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’ SUPPLEMENTAL BRIEF IN OPPOSITION TO

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Plaintiffs, Students Doe, by and through their undersigned counsel, file this Supplemental

Brief at the invitation of this Honorable Court. In accordance with the Court's instructions given

at the hearing on February 4, 2010, there are four (4) points that Students Doe wish to highlight

in the present filing.

1. Students Doe do not have to prove their case at this time to prevail on the Motion.

Procedurally, defendant has filed a Motion for Summary Judgment under Rule 56 of the

Federal Rules of Civil Procedure pursuant to Celotex Corp. v. Catrett, 477 U.S. 317 (1986). In

order to defeat the present Motion, Students Doe only need to identify enough evidence in the

discovery record to demonstrate that a trial is warranted.

As a matter of law, the present Motion should not be granted unless it is absolutely clear

that defendant should prevail. When reviewing the materials Students Doe identify in the

discovery record, the Court should not consider the credibility of witnesses. The Court must view

all evidence, and draw all inferences, in a light most favorable to Students Doe. See Plaintiffs'

Brief in Opposition to Defendant's Motion for Summary Judgment (hereinafter referred to as

"Students Doe's Brief") page 3, and the legal authorities cited therein.
 Due to the fact that discrimination cases often involve consideration of intent based on

circumstantial evidence, they rarely lend themselves to summary disposition. See Pryor v.

National Collegiate Athletic Association, 288 F.3d 548, 563 (3d Cir. 2002); See also Holcomb v.

Iona College, 521 F.3d 130 (2d Cir. 2008)("We have repeatedly expressed the need for caution

about granting summary judgment to an employer in a discrimination case where, as here, the

merits turn on a dispute as to the employer's intent." Id. at 137.); Peterson v. Scott County, 406

F.3d 515 (8th Cir. 2005)("Summary judgment should seldom be granted in employment

discrimination cases because intent is often the central issue and claims are often based on

inference." Id. at 520.).

The discovery record in this case demands that a trial be conducted, and that the pending

Motion be denied. This Court's characterization of Students Doe's evidence demonstrating race

based redistricting as "considerable" and "substantial" in its letter to counsel dated February 1,

2010, indicates a trial is needed. Moreover, the fact that Students Doe's Exhibits 25, 26, 46, 47,

77, 78, 79, 80, and 81, directly call into question the veracity of statements made to this very

Court regarding the role race played in the redistricting process further demonstrates the

necessity of a trial.

2. Defendant misstates the legal standard at issue in the pending Motion.

Defendant has consistently taken the position that Students Doe must prove that its

actions stemmed solely from a racially discriminatory purpose in order to defeat the pending

Motion. This statement of the legal standard at issue is patently incorrect.

The correct legal standard is found in the Supreme Court's opinion in Village of

Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252 (1977). According to the

2
Supreme Court, "Davis does not require a plaintiff to prove that the challenged action rested

solely on racially discriminatory purposes." Id. at 265-266. Rather, "racially discriminatory

purpose" only needs to be a motivating factor in the decision at issue. Id.

This latter statement of the law is consistent with subsequent Supreme Court decisions.

The Seattle School District preference system struck down in Parents Involved in Community

Schools v. Seattle School District No. 1, 551 U.S. 701 (2007), used a three tier system to assign

students to oversubscribed high schools. The racially objectionable component in the preference

system was actually not the initial tie-breaker; assignment due to sibling preference was the first

tie-breaker. Id. at 711-712. The University of Michigan's law school selection process upheld in

Grutter v. Bollinger, 539 U.S. 306 (2003), only used race as one component in a complex, multi-

faceted, and thorough admissions process. Id. at 313-322, and 338-339. The sub-contracting

process struck down in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), was found

objectionable because a racially preferential subcontracting clause had to be included along with

any number of other clauses when a general contractor bid for federal highway work. Id. at 205-

206.

In light of the foregoing, the legal issue the pending Motion raises is not whether race

was the motivating factor in defendant's decision-making process. Rather, the correct legal issue

the pending Motion raises is whether race was a motivating factor in defendant's decision-

making process.

3. The pending Motion should not be granted based on School Board Members'

statements during their deliberations, or based on School Board Members' statements

made during their depositions.

3
 Defendant contends in its pending Motion that summary judgment is appropriate because

School Members allegedly did not discuss race when deliberating on and adopting the

redistricting plan at issue, and because they denied during the course of their depositions that

they considered race in the redistricting process. The Second Circuit recently criticized this brand

of argument, i.e. I didn't do it because I said I didn't do it, in an employment discrimination case

noting, "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.'" Holcomb, 521 F.3d at 141 (internal citations omitted).

The fact that the School Board Members deliberated in public after they received two (2)

letters from the undersigned counsel warning of legal action as well as a letter from PILCOP

warning of legal action, may have had something to do with what they said on January 12, 2009.

See Students Doe's Exhibits 60, 61 and 62. Defendant's argument that the School Board

Members' deposition testimony given after the present case was filed should trump contrary,

relevant, unprepared, "real time" documentary evidence produced by defendant is equally

suspect.

According to the discovery record in this case which is detailed and analyzed at much

greater length in Students Doe's Brief, proposed redistricting plans were developed, compared,

and analyzed using criteria adopted by the School Board. The plan at issue was ultimately

chosen using the same criteria. This criteria directed those who developed and chose plans to

consider racial diversity. See Students Doe's Brief pages 4-7. In fact, it was the aforementioned

drive to achieve the goal of racial diversity that led defendant's Redistricting Consultant, and a

4
committee composed of some School Board Members as well as members of defendant's

Administration to eliminate Scenario 1 "DUE TO INEQUITABLE RACIAL BALANCING."

Students Doe's Exhibit 25 (emphasis in the original); Students Doe's Exhibit 27 pages 179-180.

The presence of documents substantiating the aforementioned conduct in the discovery

record mandates the denial of the pending Motion for three (3) independent reasons. First, if the

School Board directed that race based criteria be used in the development, evaluation, and

selection of redistricting plans, as the evidence in the discovery record overwhelming indicates,

then race was indeed a motivating factor in the redistricting process, and School Board Members'

statements to the contrary become 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, 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 laws that, although facially neutral, result in racially disproportionate

impact and are motivated by a racially discriminatory purpose." Id.).

Second, each of Students Doe's causes of action were brought under 28 U.S.C. Section

1983. Students Doe's Exhibit 59 at paragraphs 72, 77, and 85. The caselaw under 1983 is clear

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). As the aforementioned references to the discovery

record suggests, the School Board directed that race based criteria be used in the development,

evaluation, and selection of redistricting plans, it cannot now claim that race was not a

motivating factor in the redistricting process.

5
 Third, even if the preceding legal theories are rejected, and the Court accepts the

defendant's position for the purposes of resolving the pending Motion, that the actions at issue

concern a facially neutral policy, then the Court still must conduct a searching inquiry of all

available direct and circumstantial evidence in order to determine whether race was a motivating

factor in the redistricting process. Arlington Heights, 429 U.S. at 264-268; Pryor, 288 F.3d at

563-564. While the School Board Members' January 12, 2009, deliberations, and deposition

testimony, would be part of this inquiry, so would all 83 of Students Doe's conflicting Exhibits.

At this juncture it is appropriate to reflect briefly on defendant's contentions regarding

Students Doe's conflicting Exhibits. With the exception of characterizing some of the Exhibits as

containing "stray" comments, a point which will be dealt with momentarily, defendant never

tackles the issue the Exhibits raise. Defendant never stated at the hearing why Students Doe's

"considerable" or "substantial" evidence should be rejected. Instead, defendant simply repeats its

argument that the Exhibits should be rejected, and nothing more. In Defendant's Reply in Further

Support of Motion for Summary Judgment, defendant repeatedly argues that all of the contrary

evidence is being misconstrued; this is simply another way of saying that there is conflicting

evidence of record concerning a material fact. Even if defendant could refute all of Students

Doe's Exhibits, any such refutation would have to take place at a trial, not at a hearing on a

Motion for Summary Judgment.

Defendant's argument concerning "stray" comments is far too general, and defendant fails

to analyze the individual Exhibits at issue. Students Doe's Exhibits 7, 43, 44, 45, 46, 47, 48, 50,

51, 52, 53, 54, 56, 75, 82, and 83, memorialize race-based statements involving School Board

Members. Students Doe's Exhibits 9, 12, 38, 43, 45, 46, 47, 49, 50, 51, 53, 54, 56, 77, 78, 79,

80, and 81, memorialize race-based statements involving defendant's Superintendent. Students

6
Doe's Exhibits 16, 25, 26, 27, 28, 34, 35, 36, 37, 39, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 77, 78,

and 79, memorialize race based statements involving defendant's Redistricting Consultant.

Students Doe's Exhibits 1, 3, 4, 6, 17, 80, and 81, memorialize race-based statements involving

defendant's other senior School Administrators. The time has come for someone to sit on the

witness stand, and explain these statements to the Court, Students Doe, and the public. The only

"stray" thing about this evidence is that it proves defendant strayed outside the bounds of the law.

No matter which theory the Court chooses to adopt at this point in time, Students Doe

have identified enough evidence in the discovery record to require a trial.

4. The redistricting of non-African American children is irrelevant in this case.

At the conclusion of the hearing on February 4, 2010, defendant presented the Court with

an Exhibit demonstrating that students in addition to students living in Students Doe's

neighborhood were redistricted to Harriton High School. Defendant represented that these

additional students were not African American. Predictably, this Exhibit had not been shared

with the undersigned counsel prior to its submission to the Court.

However, a review of the defendant's argument in conjunction with the Exhibit indicates

that neither has any impact on the resolution of the pending Motion, or on the ultimate outcome

of the present case, because any redistricting plan that created greater diversity at Harriton High

School would have still redistricted non-African American students. According to defendant,

when it redistricted it sought to equalize the enrollment between Lower Merion High School and

Harriton High School. See Defendant's Exhibit 7 filed in conjunction with the pending Motion.

Defendant's Director of Pupil Services, Dr. Michael Kelly, states in his Declaration i.e.

Defendant's Exhibit 1 filed in conjunction with the pending Motion, that there are presently

7
2,298 total students attending high school in the District, i.e. 897 at Harriton High School and

1,401 at Lower Merion High School. Dr. Kelly also states in his aforementioned Declaration that

there are only 250 African American students attending high school in the District, i.e. 74 at

Harriton High School and 176 at Lower Merion High School. See Dr. Kelly's Declaration at

paragraphs 8 through 11.

It is anticipated that the student population at Harriton High School will continue to

increase over the next three (3) years, while the student population at Lower Merion High School

will continue to decrease over the next three (3) years, as those students who were grandfathered

to each high school graduate. Currently, the senior, junior, and sophomore classes at each high

school are grandfathered under the redistricting plan at issue. Ultimately, according to defendant,

Harriton High School's student population will reach 1,043 during the 2012-2013 school year,

and Lower Merion High School's student population will reach 1,110 during the 2012-2013

school year. See Defendant's Exhibit 7. In order to reach these student population goals,

defendant had to redistrict 246 students from Lower Merion High School to Harriton High

School, i.e. the difference between the 1,043 students defendant projects to be at Harriton High

School in the future, and the 797 students who were reportedly at Harriton High School during

the 2008-2009 school year. See Students Doe's Exhibit 40.

If defendant wished to have diverse student populations at both Harriton High School and

Lower Merion High School as Students Doe allege, then defendant still had to redistrict a

significant number of non-African American students because 246 high school students needed

to be redistricted, and there are only 250 African American high school students in the entire

District. In short, instead of supporting defendant's position, the Exhibit presented actually

confirms Students Doe's characterization of the events at issue.

8
 However, defendant's Exhibit does beg a series of questions that defendant has to date

never addressed. First, in a District where there are such a limited number of African American

high school students, i.e. 10.87% of the total high school student population according to Dr.

Kelly's numbers, why did African American student enrollment at Harriton High School go from

46 during the 2008-2009 school year, see Students Doe's Exhibit 40, to 74 during the 2009-2010

school year (i.e. an increase of 60.86%)? Second, in a District where there are such a limited

number of African American high school students, why were 28% of the 100 additional students

enrolled at Harriton High School this year African American? Third, why were the students in

Students Doe's neighborhood targeted for redistricting to Harriton High School when they live

less than one (1) mile from Lower Merion High School (see Students Doe's Exhibits 57 and 58)?

Fourth, why are the students in every neighborhood within the District that borders Students

Doe's neighborhood 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? Fifth, why did each of the proposed redistricting plans seek to redistrict

African American students from Ardmore?

Students Doe's Exhibits 1 through 83 indicate that the aforementioned anomalies did not

occur by chance, and that race was a motivating factor in the redistricting of African American

students. Students Doe have eliminated "pure chance" as the cause of the anomalies through a

mathematical analysis performed by Pavel Greenfield, Ph.D. See Students Doe's Exhibit 41.

Defendant inexplicably continues to argue that Dr. Greenfield's analysis fails to prove

discrimination. Defendant's position is inexplicable because Students Doe never retained Dr.

Greenfield to do a mathematical analysis to prove why they were redistricted. Dr. Greenfield

was only retained to prove that their redistricting was not the result of chance. As noted above,

9
Students Doe's Exhibits from the discovery record prove that race was a motivating factor in

defendant's redistricting of Students Doe.

Conclusion

As proven in their prior Brief filed in opposition to the pending Motion, and as re-

affirmed in this filing, Students Doe have unquestionably demonstrated that they have adequate

evidence to go to trial, and look forward to doing so at the earliest opportunity.

Respectfully submitted,

____________________________________
David G. C. Arnold

Pennsylvania Attorney Identification No. 49819

Suite 109, Royal Plaza

915 Montgomery Avenue
Narberth, Pennsylvania 19072
(484) 562-0008

Attorney for Plaintiffs

Dated: February 12, 2010

10