Pretrial Memorandums - Students Doe vs. LMSD

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xf14ae's picture
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In the interests of completeness, I waited for both Plaintiffs Pretrial Memorandum (filed March 5) and Defendant's (filed March 12) to post. They are both below.

Students Doe:

Students Doe Pretrial Memo

LMSD:

Pretrial Memorandum - LMSD

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politeia's picture
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Of interest is the 197 exhibits Students Doe will present compared to the 30 exhibits by LMSD.

As far as witnesses go, they are similar except that LMSD has four educators from outside LMSD who will obviously make points in favor of LMSD.

Through discovery Students Doe should know what those four are expected to testify to, but if anybody knows I'd be curious to know.

=================

Brotherhood of Thieves

~ As we must account for every idle word, so must we account for every idle silence.

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xf14ae's picture
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I thought what was most interesting were VII (c) and (d) where LMSD intends to file a motion to exclude all the emails and working documents provided in discover (you know, all those memos that say "Elminated due to Racial Imbalance" and "Whatever happened to no isolation?" and such) as well as wanting to eliminate all videotapes and transcripts of all School Board meetings as "inadmissable" (um, didn't they use the transcript of one of those meetings - Jan 12 2009 - as an exhibit in their own Summary Judgement filing?)

The Judge has said in his Order Memorandum denying Summary Judgement that the evidence they refer to in VII (c) is very important, and the basis for admitting it is well established from Village of Arlington Heights vs. Metro Devleopment Housing Corp (see pages 24 and 25 of his memorandum), going so far as to call an argument that doesn't consider this 'simplistic':

Defendant contends, rather simplistically, that because the Non-Negotiables and Plan 3R are facially neutral, and because any purportedly racially-related comments were made by individual Board Members, district administrators, or outside consultants, and not by the Board, Plaintiffs cannot show purposeful discrimination. (Summ J. Mot. 11-15.) Invidious racial discrimination, however, need not be worn on the sleeve, or carried on signs. The Supreme Court has clarified that “[d]etermining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266 (1977) (“Arlington Heights”) (emphasis added). The Arlington Heights Court specifically noted that the following pieces of evidence are relevant to this inquiry: “the historical background of the decision,” “[t]he specific sequence of events leading up to the challenged decision,” “[d]epartures from the normal procedural sequence,” “[s]ubstantive departures,” and “[t]he legislative or administrative history . . . , especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.” Id. at 267-68.

Under Arlington Heights, the Court cannot find as a matter of law that a fact-finder could ignore all of the Board Members and Administrators’ statements and correspondences relating to race leading up to the final vote approving Plan 3R. In fact, such evidence is exactly the sort of “legislative or administrative history” that the Court can consider. Id. at 268. Not only would live testimony by the various Board members, district administrators, and outside consultants enable the Court to evaluate their credibility, thereby conducting its “sensitive inquiry” into whether the Board purposefully discriminated against Plaintiffs on the basis of race, but also, the Court is 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.

Given this, why on Earth would LMSD move to exclude?

"I hope it will be said we taught them to stand tall & proud, even in the face of history & the future was made new & whole for us all, one child at a time." - Brian Andreas

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politeia's picture
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Given this, why on Earth would LMSD move to exclude?

So their $500 an hour lawyers can pretend they are doing something of use with the $1 million plus in LM taxpayer money they are fleecing from the taxpayer-owners of Lower Merion with idiotic arguments that are sure to be shot down by the judge.

They put this stupid stuff in their arguments to make it look like they are doing something, but these useless b.s. arguments just end up costing taxpayers even more money to argue since these b.s. arguments have no legal merit.

Mind you, this is just my opinion on an issue of public importance as a blogger, and readers can decide for themselves if my thoughts have any merit.

=================

Brotherhood of Thieves

~ As we must account for every idle word, so must we account for every idle silence.

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Wynnewoodie's picture
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Why move to exclude? Because it would destroy Plaintiff's case if the motion succeeds. As long as Judge Baylson isn't insulted or offended by these motions, the defense would be remiss in not making them.

The bigger news to me is that LMSD has now officially declared their intention to appeal if they lose.

Hang on to your wallets, folks. You think we've spent a lot of money on this so far? You ain't seen nothin' yet.

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xf14ae's picture
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As long as Judge Baylson isn't insulted or offended by these motions

What if he is?

So, basically, if these motions fail, that can become grounds for appeal? Is that how it works? I know they cannot appeal only because they disagree, but that the appeal has to be made on the basis that there was an error made, right?

I have heard it said many times this is a US Supreme Court-track case. It could realistically be there in five years and cost the District millions to take there.

Let's not forget also that the US Department of Education is still actively investigating, and, their new Secretary Arne Duncan has put issues of Civil Rights in schools, 'equity' and 'equality' back on the radar after 10 years of neglect. This case is of that vein.

"I hope it will be said we taught them to stand tall & proud, even in the face of history & the future was made new & whole for us all, one child at a time." - Brian Andreas

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politeia's picture
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And a Motion to Dismiss would have destroyed the Plaintiff's case, yet that did not happen. The plaintiff’s losing the motion for summary judgment would have destroyed the case, yet that did not happen as that motion was denied and not appealed.

It was within that motion for summary judgment that LMSD lost that the judge ruled these exhibits are issues that are to be left for trial. Why did LMSD not appeal that aspect of the motion for summary judgment when they lost that motion?

The argument that defense counsel would be remiss for not making every argument it can does not hold water. Lawyers can and do file all sorts of frivolous motions to drag out cases and pad billable hours.

What would not surprise me is if LMSD starts making motions they cannot win and appealing them when they lose to try and financially bleed Students Doe and outspend them with our tax dollars. One million of our tax dollars? Why not make it $2 million for such a worthy cause? Heck, nobody is complaining in the community - even though they complained about the cost of a class action by the Robbins family. These parents only seem to complain about spending money when it makes the school district look bad in the nationwide press. No prob spending millions of our tax dollars to defend LMSD in a less high profile case when LMSD has already been caught in multiple lies denying what happened in this case - and especially when redistricting is on the line. Hey, why not spend a billion dollars? No doubt mommy and daddy worked hard with their commissioners and school board directors to get their kids into the public schools they wanted, and something as benign as racial discrimination by LMSD will certainly not be a allowed to get in the way of what Unified Slate parents want.

Also, one reason why I believe they stated they would appeal is to send notice to Students Doe that they will take this all the way to the U.S. Supreme Court using our apparently limitless tax dollars with the full support of a majority of the community. It is a way of sending a message that they have endless financial resources while showing they are not confident in their case while also using selfish parents to further their agenda to demonstrate LMSD is perfect, regardless of all the lies it has already been caught in.

=================

Brotherhood of Thieves

~ As we must account for every idle word, so must we account for every idle silence.

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xf14ae's picture
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Q: How many spaghetti dinners does it take to get to the US Supreme Court?
A: I have a feeling we'll find out soon...

Smiling

"I hope it will be said we taught them to stand tall & proud, even in the face of history & the future was made new & whole for us all, one child at a time." - Brian Andreas

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Hugh Gordon's picture
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Normally you can't appeal denial of a motion for summary judgment. Such an appeal is considered interlocutory and isn't allowed, the theory being that you might win the case at trial so that the appeal would be unnecessary.

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politeia's picture
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Good catch.

You are correct, sir.

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Brotherhood of Thieves

~ As we must account for every idle word, so must we account for every idle silence.

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I am surprised by the District's request that if they lose in court that Judge Baylson should defer consideraton of any remedies pending appeal--in other words, if LMSD loses and Judge Baylson finds that the LMSD violated the rights of its citizens, then they want to keep violating their rights until an appeal can be decided on? Doesn't this seem kind of crazy--wouldn't a finding that the students' constitutionally guaranteed rights were violated mean that the District has to "take one for the team" (sorry, couldn't resist) and accomodate these students and perhaps similarly situated students as well? Certainly allowing an additional 20 kids per year to go to LM is not a significant hardship for the district.

Can any lawyers weigh in on this? Maybe this is standard practice but what are the chances that the judge would grant this request assuming that the school district loses?

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