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decided: September 26, 1967.


Appeal from order of Superior Court, March T., 1967, No. 12, affirming 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, for appellant.

Guy G. deFuria, for appellee.

Paul A. Feiner, for amicus curiae.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Jones dissents. Mr. Justice Cohen took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Roberts

[ 427 Pa. Page 158]

The crux of this controversy concerns the authority of the Pennsylvania Human Relations Commission over charges of alleged de facto segregation in the school system of the City of Chester.*fn1 Akin to this central

[ 427 Pa. Page 159]

    problem is whether the Commission's findings of fact are supported by substantial evidence.

In November 1964, after a series of public hearings conducted in the City of Chester, the Commission ordered the Chester School District "by and through the Chester School Board, its officers, agents, and employes," to "take immediate steps to desegregate effectively" six public schools whose enrollments were either all Negro or substantially all Negro.*fn2 On appeal the Court of Common Pleas of Dauphin County, sitting as the Commonwealth Court, held that unless the Chester School District intentionally fostered or maintained segregation in the public schools, the Commission exceeded its jurisdiction in ordering the School District to take affirmative steps to relieve racial imbalance in its schools.*fn3 Moreover, the court further held those findings relied upon by the Commission to substantiate such responsibility were arbitrary and capricious. The Superior Court, adopting the Dauphin County Court's opinion as its own, affirmed; Judge Hoffman filed a dissenting opinion in which Judge Spaulding joined, 209 Pa. Superior Ct. 37, 224 A.2d 811 (1966). We granted allocatur. For reasons stated

[ 427 Pa. Page 160]

    hereinafter we reverse the decisions of the courts below.

I. The Factual Background

The academic year 1963-64 was one of unfortunate racial strife for the citizens of Chester. Negro residents of the city, assisted by civil rights advocates from neighboring communities, conducted a series of protest demonstrations aimed at inducing city officials to furnish their children quality, integrated education and to halt certain administrative practices which they alleged resulted in racial discrimination. The school board contended that the all Negro schools were the result of residential patterns for which they were not responsible, and denied the allegations of purposeful discrimination. Largely as a result of the obstinate refusal by both the school board and the civil rights groups to meet with each other in an attempt to solve their differences, relations between the Negro and white community rapidly deteriorated. Tensions between the two groups reached a climax on the evenings of March 27 and 28 when, during the course of massive civil rights demonstrations, the police arrested scores of individuals to accompanying cries of police brutality.

Some time prior to the March demonstrations the Mayor of Chester had appointed a Chester Commission on Human Relations which, after study, recommended that the school board integrate the faculties and develop a plan for integration of the elementary schools. The school board, however, remained adamant in its support of the existing pattern of neighborhood schools and seemed to foreclose any possibility that it might voluntarily take steps to alleviate the cause of discontent in the Negro community. With the almost total collapse of interracial good will following

[ 427 Pa. Page 161]

    the March demonstrations, the Chester Human Relations Commission became defunct. Up to this time the Pennsylvania Human Relations Commission, while cooperating with the Chester commission, had not directly participated in the Chester problem. However, in mid April, at the specific request of former Governor William Scranton and the late Attorney General Walter Alessandroni, the Pennsylvania Human Relations Commission intervened and succeeded in temporarily halting the demonstrations. The commission also arranged a meeting on April 20, 1964, between the school board and civil rights leaders, but this meeting failed even to establish a framework for future discussions. Thereafter on April 22 and 24 the demonstrations were resumed; again mass arrests were made, many demonstrators were injured, and charges of police brutality were leveled.

With the crisis in Chester worsening, an emergency meeting was held in Philadelphia on Sunday, April 26. At this meeting, attended by the Governor, the Attorney General, the Mayor of Chester, the Chester City Solicitor, counsel for the Chester School Board and representatives of the Pennsylvania Human Relations Commission, it was decided that the commission would hold immediate public hearings on the charges of alleged racial discrimination in the Chester school system, that the commission would attempt to induce the parties to settle the controversy themselves, but that if necessary the commission would issue an appropriate order.

The participants in the April 26 meeting expected the civil rights groups would act as the complainants in the proceedings. However, when the public hearings commenced these groups declined to do so because of expressed uncertainties about the power of the commission to issue an effective order, and because they were afraid their participation in the hearings would prejudice

[ 427 Pa. Page 162]

    their standing in the event they decided to file a court suit.*fn4 Under the circumstances the commission filed its own complaint wherein it set forth verbatim the same nine charges made by the civil rights groups in a letter addressed to the commission's general counsel. Public hearings were held on 4, 5, 6, and 14 May, 11 June, 17 and 29 September 1964. In addition on July 13 an off the record meeting was held between the commission and the representatives of the school district in an attempt to reach a solution without the necessity of issuing a formal adjudication and order. This attempt proved unsuccessful. On November 20, 1964, the commission issued its opinion, which included fifty-three findings of fact and eight conclusions of law. In its decision the commission dismissed two of the nine allegations charged in the complaint but found: "The respondent has committed and continues to commit unlawful discriminatory practices in violation of Sections 4(g), 5(a) and 5(i) of the Pennsylvania Human Relations Act, in that (1) respondent maintains segregated, all-Negro and substantially all-Negro public schools within its school system, (2) respondent has established public school zones which confine the Negro pupils to all-Negro schools, (3) respondent has failed to make available kindergartens in sufficient number to accommodate the children of Negroes living in Chester, (4) respondent assigns only Negro teachers and only Negro clerks to all-Negro schools, (5) respondent has permitted the physical condition of the all-Negro school buildings to be inferior to that of other school buildings in its system, and (6) respondent has failed to accept or adopt any affirmative plan whereby the public schools it administers will be effectively desegregated within

[ 427 Pa. Page 163]

    a reasonable time." At the same time, the commission issued its final order wherein it directed the Chester School District to cease and desist from these practices and to take immediate corrective measures.

As provided for in § 10 of the Pennsylvania Human Relations Act,*fn5 the school district appealed the commission's decision under the provisions of the Administrative Agency Law.*fn6 Initially, exceptions to twenty-six of the fifty-three findings of fact made by the commission, its conclusions of law, decision, and final order were filed, but several of these exceptions have since been abandoned. Specifically, the school district no longer objects to that part of the commission's order concerning its practice of assigning Negro clerks and teachers to all Negro schools nor with its failure to provide most Negro children with kindergartens, although with respect to the latter it continues to believe there was no legal or factual basis for the commission's conclusions. Indeed the school district claims to have made substantial progress regarding both complaints. Preserved for our review are the crucial questions of jurisdiction and whether the record supports the commission's finding that the neighborhood school system as applied in Chester violates the Pennsylvania Human Relations Act.

II. The Procedure Adopted

The school district takes the position that, in the absence of a complaint filed by an aggrieved individual, the commission possessed authority only to conduct an investigatory hearing but could not itself serve as the complainant or issue a final order. This procedural argument was rejected by the courts below; since we are in accord with the reasons expressed in the Dauphin

[ 427 Pa. Page 164]

County Court's opinion on this aspect of the controversy, 85 Dauph. at 22-25, 224 A.2d at 818-20, there is no need to consider it anew.

III. The Commission's Jurisdiction

The school district does not suggest that it would be unconstitutional for the Legislature to command them to consider race in their districting proposals in order to achieve a semblance of racial balance in its schools, nor do we believe there would be any merit in such a contention. See Jackson v. Pasadena City School Dist., 59 Cal. 2d 876, 382 P. 2d 878 (1963); Guida v. Board of Educ. of New Haven, 26 Conn. Supp. 121, 213 A.2d 843 (1965); School Committee of Boston v. Board of Educ., 227 N.E. 2d 729 (Mass. 1967); Booker v. Bd. of Educ. of Plainfield, 45 N.J. 161, 212 A.2d 1 (1965); Balaban v. Rubin, 14 N.Y. 2d 193, 199 N.E. 2d 375, 250 N.Y.S. 2d 281, cert. denied, 379 U.S. 881, 85 S. Ct. 148 (1964); cf. Hobson v. Hansen, 269 F. Supp. 401 (D.C. D.C. 1967); United States v. Jefferson County Bd. of Educ., 372 F. 2d 836 (5th Cir. 1966), aff'd en banc, March 29, 1967 (per curiam). But see Tometz v. Board of Educ. of Waukegan City School Dist., N.E. 2d (Ill. June 20, 1967) (Dock. No. 40292 -- Mar. 1967). Rather its position is that the Legislature has not chosen to require this, and in the absence of such a directive, the school board need not consider race in drawing boundary lines. The school district, while believing de facto segregation to be regrettable from an educational standpoint, views the solution as lying in the integration of the community's residential sections over which it has no control.

Both parties recognize the correctness of their respective views regarding the commission's jurisdiction depends upon the construction of the phrase "directly

[ 427 Pa. Page 165]

    or indirectly" in the context of the following statutory language: "It shall be an unlawful discriminatory practice . . . for . . . any place of public accommodation . . . to . . . 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. . . ." Pennsylvania Human Relations Act, § 5 (i) (1), Act of October 27, 1955, P. L. 744, as amended by the Act of February 28, 1961, P. L. 47, 43 P.S. § 955(i)(1). By virtue of § 4, 19 P.S. § 954, public schools are places of public accommodation.

In adopting the construction urged by the school district, the courts below reasoned: "As used in this particular statute, it is clear that the phrase 'either directly or indirectly' relates to and modifies the words 'refuse, withhold from, or deny.' Such words contemplate intentional or affirmative acts on the part of the wrongdoer," 85 Dauph. at 27, 224 A.2d at 821. We cannot agree. To begin with the Legislature has specifically mandated in § 12 that "the provisions of this act shall be construed liberally for the accomplishment of the purposes thereof." In our view a more reasonable construction of the disputed phrase would be that where, as here, the responsible party has the power to take corrective measures, indeed of necessity it must redistrict periodically, its failure to act amounts to the continued withholding from ...

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