Beruflich Dokumente
Kultur Dokumente
_____________________________________________________________
_
Plaintiffs-Appellants,
v.
Defendant-Appellee.
_____________________________________________________________
_
BRIEF OF APPELLEE
TABLE OF CONTENTS
Page
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TABLE OF CONTENTS
(continued)
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TABLE OF AUTHORITIES
Page
CASES
Bush v. Vera,
517 U.S. 952 (1996)................................................................................. 43
Charpentier v. Godsil,
937 F.2d 859 (3d Cir. 1991) .................................................................... 57
Davis v. Bandemer,
478 U.S. 109 (1986)................................................................................. 58
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TABLE OF AUTHORITIES
(continued)
Page
Gratz v. Bollinger,
539 U.S. 244 (2003)........................................................................... 45, 62
Grutter v. Bollinger,
539 U.S. 306 (2003)............................................................... 45, 49, 54, 62
Johnson v. California,
543 U.S. 499 (2005)................................................................................. 45
Sandoval v. Alexander,
532 U.S. 275 (2001)................................................................................. 62
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TABLE OF AUTHORITIES
(continued)
Page
Yelverton v. Lehman,
No. CIV.A. 94-6114, 1996 WL 296551 (E.D. Pa. June 3, 1996) ........... 63
STATUTES
20 U.S.C. § 6311(b)(2)(C)(v)(II).................................................................. 41
RULES
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STATEMENT OF ISSUES
A. Did the District Court commit reversible legal error in
concluding that the District did not discriminate against Appellants on the
Amendment?
Title VI of the Civil Rights Act, 42 U.S.C. § 2000d et seq., even though they
Amendment?
1
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STATEMENT OF FACTS
A. Introduction
The essential, material facts of this case can be distilled to the
following: (1) the Board of School Directors (“Board”) adopted the Lower
January 12, 2009, and did not consider race in doing so; (2) the purpose of
Plan 3R was to achieve equal enrollment in the District’s two high schools,
as set forth in the Non-Negotiables adopted by the Board; (3) the District did
not select individual students for assignments to either Lower Merion High
under Plan 3R; (4) student assignment under Plan 3R was based on existing
feeder patterns from the elementary schools to the middle schools and on to
a high school; (5) these feeder patterns assigned all students, irrespective of
race or ethnicity, outside the official LMHS walk zone1 who attended any of
1
The official, historic LMHS walk zone did not originate with redistricting
and had been in place, in its current form, for many years prior to
redistricting. A “walk zone” is simply the area within which the District
does not provide bus transportation to students. That is how the District
defines “walking.” Appendix A2133. Every school within the District, with
the exception of Harriton (which had a walk zone until PennDOT certified
Ithan Avenue as hazardous for student walking) has a walk zone. Appendix
A1313.
2
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the three elementary schools feeding into Welsh Valley Middle School to
Harriton; and (6) Appellants, along with all other students in the Affected
Area (as hereinafter defined), regardless of race, have lost the option of
attending Lower Merion because all attend Penn Valley Elementary School
and Welsh Valley Middle School and reside outside of the official LMHS
Although the District Court also found that the Administration desired
racial diversity in both high schools, and that the Affected Area was
concluded that the District did not invidiously discriminate against any
individual student on the basis of his or her race, and that the Board
The LMHS walk zone is one mile in some places and less than one mile in
other places. As with all walk zones in the District, it is measured “as the car
drives” or as the student walks, not “as the crow flies.” Appendix A1295-
A1296. The shape of the walk zone takes into consideration the location of
streets and cross streets (e.g., walk zones are not intended to split a block in
the middle of a block), obstacles, and hazardous walking areas. Appendix
A687-A688. Consequently, the LMHS walk zone does not extend in a
perfect one-mile radius from the high school. While a few of the Appellants
may live within a mile of Lower Merion High School, none of them lives
within the official LMHS walk zone. As Mr. Andre, the District’s
Transportation Supervisor, testified at trial, the LMHS walk zone extends
less than a full mile in areas other than the Affected Area as well. Appendix
A1296.
3
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Members, in voting to approve Plan 3R, did not consider race. Appendix
A53, A55.
B. Appellants
Appellants include nine African-American students (“Students Doe”)
Wynnewood Road, County Line, and Cricket Avenue. This area has been
referred to throughout this case as the “Affected Area.” The Affected Area
is one of the areas closest to Harriton that was not districted to Harriton prior
exception of Student Doe 4, who elected to attend Harriton for the 2009–
2010 academic year, Students Doe attend Penn Valley Elementary School or
Welsh Valley Middle School. Students Doe are bused to their current
schools, along with students of all races from the Affected Area, and have
always received bus transportation provided by the District because they live
outside any official walk zone, which is the designated area within which the
4
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A14, A81-A82. See also footnote 1, infra. In terms of travel time, students
Harriton High School, which is half the distance and half the time of the
Under Plan 3R, Appellants and all other students in the Affected Area
are districted to attend Penn Valley Elementary School and Welsh Valley
Middle School, as they were prior to redistricting, but now they are
districted to Harriton for high school. Prior to redistricting, they had the
Gladwyne, 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).2 Both of the high schools are
ranked as being among the best in the state, if not the nation. The Board is
2
The District’s elementary schools include kindergarten through grade five,
its middle schools include grades six through eight, and its high schools
include grades nine through twelve.
5
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vested, by state law, with the authority to assign students to schools within
since June 2008. The Board Members voted to hire Dr. McGinley in part
3
According to Dr. McGinley, Dr. Claudia Lyles, who worked with Dr.
McGinley in the Cheltenham School District, and Dr. Robert Jarvis, who
heads the Delaware Valley Minority Student Achievement Consortium, 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 African–American and Latino students as a whole
perform significantly poorer than their White and Asian–American peers.
“Combating the achievement gap,” therefore, refers to valid and appropriate
educational policies aimed at minimizing and eradicating the achievement
gap. Appendix A7.
6
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test scores and report cards, to place students, thereby taking away teacher
techniques to combat, and the causes of, this phenomenon.” Appendix A7-
A8.
isolation a student may feel when, for example, he or she is one of only a
7
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modernize each of its ten schools. As of 2004, Lower Merion and Harriton
The community as a whole recognized that both high schools were outdated
study all options available for addressing the District’s high school situation,
modernizing the District’s two high schools: (1) creating one separate
school for ninth grade students only and one school for students in grades
10-12; (2) building a new, single high school of 2,500 students; (3) building
two new high schools while keeping their present student populations (1,600
8
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Lower Merion/900 Harriton students) intact; and (4) building two new high
schools but balancing their student enrollment levels (1,250 students each).
Appendix A12.
another transition for students, from ninth to tenth grade, and co-curricular
would not fit on either existing high school site, would create major traffic
CAC decided against two high schools of unequal size because this option
would not address differences in the educational offerings at the two high
9
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continued to be the larger school, traffic and parking problems at that site
Ultimately, the CAC voted in favor of a plan for two new high schools
of equal enrollment capacity, designed for 1,250 students each, and the
CAC concluded that this was the best option because it allowed all students
to benefit from the smallest possible schools, which provide a stronger sense
better educational outcome for all students than larger schools. In addition,
this option provided students across the District with the most equitable
access to programs and facilities, because each school would be able to offer
the same range of courses and would have its own co-curricular activities.
Finally, the CAC determined that equal-size schools would make the best
use of the existing school sites by alleviating the overcrowding, traffic, and
District had to keep the high schools at their existing locations, equalizing
700–student disparity between the two high schools. Appendix A13. It was
10
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implement the CAC’s recommendation that the District build two new high
students who would have attended Lower Merion prior to any redistricting
1. Non–Negotiables
On April 21, 2008, the Board adopted the following set of guiding
(1) The enrollment of the two high schools and two middle schools will be
11
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equalized; (2) Elementary students will be assigned so that the schools are at
or under the school capacity; (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
upon current and expected future needs and not based on past practices.
2. Community Values
Beginning in May 2008, the District hired two outside consultants, Dr.
Harris Sokoloff and Ms. Ellen Petersen, who held a series of public forums
and collected online surveys to solicit input from the community and
friend contemplating moving to the District – what would you tell her about
what you like or do not like about Lower Merion to help her make a
was posed to citizens before any proposed redistricting plan had been
12
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On July 11, 2008, Dr. Sokoloff and Ms. Petersen presented to the
Board their report, which identified five “Community Values”: (1) “Social
networks are at the heart of where people live, and those networks expand as
people grow older;” (2) “Lower Merion public schools are known for their
should continue to walk while the travel time for non–walkers should be
Lower Merion.” The Board voted to accept Dr. Sokoloff and Ms. Petersen’s
Ross Haber, of Ross Haber Associates, Inc., to review and analyze District
4
Dr. McGinley and several Board Members testified that the Community
Values, unlike the Non–Negotiables, were never mandates that had to be met
by proposed redistricting plans, but merely informed the redistricting
process, and many of them, including the value respecting diversity, were
applicable only at the implementation phase, after a redistricting plan had
been selected by the Board. Appendix A17. As the District Court noted, the
District cannot be faulted for soliciting the community’s input and could not
preclude discussions of race. There is nothing inappropriate about having a
Community Value respecting diversity. Appendix A18.
13
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(“GIS”) that allowed him to move school attendance lines and then report
how many students would be within those lines. Appendix A944. In prior
Dr. Haber requested and received standard student file data maintained by
During July and August 2008, Dr. Haber worked with the Administration to
which some had additional variations, were prepared by Dr. Haber, and
chose four Proposed Plans (1, 2, 3, and 3R) to present to the Board at public
5
As the District Court noted, Dr. Haber testified that he was never directed
to create or change a redistricting scenario based on its diversity outcome.
Appendix A22.
6
Toward the end of the redistricting process, Dr. Haber’s involvement had
decreased substantially. Appendix A52, n.23.
14
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Board meetings, where they were presented to both the Board and members
of the community, and after which public comments on each proposed plan
were solicited. Only Plan 3R was voted upon by the Board. Appendix
A19.7
4. Proposed Plan 1
On September 8, 2008, Proposed Plan 1 (“Plan 1”) was presented at a
public Board meeting. As part of this presentation (and also as part of the
PowerPoint slide concerning the projected diversity make-up (of which racial
participation in free and reduced price lunch programs, and special needs status)
of each high school in the event that the proposed plan was adopted by the
7
The Scenarios were not presented to, considered, or voted upon by, the
Board, nor did the Board Members at the meeting recall the initial Scenarios
that Dr. Haber presented to them. Accordingly, the District Court rightly
determined that the Scenarios were of minor importance to the determination
of whether race was a motivating factor in the redistricting process.
Appendix A20.
8
Appellants mischaracterize the District’s intentions in presenting such
information, arguing that it “prominently displayed its ‘diverse’ high school
populations” (Appellants’ Brief at 20, 22, and 25, and thereby suggesting
that merely providing this information to the public, which the public itself
had sought, was improper and/or that the District had intended to produce a
certain diversity outcome, neither of which is accurate.
15
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grade 8. Plan 1 changed the District’s middle school feeder patterns so that
Penn Wynne Elementary School students (which included not only North
Ardmore but all other Penn Wynne students) would attend Welsh Valley
Middle School (and then Harriton), and Penn Valley Elementary School
students would attend Bala Cynwyd Middle School (and then Lower
Merion under Plan 1 retained the option of attending Harriton to enroll in its
that all current high school students were given the option of remaining at
the high school they presently attended. Appendix A27. Plan 1 satisfied
A2130.
1, the Board received criticisms of the plan, namely from the Penn Wynne
16
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excessive travel times for students, particularly those Penn Wynne students
who lived along the City Avenue corridor, the eastern-most boundary of the
Haber investigated alternate plans with an eye toward creating new ways to
who lived closer to Harriton, and the community’s expressed desire to see
that all children remained together for grades six through twelve. Appendix
A32; A2133.
9
Appellants focus solely on comments raised by a few community members
that the proposed plans were based on race is an apparent attempt to make it
seem as though race-based concerns were the primary concerns expressed
and that the proposed plans were rejected because of such concerns. As
demonstrated herein, however, the record reveals other, race-neutral
concerns expressed by the community.
10
During the summer, the District tested bus travel times under Proposed
Plan 1 to assess student impact. After the 2008 to 2009 school year began,
the District again tested the bus travel times, this time finding that bus travel
times were significantly longer than they had been during the summer.
Appendix A32, n. 14; A2131.
17
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5. Proposed Plan 2
On October 28, 2008, Proposed Plan 2 (“Plan 2”) was presented at a
public Board Meeting. Like Plan 1, Plan 2 set forth which high school each
student must attend, based on where each student lived in the District.
Under Plan 2, students districted to attend Lower Merion had the option of
official LMHS walk zone that were zoned to attend Harriton had the option
The foundations of the plan included: (1) keeping all children together from
grades six through twelve; (2) avoiding drawing students from communities
adjacent to City Avenue; and (3) avoiding, to the extent possible, reducing
the official walking area for middle and high school. Appendix A2133.
students’ bus times from those indicated and/or anticipated under Plan 1, as
students from the furthest corridor of the District were no longer affected,
18
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attend Welsh Valley Middle School and Harriton; all Belmont Hills
the Penn Valley and Haverford areas of the Penn Valley Elementary feeder
area were districted to Welsh Valley and Harriton; part of the Penn Wynne
Valley and Harriton; and part of the Merion Elementary feeder area was
districted to Welsh Valley and Harriton. The remaining areas of the Penn
Bala Cynwyd Middle School and Lower Merion. Consequently, under Plan
2 students were split after elementary school and then remained together for
various concerns about Plan 2, including that any plan should maximize
continuity in general, both K-12 and 6-12, that the plan split up communities
that were part of the same elementary school, and that the plan posed
11
The District Court found that Plan 2 kept students with their elementary
school peers for middle school and separated them at high school but, in
fact, the record demonstrates that Plan 2 split students after elementary
school and then kept them together with their peers for middle school and
high school, providing continuity only for grades six through twelve.
Appendix A2136-A2137.
19
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difficulties for the transition to middle school, particularly since each middle
meaning that students who attend the same kindergarten, continue through to
grade twelve, rather than having the group of students who attend one
having the group of students who attend one middle school split up between
continuity, the Board noted the following three primary concerns: (1)
distance and access, (2) walkability, and (3) community. Appendix A34;
A2150-A-2151.
12
One group of students also made accusations that Proposed Plan 2 had a
disparate impact on Asian–American students by increasing Harriton’s
Asian–American student population by redistricting students in Shortridge.
Appendix A33-A34.
20
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input, and to allow the community to express concerns about Proposed Plan
3 and any modifications to that plan. The District also scheduled additional
6. Proposed Plan 3
On November 24, 2008, Proposed Plan 3 (“Plan 3”) was presented at
that were districted for three elementary schools were assigned to attend a
single middle school and a single high school. The 3-1-1 plan enabled
and high school, because it permitted teachers at the middle and high schools
and to build upon that foundation. Appendix A38. Plan 3 also protected the
walk zones for the elementary and middle schools and followed the then-
School and Lower Merion, while students districted for Belmont Hills,
21
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Valley Middle School and Harriton. The feeder patterns under Plan 3
Plan 3 made to the 3-1-1 Feeder Pattern was to create an abbreviated Lower
Merion High School walk zone that allowed students living within it the
choice of which high school to attend. The only other students who retained
a choice of high school under Plan 3 were students districted to attend Lower
Appendix A2155-A2156.
Under Plan 3, students in the Affected Area, all other areas districted
for Penn Valley Elementary School (with the exception of those residing
within the abbreviated walk zone), and the Narberth Borough of Belmont
A2156.
the high school level. Appendix A2168. The Administration thus decided
22
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to maintain the official, historical LMHS walk zone to allow more students
who lived within walking distance of Lower Merion but who were
redistricted for Harriton under Plan 3 to have the choice of walking to Lower
Merion. The revised Plan 3 became Proposed Plan 3R. Appendix A40-A41.
7. Proposed Plan 3R
Proposed Plan 3R (“Plan 3R”) was presented at a public board
meeting on December 15, 2008. Like Plan 3, Plan 3R put in place a 3-1-1
feeder pattern under which students districted for Penn Valley Elementary
Under Plan 3R, students could remain with their peers by following
assigned feeder patterns K-12, the official walk zones for elementary,
middle, and high school were maintained, current feeder patterns were
followed, and the plan allowed for a mixed13 high school population at each
13
By “mixed” high school population, the District meant only that each
high school would have students from both Welsh Valley and Bala Cynwyd
Middle Schools, as opposed to students from only one of those middle
schools.
23
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one mile (not “as the crow flies” but as students walk to school) and which is
walk zone includes some areas districted for Penn Valley and Belmont Hills
Elementary Schools, it does not include and never has included the Affected
Area. Appendix A43; A514; A531; A536. To offset the restoration of the
official LMHS walk zone and better equalize overall student enrollment
numbers at Harriton and Lower Merion, Plan 3R also allowed all students
districted for Lower Merion, as well as students residing in the historic walk
however, students in the Affected Area and other areas districted for
Board voted to adopt Plan 3R. This was the only formal action taken by the
favor of the Plan, and only two Board Members voted against the plan. The
then-Board President could not vote because she was ill and in the hospital,
but prior to the vote, she sent over her thoughts to the Board, which were
read to the Board before the vote, indicating that she supported Plan 3R.
Appendix A46-A47.
24
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Of the seven Board Members who voted for, or in the case of the
then-Board President, who expressed support for, Plan 3R, many voted in
large part because they, like the community, believed that educational
None of the Board Members considered race in voting to adopt Plan 3R.
Appendix A55. One Board Member, who voted against the plan, did so for
valid pedagogical reasons unrelated to race, namely, that he did not believe
that educational continuity was in students’ best interest, but did believe that
experiences. Another Board Member, who also voted against the plan, did
not believe the Board was discriminating on the basis of race in considering
and adopting Plan 3R. She simply had other priorities. Appendix A48-50.
other neighborhoods that were not districted to Harriton before the adoption
of Plan 3R but which also, like the Affected Area, were zoned to one of the
three elementary schools that feed into Welsh Valley Middle School (i.e.,
Penn Valley, Belmont Hills, and Gladwyne) and did not fall within the
25
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facts. Twenty-one rising ninth grade students from the Affected Area were
redistricted to Harriton for the 2009-2010 school year, of which twelve were
students were redistricted from the Narberth and Penn Valley geographic
areas districted for Penn Valley Elementary School, none of whom was
14
Because all current high school students were grandfathered under Plan
3R, only incoming ninth grade students were affected by the redistricting in
the 2009-2010 school year.
26
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SUMMARY OF ARGUMENT
Appellants seek reversal of the District Court’s ruling that the Lower
Merion School District’s redistricting plan did not discriminate against them
on the basis of their race. In doing so, they argue that they were redistricted
because of race, since it was known that the Affected Area has a significant
African-American population. They ignore the fact that they were not
singled out for redistricting and that students of all races in the Affected
Area, as well as students of all races who attend the same elementary and
middle schools as Appellants and who, like them, live outside the official
provide Appellants with the result they desire, it would have to treat them
of their race. For the reasons set forth below, the District Court’s ruling
should stand.
Appellants appeal from the District Court’s ruling that the District did
not discriminate against them on the basis of race in violation of the Equal
case directly on point, the District Court was appropriately guided by the
27
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Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) (“Seattle”). To the extent that
respectfully submits, unsupported by the record evidence, that does not alter
the result here, as the kinds of race-conscious action that the District Court
found are the kinds of action that Justice Kennedy (along with the four
District Court’s factual findings are based on sufficient record evidence, the
District Court’s ultimate legal conclusion – that the District did not
is correct.
of the District is permissible and not subject to strict scrutiny. Seattle, 551
U.S. at 789 (Kennedy, J., concurring). Even assuming, as the District Court
did, that such conduct does require the application of strict scrutiny, the
28
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there is no basis for this Court to find so now. Moreover, the District
considerations, as there was no other redistricting plan that could have met
Civil Rights Act provide them recourse, when the District Court concluded
that the District did not discriminate against them in violation of the Equal
nor can they provide, any sufficient reason why this Court should depart
15
The District Court acknowledged that if Plan 3R survived strict scrutiny,
it certainly would meet lower standards of review, i.e., rational basis review
and intermediate scrutiny. Since the District court concluded that Plan 3R
survived strict scrutiny, inherent in that conclusion is that it would have
survived rational basis review or intermediate scrutiny.
29
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to allow the testimony is subject to review by this Court under the abuse of
discretion standard, and Appellants have failed to identify any such abuse,
nor have they explained how they were prejudiced by this decision,
including how the admission of such testimony affected the outcome of the
case.
30
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ARGUMENT
for redistricting in part because of its racial demographics, and that the
District sought some kind of “racial parity” between the two high schools.
However, the District respectfully submits that the District Court did not
provide a factual predicate for such findings, and that there is insufficient
The District Court seemed to base its factual finding that racial
mails and conversations discussing the inclusion of the Affected Area and
North Ardmore; (2) the candid elimination of two scenarios due to their
racial implications before they reached the Board, and the rejection by the
Administration of the sole redistricting scenario that did not include either
the Affected Area or North Ardmore; (3) testimony by Dr. Haber, the
31
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therefore, the District respectfully submits that this Court’s decision should
Court noted that the Board and Administration remained “cognizant of the
such awareness. Indeed, record testimony from Dr. McGinley indicated that
race data was reviewed by him during the redistricting process for the
to know what the student population at any school was going to look like,
not only in terms of race, but also in terms of socioeconomic status and
the District Court demonstrate that the Affected Area was redistricted to
McGinley and Dr. Haber indicating that Dr. McGinley was mindful that
32
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that Dr. McGinley and/or Dr. Haber also questioned whether the Seattle
immaterial, as the District Court recognized. Appellants ignore the fact that
the District Court found that Dr. McGinley wanted to be informed 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 his attention.
Appendix A26.
District Court assumed that this e-mail indicated that Dr. Haber considered
A26), in fact, Dr. Haber testified that by “color-blind,” he simply meant that
racial diversity information or data would not have appeared in the scenario
Dr. McGinley and Board Member Pliskin in which Dr. McGinley expressed
that he “wish[ed] there was a way to extend the option area into the
[Affected Area] but doing so would not only mean another hundred at
33
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isolation?” (Appendix A2187), does not indicate that the District “targeted”
the Affected Area for redistricting. The tenor of these comments shows that
Dr. McGinley and Ms. Pliskin were considering whether there was a way to
avoid sending the Affected Area students to Harriton given that they did not
want to go there, but the answer to that question was “no.” The mere fact
provide the Affected Area with the option to attend Lower Merion but
students at Harriton, does not mean the Affected Area was chosen for
about that.
34
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the community value of diversity in what he was doing because he had data
that allowed him to report on diversity outcomes and in that way only, race,
race was “considered” throughout the redistricting process, Dr. Haber meant
only that race data was reviewed and considered during the process – not
that the redistricting was based on race or was a “motivating factor” in the
Fourth, while scenarios 1 and 4A, which were never submitted to the
because of their effects upon the racial make-up of the high schools (e.g.,
from Lower Merion High School, and Scenario 4A did not support the
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scenario because it would result in a certain racial outcome, and the Board’s
would result in a particular racial outcome, which did not occur here.
Moreover, while Appellants contend that Scenarios 1 and 4A were the only
scenarios that kept the Affected Area and North Ardmore together for high
school, that is not surprising since the redistricting plans were based on
existing elementary and middle school feeder patterns, and keeping these
two areas together for high school would disturb the continuity of these
feeder patterns, since the Affected Area and North Ardmore attend different
16
Interestingly, Appellants offer no educational or pedagogical reasons for
attending high school with North Ardmore, their desired outcome. They
simply want to be with their non-school, neighborhood peers, with whom
they have never attended school. They have made no showing that this is a
valid educational purpose. Moreover, in such circumstances, if the Affected
Area and North Ardmore were districted to attend either Harriton together or
Lower Merion together, they would have been separated from their
elementary and middle school peers, which would have interfered with the
goal of educational continuity. Appendix A89-A90.
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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
significantly under each proposed plan, but such evidence is not statistically
Mazus v. Dep’t of Transp., 629 F.2d 870, 875 (3d Cir. 1980) (“Statistical
groups and free from variables which would undermine the reasonableness
had to reduce the 700-student disparity between the two high schools by
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when one takes into account the geographic location of various student
in major urban, as well as suburban, areas throughout the United States, that
17
If the District truly were using race figures or data to increase the African-
American student population at Harriton, it would have redistricted North
Ardmore to Harriton, given that North Ardmore had a greater number of
African-American students. Appendix A10, n.2.
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something else, and the question then becomes whether that “something
significant. See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975).
They have this burden, and only after they satisfy this burden would the
District be obligated to explain why the statistics appear as they do. Id. at
425. Appellants, however, never met this burden, as their statistics, which
are the basis for the District Court’s finding, do not raise an inference of
discrimination.
Appellants ignore the fact that under Plan 3R, Appellants are treated the
same as every other student who attends Penn Valley Elementary School or
any of the other two elementary schools that feed into Welsh Valley Middle
should be exempted from the 3-1-1 feeder pattern established under Plan 3R
and should have been given the option of attending Lower Merion, even
though all students, of all races in their neighborhood are similarly districted
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to Harriton without choice, and even though all other areas outside the
official LMHS walk zone that are zoned to attend an elementary school that
feeds into Welsh Valley Middle School are similarly districted to Harriton.
For this Court to provide Appellants the redistricting outcome they desire, it
In addition, the District has always maintained that it was the official
District Court concluded that the Board Members did not adopt Plan 3R on
support for the District Court’s finding that race was a factor in the
40
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and constitutional manner, as the District Court found. The District never
argued that it did not review race data or that it never had any discussion of
that the District denied that race was a factor is grossly oversimplified, and
their assertion that the District is therefore precluded from arguing that it had
District has always maintained that to the extent that race was considered
appear to argue that any and all consideration of race, including review of
however, does not support such a conclusion. In fact, the law supports such
41
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Indeed, any consideration of race during the process was the very kind
Justice Kennedy observed, does not have to satisfy strict scrutiny to be found
permissible. Seattle, 551 U.S. at 789. See also Concerned Citizens for
(N.D.N.Y. Apr. 24, 2007) (granting defendants’ motion for judgment on the
successful neighborhood school and placed into a more distant school that
was failing academically, noting that plaintiff’s evidence that school board
board’s conduct).
factor in instances when, in [his] view, race may be taken into account.”
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Id. at 789 (emphasis added) (citing Bush v. Vera, 517 U.S. 952, 958 (1996)).
43
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which for generations now have considered these types of policies and
student on the basis of race and to assign each of them to schools based on
to racial chits valued and traded according to one school’s supply and
Court’s decision “should not prevent school districts from continuing the
economic backgrounds.” Id. What the District did in this case is consistent
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and therefore analyzed the redistricting process under that framework. The
District Court did not, however, as the Appellants would have this Court
believe, hold that strict scrutiny was mandated in this case. Rather,
interpreting the facts in the light most favorable to Appellants and giving
them every benefit of the doubt, it concluded that racial considerations were
light of the broad holding in Pryor v. National Collegiate Athletic Ass’n, 288
F.3d 548 (3d Cir. 2002) that strict scrutiny applies to any policy motivated in
part by race.
about applying strict scrutiny, noting that Seattle and other Supreme Court
precedents relied upon by the Appellants (Gratz v. Bollinger, 539 U.S. 244
Pena, 515 U.S. 200 (1995), City of Richmond v. J.A. Croson Co., 488 U.S.
469 (1998), and Johnson v. California, 543 U.S. 499 (2005) did not require
strict scrutiny in this case; that Seattle’s focus on applying strict scrutiny to
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racially discriminatory purpose”) indicated that the Supreme Court did not
Heights v. Metro Housing Dev. Corp., 429 U.S. 252 (1977), Pryor, or this
In short, the District Court applied a more stringent standard than was
doubt. Pryor was the District Court’s only basis for applying strict scrutiny
in this case, and now the Third Circuit has the opportunity to determine
whether strict scrutiny does, in fact, apply to this case. Given that Pryor
predates Seattle, it stands to reason that the most recent application of the
equal protection principle by the Supreme Court in the school context would
control and, therefore, Pryor is not controlling here and cannot be relied
upon to decide this case. Indeed, Seattle does not prohibit and, in fact,
46
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contains language that would permit, what the District Court concluded the
favorable to the Appellants and applying the most stringent form of review,
the District Court properly found that the District’s redistricting process was
constitutional.
the District and acknowledged by the District Court are not compelling
government reasons for purposes of the strict scrutiny analysis because they
are not tied to the District’s purported use of race, there was sufficient record
evidence for the District Court to conclude that the District took race into
and their peers of other racial and ethnic backgrounds in the District and in
47
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Left Behind Act, which requires the District to understand the differences in
address and eliminate the gap. At trial Dr. McGinley testified at length as to
the reasons why he, as an educator, would look at race in connection with
introduced evidence demonstrating that, to the extent race was taken into
the Supreme Court in situations where student school assignments are based
As an initial matter, and as the District Court found, this case does not
48
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cite any authority that would indicate otherwise. Seattle did not rule out
are compelling interests that a school district, in its discretion and expertise,
Kennedy and the four dissenters, i.e., Justices Breyer, Stevens, Ginsberg,
and Souter – concluded that such interests are compelling. See 551 U.S. at
Indeed, while the Supreme Court placed limits on when and how
school districts can consider the race of individual students, it did not rule
out any and all consideration of race. At the time Seattle was decided,
Court only in the higher education context. See Grutter, 539 U.S. 306.
While the Seattle Court very easily could have stated definitively that
49
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goal even in secondary education received the support of the four dissenters
and, in this sense, five justices have expressed support for school districts’
precluded from arguing both that race was not a factor in the redistricting
decision and that, to the extent that it did consider race during the process, it
throughout this case that race was not a factor in determining which of the
District’s two high schools students would attend, but that to the extent that
and legally permissible manner. This position does not preclude it from
arguing, and is entirely consistent with its position, that Plan 3R and any
applicable case law holding otherwise. The one case they do cite in
exclusive, G-I Holdings, Inc. v. Reliance Insurance Co., 586 F.3d 247 (3d
any claim of discrimination, for that matter. Instead, in G-I Holdings the
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defendant first claimed that a particular policy did not apply to the matter at
issue but later attempted to invoke a provision of the same policy. The court
ultimately found that judicial estoppel did not apply, and noted that in the
defending party did not convince the District Court to accept its earlier
position. 586 F.3d at 262. Here, the District Court found that race was one
operate to preclude the District from arguing that Plan 3R and any
18
Appellants boldly assert that “[i]t would appear as a matter of law that in
those instances when a court has found that a defendant used race as a factor
in decision-making after an Arlington Heights/Pryor review, as in this case,
then said defendant will always lose a strict scrutiny challenge.” Appellants’
Brief at 49. Appellants cite no authority in support of this statement, and the
Supreme Court’s precedents contradict it. Even under Pryor, a defendant
can prevail after race has been found to have been a factor by showing that
its action was narrowly tailored to a compelling state interest, see Pryor, 288
F.3d at 562, and under Arlington Heights a defendant can prevail even after
it has been found to have been motivated in part by a racially discriminatory
purpose where it establishes that the same decision would have resulted even
had the impermissible purpose not been considered. 429 U.S. at 271 n.21.
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achieve the District’s goals or whether this number were in fact moved or
were in fact moved to show that its redistricting plan is constitutional. The
undisputed testimony of Dr. McGinley, Dr. Jarvis, and Dr. Lyles was that
racial isolation similarly must not be formulaic or “by the numbers.” Far
achievement gap and racial isolation, this fact instead demonstrates the
there will be more African-American children taking classes with their non-
African-American peers. The District Court, however, never found that the
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high schools. The District Court instead relied on evidence that the District
students to take advanced-level courses and not select courses below their
the overall student populations at the two high schools, minimizing travel
testimony of Dr. McGinley and Board Members that magnet programs were,
curricular opportunities at both high schools, and because the use of magnet
53
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Finally, the mere fact that Plan 3R may not have a definitive end point
341-42. These concerns simply do not exist here, where there is no ongoing
extent that there was any use of race, that use ended once Plan 3R was
selecting or excluding people, because of their race. Here, the District did
American students on the other and decide, for example, that it was going to
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District did not provide or deny students a high school education because of
their race. All District students are being providing an exceptional high
school education. The only question is where students are going to receive
C. The District Did Not Waive And, In Fact, Proved, That Plan
3R Would Have Been Adopted Regardless Of The Racial
Composition Of The Affected Area
The District Court concluded that, “[a]ssuming that the District’s
was a motivating factor during redistricting, the appropriate inquiry for this
Court is whether Plan 3R would have been adopted regardless of the racial
defense if strict scrutiny applies and, therefore, if strict scrutiny does not
apply here, Appellants’ argument that the District waived and/or did not
The District asserted from the very beginning and throughout the case
that the Affected Area was districted to Harriton because of geography and
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existing feeder patterns. Students living in the Affected Area attend Penn
Valley Elementary School and Welsh Valley Middle School and reside
outside the official LMHS walk zone; consequently, under Plan 3R, which
utilized a 3-1-1 feeder pattern, they were districted to Harriton, along with
all other students, regardless of race, who similarly attend Penn Valley and
Welsh Valley and live outside the official LMHS walk zone. Consequently,
Appellants clearly were on notice of the District’s position that even apart
from any consideration of race, the Affected Area would attend Harriton
redistricting, i.e., to equalize the overall student enrollments between the two
high schools, and because it fulfilled the K-12 continuity goal the Board
those students living within the official LMHS walk zone, another priority
The mere fact that the District did not label these facts and arguments
as an “affirmative defense” does not alter the fact that they were sufficiently
56
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Third Circuit has held “that the failure to assert an affirmative defense in an
answer will not result in waiver if the opposing party has notice of the
F.3d 913, 925 n. 9 (3d Cir. 1997) (citing Charpentier v. Godsil, 937 F.2d
859, 864 (3d Cir. 1991) (“It has been held that a defendant does not waive an
and [the plaintiff] was not prejudiced in its ability to respond.”) (internal
quotations omitted).
inevitability defense because the “deck was racially ‘stacked’ in this case
from the outset” and in light of the District Court’s finding that the Affected
Area had been “targeted” in part because of its racial composition are
one can never prove the inevitability defense when race has been found to be
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Moreover, the District Court’s finding that the District “targeted” the
because of its racial demographics does not negate the fact that the District
would have chosen Plan 3R, and the Affected Area would have been
districted to attend Harriton High School under Plan 3R, even in the absence
of such “targeting.”
Appellants are well aware, they have never lived within the official Lower
Merion High School walk zone, which has been in place in its current form
at least since the 1990s. Appendix A43, n.18. The District Court properly
found that there was no evidence in the record to support the Appellants’
assertion that not expanding the official LMHS walk zone to include the
Affected Area, even though part of the Affected Area is within one mile of
44. It is Appellants’ burden to show that race motivated that decision, which
they failed to do. See, e.g., Davis v. Bandemer, 478 U.S. 109, 173 n.10
(1986) (“Our cases have construed the Equal Protection Clause to require
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omitted).
scenarios because of racial considerations fails to show that Plan 3R was not
inevitable. What matters is what plan was adopted by the Board, not what
once the Board recognized that K-12 educational continuity, which required
a 3-1-1 feeder pattern, was a priority, and that it should maintain walkability
(as defined in relation to those students residing within the official LMHS
walk zone), Plan 3R was the only plan that could meet these requirements.
three of which (Penn Valley, Gladwyne, and Belmont Hills) fed into Welsh
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Valley Middle School, and three of which (Cynwyd, Merion, Penn Wynne)
fed into Bala Cynwyd Middle School. These students were then split at the
high school level – (1) most of the students attending Penn Valley and
Cynwyd, Merion, and Penn Wynne Elementary Schools, along with small
areas of the Penn Valley and Belmont Hills feeder areas (including South
Consequently, the only way to fulfill the goal of educational continuity from
the three elementary schools that fed into Welsh Valley together attend one
high school, and to have the students attending the three elementary schools
that fed into Bala Cynwyd together attend the other high school. Since most
of the students attending the three elementary schools that fed into Welsh
students, not creating a need for new buses, and maintaining walkability as
defined by the official LMHS walk zone, it was only natural that the
Affected Area, which was one of the areas closest to Harriton that was not
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already districted to Harriton, and which did not fall within the official
to attend high school with their peers from Penn Valley Elementary and
Welsh Valley Middle School (with the exception of those in the historic
Lower Merion High School walk zone who elect to attend that high school),
from Penn Wynne Elementary School and Bala Cynwyd Middle School
The irony is that if the District had never looked at any race data
during the redistricting process, it still would have ended up with Plan 3R,
reside within Ardmore. As the Court found, both North Ardmore and the
Affected Area were “natural candidates for redistricting” because they were
the two areas geographically closest to Harriton that were not already
A87. Of these two areas, the Affected Area ultimately was chosen for
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would not have done so, since it would have split kids from the same
A89-A90.
claims pursuant to Title VI and 42 U.S.C. § 1981 fail because those statutes’
Clause, as the Supreme Court repeatedly has held. See Grutter, 539 U.S. at
343 (finding that because the Equal Protection Clause was not violated by
the law school admissions’ use of race, the petitioner’s statutory claims
under Title VI and § 1981 must also fail); Gratz, 539 U.S. at 276
U.S. 275, 280 (2001) (explaining that Title VI “proscribe[s] only those racial
62
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citations omitted); Gen. Bldg. Contractors Ass’n, Inc. v. Pa., 458 U.S. 375,
391 (1982) (applying same analysis for Equal Protection and § 1981). See
(E.D. Pa. June 3, 1996) (noting that to establish claim under § 1981, plaintiff
must allege facts showing intent to discriminate on basis of race, and finding
the testimony of Dr. Robert Jarvis and Dr. Claudia Lyles, they fail to show
how the ruling on such testimony prejudiced them and how a different ruling
would have changed the outcome of this case. The decision to admit or
discretion, which Appellants have not shown – and cannot show – in this
matter. See, e.g., Biessel v. Pittsburgh and Lake Erie R.R. Co., 801 F.2d
143 (3d Cir. 1986) (finding no abuse of discretion in trial court’s admission
of testimony of witness, even where witness’ name did not appear on list of
witnesses required by pretrial order). Counsel for the District did not learn
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of Dr. Robert Jarvis and Dr. Claudia Lyles until March 11, 2010, just one
day before it was required to file its Pretrial Memorandum, which listed
these and other proposed witnesses. Nevertheless, even if the District had
been aware of these witnesses beforehand, it is not clear that it was required
knowledge regarding the subject matter of this litigation, i.e., the District’s
educator who had worked with Dr. McGinley, and who had personal
issues such as the “achievement gap,” his advocacy for children of color and
deposition regarding these areas of inquiry, and the jobs he had held and the
districts within which had worked since college. Appellants could have
sought the identities of individuals with whom Dr. McGinley has worked,
64
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against them on the basis of race “by mandating that they attend Harriton
High School because they are minorities.” See Compl., ¶¶ 70, 75, 82.
e.g., Ansell v. Green Acres Contracting Co., Inc., 347 F.3d 515 (3d Cir.
over age of forty, where testimony was offered to rebut plaintiffs’ argument
workers and to establish that employer did not have a discriminatory intent
plaintiffs).
65
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order, as long as the witness and his testimony are within the scope of proper
rebuttal. See, e.g., Upshur v. Shepherd, 538 F. Supp. 1176, 1180 (E.D. Pa.
Court’s scheduling order and the Local Rules of Civil Procedure, allowing
Pennypack Woods, 559 F.2d 894, 904-905 (3d Cir. 1977) (reversing, in
racial discrimination case under Civil Rights Act of 1866 and Fair Housing
580 F.2d 1193, 1202 (3d Cir. 1978) (holding that exclusion of expert
testimony was reversible error, even though subject of testimony was not
did not disrupt trial, and there was no assertion that defendant exercised bad
faith).
66
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Consequently, even if the identities of Dr. Jarvis and Dr. Lyles were
disclosed pursuant to Rule 26(a)(1) or (e)); The Globe Savings Bank, F.S.B.
preclude government from calling witnesses who were not disclosed under
but rather their regulation of other particular thrifts); Cary Oil Co. v. MG
Ref. & Mktg., Inc., No. 99 Civ. 1725, 2003 WL 1878246, at *4-5 (S.D.N.Y.
April 11, 2003) (denying motion to strike expert opinion testimony even
though it was not contained in initial report in accordance with Fed. R. Civ.
opinions that defendants were only on notice of one month before trial).
67
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witnesses in its Pretrial Memorandum, just one day after it learned of them,
and one month before trial. The District also provided Appellants with
witnesses before or even during trial, as the District Court suggested, but
CONCLUSION
In asserting that the District Court erred in granting judgment in favor
of the District, Appellants appear to contend that the fact that the
Administration and/or the Board knew that the Affected Area has a high
limits for redistricting because then any decision to redistrict the Affected
however, Appellants are being treated the same as all other students – of all
within the same elementary and middle school feeder patterns who similarly
live outside the official Lower Merion High School walk zone. Therefore,
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Appellants would have this Court rule that any consideration of race is
achievement gap and racial isolation, including but not limited to clustering
69
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For these and the foregoing reasons, the District respectfully requests
that this Court affirm the decision of the District Court granting judgment in
favor of the District, and the decision of the District Court denying
Respectfully submitted,
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CERTIFICATE OF ADMISSION
CERTIFICATES OF COMPLIANCE
I, Judith E. Harris, an attorney, pursuant to Fed. R. App. P. 32(a)(7)(C)(i),
certify that the foregoing Brief of Appellees, Lower Merion School District,
complies with the typeface requirements of Fed.R.App.P. 32(a)(5) and the type
Appellate Procedure 32(a)(7)(B). The Brief contains 14,586 words, excluding the
parts of the Brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), and was prepared
L.A.R. 31.1(c) Certification: The text of the electronic version of this brief
is identical to the text in the paper copies of this brief. A virus detection program
(McAfee AntiVirus version 4.0) has been run on the file of this brief and no virus
was detected.
1
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CERTIFICATE OF SERVICE
I hereby certify that on this 5th day January, 2011, a digital version of the
Brief, was delivered by electronic mail, and on the 6th day of January, 2011 two
January 5, 2011