doe v lmsd - factual findings memo complete

8/9/2019 Doe v LMSD - Factual Findings Memo Complete

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IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF PENNSYLVANIA

STUDENT DOE 1, et al., : CIVIL ACTION:

v. ::

LOWER MERION SCHOOL DISTRICT : NO. 09-2095

MEMORANDUM ON FACTUAL FINDINGS

Baylson, J. May 13, 2010

TABLE OF CONTENTS

I. Introduction and Summary.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. Procedural Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

III. Findings of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A. The District. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

1. School Board. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62. Superintendent Dr. McGinley. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73. School Administration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84. Affected Area and North Ardmore. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

B. Plaintiffs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11C. Redistricting Process .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

1. Decision to Redistrict.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122. Redistricting Principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

a. NonNegotiables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 b. Community Values. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

3. Early Redistricting Planning Stages.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18D. Proposed Redistricting Scenarios and Plans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

1. PreProposed Plan 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22a. AfricanAmerican Student Data. . . . . . . . . . . . . . . . . . . . . . . . . . 22

b. Elimination of Scenarios 1 and 4A. . . . . . . . . . . . . . . . . . . . . . . . 24c. Awareness of Seattle. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

2. Proposed Plan 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27a. Likelihood of Randomized Student Assignment. . . . . . . . . . . . . . 27

b. General Diversity Data.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28c. Redistricting Press Release. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28d. Decisions to Not Present Diversity Data. . . . . . . . . . . . . . . . . . . . 29

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e. RaceRelated Comments Regarding Proposed Plan 1. . . . . . . . . 30f. Rejection of Proposed Plan 1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

3. Proposed Plan 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33a. Rejection of Proposed Plan 2.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

b. RaceRelated Comments Regarding Proposed Plan 3. . . . . . . . . 34

i. Dr. McGinleys and Lisa Pliskins Comments. . . . . . . . . 35ii. David Ebbys Comments. . . . . . . . . . . . . . . . . . . . . . . . . . 37iii. Diane DiBonaventuros Comments. . . . . . . . . . . . . . . . . . 37

4. Proposed Plan 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 385. Proposed Plan 3R.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

a. RaceRelated Comments Regarding Proposed Plan 3R. . . . . . . . 44 b. Diversity Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

E. Adoption and Implementation of Proposed Plan 3R. . . . . . . . . . . . . . . . . . . . . . . 461. Board Members Reasons for Voting for or Against Plan 3R. . . . . . . . . . 47

a. Board Members Supporting Plan 3R. . . . . . . . . . . . . . . . . . . . . . . 47 b. Diane DiBonaventuro. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

c. David Ebby. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 492. High School Enrollment Data. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

IV. Factual Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

V. Further Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

VI. Legal Issues To Be Briefed and Argued. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

I. Introduction and Summary

Plaintiffs Students Doe 1 through 9 (Students) are AfricanAmerican students who live

in Lower Merion School District (District), which is located in Montgomery County,

Pennsylvania. The Students, by and through Parents/Guardians Doe 1 through 10 (Parents,

collectively with Students, Plaintiffs), allege that the District discriminated against them based

on their race, by adopting a redistricting plan in January 2009 that took away their ability to

choose to attend either of the Districts high schools, Harriton and Lower Merion, and required

them to attend Harriton High School. On February 24, 2010, this Court denied the Districts

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Motion for Summary Judgment. Doe v. Lower Merion Sch. Dist., F. Supp. 2d., 2010 WL

701677 (E.D. Pa. Feb. 24, 2010). Beginning on April 8, 2010, this Court held a nineday bench

trial. (Docket Nos. 8994, 97104.)

Following trial, the Court finds that race was one of several factors motivating the School

Administration, as it developed and recommended redistricting plans. The Administrations

recommendation to the Board, to redistrict Plaintiffs to Harriton High School, was based largely

on the fact that Plaintiffs neighborhood of residence has a heavy concentration of

AfricanAmerican students, and that Harriton had a significantly lower AfricanAmerican

student population than Lower Merion High School prior to redistricting. Like a leitmotif in a

Wagner opera, a recurring theme with variations, the process of redistricting repeatedly embraced

the goal of achieving racial parity between the two high schools. As Justice Holmes stated in

Schenck v. United States, 249 U.S. 47, 52 (1919), the character of every act depends on the

circumstance in which it is done. The circumstantial evidence introduced at trial leads, like a

wellworn path through the woods, inescapably to the finding that race was a motivating factor

for the Administration.

The Board Members who voted to approve Plan 3R were not aware that racial

considerations had played such a significant role within the Administration. Both Lower Merion

and Harriton High Schools are excellent schools. Whether Plaintiffs are entitled to relief will

turn in large part upon the interpretation of the Supreme Courts decision in Parents Involved in

Community Schools v. Seattle School District No. 1, 551 U.S. 701, 723 (2007) (Seattle). This

Memorandum sets forth the Courts findings of fact pursuant to Federal Rule of Civil Procedure

52(a). Further briefing from the parties on the legal issues which stem from these findings of fact

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will lead to a final judgment.

II. Procedural Background

The Courts February 24, 2010 Memorandum denying the Districts Motion for Summary

Judgment summarized the relevant factual and procedural background. See Doe, 2010 WL

701677, at *14. A concise summary of the relevant procedural background is provided below.

On May 14, 2009, Plaintiffs filed a complaint alleging that the Districts adoption of a

redistricting plan in January 2009 violates 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, by discriminating against the

Students based on their race. (Docket No. 1.) The Court denied the Districts 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, but

subsequently agreed to withdraw this request. (Docket Nos. 5, 26.).

On December 31, 2009, after the parties completed discovery, the District filed a Motion

for Summary Judgment (Docket No. 32), which the Court denied on February 24, 2010,

following oral argument, on the basis that there were numerous contested issues of genuine

material fact, Doe, 2010 WL 701677, at *10-13.

In February 2010, Richard Ilgenfritz, a reporter for Main Line Media News, and

Philadelphia Newspapers, LLC, also filed Motions seeking to intervene and to be granted access

to the judicial records, several of which had been filed under seal. (Docket Nos. 48, 51.) The

Court granted Ilgenfritzs and Philadelphia Newspapers, LLCs motions and ordered counsel to

make the briefs and exhibits available in the clerks office, and to substitute specific pages of

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exhibits that redact Plaintiffs or third parties personal identifying information. (Docket No.

52.) In addition, the parties filed Proposed Findings of Fact and Law. (Docket Nos. 8486.)

Prior to trial, Plaintiffs and the District filed several Motions in Limine seeking to strike

or to bar the admission of various exhibits and the testimony of several witnesses (Docket Nos.

65, 69, 71, & 73), and Plaintiffs filed a Motion to Proceed Pseudonymously (Docket No. 72). On

April 5, 2010, the Court granted the latter Motion, but denied the Motions in Limine without

prejudice. (Docket No. 88.)

On May 3, 2010, following the close of testimony, the Court held oral argument on the

parties proposed findings of fact. (Docket No. 111.) Subsequently, the District filed Amended

Proposed Findings of Fact. (Docket No. 112.)

III. Findings of Fact

The principal factual question the Court must resolve is whether race was a motivating

factor in the Districts January 2009 redistricting decision. The Supreme Court has made clear

that [d]etermining 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 v. Metro. Housing Dev. Corp., 429 U.S. 252, 266 (1977)

(Arlington Heights) (emphasis added). In conducting this inquiry, this Court will examine the

evidence presented during the bench trial and make factual determinations as to the Districts

decisionmaking process, without the benefit of a written transcript. However, the digital audio

recordings of the trial have been consulted.

At trial, Plaintiffs presented twentysix witnesses: eight Parents Doe; District

Superintendent Dr. Christopher McGinley; six other members of the Districts Administration;

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all nine District School Board Members; the Districts redistricting consultant, Dr. Ross Haber; a

computer graphics artist, Dr. James B. Speer; an expert in applied mathematics, Dr. Pavel

Greenfield; and a member from the community in which Plaintiffs live, Reverend Albert G.

Davis, Jr. By agreement, the Districts counsel questioned these witnesses on all topics, even

beyond the scope of direct examination, so that they did not have to be recalled as witnesses for

the District. In addition, the District had two witnesses, Dr. Claudia Lyles and Dr. Robert Lee

Jarvis, testify as to Dr. McGinleys prior work on combating the achievement gap, which will

be detailed in the next section. Except as noted below, the witnesses were generally credible.

A. The District

The District operates six elementary schools (Belmont Hills, Cynwyd, Gladwyn, Merion,

Penn Valley, and Penn Wynne), two middle schools (Bala Cynwyd and Welsh Valley), and two

high schools (Harriton High School and Lower Merion High School). Both of the high schools

are ranked as being among the best in the state, if not the nation.

1. School Board

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. During the January 2009 redistricting process, the Board was

composed of the following individuals: Diane DiBonaventuro, President of the Board from

December 1, 2007, to December 1, 2008; Lisa Pliskin, President from December 1, 2008, to

December 1, 2009; David Ebby, the current President; Linda DoucetteAshman; Gary J.

Friedlander; Susan Guthrie; H. Linda Kugel, Ted Lorenz; and Gerald Gene Novick.

2. Superintendent Dr. McGinley

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Dr. Christopher McGinley has been the Districts Superintendent since June 2008,

although he began attending some redistricting meetings in April 2008. His predecessor was Dr.

Jamie P. Savedoff. Several of the Board Members testified that they had voted to hire Dr.

McGinley because he was a true educator who was studentfocused and personable, and

because he had a wealth of experience and success in combating the minority student

achievement gap.

Various witnesses, including Dr. McGinley, Dr. Lyles, and Dr. Jarvis testified that the

achievement gap refers to the observed and pervasive disparity in measurable educational

achievement among groups of students. Research on the achievement gap across the nation, as

well as specifically in the District, shows that AfricanAmerican and Latino students as a whole

perform significantly poorer than their White and AsianAmerican peers. Combating the

achievement gap, therefore, refers to valid and appropriate educational policies aimed at

minimizing and eradicating the achievement gap.

Dr. Lyles and Dr. Jarvis testified that prior to working for the District, Dr. McGinley was

Assistant Superintendent at Cheltenham Township in Montgomery, Pennsylvania, where he was

a pioneer and leader in combating the achievement gap. In particular, Dr. McGinley helped

implement initiatives to eliminate class tracking after second grade, and to use demonstrated

performance, such as test scores and report cards, to place students, thereby taking away teacher

subjectivity. Both initiatives resulted in a significant decrease in the achievement gap in

Cheltenham schools. In addition to this work, Dr. McGinley helped form a partnership with the

University of Pennsylvania to create the Delaware Valley Minority Student Achievement

Consortium (Consortium), which is an organization dedicated to eliminating the achievement

gap by educating educators on the subject, and studying techniques to combat, and the causes of,

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this phenomenon.

In addition to combating the achievement gap, Dr. McGinley and the Consortium have

done work to minimize racial isolation, which is the isolation a student feels because he or she

is one of only a few students of his or her particular background in the class. Witnesses

including Dr. McGinley testified that racial isolation is not triggered by a particular threshold

of students, or lack thereof, from a particular background in a given classroom, and is not

necessarily affected by the number of minorities in a given school. Since being the Districts

Superintendent, Dr. McGinley has put in place a clustering program whereby the District

places students of a given minority background, who have agreed to participate in the program,

together in language honors classes, with the goal of having the same percentage of minority

students in each class as the percentage of the individuals of that minority background in the

local community. This clustering program has been successful at increasing the number of

minorities, and in particular, the numbers of AfricanAmerican students, in language honors

programs in the District.

3. School Administration

The District has an Administration, which includes the Superintendent and several

cabinet members who have districtwide responsibilities. During the redistricting process, Dr.

McGinleys cabinet included the following individuals: Dr. Michael J. Kelly, Assistant

Superintendent; Edward Andre, Director of Transportation; Scott A. Shafer, Business Manager;

Pat Guinnane, Director of Human Resources; and Doug Young, Director of Public Relations.

Plaintiffs called as witnesses a number of District Administrators who testified as to their

role in putting together the various redistricting plans. Most of this testimony concerned

programmatic, logistical, and transportation issues. For example, Dr. Kelly, the Districts

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Assistant Superintendent testified at length about how during redistricting, the Administration

was concerned about not increasing the number of buses, due to the increased fuel, storage, and

employee costs that would result. In addition, Dr. McGinley testified that throughout

redistricting, the Administration worried about how to transport students to the high schools

given the limited number of buses, and that as a result, the Administration considered staggering

school start times in order to reuse existing buses. Edward Andre, the Districts Director of

Transportation, then testified that there were limitations on bus storage facilities, which

prevented the District from increasing the number of buses. Although this testimony provided

helpful background, it is not deserving of significant weight in the Courts determination as to

the motivations underlying the redistricting process.

4. Affected Area and North Ardmore

As Parents Doe 2, 3, 4, 5, 7, 8, and 9 confirmed in their testimony, all of Plaintiffs live in

the District in what is known as South Ardmore, which is bounded by Athens Avenue,

Lynnwood Road, County Line, and Cricket Avenue. This area has been referred to throughout

this case as the Affected Area. In addition to the Affected Area, Ardmore contains an area

referred to at trial as North Ardmore which is North of Cricket Avenue, and is bounded by1

East Lancaster Avenue, County Line Road, and just below College Lane. (Pls. Ex. 154, at 14.)

Several witnesses, including numerous Board Members, testified that both the Affected

Although this Memorandum refers to the area described in the text as North Ardmore,1

at least three witnesses, Board Member David Ebby, Transportation Director Edward Andre, andReverend Davis, testified that they consider this area, along with the Affected Area, ascomprising a single neighborhood called South Ardmore.

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Area and North Ardmore contain heavy concentrations of AfricanAmerican families, and that2

the only other area of the district with a high concentration of AfricanAmerican families is in

Bryn Mawr. Decades earlier, students in the Affected Area and North Ardmore attended an3

elementary school in Ardmore, but that elementary school was torn down. Subsequently,

students in the Affected Area and North Ardmore were split up and bused to five of the Districts

elementary schools. In the 1990s, in response to the Ardmore communitys call for a

community school, the district redistricted these students to attend two elementary schools. In 4

particular, students in the Affected Area were districted for Penn Valley Elementary School and

Welsh Valley Middle School, and those in North Ardmore were districted for Penn Wynne

Elementary School and Bala Cynwyd Middle School. Originally, students in both areas had the

Assistant Superintendent Michael Kelly submitted a declaration indicating that as of 2

September 2008, the Affected Area had 308 students in kindergarten through to grade 12, of which 140 are White, 140 are AfricanAmerican, 9 are AsianAmerican, and 18 areHispanicAmerican. At this time, North Ardmore had 167 students in kindergarten through tograde 12, of which 32 are White, 107 are AfricanAmerican, 12 are AsianAmerican, and 16 areHispanicAmerican. (Pls. Ex. 154, at 1314.)

This conclusion is not contradicted by, and in fact, appears to be in line with, the3

testimony of Dr. Speer, who prepared graphical representations of the concentrations of allAfricanAmerican in the different areas within Lower Merion, as reflected in census data from2000. (See Pls. Exs. 192193.) Dr. Speer testified that the highest concentration of AfricanAmerican individuals in Lower Merion is in the Affected Area and North Ardmore, withthe next highest concentration being in Bryn Mawr. The Court, however, finds that Dr. Speerstestimony, though credible, and the exhibits that he prepared, are of limited significance, becausehe used data that predated the redistricting process by several years and that reflects the general

population, without providing solely the data, or breaking down the data, to isolate the number of children who attend public school.

Reverend Davis suggested in his testimony that there is reason to question whether race4

played a motivating factor in the Districts decisions to close the elementary school in Ardmore,and to redistrict students from Ardmore to Penn Valley and Penn Wynne Elementary Schools,rather than to a single elementary school. Because this case only presents the question of whether the January 2009 redistricting process was motivated by race, the Court will not examinethe motivations underlying prior redistricting decisions.

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choice to attend either Harriton High School or Lower Merion High School. After the January

2009 redistricting, the student assignments remained unchanged, except that students in the

Affected Area were districted for Harriton, without the choice to attend Lower Merion High

School.

B. Plaintiffs

Parents Doe 2, 3, 4, 5, 7, 8, and 9 testified on behalf of themselves and their children,

Students Doe 1 through 9. The Parents testimony confirms that with the exception of Student5

Doe 4, who elected to attend Harriton High for the 20092010 academic year, the Students attend

Penn Valley Elementary School or Welsh Valley Middle School. All Students Doe are bused to6

their current schools, along with students of all races from the Affected Area. Several of the

Students live within a mile of Lower Merion High School. The Parents Doe testified that they7

believed that the District adopted its January 2009 redistricting plan on the basis of race. Three

of the Parents Doe clarified that they believe that their Ardmore neighborhood has been split

such that the students in half of the neighborhood, including their children, no longer have a

choice to attend either of the Districts high schools. In addition, three Parents Doe attended

board meetings concerning redistricting, one of whom publicly stated at board meetings that he

Parent Doe 10, the only Parent Doe who did not testify at trial, did not have any5

conversations with Board Members or members of the Administration concerning theredistricting process. (Def.s Am. Proposed Findings of Fact 71.)

In particular, five of the Students attend Penn Valley Elementary School, and three6

attend Welsh Valley Middle School.

Parents Doe 1, 2, 7, 8, and 9 testified that they and their children, Students Doe 1, 2, 6, 7,7

8, and 9, live within a mile of Lower Merion High School. Based on the approximate locationsthat the Parents Doe provided at trial, Michael Andre, the Districts Director of Transportationconfirmed that at least three Students Doe live within a mile of Lower Merion High School. (SeePls. Ex. 129, at 3571 (map pinpointing exact mile measurements from Lower Merion HighSchool to points in Ardmore).)

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believed the plans were raciallymotivated, and met with Dr. McGinley to discuss his concerns.

C. Redistricting Process

1. Decision to Redistrict

In 1997, the District began a capital improvement program to modernize each of its ten

schools. (Def.s Ex. 11.) As of 2004, the community recognized that both Lower Merion High

School and Harriton High School were outdated and required significant physical plant

investments. (Def.s Ex. 11, at 2759, 2761.) In May 2004, a fortyfive member Community

Advisory Committee (CAC) made up of school, community, and other interested individuals,

examined how to modernize the high schools. (Defs Ex. 11.)

The CAC considered several plans: (1) creating one separate high school for only grade

nine, and another for grades ten through twelve; (2) building a new, single high school of 2,500

students; (3) building two new high schools, keeping their present student populations of 900 and

1600 students in tact; and (4) building two new high schools, but balancing their student

enrollment levels, with 1,250 students per school. (Def.s Ex. 11, at 276063.)

The CAC rejected the first three proposals. As for the first plan of having high schools

for different grade levels, the CAC determined that no educational arguments strongly favored

this proposal, and that the proposal would add another transition for students from ninth to tenth

grade, while adversely affecting cocurricular activities. (Def.s Ex. 11, at 2762.) The CAC then

determined that having a single school of 2,500 students did not have the advantages of smaller

schools, including the greater sense of community, better studentfaculty relations, increased

opportunities for cocurricular activities, and better educational outcomes. (Def.s Ex. 11, at

2762.) In addition, a single District high school would not fit on either existing high school sites,

would create significant traffic problems, would require increased busing of students to offsite

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athletic fields, and would violate impervious coverage allowances. (Def.s Ex. 11, at 2762.) As

for having two unequally sized high schools, the CAC determined that this proposal did not

address differences in the high schools educational offerings, evidence indicates that smaller

schools produce better outcomes, and thus, having Lower Merion High School remain the larger

high school would perpetuate existing traffic and parking problems at the site. (Def.s Ex. 11, at

2762.)

The CAC voted in favor of a plan to build two high schools of equal enrollment capacity.

(Def.s Ex. 11, at 279293.) The CAC concluded that this plan allowed students to benefit from

the smallest possible schools, because small schools have the benefit of a stronger sense of

community, better studentfaculty interactions, and better educational outcomes. In addition, the

CAC determined that this option provided students with the most equitable access to programs

and facilities, because each school would offer the same range of courses, and would have its

own cocurricular activities. The CAC then determined that equalsize schools make the best

use of the existing school sites, and alleviated the current traffic and parking problems at Lower

Merion High School, which force cars to seek parking in surrounding residential areas. (Def.s

Ex. 11, at 279293.)

The Board accepted this recommendation; however, because the District had to keep the

high schools at their existing locations, having no other possible sites, equalizing enrollment at

the two high schools would require redistricting in order to eliminate the 700student disparity

between the high schools. (Def.s Ex. 11, at 2759.)

Prior to redistricting, fortysix AfricanAmerican students attended Harriton, comprising

5.7 percent of Harritons total student population, and in the District as a whole, approximately

ten percent of the high school students were AfricanAmerican. Students who were districted to

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attend Belmont Hills, Gladwyne, or Penn Valley Elementary Schools, including the Affected

Area, would attend Welsh Valley Middle School, and then, with the exception of those who lived

in the Narberth Borough of Belmont Hills, and the Haverford and Affected Area portions of Penn

Valley, would go on to attend Harriton. (Pls. Ex. 1, at 0040.) Students districted to attend

Cynwyd, Merion, and Penn Wynne Elementary Schools were districted to attend Bala Cynwyd

Middle School, and would also attend Lower Merion High School, alongside students who lived

in Narberth Borough, Haverford, and the Affected Area. (Pls. Ex. 1, at 0040.) All students

districted to attend Lower Merion High School had the choice to attend either high school.

Although Harriton had in place two magnet programs that aimed to attract more students,

namely the International Baccalaureate (IB) program, and a program that allows students to

take collegelevel classes at Penn State University, Lower Merion High School always had a

substantially higher student enrollment than Harriton High School. Accordingly, the District was

faced with the problem of increasing the overall student population at Harriton. In addition,

Harriton is located away from the center of the student population, which is concentrated along

the City Avenue corridor, the easternmost boundary of Lower Merion Township, while Lower

Merion High School is closer to the center of the student population. (Pls. Ex. 2, at 0280, 4, at

0187, & Def.s Ex. 11, at 2784, 2759.)

With the exception of areas within a mile of District schools that are designated as walk

zones, all areas of the District, including the Affected Area, have always received bus service

provided by the District. From as early as 1983, Lower Merion High School has had a historic

walk zone; Harriton High School, however, does not have a walk zone, because the area around

the school was deemed to be hazardous. Harriton is the only school in the District without a

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walk zone.

2. Redistricting Principles

The Board authorized the Administration to develop Proposed Plans for redistricting,

and to choose plans for the Board to consider. Before the Administration did so, the Board

decided to come up with a list of NonNegotiables that must guide the redistricting process.

a. NonNegotiables

The Administration, which was comprised of many individuals who had worked for the

District during the last redistricting in the 1990s, recommended several NonNegotiables to the

Board, which included a recommendation to address the distribution of minority students.

(Pls. Exs. 36, 37, & 39.) District Business Manager Scott Shafer testified that such language

only intended to communicate that the Board could not have a policy respecting minority

assignment, given that it is illegal to do so. Shafers testimony is not credible: Not only does it

contradict the plain language of the Administrations recommendations, but also, such testimony

is belied by Pat Guinnanes testimony that someone in the cabinet had the goal of addressing

minority student assignments. In addition, outgoing Superintendent Savedoff wrote a report

indicating that his personal list of criteria that should be considered included racial balance

and/or clustering plan based upon current research and community input. (Pls. Ex. 35, at

2975.)

Notwithstanding the fact that the Administrations recommended racerelated criterion, if

adopted as a NonNegotiable and followed, would have impermissibly allowed race to be a

factor in redistricting, the Board did not accept the Administrations recommendation. Instead,

on April 21, 2008, the Board adopted the following NonNegotiables:

(1) The enrollment of the two high schools and two middle schools will be equalized;

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(2) Elementary students will be assigned so that the schools are at or under the schoolcapacity;

(3) The plan may not increase the number of buses required;

(4) The class of 2010 will have the choice to either follow the redistricting plan or stay at

the high school of their previous year (i.e. the principle of grandfathering); and

(5) Redistricting decisions will be based upon current and expected future needs and not based on past practices. (Pls. Ex. 5, at 475762. ) 8

These NonNegotiables do not reference race or minority student assignments. Each

NonNegotiable stated a valid, educational purpose that was legitimate and nondiscriminatory,

and Plaintiffs do not dispute this.

Moreover, Board Member David Ebby credibly testified that Dr. Savedoff, for fear of

tie[ing] the hands of his successor and out of a desire to avoid the wasps nest that

redistricting presented, was not at all involved in the redistricting process, which several

witnesses testified as beginning in the summer of 2008, when Dr. McGinley was Superintendent.

Dr. Savedoffs personal desire for redistricting to address minority student assignment, therefore,

is not highly significant.

b. Community Values

Beginning in May 2008, the District hired two outside consultants, Dr. Harris Sokolov

and Ellen Petersen, who held a series of public forms and collected online surveys to compile a

list of values identified by Lower Merion residents that should inform the redistricting process.

(Pls. Ex. 144.) This process involved asking citizens to identify what features they liked about

the District. (See Trial Tr. Apr. 26, 2010 (testimony of Susan Guthrie).) On July 11, 2008, Dr.

In referring to pages of the parties exhibits, the Court will only provide the last four 8

digits of the bates numbers, rather than the lengthier, full bates numbers.

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Sokolov and Petersen presented to the Board their report, which identified five valuesbased

principles (Community Values), including explore and cultivate whatever diversityethnic,

social, economic, religious and racialthere is in Lower Merion. (Pls. Ex. 144, at 011415.)9

The Board accepted Dr. Sokolov and Petersens report. (Pls. Ex. 158, 54:813.)

During the trial, witnesses presented conflicting testimony respecting the role that the

Community Values played in the redistricting process. Dr. McGinley and several Board

Members testified that the Community Values, unlike the NonNegotiables, were never

mandates that had to be met by proposed redistricting plans, but that these values merely

informed the redistricting process. These witnesses testified that many of the Community

Values, including that respecting diversity, were meant to apply only at the implementation

phase, after a redistricting plan had been selected by the Board.

Nonetheless, Dr. McGinley and the Board conceded that they never indicated to the

public that they would not honor the Community Values, and instead made several statements to

one another and to the public indicating that the Community Values were taken into account in

selecting proposed redistricting plans. (See, e.g., Pls. Exs. 1, 3, 60, 67, 89, 113, 145, 151, 164,

& 170.) For example, at a public School Board meeting in October 2008, Dr. McGinley, in

explaining the process that weve been engaged in regarding redistricting, and discussing the

Community Values identified by Dr. Sokolov and Petersens report, stated that the

Administration and our consultant were also charged with the responsibility of looking at the

The remaining Community Values are as follows: (1) Social networks are at the heart9

of where people live, and those networks expand as people grow older; (2) Lower Merion public schools are known for their excellence: academic as well as extracurricular; (3) Thosewho walk should continue to walk while the travel time for nonwalkers should be minimized;and (4) Children learn best in environments when they are comfortablesocially as well as

physically. (Pls. Ex. 144, at 011415.)

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issue of diversity when we come up with a plan, to think about that as something that should

guide our work and be something that we consider as we move forward. (Pls. Ex. 162, at

2:78, 7:511.) At trial, Dr. McGinley explained that this statement only indicated that he was

cognizant of the need for schools to welcome newcomers, and that he was only indicating that

the Administration was not ignoring diversity. Nonetheless, Dr. Haber, who would later work

with the District, testified that he was aware of, and used, the Community Values, and that he

considered the diversityrelated Community Value in coming up with proposed redistricting

plans.

The District cannot be faulted for soliciting the communitys input. Obviously, the

Community Value respecting walkability and minimizing travel time to the school represents a

valid, educational goal. In addition, the Board could not preclude discussions of race. By having

a Community Value respecting diversity, the Board could properly consider the general concept

of diversity. The testimony is disputed as to whether the diversityrelated Community Value, to

the extent that it included race, influenced the Districts Administration in making its proposals,

and the Court will now turn to the redistricting process to determine how the Community Value

of diversity was used, and in particular, whether racial diversityrelated considerations motivated

the Districts decisionmaking process.

3. Early Redistricting Planning Stages

The redistricting planning process then began in the summer of 2008 and ended on

January 12, 2009, when Proposed Plan 3R was adopted. In June 2008, Board Members and

Administrators met to answer questions prior to scheduling [a] meeting with the public. (Pls.

Ex. 40, at 4628.) The meeting discussed the major restrictions and limitations governing the

redistricting process, but also indicated that in dealing with projections, [s]uggested

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boundaries were presented, and considerations such as neighborhoods [and] ethnicity were

discussed. (Pls. Ex. 40, at 4629.) It is unclear to the Court what discussion respecting diversity

the Board had, because none of the witnesses who testified could recall ethnicity being

considered at the meeting in question.

In June 2008, the School Board also hired Dr. Ross Haber, of Ross Haber Associates,

Inc., to review and analyze District enrollment data, and to propose redistricting plans. (Pls. Ex.

1, at 0027, 2, at 0276.) Board Members testified that Dr. Haber was selected to be the Districts

redistricting consultant, because he had proprietary Geographic Information Software (GIS)

that allowed him to use student information maintained by the districtnamely the students

identification numbers, names, addresses, race, ethnicity, special needs status, and

socioeconomic status, as measured by participation in free and reduced lunch programsto

create proposals for redistricting. (Pls. Exs. 41, at 4654, 143, & 185, at 7274.) Dr. Haber

worked with the Administration to create various redistricting plans, called Scenarios.

D. Proposed Redistricting Scenarios and Plans

Over the course of redistricting, eight sets of Scenarios, of which some had additional

variations, were prepared by Dr. Haber, and considered by the Administration. Of the Scenarios,

the Administration chose four Proposed Plans (1, 2, 3, and 3R) to present to the Board at public

Board meetings, where they were publicly discussed by the Board and members of the

community, and after which public comments on each Plan were solicited. Only Plan 3R was

voted upon by the Board.

Although four Board Members were present at a July 23, 2008 meeting when Dr. Haber

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presented Scenarios to the Administration prior to the selection of Proposed Plan 1, the 10

Scenarios were not presented to, or voted upon by, the whole Board, nor do the Board Members

at the meeting recall the initial Scenarios that Dr. Haber presented to them. (Pls. Exs. 48, 49.)

Accordingly, the Court has determined that the Scenarios are of minor importance to the

determination of whether race was a motivating factor in the redistricting process. The Court,

therefore, will focus its findings on the evidence respecting the Proposed Plans considered by the

Board.

The following chart provides a brief comparison of the Scenarios and Proposed Plans:

Scenario

1(Pls. Ex.

6)

Scenario

2(Pls. Ex.

7)

Scenario

3 Series(Pls. Ex.

7, 8)

Scenario

4(Pls. Ex.

10)

Scenario

4a(Pls. Ex.

11)

Scenario

5(Pls. Ex.

12)

Scenario

7 Series(Pls. Ex.2, 13-15)

Scenario

8(Pls. Ex.3, 16, 17)

Plan 3R (Pls. Ex. 4,

5)Plan # Plan 1

(Pls. Ex.1)

Plan 2 Plan 3

Period of considera-tion

Pre-Plan 1 Pre-Plan2

Pre-Plan3

Post-Plan 3

Type of DiversityData

Provided

African-American

only

African-American

only

African-American

only

African-American

only

Generaldiversity

data

(race,ethnicity,socio-

economicdisability)

African-American

only

Generaldiversity

data


economicdisability)

Generaldiversity

data


economicdisability)

Only projected

general

diversitydata (race,ethnicity,

socio-economicdisability)

Dr. McGinleys notes indicate that Diane DiBonaventuro, Susan Guthrie, Linda10

DoucetteAshman, and Lisa Pliskin were present at the July 23, 2008 meeting. (Pls. Ex. 49, at1561.)

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Scenario1

(Pls. Ex.6)

Scenario2

(Pls. Ex.7)

Scenario3 Series

(Pls. Ex.7, 8)

Scenario4

(Pls. Ex.10)

Scenario4a

(Pls. Ex.11)

Scenario5

(Pls. Ex.12)

Scenario7 Series

(Pls. Ex.2, 13-15)

Scenario8

(Pls. Ex.3, 16, 17)

Plan 3R (Pls. Ex. 4,

5)Plan # Plan 1

(Pls. Ex.1)

Plan 2 Plan 3

Total HighSchoolProjectedEnrollment

Harriton:1119

Lower Merion:

1269

Harriton:1118

Lower Merion:

1270

Harriton:1108

Lower Merion:

1137

Harriton:1192

Lower Merion:

1196

Harriton:1080

Lower Merion:

1194

Harriton:1195

Lower Merion:

1193

Harriton:1135

Lower Merion:

1139

Harriton:1089

Lower Merion:

1185

ActualEnrollment

as of December

2008:Harriton:

897Lower

Merion:1401

(Pls. Ex.155)

# African AmericanStudents atHarriton

162 104 110 103 47 103 88 105 74

% African AmericanStudents atHarriton

14.5% 9.3% 9.9% 8.6% 4.4% 8.6% 7.8% 9.6% 8.2% (withgrandfather-

-ing)

AreasRedistrictedfor Harriton

-PennWynne

North of Remingt-on Rd(includes

NorthArdmore)

- PennValley(includesAffectedArea butexcludeswalk zone)

-PennWynne(includes

NorthArdmore)

- Penn

Valley(includesAffectedArea)

- PennWynne(includes

NorthArdmore)

- Penn

Valley(excludesArdmore)

- NorthArdmore

- PennValley(excludesAffected

Area&Ha-verford)

- Cynwyd

Includes(no full

plan provided)

- PennValley

(excludesAffectedArea &Lower MerionWalk Zone)

- Merion(portion)

- Cynwyd(portion)

-NorthArdmore

- PennValley(AffectedArea,Hav-erford,PennValley)

- PennValley(includesPennValley,HaverfordexcludesAffectedArea)

- PennWynne(incl. N.Ardmore)

- Narber-thBoroughof BelmontHills

- Merion

(portion)

- PennValley(includesAffectedArea butexcludeswalk zone)

- Narber-thBoroughof BelmontHills

- PennValley(includesAffectedArea butexcludeshistoricwalk zone)

- NarberthBorough of BelmontHills

- NorthArdmore?

Y Y Y Y N Y Y N N

- AffectedArea?

N Y N N N Y N Y Y

*Note: There is a disparity in the numbers for Scenario 3 and Plan 1. This chart uses the numbers for Plan 1.

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1. PreProposed Plan 1

Prior to selecting Proposed Plan 1, the Administration considered five scenarios, Scenarios

1 through 5, and modifications to Scenarios 2, 3, and 4. (Pls. Ex. 151, at 006465.)

a. AfricanAmerican Student Data

For Scenarios 1 through 5, the handouts Dr. Haber prepared for the Administration

included only the number of AfricanAmerican students, excluding any other racial or ethnic data,

and data respecting socioeconomic status and disability. (Pls. Exs. 68, 10, & 12.) Dr. Haber

testified that although he was never directed to create or change a redistricting scenario based on

its diversity outcomes, he must have provided only AfricanAmerican data for Scenarios 1

through 5 because the Administration had expressed concerns respecting the AfricanAmerican

population. In addition, Dr. McGinley handwrote the projected AfricanAmerican high school

populations on his copies of the handouts for Scenarios 1, 2, and 3, further indicating that of the

diversity data, only AfricanAmerican student projections were considered. For Scenarios 3, 3a,

4, and 5, the AfricanAmerican student projections appear under the heading of racial balance.

(Pls. Ex. 810, 12.)

In addition, there are numerous charts introduced into evidence that provide

AfricanAmerican high school population projections, without providing similar projections for

other racial and ethnic groups. First, a chart dated August 26, 2008 that compared the

preProposed Plan 1 Scenarios being considered by the Administration, provided diversity data

limited to the population estimates for AfricanAmerican and socioeconomically disadvantaged

students. (Pls. Ex. 19, at 1719.) Dr. McGinley handwrote on his copy of the chart the population

projections for other racial and ethnic groups, as well as the number of specials needs students,

that are provided under Scenario 3. (Pls. Ex. 19, at 1719.) He also added a bracket next to the

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numbers of AfricanAmerican and socioeconomic students for Scenario 4B with a notation

reading OK. (Pls. Ex. 19, at 1719.) The next day, the chart was updated to include the full

general diversity data under each Scenario. (Pls. Ex. 20.) Even though it was subsequently11

amended, the draft chart from August 26, 2008 provides another example of the Administration

being provided AfricanAmerican student projections to the exclusion of other types of racial

data. Similarly, the only diversity data provided on a table comparing Scenarios 3, 3A, 4, and 4A

is that of socioeconomic and AfricanAmerican projected enrollment. (Pls. Ex. 26, at 3921.)

Next, a chart comparing Scenarios 7C, 7C1, and 8 does not mention race except for noting that

Scenario 7C1 [r]educes the size of the A[frican]A[merican] student community at [Harriton]

from 88 to 58. (Pls. Ex. 27, at 3931.)

The inclusion and consideration of AfricanAmerican student data, to the exclusion of

other types of diversity data (e.g. other races and ethnicities, socioeconomics, or disability),

reflect a specific concern about the AfricanAmerican student population that started with

Scenario 1 and continued throughout the redistricting process, even though subsequent Scenarios

and Plans included broader diversity information. By including only AfricanAmerican student

data in the first five Scenarios considered during redistricting, the District, by way of Dr. Haber

and the Administration, employed a limited notion of diversity similar to the plans criticized

and ultimately held to be unconstitutional in Seattle. The Court will consider this issue further in

As the Court will explain below, the collection, preparation, and inclusion of general11

diversity data is not objectionable, and the Court does not find the updated chart to be entitled toany weight, or indicative of nefarious and underhanded conduct, as Plaintiffs contended at theoral argument following the bench trial. Accordingly, the Court also finds that subsequentdocuments comparing general diversity data for Scenarios 3 and 7C (Pls. Exs. 23, at 380506,24, at 032829), and for Scenarios 3, 4A, 7A, and 7B (Pls. Ex. 149, at 285255), were routinelygathered, in part required by state law, and reflected information frequently and properlyconsulted by school officials and the community at large.

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determining its legal conclusions.

b . Elimination of Scenarios 1 and 4A

Dr. McGinley and Dr. Haber conceded in their testimony that Scenario 1 was eliminated

due to inequitable racial balancing, as Dr. Habers handout respecting Scenario 1 expressly

states. (Pls. Ex. 6, at 3933 (emphasis removed).) At trial, Dr. McGinley testified that Ardmore

has the single largest concentration of AfricanAmericans in the school district, and that he was

worried about removing all AfricanAmericans from a high school. Scenario 1, however, was

also eliminated for nonracial reasons: It would result in long travel times, and more importantly,

it violated the cardinal redistricting principle of equalized high school populations, by projecting

enrollment at Lower Merion High School that exceeded that high schools student capacity by 15

students, and exceeded the enrollment of Harriton by 150 students.

In developing Proposed Plan 1, the Administration narrowed down the choice to either

Scenario 3, which redistricted North Ardmore for Harriton, and Scenario 4A, which is the only

Scenario that the Administration ever considered that did not redistrict either North Ardmore or

the Affected Area for Harriton. The Administration chose Scenario 3. A slide show presentation

Dr. Haber subsequently prepared, includes in the reasons for not selecting Scenario 4A, the fact

that it [d]oes not support the community value of diversity as does other scenarios. (Pls. Ex.

11, at 0164.) Although Dr. McGinley questioned the accuracy of Dr. Habers presentation at trial,

Board Member David Ebby also confirmed that Dr. McGinley stated that [e]verything is very

similar between Scenarios 3 and 4A, but that Scenario 3 had more racial diversity.

Accordingly, two of the Scenarios, Scenarios 1 and 4A, were eliminated due to race.

When this finding is coupled with the fact that the Administration had been given and

considered only AfricanAmerican student projections for Scenarios 1 through 5, there is ample

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evidence indicating that racial balance, and in particular, the number of AfricanAmericans

projected to enroll at each high school, were taken into account by the Administration in selecting

Proposed Plan 1.

c. Awareness of Seattle

On August 13, 2008, Dr. McGinley emailed to himself a copy of a San Francisco

Chronicle article entitled Supreme Court: Schools Cant Use Race to Assign Students, which

briefly discussed the Supreme Courts decision in Seattle. (Pls. Ex. 54, at 2539.) Dr. McGinley

testified that somebody had told him that there was a case about the use of race in redistricting,

and that he found the article in question after quickly searching the internet for the case. Minutes

after emailing himself the article, Dr. McGinley forwarded the article to Dr. Haber and asked,

How does our plan connect to this decision if we split Ardmore for high school? (Pls. Ex. 54,

at 2539.) At trial, Dr. McGinley explained that he sent the article to Dr. Haber, the redistricting

consultant, to see if Dr. Haber was familiar with the decision, and both Dr. McGinley and Dr.

Haber understood split[ting] Ardmore for high school as referring to the option of splitting an

area of the district with a high concentration of AfricanAmericans for high school.

Dr. Haber responded by saying that although he is not a lawyer, his recollection was that in

the state of New Jersey, race is not an issue in formulating education decisions, and that he read

the Supreme Courts decision as providing that if someone brought suit that the decision for

redistricting was made on the basis of race[,] the District would lose in court . . . if there were no

other pressing needs to make the change. (Pls. Ex. 54, at 2539; see also Pls. Ex. 56, at 2546.)

Dr. Haber then stated, If you would like[,] I can create a color blind scenario. (Pls. Ex. 54, at

2539.) Dr. McGinley testified that because he did not feel that Dr. Haber was the best person to

speak with about the case, and because he thereafter decided to ask the Districts legal counsel

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about the issue, he did not respond to Dr. Habers email. Dr. Haber testified that he in fact created

color blind scenarios, which he understood to be one[s] that disregarded diversity as far as

ethnicity is concerned, but does not recollect the Administration considering these scenarios.

Although Plaintiffs contended at oral argument, following the bench trial, that this series

of emails demonstrated that the District had knowledge of its improper conduct, the Court

disagrees. The School District and Dr. McGinley cannot be criticized for researching and

discussing a recent Supreme Court case concerning the use of race in redistricting. In doing so,

Dr. McGinley exhibited a desire to be wellinformed as to how to ensure that the redistricting

process did not violate the law, and reflected a good faith effort to examine an issue that had been

brought to Dr. McGinleys attention. School administrators and districts should not be faulted12

for acquiring knowledge about guiding Supreme Court decisions, in order to understand the

relevant constitutional limitations on decisionmaking. Nonetheless, the emails that followed

demonstrate that Dr. McGinley was mindful that splitting Ardmore effectively redistricted a

significant number of AfricanAmerican students, and that the Seattle decision might have

implications on the Districts redistricting process. In addition, the emails show that Dr. Haber

considered redistricting plans that split Ardmore to not be colorblind, and that the

Administration did not consider plans he viewed as being colorblind, which support an

inference that race was considered. In order to examine the extent to which Dr. Habers views

were shared by the School Administration and the School Board, the Court must look to other

evidence respecting the redistricting process.

As the undersigned stated during the trial, and will discuss in more detail in the12

forthcoming conclusions of law, understanding Seattle is challenging for judges and lawyers, letalone for a professional educator.

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2. Proposed Plan 1

On September 8, 2008, Proposed Plan 1 was presented at a public Board meeting.

Proposed Plan 1 determined what high school each student in the District must attend, based on

where the student lived in the District. Plan 1 required no redistricting at the elementary school

level, and allowed students to remain with their cohorts from kindergarten through to grade 8;

however, the plan redistricted all of Penn Wynne, including North Ardmore, and areas of Penn

Valley, excluding the Affected Area, for Harriton High School. (Pls. Ex. 1, at 0033.)

Students districted to attend Lower Merion High School under Proposed Plan 1 retained

the option to attend Harriton High School in order to enroll in its IB program. In addition,

Proposed Plan 1 had a grandfathering component, meaning that all current high school students

were given the option to remain at the high school they presently attended. (Pls. Ex. 1, at 0049.)

All students districted for Harriton, including North Ardmore, did not have the choice to attend

either high school.

Under Proposed Plan 1, Harriton High School had a projected enrollment of 110

AfricanAmerican students, 9.9 percent of the projected total Harriton student population of 1193,

almost a 100% increase from the 46 AfricanAmerican students that made up 5.7 percent of the

total student population at Harriton prior to redistricting. (Pls. Exs. 1, 140.) The percentage of

AfricanAmerican students at Harriton now mirrored the overall districtwide percentage of

AfricanAmerican high school students by approximating 10 percent.

a. Likelihood of Randomized Student Assignment

At trial, Dr. Pavel Greenfield, an expert in applied mathematics with a background in

statistics, testified on behalf of Plaintiffs. (Pls. Ex. 196.) Dr. Greenfield conducted a statistical

analysis of Proposed Plans 1, 2, and 3, and concluded that there was a close to zero percent chance

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that Proposed Plans 1 and 3 involved the randomized assignment of individual students, and a

twenty percent chance that Proposed Plan 2 involved randomized individualized assignment.

(Pls. Ex. 197.) Although Dr. Greenfield is qualified as an expert and credible, the Court places

little significance upon his conclusions, because Dr. Greenfield did not take into account the fact

that none of the Proposed Plans involved the assignment of individual children, as opposed to

assignments based primarily on geography. Moreover, Dr. Greenfield conceded that he could not

isolate race or any other factor as contributing to, or resulting in, the Proposed Plans that the

Administration selected.

b. General Diversity Data

The slide show presentation accompanying Proposed Plan 1 included a slide providing

general diversity numbers, that being the student breakdowns according to race and ethnicity,

socioeconomics, and disability. There is nothing objectionable in the Districts decision to

include a general diversity slide in Proposed Plan 1s powerpoint presentation, especially when

the community had expressed an interest in cultivating diversity, and diversity numbers can be of

concern to educators in addressing the achievement gap. In addition, the Supreme Courts

decision in Seattle refrained from prohibiting educators from taking into account overall diversity,

and Justice Kennedys concurring opinion suggests that schools may remain cognizant of racial

diversity, id. at 789, and that [d]iversity, depending on its meaning and definition, is a

compelling education goal a school district may pursue, id. at 783.

c. Redistricting Press Release

On September 8, 2008, the same day of the public presentation of Proposed Plan 1, Dr.

McGinley emailed Director of Communications, Doug Young, a copy of a draft Press Release,

which included the following statement: The plan also addresses community values related to

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the preservation and cultivation of diversity. At the high school level, enrollments will reflect

balance with regard to students or various ethnic, socioeconomic, and special needs

backgrounds. (Pls. Ex. 60, at 9623.)

Although this statement indicates that the Community Values, rather than merely

informing the process, would be used as redistricting guidelines, and although Dr. McGinley

decided not to remove these sentences from the draft upon sending the email to Doug Young, the

sentences in question were removed from the press release, prior to the publication of the press

release. (Pls. Ex. 61, at 4142.) The fact that these sentences were removed prior to publication

could indicate that the statements were considered false, or that the District merely decided to

remove such information. Absent specific evidence, the Court makes no finding as to why the

sentences in question were subsequently deleted, and declines to consider the draft Press Release

to be evidence demonstrating that the School Administration aimed for redistricting plans to

achieve racial balance.

d. Decisions to Not Present Diversity Data

Following the public presentation of Proposed Plan 1, the District posted a set of

Frequently Asked Questions on its website. In response to a question asking whether the District

was reviewing redistricting options that do not redistrict North Ardmore, the District posted Dr.

Habers summaries of all such Scenarios considered prior to the selection of Proposed Plan 1

(Pls. Ex. 147), but did not include the statement at the bottom of each Scenario referencing the13

number of AfricanAmerican students that would attend each high school. (Pls. Ex. 151, at

The District did not post Scenario 1, a plan that had been eliminated due to its effects on13

the racial composition of the high schools, as Dr. McGinley and Dr. Haber conceded; however, because that scenario redistricted North Ardmore, it fell outside the purview of the question posed to the Board.

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006465.) Doug Young, Director of Public Relations, removed such information at the request of

Dr. McGinley, who sent Young an email saying that [m]y gut feeling is that we include most of

what Ross [Haber] wrote in . . . his report, but I would omit the ending sentence about diversity

in each section. (Pls. Ex. 65, at 9455.)

Similarly, on Dr. McGinleys copy of the slide show presentation explaining why Scenario

4A was not selected, he crossed through the slide presenting the general diversity data under the

plan, with a note saying Dont present, as well as a note next to the slide listing the reasons for

not selecting Scenario 4A, including that it did not support the diversityrelated Community

Value, that reads, Say dont post. (Pls. Ex. 102, at 1155.)

Dr. McGinleys two decisions to purge public information respecting redistricting of

references to the racial diversity data provided to the Administration is troubling, because it

suggests that the Administration either did not want the public to be fully informed about the

diversity information the District had at its disposal, or did not want to mention the role that racial

diversity data played in the redistricting process, or both.

e. RaceRelated Comments Regarding Proposed Plan 1

On September 19, 2008, Board Member Diane DiBonaventuro sent an email to Dr.

McGinley emphasizing that during redistricting, the District should combat the perception that

Harriton is completely homogeneous because it was attended by filthy spoiled white kids.

(Pls. Ex. 64, at 5064.) Her email said that [i]t is also important to state somewhere that the

P[enn] W[ynne] community is not bringing diversity to Harriton[;] it is maintaining the

diversity. (Pls. Ex. 64, at 5064.)

DiBonaventuros comments merely speak to what DiBonaventuro viewed as the

thenexistent negative stereotype of Harriton High School, as she asserted during her trial

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testimony, not to the need for redistricting to be done on the basis of race. This is confirmed by

the text of her email, which explains that [t]his isnt the case, and that the Board should begin

emphasizing that it is not merely trying to increase Harritons racial diversity, and should be

selling both our schools to the community. (Pls. Ex. 64, at 5064.) As she explained at trial,

DiBonaventuro believes that both of the Districts high schools provide highquality education,

and that the District should focus on emphasizing the great education each high school provides

its students.

In addition, Board Member David Ebby received an email from a citizen who expressed

concern that [t]heres something very elitist about taking the most racially and economically

diverse community . . . and shipping them . . so the rich community[s] kids can have a diverse

educational experience. (Pls. Ex. 63, at 5235.) Ebby responded by saying that he underst[ood]

and appreciate[d] the community members disappointment and indeed anger at the proposal,

but that it [wa]s inaccurate and unfair to insinuate that Dr. McGinley or . . . the Board are

elitists, and that diversity is looked at in total, and that Dr. McGinley is not trying to use the

diversity of the Penn Wynne elementary attendance area to benefit a homogenous group in the

western end of the Township by making their school more diverse. (Pls. Ex. 63, at 523334.)

Rather than indicating that Ebby was motivated by race, his email indicates that he did not believe

that either the Board or Dr. McGinley was motivated on the basis of race, particularly with respect

to increasing the racial and economic diversity at Harriton. Ebbys email also stressed the need to

look at general diversity, rather than specific data, such as that relating only to AfricanAmerican

students.

f. Rejection of Proposed Plan 1

During the public comments period, the Board received numerous criticisms of the plan,

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including accusations by the North Ardmore community that race impermissibly played a role in

the redistricting process. (Pls. Ex. 63.) The Board rejected Proposed Plan 1 primarily because it

resulted in excessive travel times for students. Accordingly, the Administration and Dr. Haber 14

attempted to create new ways to configure students who lived closer to Harriton, in order to

expand Harritons projected enrollment. In addition, the District took note of the communitys

desire for grandfathering, meaning that students already at a given high school could stay at that

high school, in order to minimize educational disruptions in adjusting to a new high school.

The Administration then considered the Scenario 7 series. The summary of the Scenario15

7 series that Dr. Haber prepared, includes general diversity data (race/ethnicity, socioeconomic,

and disability). (Pls. Ex. 13.) Prior to the public presentation of Proposed Plan 2, Dr. McGinley

sent the Board a Memorandum attaching Scenario 7C, a plan that would be modified to become

Proposed Plan 2. (Pls. Ex. 67.) In this Memorandum, Dr. McGinley stated that we have

developed a proposal that is more consistent with the nonnegotiables and the community values

of the Sokoloff/Petersen report. (Pls. Ex. 67, at 0366.) Unlike Plaintiffs, the Court does not

interpret this statement as indicating that the Community Values were used as Guidelines for

redistricting, or that Dr. McGinley in fact referred to the Community Value respecting diversity;

rather, he made a general statement indicating that the Administration was considering a plan

consistent with the Community Values, and testified at trial that in particular, he meant that the

plan minimized travel times, which had been identified as the major impediment posed by

During the summer, the District tested out bus travel times under Proposed Plan 1.14

After the 2008 to 2009 school year began, the District again tested the bus travel times, this timefinding that during the school year, bus travel times had increased significantly from the summer.

No Scenario 6 was presented to the Administration.15

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Proposed Plan 1. In short, Dr. McGinleys statement is too ambiguous for the Court to adopt

Plaintiffs construction.

The Administration selected Scenario 7C5 to be Proposed Plan 2, and presented it to the

Board Members prior to its public presentation, along with the plans general diversity data. (Pls.

Ex. 71, at 0557.)

3. Proposed Plan 2

On October 28, 2008, Proposed Plan 2 was presented at a public Board Meeting. (Pls.

Ex. 2.) Like Proposed Plan 1, Proposed Plan 2 set forth what high school each student must

attend, based on where each student lived in the District. Under Proposed Plan 2, the only

students who retained a choice as to what high school to attend, were students districted to attend

Lower Merion High School, who had the option to attend Harriton High School in order to enroll

in Harritons IB program. See infra 57 n.26.

Proposed Plan 2 again redistricted high school students in North Ardmore for Harriton

High School, and also split up the areas districted for Penn Valley and Belmont Hills Elementary

Schools, albeit not the Affected Area. The plan kept students with their elementary school peers

for middle school, but separated the students at high school.

The slide show presentation accompanying Proposed Plan 2 included the projected,

general diversity numbers. Under Proposed Plan 2, out of a projected student population of 1135

at Harriton, 88 students, or 7.8 percent, would be AfricanAmerican. (Pls. Ex. 2.) Thus,

Proposed Plan 2 increased the total number and the percentage of AfricanAmerican students,

albeit not to the 10 percent level under Proposed Plan 1.

a. Rejection of Proposed Plan 2

During the subsequent public comments period, complaints included accusations that

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Proposed Plan 2 had a disparate impact on AsianAmerican students by increasing Harritons

AsianAmerican student population by redistricting students in Shortridge. The Board brought16

Dr. Sokolov and Petersen back to reassess what factors were important to the community in

redistricting. The Board understood the primary community concern expressed during this period

to be that of educational continuity from kindergarten through high school, meaning that students

who attend the same kindergarten, continue through to grade twelve, rather than having the group

of students who attend one elementary school split up between the Districts two middle schools,

or having the group of students who attend one middle school split up between Harriton and

Lower Merion High Schools. (Pls. Ex. 3, at 0212.) In addition, the Board had identified the

following three goals: (1) distance and access, (2) walkability, and (3) continuity. (Pls. Exs. 3, at

0212, 89, at 1175.)

In light of these concerns, the District extended the timeline for redistricting in order to

allow for fuller consideration of the communitys input, and to allow the community to express

concerns about Proposed Plan 3 and any modifications to this plan. The District also scheduled

additional public meetings to allow for further discussion concerning the priorities moving

forward. (Pls. Ex. 89, at 1172.)

The Administration then prepared Scenario 8, which became Proposed Plan 3. By the

time that Scenario 8 was prepared, Dr. Habers role in redistricting had diminished substantially.

All of the Board Members saw Scenario 8 prior to its public presentation as Proposed Plan 3.

b. RaceRelated Comments Regarding Proposed Plan 3

Prior to redistricting, Harriton High School had 50 AsianAmerican students (Pls. Ex.16

140), making up 6.27 percent of Harritons total student population. Under Proposed Plan 2,Harriton High School had 77 AsianAmerican students (Pls. Ex. 2, at 0294), making up 6.78

percent of Harritons total projected student population.

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Prior to the selection and public presentation of Proposed Plan 3, numerous Board

Members and Dr. McGinley made racerelated comments. The Court will consider these in turn.

i. Dr. McGinleys and Lisa Pliskins Comments

In considering new proposals for redistricting, Dr. McGinley sent a Memorandum to the

Board indicating that a Travel Equity Proposal proposed by parents creates a racially isolated

group of African American Students at Harriton. (Pls. Ex. 78, at 4097.) Although this comment

indicates that once again, Dr. McGinley criticized a proposal on the basis of its effect on race, Dr.

McGinley also provided valid, educational reasons for rejecting the proposal, namely that it adds

travel distance to several areas, and removes the walk zone for Welsh Valley. (Pls. Ex. 78, at

4097.)

In addition, while Scenario 8 was being refined and considered, Dr. McGinley and Board

Members Lisa Pliskin and David Ebby made several references to race. First, on November 6,17

2008, Pliskin emailed Dr. McGinley and said that she may want to see whats behind the

diversity stats you have providedhow many in the chart come from clustered areas. (Pls. Ex.

82, at 7831.) Pliskins testimony that she merely wanted to be prepared to answer questions from

the public respecting the diversity data, such that she would not be flatfooted at subsequent

Board meetings, is credible. As previously noted, the Court rejects Plaintiffs contention that

In addition to the statements detailed in this section, Lisa Pliskin also sent Dr. McGinley17

notes on the proposed FAQ section that would be posted on the Districts redistricting website.

Her notes included the following question: Any idea on whether the BC/WV scenario works onnumbers (including the flexibility to have more at LM), diversity (taking into account that thereis a minimum cohort for each group needed, not equal #s) and transportation (does it live withinthe no new buses rule?). (Pls. Ex. 79, at 4068.) At trial, Pliskin asserted that the parentheticalfollowing diversity had been misplaced because it would only make sense after numbers,

because the only minimum cohort needed was for the Harriton population to be increased tothe desired enrollment projection.

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providing diversity data is itself evidence of discrimination. The record shows that the Board

Members wanted to be made aware of the effects that various plans would have on diversity, in

general, given that the community had expressed an interest in such information.

Then, on November 20, 2008, Dr. McGinley sent Pliskin an email venting frustration

respecting the redistricting process, and specifically stating that he was concerned about the

Ardmore side of the map, and the history gotcha tied to the achievement gap tied to

redistricting. (Pls. Ex. 92, at 7773.) Dr. McGinley continued,[W]ish there was a way to

extend the option area into the [Affected Area] but doing so would not only mean another hundred

at [Lower Merion High School] but many fewer A[frican]A[merican] kids at [Harriton.] (Pls.

Ex. 92, at 7773.) Pliskin responded by saying, You are not alone in trying to solve Ardmore. I

look at it every day and I know others would like to resolve it as well . . . . Can we open 100

tuition paying spots and would folks take them in this economy . . . and what happened to no

racial isolation? (Pls. Ex. 92, at 7773; see also Pls. Ex. 86, at 7822.)

At trial, Dr. McGinley testified that his statements merely indicated that he was trying to

figure out how to use magnet programs to attract AfricanAmericans, while Pliskin testified that

she was concerned about the geographic tension that the Affected Area posed, given that it is

located within walking distance of Lower Merion High School, but is also one of the closer areas

that could be redistricted for Harriton. Pliskin maintained that racial isolation was not a

concern of hers, although she also stated that the public had raised the concern of racial isolation,

and that she wanted to make sure that the district had solutions in place to address the problem.

Although Dr. McGinley and Pliskin were credible witnesses, there is no indication that

they by any means intended to discriminate against AfricanAmerican students, and they in fact

had legitimate, educational goals, the comments described above nonetheless persuade the Court

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that Dr. McGinley and various Board members also had an intent to increase the

AfricanAmerican population at Harriton.

ii. David Ebbys Comments

Board Member David Ebby, as DiBonaventuro had done before, sent Dr. McGinley and

other Board Members an email indicating that redistricting is an opportunity . . . to end the

stereotyping of Harriton as an inferior school populated by elitists and racists. (Pls. Ex. 90, at

4077.) As with DiBonaventuros similar comments, the Court does not find that Ebbys

comments respecting Harriton indicate a desire to redistrict on the basis of race, but rather, to

combat a negative stereotype of Harriton, and to forward the aim of ensuring that the Districts

two high schools are equally respected in the community.

iii. Diane DiBonaventuros Comments

DiBonaventuro prepared a document indicating the problems she saw with Proposed Plan

2, and her alternative proposal of expanding the area in which students retained a choice of high

school to include the Affected Area (Pls. Ex. 77), that she subsequently forwarded to Dr.

McGinley (Pls. Ex. 80). DiBonaventuro noted that her proposal posed the problem of having a

larger population of minority students at Lower Merion High School, although she noted that

expanding the choice to include the [Affected Area] may help a little. (Pls. Ex. 77, at 0393.)

DiBonaventuros notes indicate that she was cognizant of the effects that Proposed Plan 2 and her

alternative proposal would have on each high schools AfricanAmerican student enrollment

projections. Her testimony at trial confirmed that she was trying to value or consider the

Community Values in whatever plan [the Board] put forward, and where [she] could work that

into the plan, [she] would. . . . That included racial diversity.

DiBonaventuro also sent Dr. McGinley an email entitled African American students that

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dates from November 21, 2008, three days before the public presentation on Proposed Plan 3, in

which she expressed that she was struggling with the issue of where to place the [Affected Area]

kids. The arguments are compelling for L[ower] M[erion], but [she] also worr[ied] about the kids

that would become somewhat isolated at Harriton without a higher population. (Pls. Ex. 93, at

1602.) As with her remarks respecting Proposed Plan 2 and her alternative proposal, she testified

at trial that this comment indicated that race was a minor factor in her decisionmaking, and

that she was concerned that students in the Affected Area, who could walk to Lower Merion High

School, were being deprived of their opportunity to choose to attend that high school.

4. Proposed Plan 3

On November 24, 2008, Proposed Plan 3 was presented at a public Board Meeting.

Consistent with the aim of maintaining educational continuity from kindergarten through to grade

12, Proposed Plan 3 employed a 311 Feeder Pattern whereby the students that were districted

for three elementary schools are assigned to attend a single middle school and a single high

school. The 311 plan enables students to transition more easily from elementary school, to

middle school and high school, because it permits teachers at the middle and high schools to

become knowledgeable about what their students previously learned and to build upon that

foundation.

Under Proposed Plan 3, students districted for Cynwyd, Merion, and Penn Wynne

Elementary Schools were assigned to Bala Cynwyd Middle School and Lower Merion High

School, while students districted for Belmont Hills, Gladwyne, and Penn Valley were assigned to

Welsh Valley Middle School and Harriton High School. (Pls. Ex. 3, at 0217.) The feeder

patterns under Proposed Plan 3 assigned all students, irrespective of race or ethnicity. The only

exception Proposed Plan 3 made to the 311 Feeder Pattern was to create an abbreviated

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L[ower] M[erion High School] walk zone that had the choice of which high school to attend.

(Pls. Ex. 3, at 0217.) The only other students who retained a choice of high school under

Proposed Plan 3 were students districted to attend Lower Merion High School, but who wanted to

attend Harriton High School in order to enroll in its IB program. The following map prepared by

the District sets forth Proposed Plan 3:

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As a result of Proposed Plan 3, students in the Affected Area, other areas districted for

Penn Valley Elementary School (with the exception of the abbreviated walk zone), and the

Narberth Borough of Belmont Hills, would no longer have a choice of high schools. In terms of

travel time, students in the Affected Area travel eighteen to nineteen minutes on District buses to

Harriton High School, which is half the distance and half the time of the longest bus ride in the

District.

Proposed Plan 3 also increased the percentage of AfricanAmerican students at Harriton

High School from 5.7 percent prior to redistricting, to 9.6 percent, by projecting that Harriton

would have 105 AfricanAmerican students and a total student population of 1089. (Pls. Ex. 3,

at 0220.) As with Proposed Plan 1, the percentage of AfricanAmerican students at Harriton

under Proposed Plan 3 nearly mirrored the ten percent of AfricanAmerican students attending

public high schools in the district. Once again, the slide show presentation accompanying the plan

included a slide setting forth the general diversity breakdowns under the plan. (Pls. Ex. 3, at

0220.)

In the ensuing public comments period, members of the public expressed concern that

Proposed Plan 3 had a disparate racial impact. During this period, community members proposed

a Plan 3R Plus to Dr. McGinley that he criticized in an email to the Board as chang[ing] the

character of Harriton significantly. (Pls. Ex. 114.) A copy of proposed Plan 3R Plus or a

summary of its contents were not introduced into evidence during the bench trial.

The Board, however understood the main concern that the community had with the plan

was that of walkability, because Proposed Plan 3 only allowed a limited number of students to

choose to walk to Lower Merion High School. The Board thus decided to expand the abbreviated

walk zone to allow more students who live within walking distance of Lower Merion High School

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but are redistricted for Harriton under Proposed Plan 3, to have the choice to attend Lower

Merion. The revised Proposed Plan 3 became Proposed Plan 3R.

There was little testimony as to communications among Board Members, or between the

Board and the Administration, between the presentation of Plan 3 at the Board meeting on

November 24, 2008, and the presentation of Plan 3R at the Board meeting on December 15, 2008,

aside from Dr. McGinleys copy of the slide show presentation explaining why Scenario 4A was

not selected, and two emails in which DiBonaventuro asked Dr. McGinley questions about

Proposed Plan 3. (Pls. Exs. 102, 104, & 109.) There was also little testimony as to

communications among the Board, or between the Board and the Administration, from December

15, 2008 and January 12, 2009, when the vote took place on Plan 3R, aside from Dr. McGinleys

email on January 6, 2009 as to his objections to the communitys Proposed Plan 3R Plus. (Pls.

Ex. 114.) There, however, was substantial testimony as to why the Administration changed from

Proposed Plan 3 to Plan 3R.

It is quite possible that during these periods, there were various meetings of the School

Board, sometimes attended by Dr. McGinley, in executive sessions with counsel. The District has

properly asserted a claim of privilege as to any communications between attorney and client

which took place in the executive sessions, and Plaintiffs have not disputed the Districts claim.

doe v lmsd - factual findings memo complete

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