Case 2:09-cv-02095-MMB Document 80-2 Filed 03/31/10 Page 1 of 6

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 :

STUDENTS DOE'S BRIEF IN OPPOSITION TO DEFENDANT, LOWER

MERION SCHOOL DISTRICT'S MOTION IN LIMINE
TO EXCLUDE PLAINTIFFS’ TRIAL EXHIBITS

Plaintiffs, Students Doe 1 through 9, by and through their undersigned counsel, now file

the present Brief in opposition to Lower Merion School District's Motion in Limine to Exclude

Exhibit P-5-Exhibit P-50, Exhibit P-52-Exhibit P-60, Exhibit P-62-Exhibit P-77, Exhibit P-79-

Exhibit P-88, Exhibit P-90-Exhibit P-112, Exhibit P-114-Exhibit P-124, Exhibit P-126-Exhibit

P-137, Exhibit P-145-Exhibit P-150, and Exhibit P-156-Exhibit P-173, and any testimony related

to said Exhibits, in accordance with the Federal Rules of Civil Procedure, and the Rules of Civil

Procedure of the United States District Court for the Eastern District of Pennsylvania.

Factual Background

On May 14, 2009, Students Doe filed a Three Count Complaint in the United States

District Court for the Eastern District of Pennsylvania seeking to enjoin, both preliminarily and

permanently, defendant, Lower Merion School District’s school redistricting plan adopted on
 Case 2:09-cv-02095-MMB Document 80-2 Filed 03/31/10 Page 2 of 6

January 12, 2009. 1 Students Doe contend that Lower Merion’s redistricting actions violate the

Fourteenth Amendment to the United States Constitution, 42 U.S.C. Section 1981, and Title VI

of the Civil Rights Act, and 42 U.S.C. Section 2000d et. seq.

In preparation for trial and in accordance with this Honorable Court’s Order dated

February 24, 2010, Students Doe filed a Pretrial Memorandum on March 5, 2010. In their

Memorandum, Students Doe identified 197 Trial Exhibits. Lower Merion now seeks to preclude

admission of most of these Exhibits at trial as well as any testimony concerning them citing

Rules 402 and 403 of the Federal Rules of Civil Procedure.

Argument

In order to understand why the aforementioned Exhibits and related testimony should be

permitted, a brief review of the governing Federal Rules of Evidence is in order. The Federal

Rules of Evidence provide that evidence is admissible if it is relevant. See Rule 402 of the

Federal Rules of Evidence ("All relevant evidence is admissible..."). Relevant evidence is

defined as "evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without the evidence." Rule 401 of the Federal Rules of Evidence. It should be noted that the

Supreme Court concluded in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), that

the relevancy standard is a "liberal one." Id. at 587.

The Exhibits at issue, and any testimony related to them unquestionably meet the

relevancy standard. As noted in Students Doe’s Trial Brief, this Honorable Court has already

ruled in its decision on Lower Merion's Motion for Summary Judgment that Lower Merion's

redistricting plan is facially neutral. In light of this ruling, Students Doe are entitled to prevail if

1
Shortly after filing its Complaint, Students Doe filed a Motion for Preliminary Injunction. Said Motion was
scheduled to be heard in August of 2009. Students Doe later withdrew said Motion prior to the Preliminary
Injunction Hearing.

2
 Case 2:09-cv-02095-MMB Document 80-2 Filed 03/31/10 Page 3 of 6

they can establish that race was a motivating factor in the adoption of the redistricting plan at

issue. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S.

252, 265-266 (1977); See also Pryor v. National Collegiate Athletic Association, 288 F.3d 548,

560-561 (3d Cir. 2002) (Plaintiffs are entitled to succeed in cases involving facially neutral

policies and statutes if they can prove purposeful discrimination. Id.).

According to the Supreme Court's decision in Village of Arlington Heights ,

"Determining whether invidious discriminatory purpose was a motivating factor demands a

sensitive inquiry into such circumstantial and direct evidence of intent as may be available."

Village of Arlington Heights, 429 U.S. at 265-266. This inquiry may include, but is not limited

to, investigation about: (1). the historical background of the decision; (2). the sequence of events

leading up to the decision; (3). the statements made by those involved in the decision making

process; (4). the records of meetings; (5). the reports that the process generated; (6). the

testimony of those involved in the decision making process; and (7). the overall impact of the

governmental action. See Id. at 265-268; See also Pryor, 288 F.3d at 562-563. This Honorable

Court has already indicated that it wishes to conduct the aforementioned inquiry demanded by

Arlington Heights and Pryor. See Student Doe 1 v. Lower Merion School District, Civil Action

No. 09-2095 at pages 15, 18, and 24 (E.D. Pa. February 24, 2010).

Lower Merion argues without any analysis to rebut the aforementioned caselaw, and in

spite of this Honorable Court’s aforementioned decision that would indicate to the contrary, that

Exhibit P-5-Exhibit P-50, Exhibit P-52-Exhibit P-60, Exhibit P-62-Exhibit P-77, Exhibit P-79-

Exhibit P-88, Exhibit P-90-Exhibit P-112, Exhibit P-114-Exhibit P-124, Exhibit P-126-Exhibit

P-137, and Exhibit P-145-Exhibit P-150, are irrelevant in this matter. A careful review of the

Exhibits will indicate that they are exactly the type of evidence that is relevant under Arlington

3
 Case 2:09-cv-02095-MMB Document 80-2 Filed 03/31/10 Page 4 of 6

Heights, Pryor, and this Court’s aforementioned decision. Of all the Exhibits identified, only

Exhibit 126-Exhibit 129 were not created during the redistricting process by a Lower Merion

Administrator, Lower Merion School Board Member, or a Lower Merion Consultant. However,

said Exhibits were authored by either Lower Merion School Board Members or Lower Merion

Administrators, and relate to issues that are being litigated in this case, as well as to issues that

arose during the redistricting process. Exhibit 130-Exhibit 137 are notes taken by Lower Merion

officials or Lower Merion School Board Members about the redistricting process.

In support of its position, Lower Merion cites United States v. O’Brien, 391 U.S. 367

(1968), In re: Virginia M. Pelkowski, 990 F.2d 737 (3rd Cir. 1993), and May v. Cooperman, 572

F. Supp. 1561 (D.N.J. 1983). A review of these cases will reveal that they have nothing

whatsoever to do with the evidentiary matter at issue. Moreover, none of the cases even mentions

either Arlington Heights or Pryor, or the specialized analysis the Court is required to take

pursuant to said cases. None of the cases even involves a racial discrimination issue. 2

The present Motion should be seen for what it actually is, i.e. Lower Merion did not like

this Honorable Court’s ruling on its Summary Judgment Motion, and it is simply trying to get

another bite at the proverbial apple. This should not be permitted. While Lower Merion has all of

the resources in the world, Students Doe do not, and it is fundamentally unfair to allow Lower

Merion to continually re-litigate that which it has already lost. Furthermore, the proper

procedural recourse Lower Merion should have taken was to seek reconsideration of the Court’s

decision. See Rule 7.1 (g) of the Rules of Civil Procedure of the United States District Court for

2
United States v. O’Brien, 391 U.S. 367, is a First Amendment case wherein someone was prosecuted for publicly
burning his selective service registration certificate. In re: Virginia M. Pelkowski, 990 F.2d 737, was a bankruptcy
case wherein the question presented concerned whether student loans were dischargeable in bankruptcy. May v.
Cooperman, 572 F. Supp. 1561, concerned litigation regarding New Jersey’s “moment of silence” law.

4
 Case 2:09-cv-02095-MMB Document 80-2 Filed 03/31/10 Page 5 of 6

the Eastern District of Pennsylvania. Finally, it would appear that the “law of the case” doctrine

bars reconsideration of the issue that Lower Merion now seeks to litigate.

Lower Merion also requests that this Honorable Court bar the admission of Exhibit 156-

Exhibit 173 under Rules 402 and 403 of the Federal Rules of Evidence. These Exhibits consist of

selected video clips of various School Board Meetings that were conducted during the

redistricting process. Said evidence is clearly relevant under Arlington Heights, Pryor, and this

Court’s aforementioned decision; therefore, there is no basis to ban the Exhibits under Rule 402.

In light of the fact that trial has not even started at this point, it would be premature to

make a ruling under Rule 403 of the Federal Rules of Evidence concerning the Exhibits. The

reason the aforementioned Exhibits were identified in Students Doe’s Pretrial Memorandum was

due to the fact that Lower Merion Administrators and Lower Merion School Board Members

displayed an incredible lack of knowledge at their respective depositions concerning the very

activities in which they collectively participated. Should this lack of recollection occur again,

Students Doe are ready, willing, and able, to show the individuals in question exactly what they

did, and when they did it. If Students Doe abuse the videotape evidence at some point during the

trial, then Court intervention would be appropriate.

For all the foregoing reasons, it is respectfully requested that Lower Merion's pending

Motion be denied, and that Exhibit P-5-Exhibit P-50, Exhibit P-52-Exhibit P-60, Exhibit P-62-

Exhibit P-77, Exhibit P-79-Exhibit P-88, Exhibit P-90-Exhibit P-112, Exhibit P-114-Exhibit P-

124, Exhibit P-126-Exhibit P-137, Exhibit P-145-Exhibit P-150, and Exhibit P-156-Exhibit P-

173, and any testimony related to said Exhibits be admitted into evidence.

5
 Case 2:09-cv-02095-MMB Document 80-2 Filed 03/31/10 Page 6 of 6

Respectfully submitted,

/S/ David G. C. Arnold

____________________________________
David G. C. Arnold

Pennsylvania Attorney Identification No. 49819

Suite 106, 920 Matsonford Road

West Conshohocken, Pennsylvania 19428
(610) 397-0722

Attorney for Plaintiffs

Dated: March 31, 2010