Beruflich Dokumente
Kultur Dokumente
In The
Third Circuit
Case No. 10-3824
TABLE OF CONTENTS
Page
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TABLE OF AUTHORITIES
Page(s)
Cases:
Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995) ............................................................................... 4, 17
Brown v. Board of Education,
347 U.S. 483 (1954) ............................................................................... 4, 19
Carpenter v. Godsil,
937 F.3d 859 (3d Cir. 1991) ................................................................... 14
Chainey v. Street,
523 F.3d 200 (3d Cir. 2008) ................................................................... 14, 15
EF Operating Corporation v. American Buildings,
933 F.2d 1046 (3d Cir. 1993) ................................................................. 2, 11
G-1 Holdings, Inc. v. Reliance Insurance Company,
586 F.2d 247 (3d Cir. 2009) ................................................................... 11
Gratz v. Bollinger,
539 U.S. 244 (2003) ............................................................................... 4, 17
Grutter v. Bollinger,
539 U.S. 306 (2003) .......................................................................... passim
Interstate Commerce Commission v. American Railway Express
Company,
265 U.S. 425 (1924)................................................................................ 2
Johnson v. California,
543 U.S. 499 (2005)............................................................................ 4, 17, 18
Marks v. United States,
430 U.S. 188 (1977)................................................................................ 5
Parents Involved in Community Schools v. Seattle School District No. 1,
551 U.S. 701 (2007).......................................................................... passim
Plessy v. Ferguson,
163 U.S. 537 (1896)................................................................................ 19
Pryor v. National Collegiate Athletic Association,
288 F.3d 548 (3d Cir. 2002) ............................................................. passim
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ARGUMENT
Appellants, Students Doe 1 through 9, now file the present Reply Brief in
accordance with Rule 28(c) of the Federal Rules of Appellate Procedure, and in
accordance with the Briefing and Scheduling Order entered by this Honorable
Court. Appellee, Lower Merion School District, argues in its Brief that the District
Court improperly found that race was a factor in its decision-making, that its
School District No. 1, 551 U.S. 701 (2007), that its redistricting actions survive
review under the strict scrutiny test, that it did not waive and in fact proved an
"inevitability" defense, that the testimony of Drs. Lyles and Jarvis was properly
admitted into evidence at trial, and that Students Doe's alternate bases for relief
under 42 U.S.C. Section 1981, and Title VI of the Civil Rights Act, 42 U.S.C.
The NAACP Legal Defense & Educational Fund, Inc., the Lawyers'
Committee for Civil Rights Under Law, and the American Civil Liberties Union
Joint Amicus Curiae Brief in which they assert that Justice Kennedy's concurrence
in Seattle School District is controlling on the issues presented, that strict scrutiny
should not be applied in light of Justice Kennedy's concurrence, and that school
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districts do not violate the Fourteenth Amendment when they seek to achieve
testimony is set forth in its entirety in their previously filed Brief on pages 48-49.
Out of respect for this Honorable Court's time, Students Doe will not repeat their
arguments herein. Because Lower Merion, and the ACLU Amici's positions
actions on appeal call into question whether it is in fact entitled to raise some of its
arguments in the first place. Students Doe timely filed a Joint Notice of Appeal on
September 16, 2010. Appendix A100-A103. Lower Merion thereafter never filed a
rulings of the District Court may not have been properly preserved for appeal
because Lower Merion is seeking at this point to enlarge its rights and/or lessen the
Corporation v. American Buildings, 933 F.2d 1046, 1048-1049 (3d Cir. 1993);
R.G. Speaks v. Trikora, 838 F.2d 1436, 1439 (5th Cir. 1988).
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concerning the District Court's factual findings that race was a factor in decision-
National Collegiate Athletic Association, 288 F.3d 548 (3d Cir. 2002). The ACLU
Amici's would in turn be limited by any ruling that Lower Merion failed to
Even if it is found that Lower Merion may contest the District Court's
arguments on this point are without merit. The District Court's Findings of Fact are
indicates that the District Court had ample bases to conclude that race was a factor
certain portions of the District Court's Findings of Fact in their previously filed
threshold legal and factual deficiencies in the argument that become apparent when
First, although Lower Merion and the ACLU Amici tout the end of strict
scrutiny in cases like this, the demise of the strict scrutiny test is greatly
have to overturn or ignore the Supreme Court's decisions in Seattle School District,
551 U.S. 701, Johnson v. California, 543 U.S. 499 (2005), Gratz v. Bollinger, 539
U.S. 244 (2003), Grutter v. Bollinger, 539 U.S. 306 (2003), Adarand Constructors,
Inc. v. Pena, 515 U.S. 200 (1995), Village of Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S. 252 (1977), and Brown v. Board of
Education, 347 U.S. 483 (1954), as well as overturn or ignore this Honorable
Court's own decision in Pryor v National Collegiate Athletic Association, 288 F.3d
548.
Second, an informed reading of Seattle School District will reveal that all
nine (9) justices agree that strict scrutiny should apply. Chief Justice Roberts
clearly states in his plurality opinion that strict scrutiny applies, and that the
narrowly tailored manner. Seattle School District, 551 U.S. at 708-748. Justice
Thomas comes to the same conclusion in his concurrence. Id. at 748-782. In his
concurrence, Justice Kennedy finds that strict scrutiny applies, but that in some
instances the goal of diversity can be a compelling state interest. Justice Kennedy
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then goes on to find that the student assignment plans at issue do not meet the
After arguing at length as to why strict scrutiny should not apply in cases
like the instant matter, Justice Breyer states in his dissent, "Nonetheless, in light of
Grutter and other precedents, see, e.g., Bakke,...I shall adopt the first alternative. I
shall apply the version of strict scrutiny that those cases embody. I shall
consequently ask whether the school boards in Seattle and Louisville adopted these
plans to serve a 'compelling governmental interest' and, if so, whether the plans are
'narrowly tailored' to achieve that interest. If the plans survive this strict review,
they would survive less exacting review a fortiori." Id. at 837. Justice Breyer then
found that Seattle and Louisville's student assignment plans survived strict
scrutiny. Id. at 838-869. Justice Stevens, Justice Ginsburg, and Justice Souter
joined in Justice Breyer's dissent. The foregoing should foreclose any argument
under Marks v. United States, 430 U.S. 188 (1977), that strict scrutiny does not
the true Marks issue presented in this case is not whether strict scrutiny applies;
instead, the issue is whether the goal of achieving diversity can constitute a
any compelling state interest, see Students Doe's previously filed Brief at pages
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45-50, and its continuing unexplained denial that it took race into account when
redistricting, this Honorable Court does not have to resolve whether the goal of
That issue is better left to a day when a school district unequivocally admits,
and then properly defends the issue in a school redistricting case, thereby placing
the issue squarely before the Court. When considering the diversity issue, it must
be kept in mind that the Supreme Court has never clearly indicated that the goal of
institution of higher learning, i.e. one above the high school level, sought to use
race in conjunction with a number of other factors in order to truly diversify its
student body. Seattle School District, 551 U.S. at 722; Grutter, 539 U.S. 306.
Just so the record is clear, the diversity Lower Merion sought is entirely
different then the type of diversity found acceptable at the graduate school level in
Grutter v. Bollinger, 539 U.S. 306. This argument is made notwithstanding Lower
Merion's repeated denials that race was a factor in decision-making, and that
Lower Merion can somehow establish through proper citation to the record, a task
it has declined to undertake so far, that it was seeking to increase diversity when
redistricting. The type of diversity the University of Michigan Law School used
status, and economic status, but targeted Students Doe's neighborhood for racial
reasons. Appendix A65, A2118, A2141, and A2158. It should be noted that it has
always been Students Doe's contention that districting students on the basis of
U.S.C. Section 794; Plaintiff's Proposed Findings of Fact and Conclusions of Law
School Directors admitted during trial that they never took into consideration many
of the diversifying factors used by the University of Michigan, and which were at
Lower Merion and the ACLU Amici's focus on the difference between
Seattle School District, merits some additional attention. First, the contention
ignores entirely the fact that Lower Merion's redistricting plan is far more
pernicious than either the Seattle or Louisville plans struck down in Seattle School
District. See Students Doe's previously filed Brief at pages 39-40. Second, the
contention further ignores the fact that in a school district where only
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approximately ten percent (10%) of the high school student population is African
American, over twenty five percent (25%) of the high school students moved due
to redistricting in the very first year were African American. Appendix A2118,
Lower Merion's related argument that African American and other non-
redistricting, Lower Merion had to move seven hundred (700) children. There are
only two hundred and twenty eight (228) African American children at the high
school level in the entire district. Appendix A2118, A2141, A2158, and Appellee's
in fact demand additional consideration of whether Title VI, 42 U.S.C. § 2000 et.
seq., and 42 U.S.C. § 1981's protections are in fact co-extensive, and not broader,
than the protections under the Fourteenth Amendment. As Students Doe noted in
their previously filled Brief at page 64, the Supreme Court addressed this issue in
Grutter, and came to the conclusion that 42 U.S.C. § 1981 and Title VI offered no
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438 U.S. 265 (1978). See Grutter, 539 U.S. 343. A review of Justice Powell's
discussion of the scope of Title VI in Bakke, and the legislative history cited
therein, does not indicate that Congress enacted Title VI with the view that it
Bakke, 438 U.S. at 281-287. Both Title VI and 42 U.S.C. § 1981 outlaw all racial
discrimination. See 42 U.S.C. § 1981 (“All persons within the jurisdiction of the
United States shall have the same right in every State and Territory … to the full
and equal benefit of all laws and proceedings ….” Id. at § 1981(a); 42 U.S.C. §
2000d (“No person in the United States shall, on the ground of race, color, or
national origin, be excluded from participation in, be denied the benefits of, or be
The ACLU Amici's position in this case also invites one additional
comment. A consideration of the ACLU Amici's position in its entirety will reveal
that they are actually advocating a view that constitutional protections should be
minority citizens. This position has not been adopted by the Supreme Court. As
this Honorable Court stated in Pryor, "Moreover, contrary to the assertions made in
the NCAA's brief, none of the case law it cited, much less Supreme Court case law,
absolves a decisionmaker from liability simply because it considered race for the
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Court has made clear that considerations of race, well intentioned or not, can still
at 560-561.
survive review under strict scrutiny, several additional comments are appropriate
even though Students Doe have thoroughly discussed the issue in their previously
filed Brief at pages 36 through 57. First, although Lower Merion states in its Brief
that it used race-based redistricting to prevent racial isolation and combat the
achievement gap, it fails to cite where it did so in the trial record, Appellee's Brief
at pages 47-48, and a review of the trial record clearly indicates that Lower Merion
never took such a position. Lower Merion's assertion without citation to the record
is a violation of Rule 28.3(c) of the Third Circuit Local Appellate Rules. As noted
in Students Doe's prior Brief, Dr. McGinely unequivocally testified at trial that
race was not a factor in Lower Merion's decision-making, that Lower Merion did
not redistrict on the basis of race to prevent racial isolation or to solve the
achievement gap, and that it was unnecessary to redistrict in order to solve these
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wishes to argue this same point, one which it did not preserve for appeal by filing a
cross appeal, to this Honorable Court while still contending that it sought somehow
Merion's argument that dooms its position on strict scrutiny, and supports the view
statements concerning compelling state interest and achieving racial diversity until
another day.
of the underlying facts in G-1 Holdings, Inc. v. Reliance Insurance Company, 586
F.2d 247 (3d Cir. 2009), one has to appreciate that the insurance carrier’s change in
position in that case occurred early on in the pre-trial stages of the litigation, and
the Court never relied on said position. Id. At 260-263. Lower Merion's change of
heart occurred in the post-trial phase of the present case, after the District Court
Corporation, "It goes without saying that one cannot casually [cast] aside
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Second, it is worth noting that the ACLU Amici agree with Students Doe
that the goals of equalizing high school enrollment, minimizing travel times and
not race related, and do not constitute compelling state interests. See Students
Doe's previously filed Brief at pages 50 through 52; ACLU Amici's Brief page 27n
17. Third, Lower Merion's criticism of Students Doe's narrow tailoring argument
about magnet programs is misplaced. While Students Doe acknowledge that Lower
Doe's contentions were related solely to the issue of magnet programs created to
attract African American children to Harriton High School. Lower Merion never
testified about such programs because it consistently testified at trail that race was
regarding the duration issue in Grutter, 539 U.S. at 341-342, as dicta, are incorrect.
race was a factor in its development. Id. Moreover, neither the majority or minority
opinions in Grutter characterize the durational requirement as dicta. See Id. at 341-
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termination point assures all citizens that the deviation from the norm of equal
treatment of all racial and ethnic groups is a temporary matter, a measure taken in
the service of the goal of equality itself." Id. at 341 (Majority Opinion) (internal
quotations omitted)); Id. at 369 ("Finally, I believe that the Law School's program
fails strict scrutiny because it is devoid of any reasonably precise time limit on the
time--is casually subverted." Id. (Chief Justice Rehnquist in dissent)); Id. at 370-
371 ("The Court will not even deign to make the Law School try other methods,
And the same Court that had the courage to order the desegregation of all public
schools in the South now fears, on the basis of platitudes rather than principle, to
force the Law School to abandon a decidedly imperfect admissions regime that
provides the basis for racial discrimination." Id. (Justice Thomas in dissent)).
Concerning the inevitability defense, Lower Merion contends that it did not
waive the defense, and actually proved the defense at trial. Students Doe have
discussed the aforementioned issue at length in their previously filed Brief at pages
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57 through 62. However, several additional points are in order in light of Lower
Merion's arguments.
First, Lower Merion has in essence conceded in its argument that it never
Procedure, and that it never sought leave from the District Court to amend its
answer as required under Rule 15 of the Federal Rules of Civil Procedure. Lower
time citing Woodson v. Scott Paper Co., 109 F.3d 913 (3d Cir. 1997), and
However, once again Lower Merion never directs this Honorable Court to
exactly where in the record it placed Students Doe on notice in direct violation of
Rule 28.3(c) of the Third Circuit Local Appellate Rules. See Appellee's Brief
pages 55-57. Moreover, in both Woodson and Carpenter the plaintiff was put on
notice of the affirmative defense before trial. Woodson, 109 F.3d at 924n 9;
Carpenter, 937 F.2d at 864. In this case, the defense did not arise until after trial
was concluded. See Students Doe's previously filed Brief page 58.
This Honorable Court held in Chainey v. Street, 523 F.3d 200 (3d Cir.
2008), that a party would not be allowed to raise an affirmative defense after trial
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defenses in his answer is to avoid surprise and undue prejudice by providing the
plaintiff with notice and the opportunity to demonstrate why the affirmative
defense should not succeed...Permitting the limitations defense after the close of all
evidence contradicts the articulated purpose of the rule.” Id. at 209n 5 (internal
quotations and citations omitted). Lower Merion cites absolutely no authority for
the proposition that its unsuccessful liability defense somehow transformed itself
into a viable affirmative defense when it failed to plead it and/or sought leave to
application is too speculative in this case. Lower Merion indicates in its own Brief
that the plan selection process was in part directed by community influence.
Appellee's Brief pages 15-24. The community's position on the plans was dictated
by the potential plans presented, and the information Lower Merion provided.
Racial decision-making was factored into every potential plan presented to the
public. Moreover, Lower Merion hid information from the public about its race
based decision-making. To assume the public would have made the same demands
of Lower Merion if the process were in fact "color blind" is inappropriate. See
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redistricting process, no one can reasonably know whether there are any race
neutral plans that could have been adopted creating a result different from Plan 3R.
According to the Supreme Court's decision in Arlington Heights, 429 U.S. at 270n
the Affected Area to Harriton High School warrants some clarification. Proximity
to Harriton High School in this case is determined using two (2) different factors.
The first factor is whether the student lives within the Lower Merion High School
Walk Zone. If the student lives within the Walk Zone, the analysis stops because
he/she has choice to determine whether he/she wants to go to Lower Merion High
School or Harriton High School. If the student does not live within the Walk Zone
then one simply considers his/her distance from Harriton High School. Appendix
A2161-A2176.
When Lower Merion asserts that the Affected Area was the closest available
without explanation or disclosure that the threshold Lower Merion High School
Walk Zone qualification is being used. A simple look at the map without
consideration of the Walk Zone will indicate that there are a number of
of the Affected Area to Harriton High School misleading is that the Lower Merion
High School Walk Zone was truncated in the Affected Area, and does not extend
one (1) mile contrary to Lower Merion's written Transportation Policy. If the Walk
Zone extended one (1) mile into the Affected Area like it is supposed to, a number
of the Students Doe would live within the Walk Zone, and thereby have their
choice to attend Lower Merion High School or Harriton High School. See Students
Finally, the positions taken by Lower Merion and the ACLU Amici in the
present case certainly beg the following question, why at this point in time should
this Honorable Court lessen the Fourteenth Amendment's protections against racial
discrimination? If nothing else, the fact patterns in Seattle School District, 551
U.S. 701, Johnson v. California, 543 U.S. 499, Gratz v. Bollinger, 539 U.S. 244,
Grutter v. Bollinger, 539 U.S. 306, Adarand Constructors, Inc. v. Pena, 515 U.S.
200, and Pryor v National Collegiate Athletic Association, 288 F.3d 548, all
demonstrate that race based decision-making has not gone away yet, and will not
Moreover, the Supreme Court has recited at length in these cases the harm
we as a people suffer when race is the basis for decision-making. This discussion
simply cannot be ignored. Chief Justice Roberts stated in Seattle School District
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that “one form of injury under the Equal Protection Clause is being forced to
compete in a race based system that may prejudice the plaintiff.” Seattle School
District, 551 U.S. at 719 (emphasis added) (Part II of Chief Justice Roberts’
solely because of their ancestry are by their very nature odious to a free people
whose institutions are founded upon the doctrine of equality.” Id. at 745 (internal
citations and quotations omitted). Chief Justice Roberts then warned that
The Supreme Court stated in Johnson, “As we have recognized in the past,
membership in a racial group and to incite racial hostility.” Johnson, 543 U.S. at
507 (internal citations and quotations omitted). The Supreme Court also stated in
Grutter, “As we have explained, whenever the government treats any person
unequally because of his or her race, that person has suffered an injury that falls
squarely within the language and spirit of the Constitution’s guarantee of equal
protection.” Grutter, 539 U.S. 327 (emphasis added) (internal citations and
would give school boards a free hand to make decisions on the basis of race—an
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interest, a point which is not yet ripe for disposition due to Lower Merion's
consequences which go far beyond particular cases. One can only be comfortable
one is confident that it will in turn not lead to more racial discrimination.
Unfortunately, the history of Civil Rights in this country, and the hard fought for
gains realized since Brown v. Board of Education, 347 U.S. 483, do not provide
such assurances.
cases haunt the Civil Rights Jurisprudence of this country, and embarrasses us all
to this day. See e.g. Plessy v. Ferguson, 163 U.S. 537. Justice Harlan’s prophetic
warning in Plessy, despite being written over one hundred (100) years ago, still has
value today, “In my opinion, the judgment this day rendered will, in time, prove to
be quite as pernicious as the decision made by this tribunal in the Dred Scott case.”
Id. at 264. Chief Justice John Roberts concluded his plurality decision in Seattle
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School District with the following thought provoking comment, "The way to stop
CONCLUSION
For all the foregoing reasons as well as for the reasons set forth in Students
Doe’s previously filed Brief, it is respectfully requested that this Honorable Court
reject the arguments set forth by Appellee, Lower Merion School District, and
Amici Curiae, NAACP Legal Defense & Educational Fund, Inc., the Lawyers'
Committee for Civil Rights Under Law, and the American Civil Liberties Union
Foundation. It is further respectfully requested that this Honorable Court grant the
Respectfully submitted,
contains 4,538 words, excluding the parts of the brief exempted by Rule
the Federal Rules of Appellate Procedure and the type style requirements of
Rule 32(a)(6) of the Federal Rules of Appellate Procedure because this brief
has been prepared in a proportionally spaced typeface using the 2008 version
Rule 31.1(c) because the text of this electronic brief is identical to the text of
the paper copies, and the Vipre Virus Protection, version 3.1 has been run
on the file containing the electronic version of this brief and no viruses have
been detected.
AFFIDAVIT OF SERVICE
vs.
I, , swear under the pain and penalty of perjury, that according to law and
being over the age of 18, upon my oath depose and say that:
I served the Reply Brief for Appellants within in the above captioned matter upon:
via electronic filing and electronic service. as well as, Express Mail by depositing 2 copies of same,
enclosed in a post-paid, properly addressed wrapper, in an official depository maintained by United States
Postal Service.
Unless otherwise noted, copies have been sent to the court on the same date as above for filing via Express
Mail.
Service List