Case 2:09-cv-02095-MMB Document 129 Filed 08/05/10 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Student Doe 1 by and through his :

Parents/Guardians Does 1 and 2, :
et al. :
: CASE NO. 2:09-cv-02095-MMB
Plaintiffs, :
:
:
v. :
:
: ELECTRONICALLY FILED
Lower Merion School District, :
:
Defendant. :

DEFENDANT’S BRIEF IN OPPOSITION TO PLAINTIFF’S

MOTION FOR A NEW TRIAL

Judith E. Harris (PA I.D. No. 02358)

Christina Joy F. Grese (PA I.D. No. 200727)
Allison N. Suflas (PA I.D. No. 204448)
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103
215-963-5028/5085/5752

Kenneth A. Roos, Esquire

Megan E. Shafer, Esquire
WISLER PEARLSTINE, LLP
484 Norristown Road
Blue Bell, PA 19422
610-825-8400

Dated: August 5, 2010 Attorneys for Defendant

Lower Merion School District
 Case 2:09-cv-02095-MMB Document 129 Filed 08/05/10 Page 2 of 16

Defendant Lower Merion School District (the “District”), by its attorneys,

respectfully submits this brief in opposition to Plaintiffs’ Motion for a New Trial.

I. INTRODUCTION

This court has invested a substantial amount of time and resources hearing and

evaluating the facts and arguments in support of Plaintiffs’ race discrimination claims

against the District. The Court first evaluated Plaintiffs’ claims when it reviewed full

briefing by both parties on the District’s Motion for Summary Judgment. On February

25, 2010, the Court issued a detailed, 25-page decision denying the Motion, reasoning

that trial was necessary to flesh out the facts, and noting that it was particularly reluctant

to grant summary judgment and to deny Plaintiffs the right to trial in this case, which

involves issues of public policy and great concern to the community. The Court reached

this decision primarily in reliance on Village of Arlington Heights v. Metro. Housing

Dev. Corp., 429 U.S. 252 (1977), a case proffered by Plaintiffs. Dkt. No. 53, at 24-25.

The Court next held a 9-day bench trial in which both sides were permitted

opening statements. The Court heard evidence from 25 witnesses called by Plaintiffs.

The Court then heard testimony from two additional witnesses proffered by the District,

and, at the conclusion of the evidence, permitted both parties to make lengthy closing

arguments. Finally, after issuing lengthy factual findings on May 13, 2010, the Court

entertained post-trial briefing by both sides on the legal issues and subsequently held oral

argument on those very same issues on June 4, 2010. After oral argument, the Court

allowed the parties an additional opportunity to submit a letter to the Court concerning

additional points raised during oral argument, which Plaintiffs did on June 11, 2010.

After considering all of the above evidence and arguments, on June 24, 2010, the Court

issued a 31-page decision entering judgment in favor of the District.

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Plaintiffs have not provided any compelling reason why the Court should now

question its sound discretion and undo its well-reasoned decision. For these reasons and

those set forth more fully below, this Court should deny Plaintiffs’ Motion for a New

Trial and affirm its decision in favor of the District.

II. ARGUMENT

A. Legal Standard

A party seeking a new trial under Fed. R. Civ. P. 59 carries an extraordinarily

heavy burden. It must demonstrate that a new trial is “required to prevent injustice or to

correct a verdict that was against the weight of the evidence.” American Bearing Co. v.

Litton Indus., Inc., 729 F.2d 943, 948 (3d cir. 1984), cert. denied, 469 U.S. 854 (1984);

Roebuck v. Drexel Univ., 852 F.2d 715, 736 (3d Cir. 1988). See also Anderson v.

Consolidated Rail Corp., No. CIV.A. 98-6043, 2001 WL 177068, at *2 (E.D. Pa. Jan. 26,

2001). In a non-jury case, as here, a motion for a new trial must be based “upon manifest

error of law or mistake of fact, and a judgment should not be set aside except for

substantial reason.” WRIGHT & MILLER, 11 Fed. Prac. & Proc. 2d § 2804 (2005)

(emphasis added); see also Moore, Moore’s Federal Practice, § 59.13[3][a] (same).

The authority of a trial court to grant a new trial “is confided almost entirely to the

exercise of [its] discretion.” American Bearing Co., 729 F.2d at 948. When determining

whether to grant a motion for a new trial, a “court should be most reluctant to set aside

that which it has previously decided.” Libatti v. United States, 178 F.3d 114, 118 (2d

Cir. 1999) (citing Arizona v. California, 460 U.S. 605, 618 n.8 (1983)), and “must ‘view

all the evidence and inferences reasonably drawn therefrom in the light most favorable to

the party with the verdict.’” Ferguson v. Univ. of Pennsylvania, Civ. A. No. 95-938,

1996 U.S. Dist. LEXIS 10910, at *10 (emphasis added) (quoting Marino v. Ballestas, 749

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F.2d 162, 167 (3d Cir. 1984)). These “rigorous restrictions imposed on the granting of a

new trial” are critical to uphold the “important policies of conserving ever-dwindling

judicial resources and promoting judicial efficiency.” Burzynski v. Travers, 111 F.R.D.

15, 18 (E.D.N.Y.), aff’d without op., 833 F.3d 1002 (2d Cir. 1986).

Notably, a motion for new trial is not meant to be an avenue to rehash or relitigate

legal principles and arguments already presented to and rejected by the court. “The

authorities generally recognize that a new trial should not be granted where it is obvious

that it would serve no purpose except to relitigate issues which have been correctly and

finally determined. In considering a motion for a new trial the court must determine

whether or not the reasons advanced indicate that a substantial injustice has been done by

improper action on the part of the court or jury, and also indicates that a new trial will

amount to more than a mere relitigation of the issues.” Wilson v. Nu-Car Carriers, Inc.,

158 F. Supp. 127, 129-30 (M.D. Pa. 1958) (quoting Miller v. Pacific Mutual Life Ins.

Co., 17 F.R.D. 121, 124 (W.D. Mich. 1954)). As one court has succinctly observed,

“[d]istrict court opinion[s] are not intended as mere first drafts, subject to reconsideration

at a litigant’s pleasure.” Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R.D.

282, 288 (N.D. Ill. 1988).

Plaintiffs have failed to show that they are entitled to a new trial under these

stringent standards. Accordingly, the Court should deny Plaintiffs’ Motion for a New

Trial.

B. The Court Did Not Find that Strict Scrutiny Was Mandated

As a preliminary matter, contrary to Plaintiffs’ assertion, the Court did not find

that application of strict scrutiny was “mandated” in this case. Indeed, the Court

distinguished the Supreme Court cases relied upon by Plaintiffs in support of their

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argument for strict scrutiny, i.e., Parents Involved in Community Schools v. Seattle

School District, 551 U.S. 701 (2007) (“Seattle”), Adarand Constructors v. Pena, 515 U.S.

200 (1995), Gratz v. Bollinger, 539 U.S. 244 (2003), and Johnson v. California, 543 U.S.

499 (2005), recognizing, as it had done previously, that these cases are distinguishable

from the case at hand, as they involved actions that expressly employed individual racial

classifications, whereas this case involves a facially neutral redistricting plan and facially

neutral redistricting guidelines and no individual racial classifications. Dkt. No. 121 at 9,

11, 14. The Court further distinguished these cases on the grounds that they allocated

benefits and burdens based on individual racial classifications, see Dkt. No. 121 at 11,

which is not the case here.

Indeed, the Court stated that “the Supreme Court cases relied upon by Plaintiffs

are distinguishable, indicating that strict scrutiny may not be the operative standard to

evaluate the constitutionality of the District’s January 2009 redistricting.” Dkt. No. 121,

at 6-7 (emphasis added). See also Dkt. No. 121 at 5 (“If strict scrutiny applies to this

case, the Court must determine whether the inclusion of a particular geographic area due

to its racial makeup violates the Equal protection Clause, or whether the District has

shown that the same redistricting plan would have been adopted absent such a

concentration of African-American students.”) (emphasis added).

Moreover, even though the Court ultimately applied strict scrutiny in light of the

Third Circuit’s decision in Pryor v. National Collegiate Athletic Ass’n, 288 F.3d 548 (3d

Cir. 2002), it noted that language in Adarand “indicates that the Supreme Court did not

intend for strict scrutiny to be applied to cases such as Arlington Heights, Pryor, or this

case, in which the challenged policies do not expressly employ ‘individual racial

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classifications.’” Dkt. No. 121 at 16, n.7. The Court similarly questioned whether

application of strict scrutiny under Pryor was valid in light of Seattle. Id. at 15, n.6

(“Seattle’s focus on applying strict scrutiny to student assignment and placement

programs only involving individual racial classifications calls into question whether

Pryor’s pronouncement on the broad applicability of strict scrutiny to policies motivated

in part on race, applies to student assignment plans that do not involve individual racial

classifications.”).

Nevertheless, “[a]ssuming that the District’s consideration of the Affected Area’s

racial demographics in assigning students from that neighborhood to Harriton is

considered evidence that race was a motivating factor during redistricting,” the Court

applied strict scrutiny. Dkt. No. 121 at 17 (emphasis added). At the same time, however,

the Court expressly recognized that “no congressional statute or Supreme Court

precedent provides that the mere consideration of a neighborhood’s racial demographics

in assigning students to schools constitutes decisionmaking in which race has been a

motivating factor.” Id. at n.8.

C. The Court Properly Found that the District Demonstrated

Compelling State Interests

After giving Plaintiffs every benefit of the doubt and applying strict scrutiny

(although not mandated), the Court found, based on the record evidence and testimony

elicited after nine days of trial, that the redistricting in question survived such review, as

the District had demonstrated that Plan 3R was the only redistricting plan that

simultaneously met the following compelling educational interests identified by the

District: (1) equalizing the populations at the two high schools; (b) minimizing travel

time and transportation costs; (3) fostering educational continuity; and (4) fostering

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walkability, as defined by reference to living within the official, historic Lower Merion

High School walk zone. Dkt. No. 121 at 21.1 The Court also found that other legitimate

factors motivated the Administration to act as it did, including the goals of helping

students achieve educational excellence, . . . and also closing the achievement gap that

the Administration perceived to exist between African–American and white students.

Dkt. No. 114 at 51 (emphasis added). See also Dkt. No. 121 at 29-30.

Plaintiffs’ contention that the interests identified by the District (a) do not fall

within the categories of compelling state interests recognized by the Supreme Court in

situations where student school assignments are based upon race, and (b) cannot be

considered “compelling” when measured against other interests recognized by the

Supreme Court, should be rejected. As an initial matter, and as the Court found, this case

does not involve individual student assignments based upon race. Moreover, the

Supreme Court’s recognition of certain interests as “compelling” does not preclude the

existence of other compelling interests, and Plaintiffs fail to cite any authority that would

indicate otherwise. Seattle did not rule out diversity as a compelling government interest

outside the higher education context, and, indeed, five Justices in Seattle agreed that

diversity and reducing racial isolation in the secondary education context are compelling

government interests. See 551 U.S. at 788, 790, 864-66.

1 In a footnote, Plaintiffs cite Seattle, 551 U.S. at 720, for the proposition that “the stated goal has to
bear a relationship to a race based policy in order to survive a strict scrutiny challenge” and
concludes that none of the goals identified by the Court, i.e., equalizing the populations at the two
high schools, minimizing travel time and transportation costs, fostering educational continuity,
and fostering walkability, bear such a relationship. Dkt No. 127-2 at 7, n.3. Notably, however,
the language relied upon by Plaintiffs reads as follows: “[T]he school districts must demonstrate
that the use of individual racial classifications in the assignment plans here under review is
‘narrowly tailored’ to achieve a ‘compelling’ government interest.” 551 U.S. at 720. As
previously stated and repeatedly recognized by this Court, the instant matter did not involve a
student assignment plan and did not involve individual racial classifications; consequently, it does
not fit the mold of Seattle or the other Supreme Court precedents relied upon by Plaintiffs.

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D. The District Was Not Precluded From Arguing Both That Race Was
Not a Factor in Redistricting and that, To the Extent that It Did
Consider Race, It Did So to Achieve a Compelling State Interest

The District has maintained 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 it did consider race in the redistricting process, it did so in an appropriate

and legally permissible manner. This position does not preclude it from arguing, and is

entirely consistent with its position, that Plan 3R and any consideration of race in

connection with Plan 3R were narrowly tailored to achieve compelling government

interests. Notably, Plaintiffs fail to proffer any applicable case law holding otherwise.

The one case they do cite in purported support of their argument that these defenses are

mutually exclusive, G-1 Holdings, Inc. v. Reliance Insurance Co., 586 F.3d 247 (3d Cir.

2009), is inapposite, as it did not involve an equal protection analysis, or any claim of

discrimination, for that matter. Instead, in G-1 Holdings the 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 Third Circuit, judicial estoppel is generally not appropriate

where the defending party did not convince the District Court to accept its earlier

position. 568 F.3d at 262. Here, Judge Baylson found that race was one of several

motivating factors in the Administration’s consideration and formulation of redistricting

plans; therefore, judicial estoppel does not operate to preclude the District from arguing

that Plan 3R and any consideration of race in redistricting were narrowly tailored to

achieve compelling government interests.2

2
Plaintiffs 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

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E. There Is Ample Record Evidence Supporting the Court’s

Conclusion that Redistricting Took Race into Account Only to
Address Achievement Gap and Racial Isolation Issues

Contrary to Plaintiffs’ arguments, there is ample evidence in the record from

which the Court could conclude that to the extent the District took race into account in

the redistricting process, it did so to address the empirically measured “achievement gap”

between African-American students and their peers of other racial and ethnic

backgrounds and “racial isolation” that African-American students may experience. As

the Court noted in its Factual Findings, “legitimate factors motivated the Administration

to act as it did, including the goals of helping students achieve educational excellence,

attaining equal student populations at the two high schools, minimizing travel time,

developing the 3–1–1 feeder pattern, and also closing the achievement gap that the

Administration perceived to exist between African–American and white students. Dkt.

No. 114. at 51 (emphasis added).

Moreover, at trial Dr. McGinley testified at length as to the reasons why he, as an

educator, would look at race in connection with providing educational opportunities to all

students, and testified concerning a number of programs and initiatives that he and the

District had implemented to specifically combat the achievement gap and ameliorate

racial isolation. See April 14, 2010 Trial Testimony of Dr. McGinley. Plaintiffs

themselves introduced into evidence documents demonstrating that, to the extent race

was taken into account during redistricting, it was done to address these issues. See P-

166 and P-167, video clips of portions of the November 17, 2009 Board meeting, during

Heights/Pryor review, as in this case, then said defendant will always lose a strict scrutiny
challenge.” Dkt. No. 127-2 at 6-7. Plaintiffs cite no authority in support of this statement,
and the Supreme Court’s precedents contradict it. Even under Arlington Heights/Pryor, a
defendant can prevail even 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.

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which Dr. McGinley stated that he would want to make sure the District did not have any

racially isolated students if they were to adopt a 3-1-1 plan drawn on a north-south bias,

and that he thought about equalization of student populations, such as students with IEPs

and students on free or reduced price lunch, as a reality check after each plan. In sum,

the record speaks for itself, and there is sufficient evidence for the Court to have

concluded that the District considered the racial demographics of the Affected Area

during redistricting in connection with its desire to address the achievement gap and

reduce racial isolation.

The Court’s finding that the redistricting process embraced “racial parity” does

not alter this conclusion. Plaintiffs incorrectly assume that “racial parity,” as referenced

by the Court in its Factual Findings, equals the “racial balancing” found impermissible by

the Seattle Court. There is no support for this assumption. Moreover, Plaintiffs’ reliance

on the Seattle Court’s statement that “racial balancing is patently unconstitutional” is

misplaced here. The full context of this statement in both Grutter v. Bollinger, 539 U.S.

306 (2003), and Seattle indicates that racial balancing is never permitted solely for the

purpose of achieving a particular racial balance – in other words, racial balance is not to

be achieved for its own sake. Such racial balancing is not at issue here.

F. The Court Properly Found that the District’s Actions Were Narrowly
Tailored to Achieve Compelling State Interests

Each of Plaintiffs’ arguments in purported support of their position that the

District failed to demonstrate “narrow tailoring” is without merit. First, Plaintiffs

contend that there is no evidence in the trial record regarding how many African-

American students needed to be redistricted or whether this number were in fact moved

or scheduled to be moved in future. Plaintiffs ignore the undisputed testimony of Dr.

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McGinley, Dr. Jarvis, and Dr. Lyles that because racial isolation is not formulaic, any

effective method of combating racial isolation similarly must not be formulaic or “by the

numbers.”

Second, Plaintiffs’ contention that there is no record evidence as to whether race-

neutral programs, including targeted magnet programs, were seriously considered is

wrong. Plaintiffs ignore the undisputed testimony of Dr. McGinley and Board Members

that magnet programs were, in fact, considered, but because additional magnet programs

at Harriton would interfere with the legitimate educational goal of having equal curricular

opportunities at both high schools, and because the use of magnet programs in the past

failed to result in a significant number of students choosing to attend Harriton instead of

Lower Merion High School, the District determined, in its discretion, that the

implementation of additional magnet programs at Harriton High School would not

achieve its redistricting goals. Moreover, as the Court noted, “narrow tailoring does not

require exhaustion of every conceivable race neutral alternative.” Dkt. No. 121 at 30

(quoting Grutter, 539 U.S. at 339).

Third, Plaintiffs contend that there is no evidence that once the African-American

student population at both high schools “becomes equal,” there will be more African-

American children taking classes with their non-African-American peers. The Court,

however, never found that the African-American student populations would at some point

be equal at both high schools. The Court instead relied on evidence that the District

implemented initiatives such as clustering to address racial isolation and achievement gap

issues by, for example, encouraging African-American students to take advanced-level

courses and not select courses below their individual abilities. On that basis, the Court

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found legitimate educational reasons for having African-American students at both high

schools. Plan 3R, in addition to fulfilling the District’s goals of equalizing the overall

student populations at the two high schools, minimizing travel time and transportation

costs, fostering educational continuity K-12, and fostering walkability, achieved that.

Finally, Plaintiffs place great emphasis on the fact that there is no express limit on

Plan 3R’s duration. The mere fact, however, that Plan 3R may not have a definitive end

point does not render it insufficiently narrowly tailored. First, the language of Grutter

wherein Justice O’Connor referenced duration, on which Plaintiffs rely, appears to be

mere dicta. Second, Justice O’Connor went on to state that “[e]nshrining a permanent

justification for racial preferences would offend this fundamental equal protection

principle.” Grutter, 539 U.S. at 341-42. These concerns simply do not exist here, where

there is no ongoing government use of racial preferences.

G. The Court Properly Found that Adoption of Plan 3R Was Inevitable

Regardless of Any Consideration of Race

The Court properly found that the District established that Plan 3R still would

have been adopted even had racial demographics not been considered. Plaintiffs have

characterized this as an “inevitability defense” and claim that it is an affirmative defense

that the District failed to allege and therefore waived. This argument is misplaced and

should be rejected. First, Plaintiffs fail to cite any case law in support of their position.

They do, however, cite authority stating that an affirmative defense is an assertion by the

defendant of new facts or arguments that, if true, would defeat plaintiff’s claim, even if

all of plaintiff’s allegations were presumed correct. See Dkt. 127-2 at 12. The facts and

arguments relied upon by the Court to conclude that Plan 3R would have been adopted

even had racial demographics not been considered are not new. The District has asserted

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from the very beginning and throughout this case that the Affected Area was districted to

Harriton because of geography and existing feeder patterns. Students living in the

Affected Area attend Penn Valley Elementary School and Welsh Valley Middle School

and reside outside the official Lower Merion High School walk zone; consequently,

under Plan 3R, which utilized a 3-1-1 feeder pattern, they were districted to Harriton

High School, along with all other students, regardless of race, who similarly attend Penn

Valley and Welsh Valley and live outside the official Lower Merion High School walk

zone. Consequently, Plaintiffs clearly were on notice of the District’s position that even

apart from any consideration of race, the Affected Area would attend Harriton under Plan

3R.

Plaintiffs also were on notice that the Administration developed and presented,

and the Board ultimately adopted, Plan 3R because it fulfilled the K-12 continuity goal

the Board established as a priority in mid-November 2008, and because it restored

walkability for those students living within the official Lower Merion High School walk

zone, another priority set by the Board. Once the Board decided to utilize a 3-1-1 plan,

and to maintain the option for those living within the official Lower Merion High School

walk zone, it was inevitable that they would choose Plan 3R, because Plan 3R was the

only plan that would fulfill those goals. It was similarly inevitable that all students in the

Affected Area would have to attend Harriton under Plan 3R, apart from any consideration

of race, because they attended an elementary and middle school that fed into Harriton

High School under the 3-1-1 feeder pattern, and because they resided outside the official

Lower Merion High School walk zone. 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

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sufficiently alleged, and that Plaintiffs were on notice of them.

Moreover, even assuming, arguendo, that “inevitability” is an affirmative

defense, Plaintiffs cannot demonstrate any prejudice to them resulting from the District’s

failure to assert this as an affirmative defense in its answer or other pleading. Indeed, the

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 defense sufficient to avoid

prejudice.” Woodson v. Scott Paper Co., 109 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 affirmative defense if he raised the issue at a pragmatically

sufficient time, and [the plaintiff] was not prejudiced in its ability to respond.”).

Plaintiffs’ contention that the District has not proved “inevitability” in light of the

Court’s finding that the Affected Area had been targeted due to its racial composition and

the District’s admission that the walk zone does not extend one mile into Plaintiffs’

neighborhood is incorrect. The Court already has found that there is no evidence in the

record to support Plaintiffs’ conclusion that not expanding the walk zone to include the

Affected Area, even though part of the Affected Area is within one mile of Lower Merion

High School, was a subterfuge. See Dkt. No. 114 at 43-44. Moreover, the Court’s

finding that the District “targeted” the Plaintiffs’ neighborhood for redistricting to

Harriton High School in part 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.”

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In addition, the Plaintiffs’ fixation on the elimination of potential 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 scenarios or plans were

discarded. Consequently, the argument that Dr. Haber unilaterally discarded potential

scenarios because of racial considerations is immaterial. Plaintiffs’ argument that

information was withheld from the public is likewise immaterial. What is material is that

once the Board decided that K-12 educational continuity, which required a 3-1-1 feeder

pattern, was its primary goal, and that it should maintain walkability (as defined in

relation to those students residing within the official Lower Merion High School walk

zone), Plan 3R was the only plan that could meet these requirements.

In sum, 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, knowing full well that

a significant number of African-American students 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 closest to Harriton that were not already

districted to attend Harriton prior to the adoption of Plan 3R. Dkt. 121 at 25. Of these

two areas, the Affected Area ultimately was chosen for redistricting to Harriton High

School, because redistricting students in that area fostered K-12 educational continuity,

whereas redistricting students in North Ardmore would not have done so. Dkt. 121 at 27.

III. CONCLUSION

The Court’s decision was based on solid reasoning and evidence – much of which

was undisputed – presented during a 9-day bench trial, and Plaintiffs have not provided

any compelling reason why the Court should now question its sound discretion. The

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bottom line is that, as this Court found, neither the Supreme Court, nor the Third Circuit

has ever prohibited a school district from taking into account the demographics of a

neighborhood as one of many factors in assigning students to schools. Indeed, the only

discussion of this issue in any Supreme Court case is that of Justice Kennedy, who

sanctioned consideration of neighborhood demographics in assigning students to schools.

See Seattle, 551 U.S. at 789 (Kennedy, J., concurring). Thus, there is no error of law to

be corrected. As to the facts, Plaintiffs have not pointed to any mistakes. Having

performed the Arlington Heights factual examination, the Court has reached a decision

that Plaintiffs simply do not like. Plaintiffs’ dissatisfaction with the Court’s decision,

however, is not a legal basis under Fed. R. Civ. P. 59 to relitigate these facts. The

District respectfully submits that the Court should therefore deny their Motion for a New

Trial.

Respectfully submitted,

/s/ Judith E. Harris

Judith E. Harris (PA I.D. No. 02358)
Christina Joy F. Grese (PA I.D. No. 200727)
Allison N. Suflas (PA I.D. No. 204448)
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103
215-963-5028/5085/5752

Kenneth A. Roos, Esquire

Megan E. Shafer, Esquire
WISLER PEARLSTINE, LLP
484 Norristown Road
Blue Bell, PA 19422
610-825-8400

Dated: August 5, 2010 Attorneys for Defendant

Lower Merion School District

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