Appeal from order of Court of Common Pleas of Dauphin County, No. 637 Commonwealth Docket, 1964, in case of Pennsylvania Human Relations Commission v. Chester School District.
Nathan Agran, General Counsel, with him Herman Speerman, Assistant Counsel, and Arthur C. Thomas, Deputy Attorney General, for Human Relations Commission, appellant.
Guy G. deFuria, with him deFuria, Larkin and deFuria, for Chester School District, appellee.
Garland D. Cherry, with him Kassab, Cherry, Curran and Archibald, for amicus curiae.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Dissenting Opinion by Hoffman, J. Spaulding, J., joins in this dissenting opinion.
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The order of the Court of Common Pleas of Dauphin County is affirmed on the opinion of Judge James S. Bowman for the court below, reported at 40 Pa. D. & C. 2d 493.
Dissenting Opinion by Hoffman, J.:
This case raises important questions regarding the power of the Pennsylvania Human Relations Commission to remedy racial imbalance in the public schools. The opinion of the lower court, which the majority affirms today, narrowly construes the Commission's statutory mandate and, in my view, improperly curtails the commission's authority in this critical area.
In the fall of 1963, civil rights groups and residents of the City of Chester began a series of increasingly bitter public demonstrations. They charged that the School Board engaged in discriminatory practices in managing the City's educational system. All efforts to resolve the dispute through conciliation met with failure.
At the direction of the Governor, the Pennsylvania Human Relations Commission entered the controversy in May of 1964. The Commission filed a formal complaint under § 5(i)(1) of the Pennsylvania Human Relations Act of October 27, 1955, P. L. 744, as amended, 43 P.S. § 955(i)(1). That section provides: "It shall be an unlawful discriminatory practice. . . . (i) For any person being the . . . manager, superintendent, agent or employe of any place of public accommodation . . . to (1) Refuse, withhold from, or deny to any person because of his race, color, religious creed, ancestry or national origin, either directly or indirectly, any of the accommodations, advantages, facilities or privileges of such place of public accommodation. . . ." Public schools ("kindergartens, primary and secondary
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schools, high schools") are places of public accommodation within the meaning of the Act. § 4(1), 43 P.S. § 954(1). The term "discriminate" includes "segregate." § 4(g), 43 P.S. § 954(g).
In its complaint the Commission charged, inter alia, that the Chester School District had failed to adopt and make public an affirmative plan to desegregate the schools; that it had "maintained and gerrymandered" boundary lines in order to perpetuate all-Negro schools within the City; and that the City's all-Negro schools were inferior in physical plant and educational standards to schools which were substantially all-white.*fn1 Eight days of public hearings produced a voluminous record of testimony and exhibits.
On November 24, 1964, the Commission issued its adjudication and order. The key paragraph of this order directed: "That the respondent, Chester School District, by and through the Chester School Board, its officers, agents and employes, shall take immediate steps to desegregate effectively the all-Negro or substantially all-Negro Douglass Junior High School, and the following all-Negro or substantially all-Negro elementary schools: Dewey-Mann, Franklin, Lincoln, Washington and Watts." The order further required the school district to formulate a plan for the effective desegregation of those facilities, and suggested guidelines for "short range and immediate action."*fn2
The schools named in the order are located in the center of Chester, in a predominantly Negro residential
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area. At the time of the hearings, there were 10,842 pupils in the Chester School District. Of these, 4,147, or 38%, were white and 6,695, or 62% were Negro. The racial composition of the schools in question was: