I?

retitiornePs,

v.

[[)ated: May 25, 2{9:12

242108

ARGilltfENT

On March 13, 2012, Petitioners, Students Doe 1 through 9, hereinafter referred to as "Students Doe," filed a Petition for a Writ of Certiorari with this Honorable Court in order to appeal the United States Court of Appeals for the Third Circuit's ruling entered on December 14,2011. After receiving an extension of time to file, Respondent, Lower Merion School District, hereinafter referred to as "LMSD," filed its Brief in Opposition on May 16, 2012. Students Doe now file this Reply Brief in accordance with Rule 15 of the Rules of the Supreme Court of the United States. Although Students Doe dealt with most of LMSD's arguments in its Petition, LMSD's filing raises four points that need further, brief comment. First, on page 10 of its Brief in Opposition, LMSD essentially admits that decision-makers in the School District split an Mrican American neighborhood, i.e. the Affected Area and North Ardmore, in order to insure that both of its high schools, Lower Merion High School and Harriton High School, had significant African American enrollment. This admission is deeply troubling on a number of levels. Initially, it confirms what Students Doe have been stating since filing this action in 2009, i.e. that African American students are treated differently in Lower Merion simply because they are African American in violation of the United States Constitution. It further confirms Students Doe's position that their assignment to Harriton High School was based on race, not geography. Moreover, LMSD's new position is inconsistent with LMSD's old position, that race played no part in its

2 redistricting decision-making. See LMSD's Third Circuit Brief filed of record on January 5, 2011, at pages 15 n.8, 25, 31-41, 50, and 54-55. Furthermore, LMSD's admission that it was engaging in racial balancing when redistricting its high schools has constitutional implications. This Honorable Court has already held that racial balancing is unconstitutional. See Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 732 (2007) ("The principle that racial balancing is not permitted is one of substance, not semantics. Racial balancing is not transformed from 'patently unconstitutional' to a compelling state interest simply by relabeling it 'racial diversity."' Id.); Grutter v. Bollinger, 539 U.S. 306, 330 (2003) (Outright racial balancing is "patently unconstitutional." Id.). Notwithstanding the foregoing, LMSD's admission calls into question whether the Third Circuit would still conclude that Students Doe and the District Court conflated the impact of the voluminous evidence presented at trial demonstrating that LMSD engaged in race based decision-making. To the contrary, LMSD's admission regarding racial balancing simply confirms what is stated in the voluminous evidence Students Doe introduced at trial. Second, LMSD's statements regarding the Lower Merion High School Walk Zone entirely gloss over the true walk zone issue in this case. While Students Doe may not have lived in the walk zone just prior to redistricting that fact is irrelevant because they had the right to attend either Lower Merion High School or Harriton High School at that time, as did their similarly situated peers in North Ardmore, and their similarly situated peers living in the walk zone. What is relevant and post redistrictin; policy in order to tr in the Affected Area Students in the Affe School instead of Lov Certiorari pages 38Superintendent's No School Director whE states that extendin; Area would mean mal at Harriton High Scl Third, LMSD's a candidate for review, : The case squarely pr1 racial balancing admi that this Honorable ( years ago, but which to date. See Washing 458 U.S. 457, 472 n. H Third Circuit will be l the Third Circuit im:r: of the District Cour1 decision-making, im Court's factual findi1 of review required u v. Metropolitan Ho 429 u.s. 252 (1977).: LMSD's assertion al: Court's legal findings are not supported by and that the redist: durational requirerr Court's precedents. I

LMSD's Third Circuit , 2011, at pages 15 n.8,

ion that it was engaging ing its high schools has Honorable Court has is unconstitutional. See r;hools v. Seattle School (2007) ("The principle ;ed is one of substance, r is not transformed co a compelling state diversity."' !d.); , 330 (2003) (Outright tconstitutional." !d.). LMSD's admission Third Circuit would nd the District Court us evidence presented in race based ', LMSD's admission onfirms what is stated tts Doe introduced at egarding the Lower ttirely gloss over the tile Students Doe may prior to redistricting tad the right to attend Harriton High School ;uated peers in North ed peers living in the

What is relevant is that in the redistricting process, and post redistricting, LMSD violated its own walk zone policy in order to truncate the reach of the walk zone in the Affected Area thereby forcing African American Students in the Affected Area to attend Harriton High School instead of Lower Merion High School. Petition for Certiorari pages 38-39. LMSD never addresses its own Superintendent's November 20, 2008, e-mail to its own School Director wherein the Superintendent explicitly states that extending the option zone into the Affected Area would mean many fewer African American Students at Harriton High School. Petition for Certiorari page 29. Third, LMSD's assertion that this case is not a good candidate for review, although predictable, is in fact wrong. The case squarely presents, especially in light of LMSD's racial balancing admission, an important civil rights issue that this Honorable Court recognized almost thirty (30) years ago, but which has not been definitively answered to date. See Washington v. Seattle School District No. 1, 458 U.S. 457,472 n.15 (1982). LMSD's confidence that the Third Circuit will be upheld on appeal ignores the fact that the Third Circuit improperly reviewed the determination of the District Court that race was a factor in LMSD's decision-making, improperly overturned the District Court's factual findings, and failed to conduct the type of review required under Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252 (1977). Petition for Certiorari pages 26-36. LMSD's assertion also ignores the fact that the District Court's legal findings regarding compelling state interests are not supported by this Honorable Court's precedent, and that the redistricting plan at issue violates the durational requirement mandated by this Honorable Court's precedents. Petition for Certiorari page 23-25.

Finally, LMSD's most concerning argument is its plea to let this case pass in order to address the matters at issue herein at a later date in another, better case. This argument is shockingly similar to the attitude expressed by the laggard and malfeasant school districts this Honorable Court dressed down in Green v. County School Board of New Kent County, 391 U.S. 430 (1968). Ignoring racial discrimination does not solve it, it allows it to fester, and in a sense it empowers it. As the post-Brown era demonstrates, action by this Honorable Court solves racial discrimination. There are simply too many children whose constitutional rights are at stake all over this country to wait for another or better case to come along. School children have waited thirty (30) years since Washington v. Seattle School District No. 1, 458 U.S. 457, for the better case to come along, and it has not come until now. The time has come to determine whether the Constitution of these United States is still truly "color-blind."

For the reasons : for the reasons set fc Writ of Certiorari, t Students Doe's pendj

.J.

Dated: May 25, 2012

5 ning argument is its plea address the matters at tother, better case. This J the attitude expressed .t school districts this . Green v. County School

CONCLUSION
For the reasons set forth in this present Reply, and for the reasons set forth in Students Doe's Petition for a Writ of Certiorari, this Honorable Court should grant Students Doe's pending Petition. Respectfully submitted,

u.s. 430 (1968).

.on does not solve it, it it empowers it. As the dion by this Honorable n. There are simply too nal rights are at stake another or better case 1ave waited thirty (30) :le School District No. ;e to come along, and it has come to determine e United States is still

DAVID

G. c. ARNOLD Counsel of Record 920 Matsonford Road, Suite 106 Conshohocken, PA 19428
(610) 397-0722

Davidgcarnold@aol.com
Attorney for Petitioners

Dated: May 25, 2012