the Redistricting Plan adopted on January 12,2009, is a facially neutralpolicy. While this clever tactic allows Lower Merion to avoid explaining why the RedistrictingPlan is not the result of a raced based policy, Students Doe refuse to start their analysis in themiddle; rather, it is best to start at the beginning.

Lower Merion's Redistricting Plan is a race based policy due to the criteria it adopted todevelop and evaluate the various Redistricting Plans brought forth. According to Lower Merion,the Redistricting Plan was arrived at using the non-negotiables adopted by the School Board onApril 21, 2008, and the Community Values set forth in the DRS Report dated July 11, 2008. SeeLower Merion's Statement ofUndisputed Facts Paragraphs 38-44. One of the Community Valuesin the DRS Report required Lower Merion to "Explore and cultivate whatever diversity-ethnic,social, economic, religious and racial-there is in Lower Merion," when formulatingRedistricting Plans. See Students Doe Exhibit 2 page 5.

It should be noted that the School Board was repeatedly warned that race basedredistricting was illegal. The undersigned counsel in letters dated December 12, 2008, andJanuary 9, 2009, warned Lower Merion that its action were illegal, and would result in a lawsuit.action. See Students Doe Exhibits 60 and 61. The Public Interest Law Center also warned LowerMerion in Public Comments Regarding its Redistricting Plan that it was acting illegally. SeeStudents Doe Exhibit 62.

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A review of the excerpts made of School Board Meetings concerning redistricting revealsthat the Superintendent, Dr. Christopher McGinley, the Redistricting Consultant, Dr. RossHaber, and the President of the School Board, Lisa Fair Pliskin, all advised the public that theCommunity Values set forth in the DRS Report, which included the Community Value to"cultivate and explore" diversity, were used as guidelines in formulating Proposed RedistrictingPlans as well as in adopting Proposed Plan 3R on January 12, 2009. See Students Doe Exhibit 8pages 3, and 5-9, Students Doe Exhibit 9 pages 1-7, Students Doe Exhibit 10 pages 1-7, StudentsDoe Exhibit 11 pages 14-17, Students Doe Exhibit 12 pages 1-4, Students Doe Exhibit 13 pages7-10, Students Doe Exhibit 14 pages 1-3, Students Doe Exhibit 15 pages 3-5, Students DoeExhibit 16 pages 1 and 20.2

Moreover, Lower Merion advised the general public in the Frequently Asked Questionssection on its Redistricting Website that the Community Values set forth in the URS Report,which included the Community Value requiring diversity, were used as guidelines in formulatingRedistricting Plans. In response to a question concerning the use of the Community Values datedJuly 28, 2006, Lower Merion responded, "That set of values has been provided to the expertswho are developing the redistricting plan who will use them as part of the information used indeveloping the plan." Students Doe Exhibit 17 at Student Doe 00067. In response to a similarquestion dated July 29, 2008, Lower Merion stated, "The purpose of the first round of forumswas to empower community members to develop a set of community values and direct howthose values should be applied in the redistricting work. These values-based principles have been

2 Unfortunately, Lower Merion does not have a written transcript of its School Board meetings. In order to procureappropriate evidence. Students Doe requested from Lower Merion, and subsequently received digital copies of theBoard Meetings on an external hard drive. A Court Reporter has reviewed these meetings, and created a transcript oflimited time segments of the Board Meetings. These transcribed segments appear as Students Doe Exhibit 6-15.Included in the package delivered to opposing counsel, and this Honorable Court, is an external hard drive with acopy the Board Meetings which appear on the external hard drive provided to Students Doe.

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Student Doe v. Lower Merion School District Motion Package Filed January 15, 2010

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