School Dist. of Philadelphia v. Pennsylvania Human Relations Commission, KENSINGTON-ARNOLD

Citation6 Pa.Cmwlth. 281,294 A.2d 410
Decision Date17 August 1972
Docket NumberKENSINGTON-ARNOLD,Nos. 524,s. 524
Parties, 4 Fair Empl.Prac.Cas. (BNA) 1231, 5 Empl. Prac. Dec. P 8426 The SCHOOL DISTRICT OF PHILADELPHIA, Appellant, v. PENNSYLVANIA HUMAN RELATIONS COMMISSION, Appellee. The SCHOOL DISTRICT OF PITTSBURGH, Appellant, v. PENNSYLVANIA HUMAN RELATIONS COMMISSION, Appellee. UNIONTOWN AREA SCHOOL DISTRICT, Appellant, v. PENNSYLVANIA HUMAN RELATIONS COMMISSION, Appellee. NEW CASTLE AREA SCHOOL DISTRICT, Appellant, v. PENNSYLVANIA HUMAN RELATIONS COMMISSION, Appellee. NEWSCHOOL DISTRICT, Appellant, v. PENNSYLVANIA HUMAN RELATIONS COMMISSION, Appellee. C.D. 1971, 568 C.D. 1971, 744 C.D. 1971, 769 C.D. 19711972101609;;;OT; 931CD1971;;. Commonwealth Court of Pennsylvania
CourtCommonwealth Court of Pennsylvania

Gillian R. Gilhool, Asst. Counsel, Philadelphia, for School District of Philadelphia.

Justin M. Johnson, Sol., Pittsburgh, for School District of Pittsburgh.

Herbert Margolis, Ray, Buck, Margolis, Mahoney & John, Uniontown, for Uniontown Area School District.

Joseph Solomon, Solomon & Solomon, Jonathan Solomon, New Castle, for New Castle Area School District.

Robert J. Key, Philip Corbin, Jr., New Kensington, for New Kensington-Arnold School District.

Stanton W. Kratzok, Asst. Atty. Gen., Philadelphia, Jay Harris Feldstein, Asst. Gen. Counsel, Pittsburgh, J. Shane Creamer, Atty. Gen., Harrisburg, for Pennsylvania Human Relations Commission.

Before BOWMAN, President Judge, and CRUMLISH, Jr., KRAMER, WILKINSON, MENCER, ROGERS and BLATT, JJ.

OPINION

WILKINSON, Judge.

This Court has before it five cases in which the Pennsylvania Human Relations Commission has ordered a school district to submit a plan to achieve racial balance in its public schools. In all instances, the school district has appealed, assigning one or more of the following reasons on which it requests this Court to reverse the order of the Commission:

1. There is no finding of a De jure segregation nor is there any evidence to support such a finding.

2. The standards used by the Commission in determining that there was De facto segregation are arbitrary and capricious.

3. The Commission may not direct the filing of a plan which the School Board cannot finance.

4. The Commission may not file an order unless it has conducted investigations, conferences, conciliation, and persuasion prior to conducting a hearing on a complaint filed against the school district.

5. The Commission may not order a plan to be filed to include employment practices designed to achieve racially balanced staff without an allegation in the complaint that present employment practices are discriminatory.

The first two arguments have been put to rest in Pennsylvania by the opinions and orders in Pennsylvania Human Relations Commission v. Chester School District, 427 Pa. 157, 233 A.2d 290 (1967), and the very recent case of Balsbaugh v. Rowland, 447 Pa. 423, 290 A.2d 85 (1972). 1 It is unforfunate that the appellants did not have the benefit of Justice Pomeroy's able opinion in Balsbaugh when they prepared their appeals in the instant cases, for most of their fundamental arguments are discussed at length and discarded in that opinion. In Balsbaugh, the Harrisburg City School District was putting into effect a daily cross-city busing plan that would transport approximately 28% Of its pupils to achieve a racial balance within 10% Of the racial composition of the total public school population. The plan would cost upwards of one million dollars annually. Plaintiffs there sought an injunction against the implementation of the plan, alleging that the District adopted the plan under duress from the Human Relations Commission, and that the plan violated the equal protection clause of the Fourteenth Amendment of the Constitution of the United States. Speaking for a unanimous court, with all Justices sitting, Justice Pomeroy clearly sets forth the distinction between any alleged constitutional duty of the State to provide busing to relieve De facto segregation as distinguished from De jure segregation and the right of the Human Relations Commission to require busing under authority granted to it by the legislature.

'If assignment and busing of pupils may be acceptable, and indeed required, methods of attempting to overcome racial segregation where that condition is historically of De jure origin, it would indeed be anomalous if they were nevertheless considered to be unreasonable, discriminatory and therefore unconstitutional methods when voluntarily employed by a state to rectify an imbalance which is the product of De facto segregation.'

Balsbaugh v. Rowland, Supra, at 438, 290 A.2d at 93.

The opinion states that the Commission is within its statutory authority to require such a plan.

'. . . the Human Relations Commission is well within its rights in ordering that steps be taken to eliminate racial segregation found to exist within the student population of any school district. . . . In Pennsylvania Human Relations Commission v. Chester School District, 427 Pa. 157, 233 A.2d 290 (1967), we laid to rest arguments to the effect that the Human Relations Act did not permit the Commission to require school boards to take corrective measures to overcome De facto racial segregation within their districts.' 447 Pa. at 432--433, 290 A.2d at 90.

The argument that the requirement of the Commission for the plan to achieve racial balance within 30% Of the racial composition of the total school population is arbitrary and capricious fails completely in light of the decision in Balsbaugh where the plan required racial balance within 10%. The argument of appellants that classroom facilities with 55% Black and 45% White could not be said to be in any substantial racial imbalance, even though the District has a 9% Black and 91% White school population, is one that must be made to the Human Relations Commission and not to this Court. The Commission is the body that has been designated by the legislature to determine such matters. Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 955. Justice Roberts, in Chester, discusses at length the Commission's jurisdiction and the history of the legislation. He concludes:

'Moreover, having expressed its findings and goals in an early section, the Legislature undoubtedly envisioned a case-by-case approach to the elimination of racial imbalance in public schools. Most observers agree that when courts are forced to devise and supervise programs whose goal is the elimination of racial imbalance they are acting in an area alien to their expertise. These observers would prefer to see De facto segregation attacked by the community itself utilizing other organs of the government. The Human Relations Commission, whose function is to work with the parties to the dispute in an attempt to alleviate the source of the friction through 'conference, conciliation and persuasion,' and whose procedure is considerably more flexible than the courts, is, as the Legislature recognized, better equipped to deal with this problem than the courts. 'In each case, the interests protected by adherence to neighborhood attendance zones must be weighed against the substantiality of the racial imbalance judgments, and flexible enough to such as the Human Relations Commission is best equipped to make these difficult judgments, and flexhible enough to enter appropriate remedial orders. '' Pennsylvania Human Relations Commission v. Chester School District, Supra, 427 Pa. at 179, 233 A.2d at 301--302.

The Court is very sympathetic with the position of the School Districts that it is futile to require the districts to submit plans that would meet the minimum requirements of the Commission when the increased costs incident to such plans, i.e., busing, installation of cafeterias, lunch programs, etc., are beyond the financial capabilities of the Districts. However, the costs cannot be determined with any accuracy until a minimum acceptable plan is submitted. Whether it can be implemented within the financial capabilities of the Districts, together with such support from other sources as can be generated and with any realignment of priorities, will have to be determined at that time.

A corollary argument regarding the futility of filing a plan as ordered is raised directly by Philadelphia but would seem to be applicable to most metropolitan areas. This argument is that a suitable practical plan cannot be devised without the inclusion of the adjoining suburban districts. The power of the the Federal courts to order such inclusion under the rights guaranteed by the Federal Constitution is now in litigation through the Federal courts and presumably will be decided by the United States Supreme Court within the foreseeable future. We will not comment on this litigation. Once again, we must emphasize that the cases before this Court turn on the authority of the Human Relations Commission, not on rights guaranteed by the United States Constitution. During the conference that followed the arguments of the Philadelphia and Pittsburgh cases, a plan for Philadelphia was presented by that School District 'in skeleton form' and appeared on its face to be worthy of further development. No such plan was received from Pittsburgh. When these cases are remanded for further action by the Commission, consistent with this opinion, it is hoped that the Philadelphia School District can 'flesh out' this plan and have its practicability and acceptability determined by the Commission. At that time, if the Commission so elects, it can be determined whether the Commission has authority to order the adjoining districts to participate.

Considerable argument is made that the Commission did not make suitable investigations, hold sufficient conferences, and attempt earnestly enough to conciliate after filing the complaints and before holding the hearings. This argument would have more weight if any substantial facts were in dispute or...

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