Unsealed records: Race part of L. Merion redistricting

Court records unsealed in a federal case yesterday reveal that officials discussed race as an integral part of their work to create a 2009 redistricting plan for the Lower Merion School District.

The papers, unsealed by U.S. District Judge Michael M. Baylson, show memos, e-mails, and expert opinions mentioning race.

The documents went back and forth among district administrators and school board members as they wrestled with redistricting before the board vote in January 2009.

Under the plan's terms, 10 pupils from a narrow wedge of South Ardmore were bused to Harriton, even though they lived within a mile of Lower Merion; their parents filed suit, alleging racial bias.

The unsealed records include two legal briefs and 83 exhibits, filed last year in the plaintiffs' case. All parties agreed in a hearing Monday before Baylson to open the documents.

The case turns on a narrow issue: whether race was used to assign children to Harriton High School in Rosemont over Lower Merion High in Ardmore, said the plaintiffs' attorney, David G.C. Arnold.

"Not if it is the factor, if it is a factor," Arnold said. He maintained race was a factor.

The district argued that though race might have been discussed beforehand, there was no evidence of actual discrimination in the school board's vote.

"Student assignment was based on the feeder patterns from the elementary schools to the middle schools and on to a high school," said Judith Harris, attorney for the district.

Further, she said in a brief, there are "valid educational reasons" for school districts to "discuss race or diversity when determining how best to deliver education to students."

As set forth in the Supreme Court's 1954 landmark ruling in Brown v. Board of Education, pupils cannot be assigned to schools based on their race.

Redistricting was needed, the district said, because, in replacing the township's outdated high schools, it had to rebalance the student populations.

In one e-mail exchange between Superintendent Christopher W. McGinley and consultant Ross Haber, McGinley asked whether it would be legal "if we split Ardmore for high school?"

Haber, who advises school districts on redistricting plans, replied that if the decision "was made based on race, the district would lose in court."

"The Supreme Court technically means," Haber wrote, "that we have to disregard race in our redistricting . . . but of course this only is an issue if someone sues the district, and I can't really think of a circumstance in which a citizen of the district would sue."

Reached at his office in Port Washington, N.Y., Haber declined to comment and referred calls to district spokesman Douglas Young.

Young said there was nothing nefarious about two educators discussing a legal decision that came to their attention during the redistricting process.

In a statement last night, the district said, in part, that "the district's position is that the redistricting lawsuit is totally without merit and believes it will eventually be concluded in our favor."

In an e-mail a month before the vote, school board member Diane DiBonaventuro asked McGinley if she could see "the diversity numbers" for the plan, and she worried that they would be "way off."

In an e-mail sent to another board member, she wrote: "We are basically asking the AA [African American] kids in Ardmore to 'take one for the team' for the AA kids in the other area of the district."

DiBonaventuro declined to comment yesterday.

The school district said it used many criteria, including socio-economic status, in deciding where students should go. But mostly it was guided by geography and a need to disrupt the fewest families, Young has said.

In legal briefs, Harris argued that no child was assigned based on race to go to any particular school.

Haber was to produce a report on "enrollment trends based on ethnicity," the papers said; he contracted with the district to receive "ethnicity and socio-economic status" data, which he used to run his computer projections.

"Why would a school district that is setting attendance zones in a color-blind fashion spend public money for this type of service," argued plaintiffs' attorney Arnold, "unless it was districting in part based on race?"

Young responded that race and other diversity data were compiled to show the outcomes of proposed plans and scenarios. "Board members never saw a number of the documents listing diversity outcomes for potential redistricting scenarios," Young said.

Haber could have produced redistricting plans that were color-blind, "but Dr. McGinley and I didn't think it was necessary," Haber said in a deposition, as quoted in the unsealed papers.

"The community's interest in the value of diversity," Young said, "is what led the district to report on the diversity outcomes of a particular proposed scenario or plan."