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Doe v. Lower Merion School Dist.

February 24, 2010


The opinion of the court was delivered by: Baylson, J.


Pending before this Court is Defendant Lower Merion School District's ("Defendant") Motion for Summary Judgment (Docket No. 32). Plaintiffs Student Does 1 through 9, by and through their Parents/Guardians 1 through 10 ("Plaintiffs"), allege, inter alia, that they were discriminated against based on their race when Defendant adopted a redistricting plan in January 2009 that took away their ability to choose what high school to attend, and required them to attend a particular high school. For the reasons that follow, the Court will not award summary judgment in favor of Defendant.

I. Factual and Procedural Background

Construing all facts in favor of the non-movants, Plaintiffs, a concise summary of the facts and procedural history relevant to the pending Motion is set forth below. Note that the Court will describe various contested facts infra in its Discussion Section.

A. The Parties

Lower Merion Township, which is located in Montgomery County, Pennsylvania, through its School District, operates six elementary schools including Penn Valley Elementary School, two middle schools, including Welsh Valley Middle School, and two high schools, Harriton High School and Lower Merion High School. (Defs.' Statement of Undisputed Material Facts ¶ 1("Undisputed Facts"); Compl. ¶ 17.) Defendant receives federal funding and has never been subject to a court-ordered busing decree. (Compl. ¶¶ 19-20.) Nine elected School Directors ("Board Members") make up the Lower Merion Board of School Directors ("Board"), which has been vested with the authority to assign students to schools within Lower Merion. (Undisputed Facts ¶ 3.)

Plaintiffs are African-American students who reside in Lower Merion. (Undisputed Facts ¶¶ 5-6.) With the exception of Student Doe 4, who elected to attend Harriton High for the 2009-2010 academic year, Plaintiffs attend Penn Valley Elementary School or Welsh Valley Middle School. (Undisputed Facts ¶¶ 9-17, 20.) Plaintiffs' neighborhood ("Affected Area") is bounded by Athens Avenue, Wynnewood Road, County Line Road, and Cricket Avenue in South Ardmore, Pennsylvania, an area that has a more significant African-American population than other parts of Lower Merion. (Undisputed Facts ¶ 7, Oral Arg. Tr. 19:18-25, Feb. 4, 2010, Docket No. 43.) As of September 1008, the Affected Area had 308 students in grades K through 12, of which 140 are White, 140 are African American, 9 are Asian American, and 18 are Hispanic American. (Undisputed Facts ¶ 8.) Prior to redistricting, students in the Affected Area had the choice of attending Lower Merion High School or Harriton High School; now, the students must attend the latter. (Undisputed Facts ¶ 18.)

B. The Redistricting Process

In 1997, the District began a capital improvement program to modernize its schools, including Lower Merion High School and Harriton High School, both of which needed significant physical plant investments. (Undisputed Facts ¶¶ 22-23.) The Board established a forty-five member Community Advisory Committee ("CAC") made up of school, community, and other interested individuals, that examined how to modernize the two high schools. (Undisputed Facts ¶¶ 24-25.) The CAC voted in favor of a plan to build two high schools of equal enrollment capacity, and the Board accepted this recommendation. (Undisputed Facts ¶ 29.) Because Harriton High School had seven hundred more students than Lower Merion High School, Defendant decided to redraw the attendance zones or "redistrict." (Undisputed Facts ¶¶ 31-32.) The redistricting process occurred in three phases. (Undisputed Facts ¶ 37.)

Plaintiffs contend that "discriminatory purpose existed throughout the redistricting process," beginning prior to Phase I, when Defendant's former Superintendent publicly remarked, and he and other "top level Administrators" stated to the Board, that redistricting should address minority student assignments and consider racial balance during redistricting. (Summ. J. Resp. to Summ J. Mot. 8-10, Exs. 1, 6 ("Summ. J. Resp.").)

1. Phase I

At an April 21, 2008 Board meeting, the issue of redistricting based on race surfaced after a community member expressed concern that having "less than 15 percent of a minority in a school" makes members of the minority group "token icons of their race." (Summ. J. Resp., Ex. 7, at 2:13-16.) The same day, the Board adopted a set of guiding principles called "NonNegotiables"*fn1 that must guide the redistricting process. (Undisputed Facts ¶¶ 44, 46.)

Beginning in May 2008, in order to "develop citizen-driven values to guide the development of the redistricting proposal," Defendant hired outside consultants who facilitated public forums and collected on-line surveys in order to compile a list of "Community Values" identified by Lower Merion residents. (Undisputed Facts ¶¶ 39-42.) One of the "Community Values" was to "Explore and cultivate whatever diversity--ethnic, social, economic, religious, and racial--there is in Lower Merion." (Summ. J. Resp. 11, Ex. 2; see also Undisputed Facts ¶ 42.)

2. Phase II

The District then hired Dr. Ross Haber to review and analyze demographic enrollment data, including race, and to propose alternative redistricting plans in light of the Non-Negotiables and Community Values. (Undisputed Facts ¶¶ 48-49, 51.) Dr. Haber created several documents listing the diversity outcomes for potential redistricting scenarios, and referenced the terms "racial balance" or "racial imbalance." (Undisputed Facts ¶ 57.) The redistricting scenarios Dr. Haber prepared were not fully adopted by the Board. (See Undisputed Facts ¶ 58; Pls.' Resp. to Undisputed Facts ¶ 58 ("Undisputed Facts Resp.").)

3. Phase III

Beginning in September 2008, Defendant presented various proposed redistricting plans to the public and invited public comment. (Undisputed Facts ¶¶ 59-62.) Proposed Redistricting Plan 1 altered "feeder patterns" for Penn Wayne Elementary School students, requiring them to "feed" into Welsh Valley Middle School and then Harriton High School. (Undisputed Facts ¶ 66.) Proposed Redistricting Plan 2 then incorporated goals of reducing students' travel times, disruption, and separation from classmates, and maintaining existing boundary and walking zones. (Undisputed Facts ¶¶ 73, 77). The next plan, Proposed Redistricting Plan 3, aimed to maintain established middle school feeder patterns, to permit students within a small walk zone of Lower Merion High School to choose what high school to attend, but to assign students outside of that small walk zone but inside of the historical Lower Merion High School walk zone to Harriton High. (Undisputed Facts ¶¶ 85-87.) Accompanying the presentation of Proposed Redistricting Plans 1, 2, and 3 were slide shows that showed a "dramatic shift in diversity at Harriton High School." (Summ. J. Resp. ¶¶ 69, 79, & 89, Exs. 34, 36, & 38.)*fn2

On December 15, 2008, a modified version of Plan 3 ("Plan 3R) was presented to the Board. (Undisputed Facts ¶ 90.) Plan 3R extended high school choice to students within the historical Lower Merion High School walk zone, but required students attending Penn Valley Elementary School living outside of the walk zone to attend Welsh Valley Middle School and then Harriton High School. (Undisputed Facts ¶ 95.) Plan 3R's presentation was not accompanied by slides regarding diversity. (Undisputed Facts ¶ 99.) On January 12, 2009, Board adopted Plan 3R, and immediately began implementing the plan in time for the 2009-2010 school year and the opening of the new Harriton High School. (Undisputed Facts ¶¶ 103, 105.)

As of December 2009, 897 students are enrolled at Harriton High School, of which 740 are White, 74 are African American, 55 are Asian American, 23 are Hispanic American, and 5 are American Indian. As for Lower Merion High School, also as of December 2009, a total of 1401 students are enrolled, of which 1,098 are White, 176 are African American, 90 are Asian American, 29 are Hispanic American, 4 are American Indian, and 5 identify as being of more than one race. (Undisputed Facts ¶¶ 106-109.)

C. District Court Proceedings

On May 14, 2009, Plaintiffs commenced this action, alleging that Defendant violated the Equal Protection Clause of the Fourteenth Amendment (Count I), 42 U.S.C. § 1981 (Count II), and Title VI of the Civil Rights Act, 42 U.S.C. § 2000d et. seq. (Count III), all pursuant to 42 U.S.C. § 1983. (Docket No. 1.) The Court denied Defendant's Motion to Dismiss, or in the Alternative, for a More Definite Statement. (Docket No. 7.) Plaintiffs then moved for preliminary injunctive relief restoring their choice to attend either high school (Docket No. 5), but subsequently agreed to withdraw this request (Docket ...

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