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et. aL
v.
Lower Merion School District
Defendant
ORDER
Lower Merion School District's Motion for Summary Judgment, and the response filed thereto, it
BY THE COURT
Vd03~~)(JSn
UNITED STATES DISTRICT COURT
v.
Lower Merion School District
Defendant
SEALED AS CONDIDENTIAL
Respectfully submitted,
v.
Lower Merion School District
Defendant
Plaintiffs, 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 light
of the discovery record in this case, the exhibits produced herewith, and the legal authorities set
forth in the in the accompanying Brief, summary judgment should not be granted in the present
matter. Students Doe incorporate herein by reference their Response to Defendant's Statement of
Wherefore, Students Doe respectfully request that the present Motion for Summary
Judgment be denied.
Respectfully submitted,
v.
Lower Merion School District
Defendant
SEALED AS CONDIDENTIAL
et. al.
v.
Lower Merion School District
Defendant
Introduction
In May of 1954, the United States Supreme Court rectified one of the most embarrassing
chapters in this Country's Civil Rights Jurisprudence by overruling Plessey v. Ferguson, 163
U.S. 5376 (1896). The Supreme Court held in Brown v. Board of Education, 347 U.S. 483
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i11~4)~.that "Separate educational facilities are inherently unequaL Therefore, ... plaintiffs and
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::9b:t~rs ~rmilarly situated for whom the actions have been brought are, by reason of the
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gttteg.n complained of, deprived of the equal protection of the laws guaranteed by the
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Fourte~h Amendment." Id. at 495. The legal principle emanating from Brown is that students
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 (2007), 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 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. Because neither of the aforementioned situations
apply in the present case, Students Doe have corne before this Honorable Court, and ask it to
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
allowing them to continue to voluntarily choose to attend their neighborhood high school, Lower
Merion High School, or Harriton High School. See Students Doe Exhibit 59.
Students Doe are all minority students who live in a neighborhood bounded by Athens
A venue, Wynnewood Road, County Line Road, and Cricket Avenue in South Ardmore,
Pennsylvania, hereinafter referred to as the "Ardmore Island." 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.
I 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.
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 Civil
Procedure of the United States District Court for the Eastern District of Pennsylvania, and to
Argument
Motions for Summary Judgment are governed by Rule 56 of the Federal Rules of Civil
Procedure. In accordance with Rule 56, judgment should not be granted for the moving party
unless "the pleadings, the discovery and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a
matter oflaw. F.R.Civ.P. 56(c)(2). When determining the outcome of the Motion, the reviewing
Court 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 Court
at 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). Discrimination
cases rarely lend themselves to summary adjudication. See Pryor v. National Collegiate Athletic
When Lower Merion's Motion is analyzed and deconstructed, it appears that its argument
is that Student Doe have uncovered no evidence during the course of discovery substantiating
that Lower Merion purposefully discriminated against them. Lower Merion's assertions are
incorrect; the record developed during discovery overwhelmingly supports the conclusion that
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 analysis
whatsoever, stating that the Redistricting Plan adopted on January 12,2009, is a facially neutral
policy. While this clever tactic allows Lower Merion to avoid explaining why the Redistricting
Plan is not the result of a raced based policy, Students Doe refuse to start their analysis in the
Lower Merion's Redistricting Plan is a race based policy due to the criteria it adopted to
develop 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 on
April 21, 2008, and the Community Values set forth in the DRS Report dated July 11, 2008. See
Lower Merion's Statement of Undisputed Facts Paragraphs 38-44. One ofthe Community Values
in the DRS Report required Lower Merion to "Explore and cultivate whatever diversity-ethnic,
It should be noted that the School Board was repeatedly warned that race based
redistricting was illegal. The undersigned counsel in letters dated December 12, 2008, and
January 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 Lower
Merion in Public Comments Regarding its Redistricting Plan that it was acting illegally. See
A review of the excerpts made of School Board Meetings concerning redistricting reveals
that the Superintendent, Dr. Christopher McGinley, the Redistricting Consultant, Dr. Ross
Haber, and the President of the School Board, Lisa Fair Pliskin, all advised the public that the
Community Values set forth in the DRS Report, which included the Community Value to
"cultivate and explore" diversity, were used as guidelines in formulating Proposed Redistricting
Plans as well as in adopting Proposed Plan 3R on January 12, 2009. See Students Doe Exhibit 8
pages 3, and 5-9, Students Doe Exhibit 9 pages 1-7, Students Doe Exhibit 10 pages 1-7, Students
Doe Exhibit 11 pages 14-17, Students Doe Exhibit 12 pages 1-4, Students Doe Exhibit 13 pages
7-10, Students Doe Exhibit 14 pages 1-3, Students Doe Exhibit 15 pages 3-5, Students Doe
Moreover, Lower Merion advised the general public in the Frequently Asked Questions
section 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 formulating
Redistricting Plans. In response to a question concerning the use of the Community Values dated
July 28, 2006, Lower Merion responded, "That set of values has been provided to the experts
who are developing the redistricting plan who will use them as part of the information used in
developing the plan." Students Doe Exhibit 17 at Student Doe 00067. In response to a similar
question dated July 29, 2008, Lower Merion stated, "The purpose of the first round of forums
was to empower community members to develop a set of community values and direct how
those 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 procure
appropriate evidence. Students Doe requested from Lower Merion, and subsequently received digital copies of the
Board Meetings on an external hard drive. A Court Reporter has reviewed these meetings, and created a transcript of
limited 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 a
copy the Board Meetings which appear on the external hard drive provided to Students Doe.