Case 2:09-cv-02095-MMB Document 61 Filed 03/12/10 Page 1 of 9

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. 09-12095
v. :
:
:
Lower Merion School District, :
:
Defendant. :

PRETRIAL MEMORANDUM OF LOWER MERION SCHOOL DISTRICT

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

Kenneth A. Roos, Esquire

Megan E. Shafer, Esquire
WISLER PEARLSTINE, LLP
484 Norristown Road
Blue Bell, PA 19422
610-825-8400

Attorneys for Defendant

Dated: March 12, 2010

 Case 2:09-cv-02095-MMB Document 61 Filed 03/12/10 Page 2 of 9

Defendant Lower Merion School District (“Defendant” or “District”) now files this

Pretrial Memorandum in accordance with Rule 16.1(c) of the Local Rules of Civil Procedure for

the United States District Court for the Eastern District of Pennsylvania, this Court’s Pretrial and

Trial Procedures, and this Court’s Order filed of record on February 24, 2010.

I. NATURE OF THE ACTION

This action involves nine District students (“Students Doe”) and their parents

(“Parents/Guardians Doe”) (collectively, “Plaintiffs”) who allege that the Redistricting Plan

adopted by the Lower Merion School District Board of School Directors (“Board”) on January

12, 2009, discriminates against them on the basis of race in violation of the Fourteenth

Amendment to the United States Constitution, 42 U.S.C. § 1981, and Title VI of the Civil Rights

Act, 42 U.S.C. § 2000d et seq. This Court has jurisdiction to hear this matter pursuant to 28

U.S.C. § 1331.

II. COUNTERSTATEMENT OF FACTS1

On January 12, 2009, the Board adopted a redistricting plan known as Plan 3R to fulfill

the goals of the District’s high school modernization process and achieve equal student

enrollment at the District’s two new high schools. The District did not select individual students

for assignment to either Lower Merion High School or Harriton High School under Plan 3R;

rather, student assignment under Plan 3R was based on the feeder patterns from the elementary

schools to the middle schools and on to a high school.

Specifically, Plan 3R utilized a 3-1-1 feeder system, which meant that three elementary

schools fed into one middle school, which in turn fed into one high school. This 3-1-1 system

1
Pursuant to Local Rule 16.1(c)(2), the District submits this counterstatement of facts only to the extent
necessary to reflect any disagreement with the factual background set forth in Plaintiffs’ Pretrial Memorandum.
Pursuant to the Pretrial and Trial Procedures of the Honorable Michael Baylson, the District will submit
Proposed Findings of Fact at least three (3) days before trial.

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 Case 2:09-cv-02095-MMB Document 61 Filed 03/12/10 Page 3 of 9

preserved the elementary and middle school attendance zones in existence prior to redistricting.

Consequently, under Plan 3R, students living in geographic areas that were zoned to Belmont

Hills, Gladwyne, and Penn Valley Elementary Schools and on to 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 on to Bala Cynwyd Middle School

were districted to Lower Merion High School. The only exceptions were that Penn Valley

Elementary and Belmont Hills Elementary School students who lived in the official, historic

Lower Merion High School walk zone, while zoned for Harriton High School, could choose

between attending Harriton High School and walking to Lower Merion High School. In

addition, to boost the projected enrollment at Harriton High School to counterbalance the choice

provided to those students residing in the Lower Merion High School walk zone, and to provide

all students with access to Harriton High School’s unique curricular programs, all students zoned

for Lower Merion High School continued to have the opportunity to elect to attend Harriton, as

they did prior to redistricting.

These feeder patterns assigned all students, irrespective of race or ethnicity, who lived

outside the official Lower Merion High School walk zone and who attended one of the three

elementary schools feeding into Welsh Valley Middle School (i.e., Penn Valley, Belmont Hills,

and Gladwyne Elementary Schools) to Harriton High School. Students Doe, along with all other

students in the Affected Area,2 attend Penn Valley Elementary School and Welsh Valley Middle

School and reside outside of the official Lower Merion High School walk zone; consequently,

they are districted to attend Harriton High School under Plan 3R.

2
“Affected Area” means the area bounded by Athens Avenue, Wynnewood Road, County Line Road, and
Cricket Avenue in South Ardmore, Pennsylvania. See Compl., ¶ 8.

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In sum, the District contends that Plan 3R does not discriminate against Plaintiffs

because of their race. Therefore, the District submits that Plan 3R does not violate the

Fourteenth Amendment, nor does it violate the provisions of Title VI and Section 1981.

III. REMEDIES

The District contends that Plan 3R does not violate either the Fourteenth Amendment,

Title VI, or Section 1981. Should the Court decide, however, that Plan 3R is unconstitutional or

violative of Title VI or Section 1981, the District respectfully requests that this Court defer

consideration of any remedy and stay enforcement pending appeal.

IV. WITNESSES

The District reserves its right to call any and/or all of the following witnesses at the time

of trial in this matter:

1. Parent/Guardian Doe 1

2. Parent/Guardian Doe 2

3. Parent/Guardian Doe 3

4. Parent/Guardian Doe 4

5. Parent/Guardian Doe 5

6. Parent/Guardian Doe 6

7. Parent/Guardian Doe 7

8. Parent/Guardian Doe 8

9. Parent/Guardian Doe 9

10. Parent/Guardian Doe 10

11. Dr. Bernard R. Siskin

12. Dr. Christopher McGinley (Superintendent)

13. Dr. Michael Kelly (Assistant Superintendent)

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14. Michael Andre (Transportation Supervisor)

15. Lisa Fair Pliskin, Esq. (School Board Member)

16. Diane DiBonaventuro (School Board Member)

17. David Ebby, Esq. (School Board Member)

18. Dr. Susan Guthrie (School Board Member)

19. Gary J. Friedlander, Esq. (School Board Member)

20. Jerold J. Novick, Esq. (School Board Member)

21. Lyn Kugel, Esq. (School Board Member)

22. Theodore E. Lorenz, Esq. (Former School Board Member)

23. Linda Doucette-Ashman, Esq. (School Board Member)

24. Anthony Stevenson

Principal
Radnor Middle School
150 Louella Avenue
Wayne, PA 19087

25. Wanda Anderson

Vice Principal
Cheltenham High School
500 Rices Mill Road
Wyncote, PA 19095

26. Dr. Robert Jarvis

Executive Director - Delaware Valley Minority Student Achievement Consortium
Penn Center for Educational Leadership - Graduate School of Education
University of Pennsylvania
3440 Market Street
Philadelphia, PA 19104

27. Dr. Claudia Lyles

Director of Curriculum
Cherry Hill Public Schools
45 Ranoldo Terrace
Cherry Hill, NJ 08034

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The District also reserves the right to call any and/or all of the witnesses identified in

Plaintiffs’ Pretrial Memorandum, and any witness who may rebut testimony offered by witnesses

called by Plaintiffs.

It is anticipated that the parties may enter into a stipulation concerning the testimony of

Parents/Guardians Doe and/or designate portions of the depositions of Parents/Guardians Doe to

be entered into the record at trial, thereby making it unnecessary for them to testify.

V. EXHIBITS

D-1 Deposition of Parent/Guardian Doe 1

D-2 Deposition of Parent/Guardian Doe 2

D-3 Deposition of Parent/Guardian Doe 3

D-4 Deposition of Parent/Guardian Doe 4

D-5 Deposition of Parent/Guardian Doe 5

D-6 Deposition of Parent/Guardian Doe 6

D-7 Deposition of Parent/Guardian Doe 7

D-8 Deposition of Parent/Guardian Doe 8

D-9 Deposition of Parent/Guardian Doe 9

D-10 Deposition of Parent/Guardian Doe 10

D-11 Community Advisory Committee (“CAC”) Report dated May 24, 2004 (Students
Doe 02755-02804)

D-12 Proposed Redistricting Plan 1, dated September 8, 2008 (Students Doe 00026-
00050)

D-13 Proposed Redistricting Plan 2, dated October 20, 2008 (Students Doe 00275-
00298)

D-14 Proposed Redistricting Plan 3, dated November 24, 2008 (Students Doe 00208-
00222)

D-15 Proposed Redistricting Plan 3R, dated December 15, 2008 (Students Doe 00181-
00196)

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D-16 January 15, 2009 Letter to Lower Merion School District Community (Students
Doe 03175-03176)

D-17 1984-1985 Bus Routes servicing South Ardmore area (Exhibit B to Michael
Andre Declaration)

D-18 2008-2009 Bus Routes from South Ardmore to Penn Valley Elementary School
and Welsh Valley Middle School (Exhibit C to Michael Andre Declaration)

D-19 2008-2009 Bus Routes/Schedules from South Ardmore to Lower Merion High
School and Harriton High School (Exhibit A to Michael Andre Declaration)

D-20 2009-2010 Bus Routes/Schedules to Harriton High School (Exhibit D to Michael

Andre Declaration)

D-21 Local Board Procedures and Goals – 005 School Board Organization and
Responsibility (Exhibit D to District’s Memorandum of Law in Support of
Motion for Summary Judgment)

D-22 July 24, 2009 Report of Dr. Bernard Siskin

D-23 Supplemental Report of Dr. Bernard Siskin

D-24 Curriculum Vitae of Dr. Bernard Siskin

D-25 Map of Attendance Zones prior to redistricting

D-26 Map of Attendance Zones under Plan 1

D-27 Map of Attendance Zones under Plan 2

D-28 Map of Attendance Zones under Plan 3

D-29 Map of Attendance Zones under Plan 3R

D-30 Demonstrative exhibit comparing the Maps of Attendance Zones prior to

redistricting and under Plans 1, 2, 3, and 3R

In addition, the District reserves the right to use any of the exhibits identified by Plaintiffs

in their Pretrial Memorandum, as well as to introduce additional exhibits in rebuttal.

VI. TRIAL DAYS

It is estimated that the District will take 3-4 days to present its case.

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VII. EVIDENTIARY ISSUES

A. The District intends to file a motion to strike the reports (P-194 and P-195) and

testimony of Dr. Pavel Greenfield on the grounds that Dr. Greenfield’s reports, and any

testimony concerning those reports, are inadmissible because: (1) they are unreliable; and (2)

they do not assist the trier of fact to understand the evidence or to determine a fact in issue.

B. The District intends to file a Motion in Limine to exclude exhibits P-190, P-191,

and P-192 prepared by James Speer, and any testimony concerning such exhibits, on the grounds

that they are inadmissible under Rule 402 because: (1) they are irrelevant to Plaintiffs’ disparate

treatment claims; (2) cannot be relevant to a disparate impact claim, since Plaintiffs cannot

maintain such a claim; and (3) any probative value they may have is substantially outweighed by

the unfair prejudice, confusion and/or delay that would be caused if they are admitted.3

C. The District intends to file a Motion in Limine to exclude Plaintiffs’ exhibits –

and any testimony concerning such exhibits – referencing proposed non-negotiables;

descriptions of redistricting “scenarios” created by Dr. Haber during the initial redistricting

phase and which were never formally presented to the Board for deliberation, never voted upon,

and never adopted by the Board; opinions of Plaintiffs’ Counsel, the Public Interest Law Center

of Philadelphia, and any other individuals or entities concerning the constitutionality of the

District’s redistricting plan; and other documents that were not presented to, deliberated upon, or

considered by the Board in its adoption of Plan 3R, and which therefore played no part in the

Board’s adoption of Plan 3R. The District will seek to exclude these exhibits on the grounds that

they are inadmissible under Rule 402 because they have no probative value and are irrelevant to

Plaintiffs’ claim that Plan 3R discriminates against them on the basis of race.
3
The District notes that while Plaintiffs’ Counsel refers to P-190 as an “expert” report, Mr. Speer is not an
expert witness, as the Court recognized at the status conference held on July 22, 2009. See Transcript of July
22, 2009 Prehearing Conference, Dkt. No. 28, at 61.

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D. The District intends to file a Motion in Limine to exclude Plaintiffs’ video clips

and/or transcripts of Board meetings as inadmissible

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

Kenneth A. Roos, Esquire

Megan E. Shafer, Esquire
WISLER PEARLSTINE, LLP
484 Norristown Road
Blue Bell, PA 19422
610-825-8400

Dated: March 12, 2010 Attorneys for Defendant

Lower Merion School District