Jon Campisi Oct. 5, 2011, 8:27am

Attorneys for a suburban Philadelphia school district accused of placing black students in special education classes in disproportionate numbers as a back-door means of racial discrimination got their say in federal court Tuesday.

Michael D. Kristofco, an attorney with Blue Bell, Pa.-based Wisler Pearlstine LLP, argued for the district’s motion for summary judgment in Amber Blunt et al vs. Lower Merion School District, a four-year-old case in which seven current and former Lower Merion students and their parents allege they were discriminated against because of their race.

The hearing lasted nearly an hour-and-a-half in the 16th-floor courtroom of the federal courthouse in Philadelphia Tuesday afternoon.

It was presided over by U.S. District Court Judge Harvey Bartle III.

Kristofco said the judge should grant the school district’s motion for summary judgment because after four years, the plaintiffs still have not presented cut-and-dry evidence that racial discrimination took place at the district, one of the wealthiest in Pennsylvania.

There isn’t a “shred of evidence” that shows similarly situated students, in this case, white students, were treated differently than black students, Kristofco argued, noting that would be key to the plaintiffs’ case.

The defense maintains that the plaintiffs’ case simply shows that certain black students were recommended by district personnel for special education in specific instances.

But because federal law requires students recommended for special education to have to undergo a specific process, which includes parental involvement, it’s impossible to say black students were given the specialized instruction while white students weren’t, Kristofco argued.

“It’s a matter that’s up to a student and their parent,” the defense lawyer said in court. “That is the same for [students and] parents of all races.”

Furthermore, parents can disregard the district’s recommendation for special education, meaning they don’t have to go by what the district says, and instead can keep their children out of specialized instruction.

Kristofco said no compelling evidence has come about during discovery that shows specific instances in which students were placed into special education classes solely because of their race.

“Now, on summary judgment, we can’t even say what classes they’re talking about because they haven’t been identified,” Kristofco said. “That plaintiffs haven’t come forward with anything.”

Kristofco also said the plaintiff’s have yet to prove the students in question have been adversely affected by their special education recommendation. And that’s going to be nearly impossible to prove, he said, since parents themselves had to sign off on their students’ placement in special education.

“The parents are part of the IEP team,” Kristofco said, using the abbreviation for Individualized Education Program.

Attorney Carl Hittinger, of the Philadelphia firm DLA Piper LLP, who, along with attorneys from the Public Interest Law Center of Philadelphia are representing the plaintiffs, counter-argued that one of the claims in the case is that the school district “intentionally, systematically” misidentified students requiring special education, a “factual dispute” that would be better reserved for trial, and not something that could be addressed at this stage of the game.

“Proof of discrimination is very wide, very broad,” Hittinger told Judge Bartle. “These are not issues that are easily resolved in a motion for summary judgment.”

Hittinger said that during discovery over the past two years, his team was made aware of a document that purportedly came from the district, and was meant to instruct teachers on ways to better cater to black students based on the students’ own preferences. The document stated, for instance, that black students prefer to learn with a certain type of lighting in the classroom, Hittinger said.

“We believe that shows racial intent,” he argued.

Hittinger admitted that nobody seems to know who authored the document, something that was echoed by school district lawyers, leaving that particular matter in an agreed-upon gray area.

Hittinger said it’s nearly impossible to take a black special education student and compare him or her to a white special education student because the instruction is so individualized, something that makes the case particularly difficult.

“They’re too difficult to prove at summary judgment,” he said. “They’re really issues for trial.”

Judge Bartle said in order for the case to move forward, the plaintiffs, who have the burden of proof in a civil case, have to show more than just statistics, a good amount of which was contained in the complaint. There has to be additional evidence of discrimination, the judge told Hittinger.

Kristofco argued that there’s no evidence in existence that shows the school district treated white students any different from black students.

“There was no attempt here to even look for comparatives, your honor,” Kristofco told Bartle.

Kristofco said nothing has been presented by Hittinger and his team that meets the requirements of a prima facie case.

Still, Hittinger reiterated that his team has statistics, some from the Pennsylvania Department of Education, that show the district placed black students into special education in disproportionate numbers.

The judge, however, questioned whether that automatically shows a racial bias.

“What proof do you have here that disproportionality was discriminatory,” Bartle asked Hittinger.

“Maybe white students are also misidentified [as needing special education],” Hittinger conceded. “I don’t know. I don’t have the answer.”

What he does know, Hittinger said, is that the court will see proof of discrimination against black students at trial.

Tuesday’s proceeding was attended by numerous school students and their parents, who filled the courtroom to capacity.

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