Judge: Race played role in redistricting

Posted: May 14, 2010

A federal judge determined Thursday that race "was a motivating factor" in the Lower Merion School District's 2009 plan to reassign students to Harriton, the smaller of its two high schools.

But U.S. District Judge Michael M. Baylson said he needed to hear more arguments before he decided if the plan amounted to unequal treatment for African American students, as nine families have contended in a long-running lawsuit.

Sifting through numerous e-mail messages and other evidence presented in the suit, Baylson likened district officials' discussion of race in crafting their redistricting plan to a "leitmotif" woven through a Wagner opera. He took aim at their methods, but stopped short of calling the plan patently illegal.

"The circumstantial evidence introduced at trial, leads like a well-worn path through the woods, inescapably to the finding that race was a motivating factor for the [district] administration," Baylson wrote in findings issued late in the day.

Specifically, he wrote, there were "too many e-mails and conversations" that mentioned the race of children being switched from Lower Merion High School to Harriton High "to allow any other conclusion."

But, Baylson wrote, whether the plaintiffs are entitled to "relief" turns on whether the facts add up to the kind of unequal treatment proscribed three years ago by the U.S. Supreme Court in a Seattle school case.

The judge set up a timetable for both sides in the suit to respond to his 57 pages of findings. He set oral arguments for June 9. After that, he will rule, and appeals are expected.

The parents of nine South Ardmore students complained last May that they lost the right to go to Lower Merion High because they are black, and that the situation violated their constitutional rights.

The school district said geography and other factors drove the reassignments. Redistricting became necessary when the district replaced its two aging high schools, and set itself the goal of having Lower Merion and Harriton High serve a roughly equal number of students. That meant moving some children: Lower Merion had about 1,400 students, Harriton about 900.

The two sides in the suit locked horns in a nine-day trial in Philadelphia that began April 8. The judge all but begged them to settle out of court - but he reported May 3 they could not reach an agreement.

Thursday's finding of fact was greeted as a win by James Herbert, spokesman for the families that sued.

"The plaintiffs are pleased that the court agreed with what they've been saying all along - that race was a motivating factor in the redistricting process," Herbert said Thursday night. "And it's important to note that the district has denied that consistently, and the court clearly disagreed."

David G.C. Arnold, the plaintiffs' lawyer, called the judge's findings "thorough and well-reasoned," and said he looked forward to arguments.

School district spokesman Doug Young issued a statement last night saying the district was "carefully studying the findings" and preparing its arguments. He said the findings reflected that "the School Board and Administration demonstrated a genuine commitment to providing exceptional educational opportunities" to all students, even amid efforts to equalize enrollment at the two schools.

Board President David Ebby, too, issued a statement, saying in part, "It is premature for anyone to draw any conclusions regarding the ultimate outcome of the litigation," and noting that Baylson had commended the work of School Superintendent Christopher McGinley "in forcefully and successfully advocating on behalf of minority students."

In his findings of fact, Baylson termed witnesses for both sides in the suit "generally credible." But he also sharply critiqued one former school official's testimony.

He said the school district's departing business manager, Scott Shafer, was "not credible" when he testified that a recommendation by administrators to address "the distribution of minority students" was meant merely to warn school board members against having such a race-based policy.

Baylson said Shafer's version was contradicted by other evidence, and "belied" by another school official's testimony that someone in the district's top brass "had the goal of addressing minority student assignment."

The judge took pains to spell out what the evidence did not show - that the district administration or school board acted out of "hostility or invidious discrimination" toward any African American student.

They were "most interested in providing all students an excellent education," and ensuring that both high schools continued to be rich places to learn, he wrote.

The redistricting plan's adoption resulted from Lower Merion township's existing demographics, "rather than an express intent to discriminate," Baylson wrote.

But he also noted that district officials had specifically considered numbers of African American students affected, and not those of other minorities, as they went about planning for redistricting.

Baylson said this happened in five of eight scenarios that Lower Merion officials considered before adopting the plan. This "limited notion of diversity" could be important to any final ruling, Baylson said. He noted that the Supreme Court had been troubled by similar facts when it decided the Seattle case in 2007.

Contact staff writer Bonnie L. Cook at 610-313-8232 or bcook@phillynews.com.

To read Judge Michael Baylson's findings, go to http://go.philly.com/merion

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