Students Doe vs. LMSD Defendants Summary Judgement Motion

Case 2:09-cv-02095-MMB Document 32-8 Filed 12/31/2009 Page 1 of 36
IN THE 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. :
DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF

MOTION FOR SUMMARY JUDGMENT
Judith E. Harris (PA I.D. No. 02358)

Christina Joy F. Grese (PA I.D. No. 200727)
Allison N. Suflas (PA I.D. No. 204448)
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103
215-963-5028/5085/5752
Michael D. Kristofco, Esquire

Kenneth A. Roos, Esquire
WISLER PEARLSTINE, LLP
484 Norristown Road
Blue Bell, PA 19422
610-825-8400
Attorneys for Defendant
Dated: December 31, 2009

TABLE OF CONTENTS
Page
I. INTRODUCTION ............................................................................................................. 1
II. FACTUAL BACKGROUND............................................................................................ 2
A. The Redistricting Process ...................................................................................... 3
B. The Redistricting Plan at Issue – Plan 3R.............................................................. 5
1. Because Students Doe Attend Penn Valley Elementary School and
Welsh Valley Middle School and Live Outside the Official Lower
Merion High School Walk Zone, They Are Zoned, Along with All
Other Students in the Affected Area, to Attend Harriton High
School ........................................................................................................ 7
2. Students Does and All Other Students Residing Outside the
Official Walk Zone Have Always Been Provided Bus
Transportation to School and Continue to Receive Bus
Transportation Under Plan 3R ................................................................... 8
III. LEGAL ARGUMENT....................................................................................................... 8
A. The Standard of Review......................................................................................... 8
B. Plaintiffs Cannot Make Out a Case of Discrimination under the Equal
Protection Clause, Title VI, or § 1981 ................................................................... 9
1. Plaintiffs Cannot Make Out A Claim for A Violation of The Equal
Protection Clause, Title VI, or § 1981 Because They Cannot Make
the Requisite Showing of Intent to Discriminate..................................... 11
a. Plaintiffs Cannot Show That They Were Treated
Differently, as Similarly Situated Students of Other Races
Have Been Affected by Plan 3R to the Same Degree.................. 13
b. Plaintiffs Cannot Show that the School Board Adopted Plan
3R Because of Their Race............................................................ 14
c. Plaintiffs’ So-Called “Evidence” of Intentional
Discrimination Is Insufficient ...................................................... 16
(i) The District Is Required by Law to Maintain and
Review Race Data for Each of Its Students ..................... 17
(ii) Student Data, Including Race, Socioeconomic
Status, and Special Needs Status, Are Routinely
Collected for Enrollment Studies and Redistricting
Projects............................................................................. 18
(iii) The Race Data at Issue Were Compiled to Show the
Outcomes of Proposed Plans and Scenarios and
Were Presented in Conjunction with Other Data............. 19
i
TABLE OF AUTHORITIES
(Continued)
Page
(iv) The Board, in Taking the Official Action to Adopt

Plan 3R, Did Not Consider Race ..................................... 20
d. There Is No Valid Statistical Evidence That Race Was a
Factor in the Redistricting Process .............................................. 22
e. If the District or Board Had Intended to Choose a
Redistricting Plan that Would Diversify or Racially
Balance the High Schools, It Would Have Chosen a
Different Plan............................................................................... 24
2. Plaintiffs’ Reliance on Parents Involved in Cmty. Schools v.
Seattle School District No. 1 Is Misplaced, as the Facts of that
Case Are Inapposite. ................................................................................ 25
a. Plan 3R Is Not Comparable to the Seattle Plan ........................... 25
b. The District Did Not Consider Race in the Same Manner as
the School Districts in Seattle ...................................................... 26
c. Rational Basis Scrutiny Is the Appropriate Standard of
Review ......................................................................................... 28
IV. CONCLUSION................................................................................................................ 31
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Page
CASES
Alexander v. Sandoval, 532 U.S. 275, 280 (2001) ---------------------------------------------------------------------------- 10
Andrews v. City of Phila., 895 F.2d 1469, 1478 (3d Cir. 1990)---------------------------------------------------------10, 12
Antonelli v. New Jersey, 419 F.3d 267, 273-74 (3d Cir. 2005) ------------------------------------------------------------- 15
Armstrong v. Sch. Dist. of Phila., 597 F. Supp. 1309, 1312 (E.D. Pa. 1984)---------------------------------------------- 10
Barnes Found. v. Twp. of Lower Merion, 982 F. Supp. 970, 983 (E.D. Pa. 1997) --------------------------------------- 29
Bush v. Vero, 517 U.S. 952, 958 (1996) --------------------------------------------------------------------------------------- 29
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)------------------------------------------------------------------------ 9, 11
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985)---------------------------------------- 13, 14, 29
City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194 (2003) ------------------------------------- 15
Concerned Citizens for Neighborhood Schools v. Pastel, No. 5:05-1070, 2007 WL 1220542, at *1 (N.D.N.Y. April
24, 2007) ------------------------------------------------------------------------------------------------------------------------ 21
Gen. Bldg. Contractors Ass’n v. Pa., 458 U.S. 375, 391 (1982)---------------------------------------------------------10, 11
Grutter v. Bollinger, 539 U.S. 306, 337 (2003)); 127 S.Ct. at 2789 ----------------------------------------------- 20, 27, 29
Hubicki v. ACF Indus., Inc., 484 F.2d 519, 522 (3d Cir 1973)----------------------------------------------------------------9
Hunt v. Cromartie, 526 U.S. 541, 546 (1999)---------------------------------------------------------------------------------- 28
Jefferson v. Wolfe, Civil Action No. 04-444, 2006 WL 1947721, at * 15 (W.D. Pa. July 11, 2006) ------------------ 12
Keenan v. City of Phila., 983 F.2d 459, 465 (3d Cir. 1992)) ------------------------------------------------------------10, 12
Keevan v. Smith, 100 F.3d 644, 648 (8th Cir. 1996) ------------------------------------------------------------------------- 12
Lavia v. Pennsylvania Dept. of Corrections, 224 F.3d 190, 199 (3d Cir. 2000)------------------------------------------- 30
Luz Maria Roberts v. GHS-Osteopathic, Inc., No. 96-5197, 1997 WL 338868, at *7 (E.D. Pa. June 19, 1997) ----- 11
Metro Broadcasting, Inc. v. F.C.C, 497 U.S. 547, 610 (1990)--------------------------------------------------------------- 20
Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) ------------------------------------------------------------------------------------ 13
Parents Involved in Community Schools v. Seattle Sch. Dist. No. 1, 55 U.S. 701, 127 S. Ct. 2738 (2007) ii, 2, 20, 25,
26, 27, 28, 29
Personnel Adm’r v. Feeney, 442 U.S. 256, 278-79 (1979)------------------------------------------------------------------- 15
Personnel Admin. of Mass. v. Feeney, 442 U.S. 256, 279 (1979) ------------------------------------------------------15, 29
Plyler v. Doe, 457 U.S. 202, 216 (1982) --------------------------------------------------------------------------------------- 28
Rotolo v. Borough of Charleroi, 532 F.2d 920, 922-23 (3d Cir. 1976)----------------------------------------------------- 10
Shaw v. Reno, 509 U.S. 630, 642 (1993)--------------------------------------------------------------------------------------- 15
Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir. 2008)----------------------------------------------------------------- 13
Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-265 (1977) --------------------------24, 29
Washington v. Davis, 426 U.S. 229, 239 (1976) --------------------------------------------------------------------------20, 29
Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989)---------------------------------------------------- 11
Williams v. Pennsylvania State Police Bureau of Liquor Control Enforcement, 108 F. Supp.2d 460, 471 (E.D. Pa.
2000)-------------------------------------------------------------------------------------------------------------------- 10, 13, 14
STATUTES
§ 1981 -------------------------------------------------------------------------------------------------------------------- i, 10, 11, 12
§ 1983 ---------------------------------------------------------------------------------------------------------------------- 10, 11, 12
§ 601 -------------------------------------------------------------------------------------------------------------------------------- 10
20 U.S.C. § 6311(b)(2)(C)(v)(II) ------------------------------------------------------------------------------------------------ 18
24 P.S. § 13-1310(a) -------------------------------------------------------------------------------------------------------------- 30
24 P.S. §§ 7-701; 13-1310-------------------------------------------------------------------------------------------------------- 30
42 U.S.C. § 1981 --------------------------------------------------------------------------------------------------------- 10, 11, 12
42 U.S.C. § 2000d ----------------------------------------------------------------------------------------------------------------- 10
iii
(Continued)
Page
RULES
Fed. R. Civ. P. 56(e) ----------------------------------------------------------------------------------------------------------------9
-iv-
I. INTRODUCTION
This action involves nine District students (“Students Doe”) and their parents
(“Parents/Guardians Doe”) (collectively, “Plaintiffs”) who are unhappy with the outcome of the
Redistricting Plan adopted by the Lower Merion School District Board of School Directors
(“Board”) on January 12, 2009, which requires Students Doe to attend Harriton High School in
Lower Merion Township, rather than allowing them to choose between Harriton High School
and Lower Merion High School, as they previously were allowed to do. Only one (1) of the
Students Doe is of high-school age; the remaining students currently attend the first, third,
fourth, fifth, and sixth grades in the Lower Merion School District.
Notably, the Redistricting Plan, known as “Plan 3R,” does not require Students Doe to
attend a different elementary school than they previously attended, nor does it require them to
attend a different middle school. Moreover, the Redistricting Plan did not remove any current
high school students from the high school they previously attended. Most importantly, the
Redistricting Plan does not require Students Doe to attend one high school, while permitting
their neighbors1 to attend a different high school. Rather, under the Redistricting Plan, all
students who attended Penn Valley Elementary School and Welsh Valley Middle School, and
who live outside the official Lower Merion High School walk zone, are required to attend
Harriton High School.
Nevertheless, Plaintiffs brought this action alleging that the Redistricting Plan
discriminates against them on the basis of race. From the outset, Plaintiffs have attempted to
liken this case to Parents Involved in Community Schools v. Seattle Sch. Dist. No. 1, 55 U.S.
1
“Neighbor” in this context is used to describe all of the residents of the “neighborhood” defined by Plaintiffs in
their Complaint to include the area bounded by Athens Avenue, Wynnewood Road, County Line Road, and
Cricket Avenue in South Ardmore, Pennsylvania. (Compl., ¶ 8). This area is referred to in Defendant’s
Statement of Undisputed Material Facts and herein as the “Affected Area.”
1
701, 127 S. Ct. 2738 (2007) (“Seattle”), yet Seattle has no bearing here, for the reasons set forth
herein based on the record and facts developed. Indeed, after months of discovery, including the
production of more than twenty thousand pages of documents by the District and the depositions
of twenty-five (25) witnesses, Plaintiffs cannot point to a single piece of evidence sufficient to
demonstrate that the Board, in adopting the Redistricting Plan, intentionally discriminated
against Plaintiffs because of their race.
II. FACTUAL BACKGROUND2
The District operates two outstanding high schools, Lower Merion High School and
Harriton High School. In September 2009, Harriton High School was ranked by Philadelphia
magazine as the number one public high school in the region, and Lower Merion High School
was ranked as the number three public high school in the region. (See Article in September 2009
Issue of Philadelphia Magazine, at p. 69, attached hereto as Exhibit A).
In 1997, the District began a capital improvement program to modernize each of its ten
schools, including its high schools. As of 2004, Lower Merion High School and Harriton High
School, which the community as a whole recognized were outdated and required significant
physical plant investments, remained to be modernized to fulfill the District’s educational
requirements. (SMF, ¶¶ 22-23). To review all available options for addressing the District’s
high school situation, the Board established a forty-five member Community Advisory
Committee (“CAC”) comprised of a broad cross-section of school, community, and other
interested individuals with a wide range of perspectives. (SMF, ¶ 24).
The CAC’s mission was to explore every alternative for modernizing the two District
high schools. (SMF, ¶ 25). It considered the following alternatives: a separate ninth grade
2
The District incorporates by reference herein its Statement of Undisputed Material Facts, filed concurrently
with this Motion. Portions of the Statement of Undisputed Material Facts are cited herein as “SMF, ¶ __.”
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school; a single high school of 2,500 students; two high schools of unequal size (1,600/900
students; and two equal-size high schools of 1,250 students each. (SMF, ¶ 25).
In 2004, after considering all of the information before it, the CAC voted in support of a
plan to build two new high schools of equal size as the best alternative for serving the
educational needs of students and the community. (SMF, ¶ 29). Specifically, the CAC
concluded that building two new high schools of equal size was the best option for the following
reasons:
 All students benefit from the smallest possible schools. The CAC heard from many
respected sources that smaller schools provide a stronger sense of community, promote
better student/faculty interactions, and provide a better educational outcome for all
students than large schools.
 All students benefit from the most equitable access to programs and facilities. Inequities
between the schools could be minimized. Both schools could offer the same range of
courses. Each would have its own sports, arts, and music programs, and its own
newspaper, club, and other co-curricular activities.
 Equal-size schools make best use of the existing school sites. The Lower Merion site is
badly overcrowded, with inadequate parking for faculty, staff, and visitors, and no
parking for students. This forces cars to seek parking in the surrounding residential areas.
Moving some students and faculty to the larger Harriton site, reconfigured to address
current parking inadequacies there, will alleviate this problem.
(SMF, ¶ 30).
Pursuant to the CAC’s recommendations, plans were made to build a new Harriton High
School and a new Lower Merion High School to accommodate equal student populations. The
new Harriton High School opened for students on September 8, 2009, and the new Lower
Merion High School is scheduled to open for the 2010-2011 school year.
A. The Redistricting Process
As a result of the decision to build two new high schools of equal capacity, the District
was faced with the challenge of eliminating the 700 student disparity between Lower Merion and
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Harrition High Schools. (SMF, ¶ 31). Further complicating the process was the fact that the
majority of the District’s residents are concentrated along the City Avenue corridor. (SMF, ¶
33).
The District’s actual redistricting decisions were formed throughout a three-phase
process. Phase I began in May, 2008, and centered on community engagement. (SMF, ¶ 38).
During Phase I, the District retained two outside consultants, Dr. Harris Sokoloff and Ms. Ellen
Petersen, to solicit input from the community and identify their values in the context of
redistricting. (SMF, ¶ 40). After facilitating a series of accessible and well-attended public
forums, as well as on-line surveys, Dr. Sokoloff and Ms. Petersen prepared a report summarizing
the values identified by the community. (SMF, ¶ 41). These “community values” included the
diversity, e.g., ethnic, social, economic, religious, and racial diversity, that exists within the
district. (SMF, ¶ 42). In addition, the community identified that it valued both academic and
extracurricular excellence, the preservation of existing zones for walkers, minimizing travel time
for non-walkers, and the maintenance of social networks. (SMF, ¶ 43).
In conjunction with the foregoing “community values,” the Board developed and
approved a set of guiding principles, known as “Non-Negotiables,”3 on or about April 21, 2008,
to direct the redistricting planning process:
 The enrollment of the two high schools and two middle schools would be equalized;
 Elementary students would be assigned so that the schools are at or under the school
capacity;
 The plan should not increase the number of buses required;
 At a minimum, the class of 2010 would have the choice to either follow the redistricting
plan or stay at the high school of their previous year (i.e., implement the principle of
“grandfathering”); and
 Redistricting decisions would be based upon current and expected future needs and not
based upon past redistricting outcomes or perceived past promises or agreements.
3
These “Non-Negotiables” were referred to interchangeably throughout the redistricting process as “Guiding
Principles.”
-4-
(SMF, ¶ 44-45). In April, 2008, the Board determined that these principles had to be included
and/or met in any of their subsequent redistricting recommendations. (SMF, ¶ 46).
In Phase II, which began in July 2008, the District engaged an outside consultant, Dr.
Ross Haber of Ross Haber Associates, Inc., to review and analyze District enrollment data and
propose alternative redistricting plans in accordance with the Non-Negotiables and input
received during Phase I. (SMF, ¶ 48). Notably, Dr. Haber, who received a Doctorate in
Education (educational administration) from Teachers College, Columbia University, had vast
experience with school redistricting and more than 20 years of experience as an educator,
including ten years as a school principal. (SMF, ¶ 50). During Phase III, which began in
September 2008, the District presented its proposed plan(s) and variations thereon to the Board
and the community through a series of public presentations on the following dates: September 8,
2008; October 20, 2008; November 25, 2008; and December 15, 2008. (SMF, ¶ 61). Between
each scheduled presentation the District sought and reviewed feedback from the community.
(SMF, ¶ 62).
B. The Redistricting Plan at Issue – Plan 3R
Based upon its careful review of Plans 1, 2, and 3 and the public comments received
throughout the redistricting process, the District presented Plan 3R at a public Board meeting on
December 15, 2008.4 (SMF, ¶ 90). Plan 3R expanded the walk zone to its official, historical
designations, to address the community’s concerns regarding the smaller walk zone presented in
Plan 3. (SMF, ¶ 91). In addition, Plan 3R boosted the projected enrollment at Harriton High
4
Plan 1, 2, 3, and 3R are collectively referred to below as “the Plans.” It is important to note the distinction
between Plans 1, 2, and 3, which were presented to and publicly discussed by the Board; Plan 3R, which was
presented to, publicly deliberated upon, and ultimately adopted by the Board; and the scenarios, which were
prepared in the initial redistricting phase by the District and Dr. Haber and were never officially acted upon by
the Board.
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School by providing all students zoned for Lower Merion High School with the opportunity to
elect to attend Harriton. (SMF, ¶ 96). To further enhance Harriton’s appeal, the District
introduced new curricular opportunities at Harriton High School, including a dual enrollment
program with Penn State University in an effort to increase students’ selection of this school.
(SMF, ¶ 97). These changes were intended to attract new students in order to balance the
enrollment at the two schools as well as provide opportunities to preserve, and in some cases
expand, social networks established in middle school at the high school level. (SMF, ¶ 92-93,
95-97). In sum, Plan 3R contains the following highlights:
 Students could elect to stay with peers by following assigned feeder patterns K-12;
 The historic walk zones for elementary, middle and high schools were protected;
 The District’s current feeder patterns were followed, creating disruption for fewer
students;
 A high school population at each school consisting of students from each middle school
was probable due to the option area and choice programs;
 Grandfathering of all current high school students was maintained; and
 The community interest in maintaining elementary school attendance zones was
achieved.
(SMF ¶ 93).
Community feedback regarding Plan 3R was accepted via e-mail and regular mail
through January 6, 2009. (SMF, ¶ 100). On January 12, 2009, the Board approved Plan 3R by a
6-2 vote, at a public meeting. (SMF, ¶ 103). In making its official decision to adopt Plan 3R, the
Board did not consider – and was not even provided – data on race. (SMF, ¶¶ 99, 101, 104).
After the Board adopted Plan 3R, the District immediately began implementing the plan
in time for the beginning of the 2009-2010 school year and the opening of the new Harriton High
School. It provided transition services to parents and students and expended significant time,
effort, and money preparing for the increased number of students who would be attending
Harriton High School under Plan 3R. (SMF, ¶ 105).
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1. Because Students Doe Attend Penn Valley Elementary School and

Welsh Valley Middle School and Live Outside the Official Lower
Merion High School Walk Zone, They Are Zoned, Along with All
Other Students in the Affected Area, to Attend Harriton High School
Plan 3R had a “3-1-1” component, which permitted students to elect to remain with their
peers by following assigned feeder patterns for grades K-12. (SMF, ¶ 92). As part of this 3-1-1
component, Plan 3R maintained the elementary and middle school attendance zones in existence
prior to its adoption. (SMF, ¶ 94). Consequently, under Plan 3R, students living in geographic
areas that were zoned to Belmont Hills, Gladwyne, and Penn Valley Elementary Schools and
Welsh Valley Middle School were districted to Harriton High School. Students living in
geographic areas that were zoned to Penn Wynne, Cynwyd, and Merion Elementary Schools and
Bala Cynwyd Middle School were districted to Lower Merion High School. (SMF, ¶ 95). The
only exception was that Penn Valley Elementary students who lived in the official, historic
Lower Merion High School walk zone,5 while zoned for Harriton High School, could choose
between attending Harriton High School and walking to Lower Merion High School. (Id.).6
These feeder patterns assigned all students outside the official Lower Merion High
School walk zone who attended Penn Valley Elementary School and Welsh Valley Middle
School to Harriton High School. (Id.). Consequently, because Students Doe attend Penn Valley
Elementary School and Welsh Valley Middle School, they are now districted to attend Harriton
5
Walk zone” or “walking zone” is the term used by the District to designate the area within which it does not
provide bus transportation to students. The Board’s policy is that it does not provide bus transportation to
secondary students residing within one mile of school; however, if a roadway on which a student must walk to
school has been certified as hazardous by PennDOT, the student is provided transportation regardless of how
close he or she resides to the school. (SMF, ¶¶ 103-104). In addition, because the one-mile distance could fall
in the middle of a block, rather than splitting a block in half the lines have been drawn at the nearest major
intersection resulting in a distance of slightly less than one mile in some cases. (SMF, ¶ 105).
6
In addition, as previously noted, to increase the student enrollment level at Harriton High School, the District
maintained the option of District-wide choice for Harriton.. (SMF, ¶ 96).
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High School under Plan 3R. Because they live outside the official Lower Merion high School
walk zone, they do not have the option to attend Lower Merion High School. (Id.).
2. Students Does and All Other Students Residing Outside the Official
Walk Zone Have Always Been Provided Bus Transportation to School
and Continue to Receive Bus Transportation Under Plan 3R
The overwhelming majority of students in the District are bused to school. (SMF, ¶ 115).
In general, all students attending Harriton High School are bused because Harriton has no walk
zone. (SMF, ¶ 116). Similarly, all Lower Merion High School Students living outside the
official Lower Merion High School walk zone are provided bus transportation. (SMF, ¶ 117).
Students in the Affected Area are no exception, as they do not live—and never have lived—
within the official Lower Merion High School walk zone. (SMF, ¶¶ 121-123). In fact, students
in the Affected Area have been provided bus transportation to high school, whether it be Lower
Merion High School or Harriton High School, for more than twenty years. (SMF, ¶ 122). In
addition, students in the Affected Area who attend Penn Valley Elementary School and Welsh
Valley Middle School currently are provided and historically have been provided bus
transportation to those schools. (SMF, ¶ 124).
Most recently, for the 2008-2009 school year, each of the high school students in the
Affected Area—both those who chose to attend Harriton and those who chose to attend Lower
Merion—were provided bus transportation to high school. (SMF, ¶ 123). Notably, for the 2009-
2010 school year, high school students in the Affected Area who attend Harriton High School
have the second shortest bus ride of all students attending Harriton. (SMF, ¶ 125). Of the
twenty bus routes to Harriton, theirs is only 4.08 miles and 19 minutes long, whereas other
students ride the bus for up to 9.63 miles and 34 minutes. (Id.).
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III. LEGAL ARGUMENT
A. The Standard of Review
Rule 56(c) of the Federal Rules of Civil Procedure “mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). The purpose of the summary judgment rule is:
[T]o expeditiously determine cases without necessity for formal

trial where there is no substantial issue of fact ... If no factual
dispute exists ... [the case] should be disposed of by summary
judgment rather than exposing the litigants to unnecessary delay,
work and expenses in going to trial when the trial judge would be
bound to direct a verdict in movant’s favor after all the evidence is
adduced.
Hubicki v. ACF Indus., Inc., 484 F.2d 519, 522 (3d Cir 1973) (emphasis added, citation omitted).
In order to prove that a genuine issue of material fact exists, a plaintiff “may not rest upon the
mere allegations or denials of the . . . pleadings,” but must by affidavit or otherwise “set forth
specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).
Under Federal Rule of Civil Procedure 56, a defendant has no burden other than
“pointing out to the district court [] that there is an absence of evidence to support [plaintiff's]
case.” Celotex, 477 U.S. at 325. To survive summary judgment, a plaintiff must affirmatively
designate facts of record sufficient to establish every element upon which he bears the burden of
proof at trial. Celotex, 477 U.S. at 324. A mere “scintilla of evidence” in support of a plaintiff's
position is insufficient to defeat a properly supported motion for summary judgment. Id. Rather,
there must be sufficient evidence on which a factfinder could reasonably find for the plaintiff.
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Id. The failure to demonstrate probative evidence on any element is fatal and requires summary
judgment for the defendant. Id. at 322-23.
B. Plaintiffs Cannot Make Out a Case of Discrimination under the Equal

Protection Clause, Title VI, or § 1981
Plaintiffs allege race discrimination in violation of (1) the Equal Protection Clause of the
Fourteenth Amendment; (2) Title VI of the Civil Rights Act, 42 U.S.C. § 2000d et seq.; and (3)
42 U.S.C. § 1981. In order to prove discrimination under any of these three provisions, Plaintiffs
must show purposeful discrimination. See Williams v. Pennsylvania State Police Bureau of
Liquor Control Enforcement, 108 F. Supp.2d 460, 471 (E.D. Pa. 2000) (citing Keenan v. City of
Phila., 983 F.2d 459, 465 (3d Cir. 1992)); Andrews v. City of Phila., 895 F.2d 1469, 1478 (3d
Cir. 1990)) (“The sine qua non of any successful Equal Protection claim under § 1983 is
purposeful discrimination.”); Alexander v. Sandoval, 532 U.S. 275, 280 (2001) (“[I]t is similarly
beyond dispute – and no party disagrees – that § 601 prohibits only intentional discrimination.”);
Gen. Bldg. Contractors Ass’n v. Pa., 458 U.S. 375, 391 (1982) (“We conclude, therefore, that §
1981, like the Equal Protection Clause, can be violated only by purposeful discrimination.”).
In other words, to prevail on their claims of discrimination, Plaintiffs must show that they
were treated differently than other similarly situated students outside their protected class
because of their race. Keenan, 983 F.2d at 465. Plaintiffs are unable to do so. They have no
“evidence” of discrimination beyond their conclusory allegations and subjective beliefs, which
do not suffice to show intentional discrimination. See, e.g., Armstrong v. Sch. Dist. of Phila.,
597 F. Supp. 1309, 1312 (E.D. Pa. 1984) (citing Rotolo v. Borough of Charleroi, 532 F.2d 920,
922-23 (3d Cir. 1976)) (“The criterion of purposeful or intentional discrimination cannot be
satisfied by vague and conclusory allegations in the complaint unsupported by affidavits,
depositions, or other admissible evidence dehors the complaint, stating the specific facts upon
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which claims of discrimination are based.”); Luz Maria Roberts v. GHS-Osteopathic, Inc., No.
96-5197, 1997 WL 338868, at *7 (E.D. Pa. June 19, 1997) (stating that the plaintiff’s “general
feeling” that the defendant discriminated against her is insufficient to discredit the defendant's
non-discriminatory reasons); Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir.
1989) (citing Celotex, 477 U.S. at 325 (1986)) (stating that the plaintiff must provide more than
“unsupported assertions, conclusory allegations, or mere suspicions” to survive summary
judgment).
Furthermore, the overwhelming evidence shows that the Board’s objective in adopting
Plan 3R was to balance the overall student enrollment levels at the two new high schools, in
accordance with the CAC’s recommendations. Which individual students were districted to
Lower Merion High School and which individual students were districted to Harriton High
School as a result of the adoption of Plan 3R was not an end the Board controlled. In fact, the
Board, in making its official decision to adopt Plan 3R, did not consider – and was not even
provided – data on race. (SMF, ¶¶ 99, 101, 104). In short, Plaintiffs have no evidence that the
Board intended to discriminate against them in adopting Plan 3R.
1. Plaintiffs Cannot Make Out A Claim for A Violation of The Equal

Protection Clause, Title VI, or § 1981 Because They Cannot Make the
Requisite Showing of Intent to Discriminate7
On their equal protection claim, asserted under 42 U.S.C. § 1983, Plaintiffs contend that
“Redistricting Plan Three Revised . . . discriminates against Students Doe on the basis of race by
7
Plaintiffs’ claims under 42 U.S.C. § 1981 and Title VI are coextensive with their Equal Protection claim and,
therefore, the same analysis applies to all three claims. See Sandoval, 532 U.S. at 581 (explaining that Title VI
“proscribe[s] only those racial classifications that would violate the Equal Protection Clause”) (internal
citations omitted); Gen. Bldg. Contractors Ass’n v. Pa., 458 U.S. 375, 391 (1982) (applying same analysis for
Equal Protection and § 1981). Therefore, Plaintiffs’ claims under 42 U.S.C. § 1981 and Title VI fail for the
same reasons as analyzed below consistent under the Equal Protection Clause. See also Yelverton v. Lehman,
No. CIV.A. 94-6114, 1996 WL 296551, at *7 (E.D. Pa. June 3, 1996) (noting that to establish claim under §
1981, plaintiff must allege facts showing intent to discriminate on basis of race, and finding that because all of
plaintiff’s equal protection claims were dismissed, he could not establish that defendants intended to
discriminate on basis of race).
-11-
mandating that said students attend Harriton High School because they are minorities.” (Compl.,
¶ 70). Plaintiffs make identical allegations under § 1981 and Title VI. (Compl., ¶¶ 75, 82).8 In
order for Plaintiffs to demonstrate a prima facie case of race discrimination under the Equal
Protection Clause, they must establish not only that they were treated differently from
individuals similarly situated, but that the District acted with the intent to discriminate against
them. Keenan, 983 F.2d at 465. See also Andrews, 895 F.2d at 1478 (holding that “[t]o bring a
successful claim under 42 U.S.C. § 1983 for denial of equal protection, plaintiffs must prove the
existence of purposeful discrimination” and, further, that the plaintiff must prove he “received
different treatment from that received by other individuals similarly situated”) (internal
quotations omitted); Jefferson v. Wolfe, Civil Action No. 04-444, 2006 WL 1947721, at * 15
(W.D. Pa. July 11, 2006) (“[A]s a threshold matter, in order to establish an equal protection
violation, the plaintiff must ‘... demonstrate that [he has] been treated differently by a state actor
than others who are similarly situated simply because [he] belongs to a particular protected
class.’ ”) (quoting Keevan v. Smith, 100 F.3d 644, 648 (8th Cir. 1996)). Plaintiffs cannot make
this requisite showing. They have no evidence that they were treated differently from similarly
situated students outside their protected class, nor do they have any evidence demonstrating
purposeful discrimination. Consequently, their race discrimination claims fail as a matter of law.
8
Plaintiffs also allege that “Redistricting Plan Three also violates the Fourteenth Amendment to the United
States Constitution[, 42 U.S.C. § 1981, and Title VI of the Civil Rights Act] in that it imposes an undue burden
on minority students.” (Compl., ¶¶ 71 76, 83). To the extent that Plaintiffs intend to assert disparate impact
(as opposed to disparate treatment) claims of discrimination through these vague allegations, such claims
should be dismissed as a matter of law, as neither the Fourteenth Amendment to the United States Constitution,
Section 1981, nor Title VI allows disparate impact claims. See, e.g., Crawford v. Marion County Election Bd.,
128 S. Ct. 1610, 1626 (holding that disparate impact claims are not available under the 14th Amendment's
Equal Protection clause); Sandoval, 532 U.S. at 281 (holding that private parties may not invoke Title VI
disparate impact regulations to obtain redress for disparate impact discrimination because Title VI itself
prohibits only intentional discrimination); S. Camden Citizens in Action v. N.J. Dep’t of Envtl. Protection, 274
F.3d 771, 783, 791 (3d Cir. 2001) (holding that that disparate impact regulations adopted pursuant to § 602 of
Title VI do not create a right enforceable via § 1983); Pryor v. National Collegiate Athletic Ass’n, 288 F.3d
548, 562-63 (3d Cir. 2002) (finding that both Section 1981 and Title VI provide a private cause of action for
intentional discrimination only).
-12-
a. Plaintiffs Cannot Show That They Were Treated Differently,

as Similarly Situated Students of Other Races Have Been
Affected by Plan 3R to the Same Degree
In providing that no State shall “deny to any person within its jurisdiction the equal
protection of the laws,” the Equal Protection Clause of the Fourteenth Amendment “embodies
the general rule that ‘all persons similarly situated should be treated alike.’” Williams v. Pa.
State Police, 108 F. Supp.2d 460, 471 (E.D. Pa. 2000) (quoting City of Cleburne v. Cleburne
Living Ctr., Inc., 473 U.S. 432, 439 (1985)). Thus, in order to assert a viable equal protection
claim, a plaintiff must first make a threshold showing that he was treated differently from others
who were similarly situated to him. See Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). Persons are
similarly situated under the equal protection clause when they are alike “in all relevant aspects.”
Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir. 2008) (citing Nordlinger v. Hahn, 505 U.S.
1, 10 (1992)).
Plaintiffs are unable to point to any similarly situated students outside their protected
class who were treated differently under Plan 3R. The District submits that for purposes of
Plaintiffs’ allegations, “all persons similarly situated” should encompass school-age children
who are registered to attend public school and who reside within the Affected Area, i.e., the
South Ardmore “neighborhood” described by Plaintiffs. (Compl., ¶ 8). The record evidence
demonstrates that all of the students who reside within the Affected Area were districted in Plan
3R to attend Harriton High School, irrespective of their race. Pursuant to Plan 3R, all of these
similarly situated children together attend Penn Valley Elementary School, Welsh Valley Middle
School, and, now, Harriton High School. As of September 2008, Plaintiffs’ neighborhood had
308 students in grades K through 12. Of these 308 students, 140 are African-American, and 140
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are white, 9 are Asian, and 18 are Hispanic.9 (SMF, ¶ 8). As these figures illustrate, “similarly
situated” African-American and white students are affected by Plan 3R to the same degree.10
Even assuming, arguendo, that all persons “similarly situated” should include a broader
geographic area, Plaintiffs’ claims still fail. For example, as of January 12, 2009, a total of 214
students in grades 5 through 8 lost the option to attend Lower Merion High School or Harriton
High School under Plan 3R, including 15 Asian students, 45 African-American students, nine
Hispanic students, one Indian student, and 144 white students, which clearly demonstrates that
students of other races were similarly impacted by Plan 3R. (See January 12, 2009 E-mail from
Dr. McGinley to Board Members, attached hereto as Exhibit B, at LMSDLDA05280).
Furthermore, the population in North Narberth, which is also districted to Harriton High School
under Plan 3R, is overwhelmingly white, which again indicates that students of other races are
treated the same under Plan 3R as Plaintiffs. (See U.S. Census Bureau American FactFinder
Fact Sheet for Narberth Borough, Census Demographic Profile Highlights, attached hereto as
Exhibit C).
In sum, because similarly situated African-American and white students are being treated
alike under Plan 3R, Plaintiffs’ Equal Protection claim cannot stand.
9
Even if the number of similarly situated African-American and white students affected by Plan 3R was not as
evenly distributed, this Court still could not find Plan 3R unconstitutional. See Village of Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252, 264-265 (1977) (“Official action will not be held unconstitutional
solely because it results in a racially disproportionate impact.”)
10
In addition, to the extent that Plaintiffs argue that they are being treated differently than white students who are
permitted under Plan 3R to attend either Harriton High School or Lower Merion High School because they live
within the official Lower Merion High School walk zone, this argument fails, as the two groups are not
similarly situated. The group of students who reside within the official Lower Merion High School walk zone
– which includes students of all races – are permitted to choose between the two high schools only because
they live within the walk zone, whereas Plaintiffs do not live within the official walk zone and never have.
Therefore, they are not similarly situated for purposes of the Equal Protection Clause, and any arguments to
that effect must be disregarded. See City of Cleburne, 473 U.S. at 439; Williams, 108 F. Supp.2d at 471.
-14-
b. Plaintiffs Cannot Show that the School Board Adopted Plan

3R Because of Their Race
The Equal Protection Clause of the Fourteenth Amendment prohibits states from
intentionally discriminating between individuals on the basis of race. Shaw v. Reno, 509 U.S.
630, 642 (1993). “Proof of racially discriminatory intent is required to show a violation of the
Equal Protection Clause.” City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S.
188, 194 (2003) (internal citations and quotations omitted). To prove intentional discrimination
by a facially neutral policy,11 a plaintiff must show that the relevant decisionmaker, here, the
Board, adopted the policy at issue “because of,” not merely “in spite of,” its adverse effects upon
an identifiable group. Antonelli v. New Jersey, 419 F.3d 267, 273-74 (3d Cir. 2005) (quoting
Personnel Admin. of Mass. v. Feeney, 442 U.S. 256, 279 (1979)). Discriminatory purpose, for
purposes of the Equal Protection Clause, “implies more than intent as volition or intent as
awareness of consequences.” Personnel Adm’r v. Feeney, 442 U.S. 256, 278-79 (1979). “A
mere awareness of the consequences of an otherwise neutral policy will not suffice.” Pryor, 288
F.3d at 562 (citing Feeney, 442 U.S. at 277-78)).
Plaintiffs have no evidence that the Board adopted Plan 3R because of its allegedly
adverse effects upon Plaintiffs, as African-American or minority students. Indeed, the evidence
shows, and Plaintiffs cannot rebut, that the Redistricting Plan was based on the ultimate goal of
evenly distributing the student population between Lower Merion and Harriton High Schools.
11
There can be no genuine dispute that Plan 3R is facially neutral, as the plan itself provides only that (1)
students attending Gladwyne, Belmont Hills, and Penn Valley Elementary Schools are zoned to attend Welsh
Valley Middle School and then Harriton High School (with those Penn Valley students living in the Lower
Merion High School walk zone having the option to choose between Harriton High School and walking to
Lower Merion High School); (2) students attending Penn Wynne, Cynwyd, and Merion Elementary Schools
are zoned to attend Bala Cynwyd Middle School, and then Lower Merion High School; and (3) all students
zoned to Lower Merion High School have the option to elect to attend Harriton High School. (SMF, ¶¶ 95-96).
Plan 3R contains no racial classifications, nor does it even reference race. (Id.)
-15-
At the same time, consistent with the themes elicited from the Community Values study
conducted by Dr. Sokoloff and Ms. Petersen, the Non-Negotiables, and the ongoing community
input, the District Administration chose to present Plan 3R to the Board for its consideration
because it provided the following:
 Students could elect to stay with peers by following assigned feeder patterns K-12;
 The historic walk zones for elementary, middle and high schools were protected;
 The District’s current feeder patterns were followed, creating disruption for fewer
students;
 A high school population at each school consisting of students from each middle school
was probable due to the option area and choice programs;
 Grandfathering of all current high school students was maintained; and
 The community interest of maintaining elementary school attendance zones was
achieved.
(SMF, ¶ 93). Plaintiffs cannot show that it was because of their race – and not the above
enumerated considerations – that the Board adopted Plan 3R.
Notably, in developing Plan 3R (as well as the other plans and scenarios prior to Plan 3R)
the District did not select individual students for assignments to either high school. Rather,
under Plan 3R students were assigned to high school attendance zones based on the feeder
patterns from the elementary schools to the middle schools and on to high school. These feeder
patterns assigned all students outside the official Lower Merion High School Walk Zone who
attended Penn Valley Elementary School and Welsh Valley Middle School to Harriton High
School (SMF, ¶ 95). There was no difference in the treatment of students in the Affected Area
based on race.
c. Plaintiffs’ So-Called “Evidence” of Intentional Discrimination

Is Insufficient
As indicated by the deposition testimony of Parents/Guardians Doe, Plaintiffs have no
evidence that the Board intentionally discriminated against them on the basis of race in adopting
Plan 3R. Indeed, beyond mere speculation about the Board’s motivations in adopting Plan 3R
-16-
and their subjective beliefs regarding the “history” of treatment of African-American students by
the District, which clearly fail to establish intentional discrimination, the only so-called
“evidence” that Parents/Guardians Doe pointed to as the basis for their belief that the Board
intentionally discriminated against them is the presentation of slides at the Board meetings
concerning the anticipated diversity make-up of the high school students under Plans 1, 2, and 3.
(See Exhibit 2 to SMF, Parent/Guardian Doe 1 Dep. at 26-27; Parent/Guardian Doe 2 Dep. at 29-
31; Parent/Guardian Doe 3 Dep. at 29-32; Parent/Guardian Doe 4 Dep. at 46-48;
Parent/Guardian Doe 5 Dep. at 30-32; Parent/Guardian Doe 6 Dep. at 24-25; Parent/Guardian
Doe 7 Dep. at 26-28); Parent/Guardian Doe 8 Dep. at 35-36, 55-56; Parent/Guardian Doe 9 Dep.
at 31-35; Parent/Guardian Doe 10 Dep. at 24-27).
In addition to these slides, the District anticipates that Plaintiffs’ Counsel will rely on the
fact that (1) Dr. Ross Haber, the outside consultant retained by the District to conduct an
enrollment projection study and assist in the redistricting process, requested student files from
the District, which included race and ethnicity (as well as student ID, last name, first name,
address, town, zip code, current grade level, current school attending, special needs category or
classification, and socioeconomic status); and (2) Dr. Haber generated documents in connection
with various redistricting scenarios that contained diversity data, including race data, and made
vague references to racial “balance” or “imbalance.” (SMF, ¶¶ 51, 57).
For the reasons set forth below, none of this so-called “evidence” supports Plaintiffs’
conclusory allegations that they were intentionally discriminated against on the basis of race.
(i) The District Is Required by Law to Maintain and

Review Race Data for Each of Its Students
Tracking student enrollments and performance data by race is hardly novel. Indeed, the
National Center for Education Statistics, a branch of the federal Department of Education,
-17-
collects many data elements by race and ethnicity. See National Center for Education Statistics,
Common Core of Data, at http://nces.ed.gov/ccd. Moreover, the No Child Left Behind Act
requires school districts to collect and disaggregate student achievement data by race and
ethnicity for purposes of public reporting and accountability. 20 U.S.C. § 6311(b)(2)(C)(v)(II)
(requiring disaggregation of data regarding “students from major racial and ethnic groups,”
among other groups).12 Consequently, there is nothing at all unusual or inappropriate about the
District maintaining and reviewing race data for its students. Indeed, as Board Member
DiBonaventuro testified, “when the State does the PSSAs [Pennsylvania System of School
Assessment tests], they break information out that way. So the State thinks it’s important
information to know generally.” (Exhibit 3 to SMF, DiBonaventuro Dep. at 103).
Moreover, in addition to fulfilling state and federal law requirements, the compilation and
review of diversity data, which includes special needs and socioeconomic status in addition to
race, serves valuable educational purposes, as it enables the District to anticipate what the
learning environment will be like at a particular school. (SMF, ¶ 52).
(ii) Student Data, Including Race, Socioeconomic Status,

and Special Needs Status, Are Routinely Collected for
Enrollment Studies and Redistricting Projects
As the evidence shows, the District retained Dr. Ross Haber, an educational consultant, to
conduct an enrollment projection study and a redistricting project. (SMF, ¶ 48). As part of his
engagement, Dr. Haber requested student file data from the District, which included race and
ethnicity, as well as student name, address, current school attending, current grade level, special
needs status, and socioeconomic status. (SMF, ¶ 51). The inclusion of race or ethnicity data in
12
Indeed, this data collection is authorized by the United States Department of Education under Title VI of the
Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation
Act of 1973, and the Department of Education Organization Act.
-18-
this request was by no means unusual or inappropriate. Indeed, Dr. Haber typically includes
such information in his standard requests to his clients when starting enrollment and redistricting
projects such as those he conducted for the District, and he computes these figures as a regular
part of his professional practice. (Id.).
(iii) The Race Data at Issue Were Compiled to Show the

Outcomes of Proposed Plans and Scenarios and Were
Presented in Conjunction with Other Data
The evidence shows that race data were not used as inputs to create any of the
redistricting scenarios or Plans actually presented to the Board. Indeed, Dr. Haber was never
given a guideline as to either a desirable, or, in the alternative, an unacceptable, racial
distribution, nor was he ever told to, nor did he, ever tweak or change a plan based upon the
diversity outcome. (SMF, ¶ 56). Rather, in generating documents that contained data regarding
the prospective racial make-up of the students who would be attending the two high schools
under a particular proposed scenario, Dr. Haber merely reported the after-the-fact outcomes of
the proposed scenarios that had been generated. Similarly, the race figures included in the
PowerPoint slides presented at the public Board meetings concerning Plans 1, 2, and 3 also were
generated and presented simply to inform the public what the outcomes of the proposed Plans
would be, given that the community had expressed an interest in preserving diversity in the
Redistricting Plan.13
Moreover, the figures addressing racial composition of the high school students under the
various redistricting scenarios and Plans 1 through 3 were not viewed alone, in a vacuum. For
example, in keeping with the Community Values, race data were included along with figures
regarding socioeconomic status and special needs status, as the diversity interest recognized by
13
See Exhibit 18 to SMF, McGinley Dep. at 75, 98-100, 103-104, 146, 203-204. Indeed, as District
Superintendent, Christopher McGinley, noted, the community value of diversity is what led the District to look
at diversity figures during the redistricting process. (Id. at 203-204).
-19-
the community was not solely racial, but also included ethnic, socioeconomic, religious, and
special needs diversity. (SMF, ¶ 42, 51). See Seattle, 127 S. Ct. at 2753 (explaining diversity
interest in Grutter “was not focused on race alone but encompassed ‘all factors that may
contribute to student body diversity’”) (quoting Grutter v. Bollinger, 539 U.S. 306, 337 (2003));
127 S.Ct. at 2789 (J. Kennedy, concurring) (“Diversity, depending on its meaning and definition,
is a compelling educational goal a school district may pursue.”).
Furthermore, while Plaintiffs have narrowed the issue to African-American students
versus white students, that is not how the race data were compiled or presented. Rather, the data
were broken into categories defined as Asian, Black, Hispanic, American Indian/Pacific Islander,
and White. (See Exhibit 5 to SMF, at Students Doe 00294; Exhibit 10 to SMF, at Students Doe
00047, and Exhibit 25 to SMF, at Students Doe 00220). Compare with Seattle, 127 S. Ct. at
2754 (noting defendants looked at race exclusively in “nonwhite/white” and “black/‘other’”
terms, making it hard to understand how the plans could be diverse) (citing Metro Broadcasting,
Inc. v. F.C.C, 497 U.S. 547, 610 (1990). At no point did the District consider African-American
students to the exclusion of students of any other race, nor did the District consider race data to
the exclusion of any of the other factors that encompass diversity.
(iv) The Board, in Taking the Official Action to Adopt Plan

3R, Did Not Consider Race
Most importantly, the evidence shows that race was not a motivating factor in the
Board’s decision to adopt Plan 3R. See Washington v. Davis, 426 U.S. 229, 239 (1976) (“The
central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of
official conduct discriminating on the basis of race.”) (emphasis added).14 Indeed, data
14
Pursuant to the District’s Policy Handbook, Local Board Procedures and Goals – 005 School Board
Organization and Responsibility provides that Board “policy” is “those actions, agreed to by formal majority
vote of Board of School Directors, that establish goals and objectives for the school district.” (See Local
-20-
concerning race were never even presented to the Board for Plan 3R. (SMF, ¶ 99). Nor did the
Board members take race into account in voting for or against Plan 3R. (SMF, ¶ 104). In fact,
the Board members were unaware as to whether Plan 3R even had an impact on the racial
diversity distribution at Harriton High School. (SMF, ¶ 102). Indeed, the Board members had
no discussions among themselves or with the Administration regarding racial diversity or racial
diversity in connection with either Plan 3 or Plan 3R. (SMF, ¶ 101).15
In sum, the District acknowledges that among the volumes of information and data
generated during the redistricting process, data concerning diversity issues – including racial
diversity – were provided. However, the Administration’s and/or the Board’s general awareness
of the effect of various redistricting scenarios or plans on racial and ethnic composition does not
constitute evidence that race was a motivating factor in selecting particular geographical areas to
be placed in different attendance zones. See, e.g., Concerned Citizens for Neighborhood Schools
v. Pastel, No. 5:05-1070, 2007 WL 1220542, at *1 (N.D.N.Y. April 24, 2007) (denying
plaintiffs’ motion for preliminary injunction, in case where plaintiff asserted that elementary
school students were selected by defendants because of their race to be districted out of their
academically successful neighborhood school and placed into a more distant school that was
failing academically, finding that plaintiff’s evidence that school board reviewed information
about redistricting plan’s effect on racial composition of elementary schools during consideration
Board Procedures and Goals – 005 School Board Organization and Responsibility, at p. 3, attached hereto as
Exhibit D). Therefore, the official action at issue here is the Board’s adoption, by 6-2 vote, of Plan 3R. The
initial investigatory and drafting process by the Administration and even the open meeting structure set up by
the Board was not Board “policy” and therefore should not be considered as part of the official conduct by this
Court.
15
As noted above, the District anticipates that Plaintiffs will focus on the fact that Dr. Haber created several
documents listing the diversity outcomes for potential redistricting scenarios that he had generated and
referencing the terms racial “balance” or “imbalance.” (SMF, ¶ 57). Significantly, however, when Plaintiffs’
Counsel placed these documents before the Board members during their depositions, each of them testified that
they had never seen the documents or did not remember ever seeing the documents. (Id.). Consequently, these
documents have no bearing on the official action at issue here, i.e., the Board’s adoption of Plan 3R, and are
insufficient to demonstrate discriminatory intent.
-21-
of various alternative plans was insufficient to establish impermissible use of race as motivating
factor in board’s conduct). Plainly, the District’s decision to keep track of the many factors that
encompass the diversity of its student population cannot, in and of itself, be considered as
sufficient evidence of discriminatory motive and/or intent.
d. There Is No Valid Statistical Evidence That Race Was a Factor

in the Redistricting Process
Plaintiffs have no valid statistical evidence that race was a factor in the redistricting
process. While they presented an expert report from Dr. Pavel Greenfield concluding that the
probability that race was not a factor in the redistricting process was exceedingly small (Pavel
Greenfield Report, attached hereto as Exhibit E), Dr. Greenfield’s own statements in his report,
and the analysis provided by Dr. Bernard Siskin in rebuttal, conclusively demonstrate that Dr.
Greenfield’s data and his own analysis are inconsistent with a conclusion that race was a factor.
For example, Dr. Greenfield’s analysis assumed that if race were not a factor in the
decision process, on average, African-American and non-African-American students initially
districted to Lower Merion High School would have the same probability of being redistricted to
Harriton High School. As demonstrated in the expert report of Dr. Bernard Siskin, this
assumption ignores the actual decision-making process utilized by the District in this matter.
(July 24, 2009 Report of Dr. Bernard Siskin, attached hereto as Exhibit F, at ¶ 9). Here, any
redistricting plan presented to the Board first had to adhere to the “Non-Negotiables.” (Id. at ¶
11). Second, individual students were not assigned to a specific school. Instead, all students in a
given geographic area were assigned to a specific set of schools, with those in a defined walking
area around Lower Merion High School given a choice of high schools and all students assigned
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to Lower Merion High School having the option of choosing to attend Harriton High School.
(Id. at ¶ 12).16
Notably, even Dr. Greenfield himself recognized the inappropriateness of this
assumption, stating that “this is quite a strong and ‘blanket’ assumption: complete randomness is
not possible to achieve due to many practical considerations (such as the need to arrange
efficient bus routes) and other basic realities, such as the fact that ethnic groups may tend to
cluster geographically. For example, if some African-American students were chosen to be
redistricted by a procedure completely random with regard to ethnicity, those students’ neighbors
(who are more likely to be African-American than another randomly selected group of students)
would also be redistricted out of practical considerations.” (Exhibit E at p. 2) (emphasis added).
To study the statistical evidence as to whether race was a factor in the decision to select
Plan 1 to present to the Board, Dr. Siskin compared the number of African-American students
who would be redistricted to Harriton in all the alternative scenarios created by Dr. Haber and
the Administration, as the total universe of possible plans to be considered for recommendation
to the Board. In 15 of the 32 alternative scenarios, at least as many African-American students
were redistricted to Harriton High School as were redistricted to Harriton High School in Plan 1;
thus, the likelihood of choosing an initial plan that would yield as many African American
students redistricted to Harriton High School purely by chance was 15 out of 32, or 46.9 percent.
(Exhibit F at ¶ 18). Consequently, the selection of Plan 1 from among all the alternative plans
considered clearly was not inconsistent with a decision making process which did not consider
race as a factor in selecting a plan. (Id.). Moreover, as Dr. Siskin noted, Plans 2 and 3 actually
16
Since the racial distribution of students within the Lower Merion School District is not uniform, these
conditions will result in an unintended correlation of outcomes by race. That is, one would expect that
African-Americans and whites will not have an equal probability of being affected by the redistricting, even
under a decision process that never considers race, because of the clusters of race by geographic area. (Exhibit
F at ¶ 13).
-23-
lowered the number of African American students redistricted to Harriton, and Plan 3R, because
it differed from Plan 3 only by increasing the Lower Merion High School walk zone distance
back to the official walk zone parameters, could only further lower the number of African-
American students expected to be redistricted to Harriton High School. (Id. at ¶ 17).
In sum, there is no valid statistical evidence that race was a factor in the selection of a
redistricting plan. It is particularly telling that Dr. Greenfield expressly conceded in his report
that he was unable to conclude whether the redistricting process was based explicitly on race or
other factors strongly correlated with race. (Exhibit E at p. 4). While he ultimately concludes
that “the disproportionate effect on the African American students is statistically evident” (Id. at
p. 4), the fact remains that, in order to prevail on their claims, Plaintiffs must show intentional
discrimination on the basis of race, not mere disproportionate impact. See Village of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-265 (1977) (“Official action will not be
held unconstitutional solely because it results in a racially disproportionate impact.”)
e. If the District or Board Had Intended to Choose a

Redistricting Plan that Would Diversify or Racially Balance
the High Schools, It Would Have Chosen a Different Plan
Plaintiffs’ allegations of intentional race discrimination are further belied by the fact that,
had the Board intended to choose a redistricting plan that would “diversity” or “racially balance”
the two high schools, as Plaintiffs appear to claim, it would have chosen a different plan. By
way of example, several of the scenarios created by Dr. Haber, and several of the Plans
considered by the Board, would have achieved a more equalized enrollment of African-
American students at the two high schools compared to the Redistricting Plan that was ultimately
adopted. (See Exhibit F, at ¶¶ 17-18).
Moreover, the neighborhood immediately adjacent to Plaintiffs’ (bounded by East
Lancaster Avenue, County Line Road, Cricket Avenue, and just below College Lane), is
-24-
districted to attend Lower Merion High School, and yet it includes a higher percentage of
African-American students than does Plaintiffs’ neighborhood. For example, as of September
2008, there were 167 students living in this area, 107 of whom are African American, 32 of
whom are white, 12 of whom are Asian, and 16 of whom are Hispanic. (See Exhibit 1 to SMF,
Declaration of Michael Kelly, at ¶ 14). Yet because these students historically attended Penn
Wynne Elementary School and Bala Cynwyd Middle School, they were zoned to attend Lower
Merion High School under Plan 3R.
2. Plaintiffs’ Reliance on Parents Involved in Cmty. Schools v. Seattle

Sch. Dist. No. 1 Is Misplaced, as the Facts of that Case Are Inapposite
Plaintiffs have repeatedly compared the instant action to Parents Involved in Cmty.
Schools v. Seattle Sch. Dist. No. 1, 55 U.S. 701, 127 S. Ct. 2738 (2007), yet the record evidence
demonstrates that the District’s Redistricting Plan is factually inapposite to the student
assignment plans at issue in Seattle, and that Plan 3R is not unconstitutional under the Supreme
Court’s holding in that case. Consequently, Plaintiffs’ reliance on Seattle in support of their race
discrimination claim is misplaced.
a. Plan 3R Is Not Comparable to the Seattle Plan
In Seattle, the Court was asked “whether a public school that has not operated legally
segregated schools . . . may choose to classify students by race and rely upon that classification
in making school assignments.” 127 S. Ct. at 2746. The Seattle district adopted a plan to assign
students among its ten schools, which allowed incoming ninth graders to choose among its high
schools. Id. at 2747. In the event that too many children selected the same school, the Seattle
district employed a series of tiebreakers, the first of which was having an older sibling who
attended the school, and the second of which depended on the racial composition of the school
and the race of the individual student. Id. at 2747. In so doing, the Seattle district classified each
-25-
of the students as either white or nonwhite. Id. If the particular school chosen by a student was
not within 10 percentage points of the Seattle district’s overall 41% - white, 59% -nonwhite
racial balance, it was considered “integration positive,” which triggered the Seattle district’s use
of the tiebreaker, admitting students on a basis that would bring the school into racial balance.
Id. In short, once any of the ten schools were out of sync with the Seattle district’s overall racial
composition, the district looked to a student’s race on an individual, student-by-student basis to
admit or deny his or her election to attend a given high school.
In contrast to the Seattle plan, where the district selected individual students for
assignments and where selection hinged on a numeric value set by the Seattle district’s overall
racial composition, the District’s Redistricting Plan did not select individual students for
assignments to high school. Rather, it modified its high school attendance zones to equally
divide its high school students by number, not by race, in an attempt to redistribute a previously
numerically imbalanced high school enrollment. The new attendance zones were based on the
feeder patterns from the elementary schools to the middle schools and on to a high school.
These feeder patterns assigned all students outside the official, historic Lower Merion High
School Walk Zone who attended Penn Valley Elementary School and Welsh Valley Middle
School to Harriton High School, regardless of race.
b. The District Did Not Consider Race in the Same Manner as the
School Districts in Seattle
Furthermore, the District did not consider race in the same manner that the Seattle district
did. Here, the evidence shows that data concerning race included were broken down into the
following categories: Asian, Black, Hispanic, American Indian/Pacific Islander, and White.
Compare with Seattle, 127 S. Ct. at 2754 (“Even when it comes to race, the plans here employ
only a limited notion of diversity, viewing race exclusively in white/nonwhite terms . . . It is hard
-26-
to understand how a plan that could allow these results can be viewed as being concerned with
achieving enrollment that is ‘broadly diverse.’”); Id. at 2790-91 (“[The Seattle district] has failed
to explain why, in a district composed of a diversity of races, with fewer than half of the students
classified as ‘white,’ it has employed the crude racial categories of ‘white’ and ‘non-white’ as the
basis for its assignment decisions.”). Equally important is that race was never considered alone
and instead was viewed as just one component of a larger theme of diversity that included
socioeconomic and special needs components. See Seattle, 127 S. Ct. at 2753 (explaining
diversity interest in Grutter “was not focused on race alone but encompassed ‘all factors that may
contribute to student body diversity’”) (quoting Grutter, 539 U.S. 306, 337 (2003)).
Consistent with Justice Kennedy’s concurring opinion, the District did nothing more than
what it was permitted to do. The District was cognizant of what the racial composition of the
student populations would be under Plans 1, 2, and 3 in order to anticipate what the learning
environment would be like. (SMF, ¶ 52; supra note 13). See Seattle, 127 S. Ct. at 2792 (“In the
administration of public schools by the state and local authorities it is permissible to consider the
racial makeup of schools and to adopt general policies to encourage a diverse student body, one
aspect of which is its racial composition.). It also viewed numbers to enable it to estimate the
number of students on free and reduced price lunches, and the number of children with IEPs that
would require accommodations. (SMF, ¶ 53). See Seattle, 127 S. Ct. at 2793 (“School boards
may pursue the goal of bringing together students of diverse backgrounds and races through
other means, including . . . allocating resources for special programs”).
The evidence also shows that the District is, in fact, required to compile and review
statistics based on race under the federal No Child Left Behind Act and its Pennsylvania state
counterpart. See Seattle, 127 S. Ct. at 2793 (explaining school boards may also pursue the goal
-27-
of bringing together students of diverse backgrounds and races by “tracking enrollments,
performance, and other statistics by race.”) Additionally, the evidence shows that in presenting
data concerning the projected racial composition, as well as the special needs status and
socioeconomic status of the students under proposed Plans 1, 2, 3, the District merely was
recognizing the community’s interest of maintaining diversity in its schools, assuming it was
able to do so under a plan that would achieve its objective of equalizing the high school
enrollment. See id. at 2793 (stating that school boards may also pursue diversity by drawing
attendance zones with general recognition of the demographics of neighborhoods).
Thus, consistent with the majority holding and Justice Kennedy’s concurring opinion in
Seattle, Plan 3R does not violate Plaintiffs’ constitutional rights.
c. Rational Basis Scrutiny Is the Appropriate Standard of Review
Unlike the student assignment plans at issue in Seattle, Plan 3R is facially neutral.
Consequently, it is subject to strict scrutiny review “only if it can be proved that the law was
‘motivated by a racial purpose or object,’ or is unexplainable on grounds other than race.” Hunt
v. Cromartie, 526 U.S. 541, 546 (1999). As explained above, Plaintiffs have no evidence that the
Board’s adoption of Plan 3R was motivated by race. Consequently, Plan 3R is subject to simple
“rational basis” equal protection review. Id.
State and local governments generally possess the initial discretion to determine what in
fact “is ‘different’ and what is the ‘same,’” and enjoy “substantial latitude to establish
classifications that roughly approximate the nature of the problem perceived, that accommodate
competing concerns both public and private, and that account for limitations on the practical
ability of the State to remedy every ill.” Plyler v. Doe, 457 U.S. 202, 216 (1982). “[T]he
‘general rule’ is that state legislation or other official action ‘is presumed to be valid and will be
sustained if the classification drawn by the statute is rationally related to a legitimate state
-28-
interest.’” Barnes Found. v. Twp. of Lower Merion, 982 F. Supp. 970, 983 (E.D. Pa. 1997)
(quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985)) (citing F.C.C. v.
Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993) (“In areas of social or economic policy, a
statutory classification that neither proceeds along suspect lines nor infringes fundamental
constitutional rights must be upheld against equal protection challenge if any reasonably
conceivable state of facts that could provide a rational basis for the classification.”)). Thus,
“[w]hen official action taken pursuant to a facially neutral law is challenged under the Equal
Protection Clause, rational basis scrutiny will apply unless the plaintiff can show that the law
was enacted as a proxy for race or was applied on the basis of race, which would then trigger
strict scrutiny.” Barnes, 982 F. Supp. at 983. In order to make this showing, the plaintiff must
demonstrate that the defendant acted with the purpose or intent to discriminate on the basis of
race. Id. See also Washington v. Davis, 426 U.S. 229, 239-42 (1976); Village of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977); Personnel Adm’r v. Feeney, 442
U.S. 256, 272 (1979).
The rational basis test is appropriate here, where race was not a factor in the Board’s
decision to adopt Plan 3R. As Justice Kennedy explained in his concurring opinion in Seattle,
the act of a school board “drawing attendance zones with general recognition of the
demographics of neighborhoods,” while race conscious, “does not lead to different treatment
based on a classification defining by race,” and therefore does not require strict scrutiny. 127 S.
Ct. at 2792 (citing Bush v. Vero, 517 U.S. 952, 958 (1996) (plurality opinion)). 17
17
Even assuming one could find that the Redistricting Plan classified individual students on the basis of race
(which the evidence shows it did not) and is, therefore, subject to strict scrutiny, the District respectfully
submits that the United States Supreme Court would not find Plan 3R unconstitutional under its holding set
forth in Seattle. While the plurality opinion stated that its holding in Grutter, which found a compelling
interest in student body diversity “in the context of higher education,” did not govern the situation in Seattle,
Seattle, 127 S. Ct. at 2753 (quoting Grutter, 539 U.S. at 328), this does not preclude Grutter’s application to the
-29-
The District can easily satisfy the rational basis test, as its Redistricting Plan clearly is
rationally related to a legitimate state interest. See, e.g., Lavia v. Pennsylvania Dept. of
Corrections, 224 F.3d 190, 199 (3d Cir. 2000) (“Under rational basis scrutiny, state action will
survive as long as it merely furthers a legitimate state interest.”). Indeed, Plaintiffs do not
dispute that redistricting is well within the District’s authority. The Pennsylvania Public School
Code of 1949 imposes on school districts and, specifically, their operating boards, mandatory
duties and discretionary powers in order to maintain and support a thorough and effective system
of public schools in accordance with Article X, Section I of the Pennsylvania Constitution. To
this end, the board of school directors for each district is explicitly vested with the duty to
provide the grounds and buildings upon which to accommodate their students, as well as the
attendant duty to assign pupils to those various schools. See 24 P.S. §§ 7-701; 13-1310. In
particular, Section 13-1310(a) provides, in pertinent part, that:
The board of school directors of every school district [ ] shall, for

the purposes of designating the schools to be attended by the
several pupils in the district [ ] subdivide the district [ ] in such
manner that all the pupils in the district shall be assigned to, and
reasonably accommodated in, one of the public schools in the
district [ ]. The board of school directors may...classify and assign
the pupils in the district to any school or schools therein as it may
deem best, in order to properly educate them.
24 P.S. § 13-1310(a). As made clear by this statute, it is well within a local school board’s
purview and discretion to promulgate and implement redistricting directives to serve the
educational interests of the district and, consequently, the Board here had a legitimate interest in
present case. The Court explained that Grutter articulated key limitations on its holdings: (1) defining a
specific type of broad-based diversity; and (2) noting the unique context of higher education. Seattle, 127 S.
Ct. at 2754. However, a reading of Justice Kennedy’s concurring opinion indicates a clear belief on his behalf
that Grutter did not apply because of Seattle’s narrow view of diversity. Seattle 127 S. Ct. at 2790-91. Justice
Kennedy explicitly stated that Grutter can apply to lower education, stating that “[d]iversity, . . . is a
compelling educational goal a school district may pursue.” Seattle, 127 S. Ct. at 2789. This statement, while
made in Justice Kennedy’s concurring opinion, is significant because Justice Kennedy’s vote is the one that
created the majority.
-30-
redistricting the District’s high school students so as to achieve equalized student enrollments at
its two new high schools. Plan 3R was rationally related to that interest, as it fulfilled the
objective of equalizing student enrollments in accordance with the Board’s Non-Negotiables and
in awareness of the Community Values. Consequently, the Redistricting Plan withstands rational
basis review and is constitutional.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ claims of race discrimination are legally
insufficient, and the Court should grant summary judgment in Defendant’s favor, dismissing the
Complaint in its entirety with prejudice.
Respectfully submitted,
/s/ Judith E. Harris

Judith E. Harris (PA I.D. No. 02358)
Christina Joy F. Grese (PA I.D. No. 200727)
Allison N. Suflas (PA I.D. No. 204448)
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103
215-963-5028/5085/5752
Michael D. Kristofco, Esquire

Kenneth A. Roos, Esquire
WISLER PEARLSTINE, LLP
484 Norristown Road
Blue Bell, PA 19422
610-825-8400
Dated: December 31, 2009 Attorneys for Defendant

Lower Merion School District
-31-

Students Doe vs. LMSD Defendants Summary Judgement Motion

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Students Doe vs. LMSD Defendants Summary Judgement Motion

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Case 2:09-cv-02095-MMB Document 32-8 Filed 12/31/2009 Page 1 of 36

IN THE UNITED STATES DISTRICT COURT

Student Doe 1 by and through his :

DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF

Judith E. Harris (PA I.D. No. 02358)

Michael D. Kristofco, Esquire

Attorneys for Defendant

Dated: December 31, 2009

(iv) The Board, in Taking the Official Action to Adopt

Harriton High School.

against Plaintiffs because of their race.

II. FACTUAL BACKGROUND2

Issue of Philadelphia Magazine, at p. 69, attached hereto as Exhibit A).

physical plant investments, remained to be modernized to fulfill the District’s educational

Committee (“CAC”) comprised of a broad cross-section of school, community, and other

interested individuals with a wide range of perspectives. (SMF, ¶ 24).

A. The Redistricting Process

The District’s actual redistricting decisions were formed throughout a three-phase

for non-walkers, and the maintenance of social networks. (SMF, ¶ 43).

to direct the redistricting planning process:

and/or met in any of their subsequent redistricting recommendations. (SMF, ¶ 46).

B. The Redistricting Plan at Issue – Plan 3R

95-97). In sum, Plan 3R contains the following highlights:

Harriton High School under Plan 3R. (SMF, ¶ 105).

1. Because Students Doe Attend Penn Valley Elementary School and

transportation to those schools. (SMF, ¶ 124).

III. LEGAL ARGUMENT

A. The Standard of Review

322 (1986). The purpose of the summary judgment rule is:

[T]o expeditiously determine cases without necessity for formal

judgment for the defendant. Id. at 322-23.

B. Plaintiffs Cannot Make Out a Case of Discrimination under the Equal

satisfied by vague and conclusory allegations in the complaint unsupported by affidavits,

“unsupported assertions, conclusory allegations, or mere suspicions” to survive summary

Board intended to discriminate against them in adopting Plan 3R.

1. Plaintiffs Cannot Make Out A Claim for A Violation of The Equal

a. Plaintiffs Cannot Show That They Were Treated Differently,

Dr. McGinley to Board Members, attached hereto as Exhibit B, at LMSDLDA05280).

b. Plaintiffs Cannot Show that the School Board Adopted Plan

F.3d at 562 (citing Feeney, 442 U.S. at 277-78)).

because it provided the following:

enumerated considerations – that the Board adopted Plan 3R.

c. Plaintiffs’ So-Called “Evidence” of Intentional Discrimination

As indicated by the deposition testimony of Parents/Guardians Doe, Plaintiffs have no

31; Parent/Guardian Doe 3 Dep. at 29-32; Parent/Guardian Doe 4 Dep. at 46-48;

Parent/Guardian Doe 5 Dep. at 30-32; Parent/Guardian Doe 6 Dep. at 24-25; Parent/Guardian

at 31-35; Parent/Guardian Doe 10 Dep. at 24-27).

vague references to racial “balance” or “imbalance.” (SMF, ¶¶ 51, 57).

(i) The District Is Required by Law to Maintain and

ethnicity for purposes of public reporting and accountability. 20 U.S.C. § 6311(b)(2)(C)(v)(II)

information to know generally.” (Exhibit 3 to SMF, DiBonaventuro Dep. at 103).

learning environment will be like at a particular school. (SMF, ¶ 52).

(ii) Student Data, Including Race, Socioeconomic Status,

part of his professional practice. (Id.).

(iii) The Race Data at Issue Were Compiled to Show the

given a guideline as to either a desirable, or, in the alternative, an unacceptable, racial

is a compelling educational goal a school district may pursue.”).

Furthermore, while Plaintiffs have narrowed the issue to African-American students

2754 (noting defendants looked at race exclusively in “nonwhite/white” and “black/‘other’”

the exclusion of any of the other factors that encompass diversity.

(iv) The Board, in Taking the Official Action to Adopt Plan

diversity in connection with either Plan 3 or Plan 3R. (SMF, ¶ 101).15

sufficient evidence of discriminatory motive and/or intent.