Pennsylvania Human Relations Commission v. School Dist. of Philadelphia

• Citation: 443 A.2d 1343,66 Pa.Cmwlth. 154
• Parties: , 3 Ed. Law Rep. 977 PENNSYLVANIA HUMAN RELATIONS COMMISSION, Petitioner v. SCHOOL DISTRICT OF PHILADELPHIA, Respondent, Harry and Annemarie Gwynne et al., Intervenors.
• Decision Date: 15 April 1982
• Court: Commonwealth Court of Pennsylvania

Page 1343

443 A.2d 1343

66 Pa.Cmwlth. 154, 3 Ed. Law Rep. 977

PENNSYLVANIA HUMAN RELATIONS COMMISSION, Petitioner v. SCHOOL DISTRICT OF PHILADELPHIA, Respondent Harry and Annemarie Gwynne et al., Intervenors.

Commonwealth Court of Pennsylvania.

Argued Nov. 17, 1981.

Decided April 15, 1982.

Martin Horowitz, Law Dept., School Dist. of Philadelphia, Samuel Rappaport, Philadelphia, Stephen F. Freind, Freind & Willman, Havertown, for respondent.

Daniel Sherman, Philadelphia, for Harry and Annmarie Gwynne, et al.

Claudette R. Spencer, Pa. Human Relations Commission, Philadelphia, Robert S. Mirin, Pa. Human Relations Commission, Harrisburg, for petitioner.

Before CRUMLISH, President Judge, and MENCER, ROGERS, CRAIG and maCPHAIL, JJ.

OPINION

ROGERS, Judge.

The Pennsylvania Human Relations Commission having determined that the voluntary plan for the desegregation of the Philadelphia public schools, which was approved and ordered to be implemented by this Court, is not accomplishing desegregation as required by Pennsylvania law asks us to order the school district to file with the Commission a new plan for the desegregation of its schools containing mandatory features.

The history of the litigation growing out of the efforts of the Commission to constrain the School District of Philadelphia to plan for and accomplish correction of racial imbalance in most of its schools and of the school district's responses to the Commission's efforts is recited at length in the case books and needs no repeating here. See Pennsylvania Human Relations Commission v. School District of Philadelphia, 30 Pa. Commonwealth Ct. 644, 374 A.2d 1014 (1977) aff'd 480 Pa. 398, 390 A.2d 1238 (1978); Human Relations Commission v. The Philadelphia Schools, 23 Pa. Commonwealth Ct. 312, 352 A.2d 200 (1976); Philadelphia School District v. Human Relations Commission, 6 Pa. Commonwealth Ct. 281, 294 A.2d 410 (1972).

For present purposes it suffices to note that the 1976 Voluntary Desegregation Plan submitted by the School District and now challenged as insufficient by the Commission was approved by this court and, on appeal, by the Supreme Court. Pennsylvania Human Relations Commission v. School District of Philadelphia, 30 Pa. Commonwealth Ct. 644, 374 A.2d 1014 (1977); aff'd, 480 Pa. 398, 390 A.2d 1238 (1978). With that approval, we entered the following order:

Now, July 1, 1977, the Petition for Enforcement is denied and the School District of Philadelphia is ordered to proceed with the detailed development and implementation of the July 1976 School District of Philadelphia Desegregation Plan, to be initiated in September of 1978. In the event that by February 1980, the Pennsylvania Human Relations Commission determines the plan is not accomplishing desegregation as required by Pennsylvania law, this Court retains jurisdiction for such further action as it then deems appropriate.

Id. 30 Pa. Commonwealth Ct. at 645, 374 A.2d at 1016.

In July, 1980, the Commission filed with this Court an "Application for Rule to Show Cause Why the School District of Philadelphia Should Not Be Ordered to Submit a New Mandatory Desegregation Plan Which Will Guarantee the Desegregation of Its Schools" in which it averred inter alia that

3. As of Fall 1975, 10% or thirty (30) out of two-hundred and ninety-three (293) schools in the Philadelphia public school system were desegregated. As of January 1980, 11% or thirty-three (33) out of two-hundred and eighty-eight (288) schools were desegregated. This represents an increase of 1% or three (3) schools.

....

10. As of January 1980, one-hundred and two (102) out of two-hundred and eighty-eight (288) schools in Philadelphia were over 95% one race.

11. As of Fall 1975, 10% or 24,424 out of 263,140 students were attending desegregated schools. As of January 1980, 11% or 25,651 out of 233,892 students were attending desegregated schools. This means that 208,241 students or 89% are still attending segregated schools.

12. In a document adopted by the Board entitled "Proposed Plans for Implementation of Voluntary Desegregation" dated April 24, 1978 (a copy of which is attached as Exhibit "B"), Respondent named fifty-five (55) schools that it projected would be desegregated by September 1979.

13. Respondent has not achieved its own desegregation goals for September 1979 since 82% or forty-five (45) of the fifty-five (55) schools were still segregated as of September 1979.

The Commission asked that

a rule be granted upon Respondent school district of Philadelphia to show cause why it should not be ordered to submit a new desegregation plan embodying traditional mandatory methods which will realistically desegregate the Philadelphia School System forthwith and such other relief as this Court deems appropriate and proper.

The school district admitted the allegations contained in Paragraphs 10 and 12 of the Application and denied the other allegations set forth above on the sole ground that, in the district's view, in preparing the statistics contained therein the Commission improperly and unfairly employed a definition of the term "segregated school" which had been promulgated by the Commission at the very end of the period specified by this Court for the implementation of the plan.

Following the exchange of interrogatories and a pretrial conference conducted on September 15, 1980, four days of evidentiary hearings were held in Philadelphia in January, 1981.

A great deal of effort has been devoted by the district and the Commission in an attempt to persuade this Court of the propriety of the various conceptual tools used to measure the district's progress pursuant to the voluntary plan. Specifically, the parties have derived three definitions of the crucial term "segregated school":

(a) The Commission's 1968 definition: according to this definition a segregated school is one in which the proportion of Negro pupils is not within 30% of the average proportion of Negro pupils in district schools of the same grade span. This definition first appeared in the Commission's May 15, 1968, document entitled "Recommended Elements of a School Desegregation Plan." Subject to court challenge, this definition was approved by this Court and by our Supreme Court in Pennsylvania Human Relations Commission v. Norristown School District, 20 Pa. Commonwealth Ct. 555, 342 A.2d 464 (1975) aff'd 473 Pa. 334, 374 A.2d 671 (1977). This definition was in effect at the time of our 1977 Order retaining jurisdiction during the planning and implementation period. The district contends that this definition is not usable in Philadelphia due to the high proportion of black students in certain grade spans. Several of the Commission's witnesses, including Roy Yaffe, former assistant general counsel to the Commission, and Richard Anliot, the Commission's Director of the Division of Education, support this contention. Indeed, it was precisely this objection that led the Commission to formulate its 1979 definition.

(b) The Commission's 1979 definition: according to this definition a segregated school is one which either has less than 25% white enrollment or less than 40% black enrollment unless the school contains at least 20% Hispanic enrollment in which case it is segregated if it also contains less than 25% white enrollment or less than 25% black enrollment. The school district argues, with some force, that it would be unfair for this Court to judge the district's performance by means of this definition since it was not announced by the Commission until some time after December 17, 1979, near the end of the implementation period.

(c) The school district's 1978 definition: according to this definition a segregated school is one which contains either less than 25% white enrollment or more than 75% white enrollment. As we will discuss, the Commission and its expert witness, Dr. Foster, have serious objections to the use of this definition in measuring progress pursuant to the 1976 voluntary plan.

Of course, any determination of the degree to which the School District of Philadelphia has, through the implementation of its voluntary plan, made progress in desegregating its schools will depend on some device for the measurement of the extent to which the district was segregated before the implementation of the plan and the extent to which that segregation has thereafter decreased. The presence of substantial objections to each of the definitional devices used for this purpose by the parties can only be said to have complicated the already difficult task before this Court.

It is the testimony of Homer Floyd, the Commission's Executive Director, that employees of the Commission first met with district staff members in September, 1979, for the purpose of obtaining from the district enrollment data necessary to evaluate progress pursuant to the 1976 voluntary plan. Following receipt of the requested information and its analysis by the Commission's staff, an ad hoc committee of the Commission consisting of Commissioners Loewenstein, Echols, Leader, and Scott, reported to the Commission and to the Board of Education that, in their judgment insufficient progress had been demonstrated to warrant the committee's recommendation to the full Commission that the plan receive the Commission's continued support.

The committee then recommended on February 25, 1980 that further discussions be held with the district to determine whether additional progress was possible in the absence of substantial modification of the voluntary plan. On March 3, 1980, it was indicated to the district that additional evidence had to be received by the Commission by April 15, 1980 in support of the district's contention that the voluntary plan was a sufficient response to its duty under the law to desegregate the public schools. When no such additional support was forthcoming by the date indicated, the Commission, on April 28, 1980, adopted a resolution expressing its judgment that...