739 F.2d 894 (3rd Cir. 1984), 83-1144, Kromnick v. School Dist. of Philadelphia

Docket Nº:83-1144.
Citation:739 F.2d 894
Party Name:Lorraine KROMNICK, Lorraine Brancato, Gladys Hirsh and Regina Katz v. SCHOOL DISTRICT OF PHILADELPHIA, and Board of Education of the School District of Philadelphia, Appellants.
Case Date:July 17, 1984
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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739 F.2d 894 (3rd Cir. 1984)

Lorraine KROMNICK, Lorraine Brancato, Gladys Hirsh and Regina Katz



the School District of Philadelphia, Appellants.

No. 83-1144.

United States Court of Appeals, Third Circuit

July 17, 1984

Argued Nov. 29, 1983.

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Eugene F. Brazil, General Counsel, Martin Horowitz, Asst. General Counsel, School District of Philadelphia, Germaine Ingram (argued), University of Pennsylvania Law School, Philadelphia, Pa., for appellants.

Robert M. Goldich (argued), Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., for appellees.

Thomas K. Gilhool (argued), Michael Churchill, Stephen F. Gold, Public Interest Law Center of Philadelphia, Philadelphia, Pa., for amici curiae Barbara Jordan, Gwendolyn Saunders, Cora Bazmore, Glenda Billings Poole and Linda Hewson.

Michael Hardiman, Asst. General Counsel, Pennsylvania Human Relations Commission, Philadelphia, Pa., for amicus curiae Commonwealth of Pennsylvania, Pennsylvania Human Relations Commission.

Richard C. Dinkelspiel, Maximilian W. Kempner, Co-Chairmen, William L. Robinson, Norman J. Chachkin, Lawyers' Committee for Civil Rights Under Law, Walter A. Smith, Jr., David F. Grady, Julie E. Stumpe, Hogan & Hartson, Washington, D.C., for amicus curiae Lawyers' Committee for Civil Rights Under Law.

Steven A. Asher, LaBrum & Doak, Philadelphia, Pa., Justin Finger, Jeffrey P. Sinensky, Leslie K. Shedlin, Anti-Defamation League of B'nai B'rith, New York City, Richard L. Berkman, Boston, Mass., Samuel Rabinove, Andrea S. Klausner, American Jewish Committee, New York City, Paul T. Sosnowski, Polish-American Congress, Philadelphia,

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Pa., Marc D. Stern, American Jewish Congress, New York City, for amici curiae Anti-Defamation League of B'nai B'rith, American Jewish Committee, Polish-American Congress and American Jewish Congress.

Before GIBBONS, SLOVITER, Circuit Judges, and CALDWELL, District Judge [*].


SLOVITER, Circuit Judge.

The School District of Philadelphia appeals from the orders of the district court permanently enjoining it from complying with its policy under which some teachers are transferred to other schools to maintain racial integration of faculty in each school. Teachers subject to transfer contend, and the district court agreed, that this policy violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq. Kromnick v. School District, 555 F.Supp. 249 (E.D.Pa.1983). We reverse the judgment of the district court.




Challenged Policy

Under the policy challenged in this action, the Philadelphia Board of Education seeks to maintain a faculty ratio at each school of between 75% and 125% of the system-wide proportions of white and black teachers. 1 As a result, the racial composition of each school's faculty reflects that of the overall teaching staff.

To reach this objective, the School District annually reassigns some classroom teachers to other schools. The reassignment plan operates in two phases. First, there is a determination of the need for staff at each school. Because of declining student enrollment, each year many schools have fewer positions. Open positions are staffed in order of accumulated seniority at the school, and the least senior teachers are transferred from the school. However, if that would cause the school to fall outside the 75%/125% range, teachers of the overrepresented race are transferred even though they have more seniority. Also, if retirements cause a racial imbalance in the school's faculty outside the 75%/125% range, again the least senior teachers of the overrepresented race are transferred even though they may have more seniority than teachers of the other race. Only a small percentage of teachers transferred are transferred in derogation of seniority. In the last year, approximately 50 or 60 of the 1,100 teachers transferred were transferred to maintain the 75%/125% racial balance.

In the second phase of the reassignment plan, all the transferred teachers are entitled to choose new schools in descending seniority order, unless their choice would bring the selected schools outside the 75%/125% range. If so, those teachers are required to forego their preferred choice of transfer.

In considering the School District's policy, it is also necessary to keep in mind several factors. First, layoffs, as opposed to transfers, are determined by strict seniority. App. III at 185a; Brief for Appellees at 6. Second, teachers required to be transferred retain accumulated "building seniority," whereas those who seek transfers generally lose that seniority. App. II at 137a. This affects transfer rights for the following school year. Third, transferred teachers retain a "right of return," or priority to any vacancies that recur at their former schools, if return will not upset the racial balance. App. III at 192a-93a.

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Development of the Policy

The Philadelphia School System has long suffered from de facto segregation by race of students and faculty. Under Pennsylvania law, school districts may take steps to rectify a racial imbalance that is the product of de facto segregation as well as of de jure origin. Balsbaugh v. Rowland, 447 Pa. 423, 438, 290 A.2d at 85, 93 (1972). Also, the state, through the agency of the Pennsylvania Human Relations Commission (PHRC), may require a plan to eliminate de facto racial imbalances in schools. 447 Pa. at 432-33, 290 A.2d at 90; Pennsylvania Human Relations Commission v. Chester School District, 427 Pa. 157, 233 A.2d 290 (1967).

In 1968, the PHRC began proceedings under state law to compel the elimination of racially identifiable schools in Philadelphia. See School District v. Pennsylvania Human Relations Commission, 6 Pa.Cmmw. 281, 294 A.2d 410 (1972), aff'd as to other parties, 455 Pa. 52, 313 A.2d 156 (1973), (School District I ); Pennsylvania Human Relations Commission v. School District, 23 Pa.Cmmw. 312, 352 A.2d 200 (1976) (School District II ); Pennsylvania Human Relations Commission v. School District, 30 Pa.Cmmw. 644, 374 A.2d 1014 (1977), aff'd, 480 Pa. 398, 390 A.2d 1238 (1978) (School District III ); Pennsylvania Human Relations Commission v. School District, 66 Pa.Cmmw. 154, 443 A.2d 1343 (1982) (School District IV ). The state courts have generally preferred to allow the School District to establish "voluntary" plans in response to prodding by the PHRC because, as the Pennsylvania Supreme Court noted, the School District has "primary responsibility for the choice and implementation of an effective desegregation program." School District III, 480 Pa. at 428, 390 A.2d at 1253 (quoting Pennsylvania Human Relations Commission v. Chester School District, 427 Pa. 157, 181, 233 A.2d 290, 302 (1967)). The most recent state court action resulted in a consent agreement for a desegregation plan involving use of "magnet" schools. Despite these lengthy proceedings, the students of the School District still attend racially identifiable schools. See School District IV, 66 Pa.Cmmw. at 174, 443 A.2d at 1352.

PHRC guidelines espouse integration of faculty as well as of students as a means to eliminate the racial identifiability of schools and to achieve equal education for their students. See School District II, 23 Pa.Cmmw. at 317, 352 A.2d at 203. In 1969, the PHRC entered into a consent decree with the School District that required each elementary school to have at least 20% and each secondary school to have at least 10% of both black and white teachers. App. II at 115a. This decree supplemented a policy imposed in 1965, and still continuing, of assigning newly hired teachers in a manner that furthers racial balance. Appellee teachers do not attack this race-conscious initial assignment, which they consider "reasonable". Brief for Appellees at 4-5. Assignment on this basis aided faculty integration when there was an upsurge in hiring but voluntary transfers were also restricted in an effort to reach the 20% and 10% goals. Kromnick v. School District, 555 F.Supp. at 250.

In 1978, the School District's teacher assignment policies were again rewritten, this time because of the requirements of the federal government. In order to receive financing to assist in desegregation, the School District applied for federal aid then available under the Emergency School Aid Act (ESAA) Title VI, Sec. 601, 20 U.S.C. Secs. 3191-3207 (Supp V. 1981) (repealed effective October 1, 1982). 2 The Office of Civil Rights (OCR), of the Department of Health, Education and Welfare denied the application because the School District's desegregation plan was unsatisfactory. Among the deficiencies cited was insufficient integration of classroom teachers.

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The then-applicable ESAA regulations administered by OCR provided:

No educational agency shall be eligible for assistance under the Act if ... it has ... any practice, policy or procedure which results in discrimination on the basis of race ... including the assignment of full-time classroom teachers to the schools of such agency in such manner as to identify any of such schools as intended for students of a particular race, color or national origin.

45 C.F.R. Sec. 185.43(b)(2) (1978) (emphasis added), redesignated 280.22(e) (1980) (repealed effective October 1, 1982). OCR found that teacher assignments in Philadelphia were "racially identifiable" despite the District's compliance with the numerical goals imposed under its consent decree with the PHRC. 3 In 1978 the School District's student population was 64.2% black, 6% Hispanic, and 31.6% white and its faculty was 63% white, 36% black...

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