Educational Equality League v. Tate

• Decision Date: 11 January 1973
• Docket Number: No. 71-2042.,71-2042.
• Citation: 472 F.2d 612
• Parties: EDUCATIONAL EQUALITY LEAGUE, et al., Appellants, v. Honorable James H. J. TATE, Mayor of the City of Philadelphia, and the Educational Nominating Panel.
• Court: U.S. Court of Appeals — Third Circuit

472 F.2d 612 (1973)

EDUCATIONAL EQUALITY LEAGUE, et al., Appellants, v. Honorable James H. J. TATE, Mayor of the City of Philadelphia, and the Educational Nominating Panel.

No. 71-2042.

United States Court of Appeals, Third Circuit.

Argued December 5, 1972.

Decided January 11, 1973.

As Amended February 20, 1973.

Certiorari Granted May 7, 1973.

Edwin D. Wolf, of Lawyers' Committee for Civil Rights, Philadelphia, Pa., for appellants.

Howard D. Scher, John Mattioni, Asst. City Sol., Levy Anderson, City Sol., Philadelphia, Pa., for appellees.

Before VAN DUSEN, GIBBONS and HUNTER, Circuit Judges.

Certiorari Granted May 7, 1973. See 93 S.Ct. 2149.

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

Plaintiffs instituted their class action under 42 U.S.C. § 1983 (1970) in August 1971 against the Honorable James H. J. Tate ("Mayor"), then Mayor of Philadelphia, and the Educational Nominating Panel ("Panel").¹ They alleged that the Panel had been appointed in a racially discriminatory manner. After considering the stipulated facts and the testimony and exhibits both sides introduced, the district court entered an order on November 8, 1971, dismissing the action.² From that order plaintiffs appeal. This court has reviewed the applicable law, which now includes two significant cases decided after the district court order,³ and has concluded that it is compelled to vacate the district court order and to direct the district court to grant appropriate relief.⁴

The Educational Supplement of the Phildelphia Home Rule Charter (Educational Supplement) provides that the mayor appoint the members of the Board of Education. The function of the Panel is to submit to the mayor the names of persons best qualified to serve on the Board. The Panel nominates three persons for each place on the Board to be filled, and an additional three persons if the mayor requests such additional names. The mayor must choose solely from these nominees. See section 12-207(b) of Educational Supplement. The Panel, which has thirteen members, is itself chosen by the mayor. Nine members must be the highest ranking officers of specified types of citywide organizations, and four are chosen at large.⁵ Each Panel serves two years, commencing at or before May 25 of odd-numbered years.

The Chairman of the Educational Home Rule Charter Commission, which drafted the Educational Supplement, contemplated that the composition of the Panel would "constitute a balanced representation or cross-section of the people of the entire community — all of the community's ethnic, racial, economic, or geographic element and segments."⁶ The rationale of the Panel-Mayor-Board arrangement was explained as follows:⁷

"Selection of the School Board is the key feature of the Charter Supplement. The concept is that the Mayor, as the Chief Executive of the City, elected by and accountable to the entire electorate and community, is the appropriate `appointing authority\' for the School Board. As such, the Mayor is permitted sufficient discretion in School Board selection to preserve such accountability. On the other hand, the Panel is a mechanism for dignified recruitment and screening of top-caliber candidates for the important community post of School Board member.

"The Panel would play a crucial role in selection. It would be constituted and composed in a manner that safeguards the Mayor\'s accountability, that produces representativeness of the entire community, and that assures responsiveness to community change and development over the years.

"The Panel would perform a governmental role in helping to select a School Board which administers the public school system and the public funds required to finance it. Therefore, it is proper to restrict Panel membership to residents of the City; yet, its composition will permit the Mayor to select members who are dedicated to the improvement of the larger regional community and whose perspective encompasses the statewide and national implications of the public education task.

"While the Mayor would be required to select nine members of the Panel from among the principal officers of City-wide organizations, he could select more or all thirteen members from such categories if he wishes. However, through the four at-large memberships, distinguished citizens would not be precluded from serving on the Panel merely because they are not officially identified with a particular community organization at a particular time.

"By specifying categories, rather than particular organizations, in the Charter, the Proposals recognize that community organizations and civic agencies change with time, and that over a period of years there can be wide representation of the many dedicated community groups and civic agencies in our City.

"The Supplement requires the Panel to solicit nominations from all community elements and agencies, study the qualifications of nominees, screen and select nominees, and make recommendations to the Mayor."

This legislative history serves as the background for the facts of which plaintiffs complain. The first Panel, appointed in 1965, had ten white and three black members. The white-black ratios of the 1967, 1969, and 1971 Panels were, respectively eleven and two, twelve and one, and eleven and two.⁸ At the time the 1971 Panel was being appointed, blacks constituted about 33.5% of the population of Philadelphia and a much greater percentage, 60%, of the students in the public school system. A number of black-oriented organizations met the specifications of seven of the nine categories of section 12-206(b).

The Mayor not testifying, the only evidence relating to the inner workings of the Mayor's appointment machinery came from W. Wilson Goode, one of the plaintiffs, and from Deputy Mayor Anthony Zecca, the person responsible for recommending to the Mayor organizations which met the requirements of section 12-206(b). Although the district court made no finding on the subject, Mr. Goode testified, without contradiction or objection, that shortly before the 1969 Panel was due to be appointed at a time when there was one vacancy for which the 1967 Panel had not yet made nominations, the Mayor stated that he would appoint no blacks to the Board of Education in addition to the two already on it.⁹ Mr. Goode also accused the Mayor of not reappointing to the 1969 Panel organizations which served on the 1967 Panel because of dissatisfaction with the 1967 Panel's having included so many blacks among its nominees.¹⁰

Deputy Mayor Zecca testified that he had no knowledge of the use of racial criteria in the appointment process,¹¹ but was unable to recall why the 1967-1969 changes had been made.¹² The district court found that Deputy Mayor Zecca was unaware of the existence of black-oriented organizations which were within the requirements of section 12-206(b).¹³

Assessing all the evidence, the district court ruled that the reasoning of Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970), where the Supreme Court held that plaintiffs had established a prima facie case of discrimination, did not apply to the present situation. Nevertheless, the court examined this situation as if Turner v. Fouche were controlling and concluded that on these facts plaintiffs had not made out a prima facie case. The low percentage of blacks on the Panel was meaningless, the court decided, because the Panel's small size invalidated comparisons between the racial composition of its membership and that of the population of Philadelphia. The court also rejected as unpersuasive various statistics regarding the Mayor's record in appointing blacks to other positions in the city government.¹⁴

Having thus found no indirect evidence of discrimination, the district court went on to hold that plaintiffs had not established a direct case of discrimination, either, overlooking Mr. Goode's testimony about the Mayor's statement referred to earlier in this opinion.¹⁵ The court apparently concluded that the Deputy Mayor's ignorance of black-oriented organizations did not amount to discrimination against blacks.

It should be noted at the outset that plaintiffs are not seeking to establish any sort of racial quota for membership on the Panel. No group can demand "as a matter of substantive constitutional right, any particular degree of racial balance or mixing...." Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 24, 91 S.Ct. 1267, 1280, 28 L.Ed.2d 554 (1971). Plaintiffs ask only that the Mayor of Philadelphia not exclude blacks from proper consideration when making appointments to the Panel. Almost a century ago the Supreme Court articulated the rationale of the Fourteenth Amendment:¹⁶

"It ordains that no State shall deprive any person of life, liberty, or property, without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color? The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race, — the right to exemption from unfriendly legislation against them distinctively as colored, — exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps toward reducing them to the condition of a subject race."

Such is still the law. As the Supreme Court said in Turner v. Fouche, 396 U.S. 346, 362, 90 S.Ct. 532, 541, 24 L.Ed.2d 567 (1970), "the appellants and the members of their class do have a federal...