Court panel to deliberate on Lower Merion busing

A three-judge federal appeals court panel on Thursday took the Lower Merion school redistricting case under advisement after hour-long oral arguments in Philadelphia.

Presiding Judge Joseph Greenaway Jr. praised attorneys representing the school district and "Students Doe" for their presentations.

"Students Doe" are the nine black pupils from South Ardmore who say they were discriminated against when a redistricting plan took away their choice to attend the Main Line high school nearest their homes and forced them to be bused to one farther away.

The panel has no set time within which it must rule, but the process generally takes 90 days, said school district attorney Judith E. Harris.

"I think everybody had their shot," said David G.C. Arnold, attorney for the students.

During the hearing at the federal court building, Greenaway pressed Arnold to explain how the children were legally harmed by the district's plan.

"Are you saying they used race in a pernicious way all along, and that's what was" illegal? the judge asked.

Arnold cited as evidence e-mails mentioning race that went back and forth between school district officials and board members, as redistricting scenarios were being considered.

"Every single plan had race factored into it," Arnold said. "There were only race-based plans."

Greenaway asked Harris whether simply being conscious of race during the decision-making process would cause school officials to violate the students' right to equal treatment under the law.

"No," Harris replied. "There was evidence of information about race being looked at, but it didn't decide the plan."

James Herbert, spokesman for the parents of the schoolchildren, said after the court session that he could not guess how the panel - which includes Judges Jane Roth and Katharine S. Hayden - would rule.

"It's a complex case," Herbert said. "They asked a lot of questions. I wouldn't want to read the tea leaves."

School superintendent Christopher McGinley listened quietly while the court was in session and declined comment afterward.

The case began in January 2009 when the Lower Merion school board voted to redistrict students between Lower Merion High School in Ardmore and Harriton High in Rosemont.

The district has two new $100 million school buildings; officials said they had to shift students around to rebalance enrollment.

The Ardmore parents filed suit in May 2009, alleging that the move was racially biased when school officials targeted their diverse neighborhood to go to Harriton over other neighborhoods containing more whites.

Before the plan was implemented, the Ardmore students could have walked to high school. Now they must take a five-mile bus ride.

According to past case law, children cannot be individually reassigned based on race. But the Ardmore case did not fit that definition because the reassignment was by neighborhood, not individual, the school district argued in federal court last summer.

In addition, Harris contended that race was only one of many factors that helped shape the redistricting plan. Others were geography, travel time, and the need to keep consistent feeder patterns from middle schools.

U.S. District Judge Michael M. Baylson ruled in favor of the school district in the fall. The Ardmore students immediately appealed.