to our attention in which this rule has been applied to an elected chief executive in the exercise of his discretionary appointive power. We have reservations as to whether the Courts have the authority to exercise control over the chief executive in such circumstances; however, we need not decide this question since the facts presented in the instant case render use of this test unfeasible.
It is undisputed that sixty (60) percent of the Philadelphia Public School Population and thirty-three (33) percent of the Philadelphia population is black. Plaintiffs contend that the 60% figure should be used in determining whether there has been discrimination in appointments to the panel. With this reasoning, we do not concur. The standard when using a percentage rationale to establish a prima facie case of discrimination has always been the number of blacks qualified to fill the jobs in which the alleged discrimination is taking place. E.g., Turner v. Fouche, 396 U.S. 346, 90 S. Ct. 532, 24 L. Ed. 2d 567 (1970); Hernandez v. Texas, supra. In the instant case that figure would depend on the adult population of Philadelphia, which is approximately 33%.
Mayor Tate's appointments to the Panel include two blacks out of the thirteen appointees, or approximately fifteen point four (15.4) percent of the panel. In its six-year history, the panel has had from 1 to 3 blacks (8% to 23%). With only thirteen members on the Educational Nominating Panel, the addition or subtraction of one member of any ethnic or racial group results in a change of eight (8) percent in that group's representation. In this Court's opinion, such wide fluctuations based on small numerical changes in membership on the Panel result from the limited size of the Panel and render such statistics meaningless as an indicator of racial discrimination. Furthermore, in the cases wherein the percentage rationale has been adopted, there were a large number of blacks within the population eligible for a large number of positions. This is not the situation in the instant case where a small board is involved, and we cannot find that the absence of additional blacks from a thirteen-member panel proves discrimination.
Plaintiffs rely heavily on the fact that only 8.9% (5 of 56) of Mayor Tate's appointments for positions with salaries in excess of $20,000 have been black. Plaintiffs admit that this fact has no direct bearing on the issues before us, but state that it is relevant to show a pattern of discrimination. However, no case has been presented to us, nor does our research disclose any case, in which a percentage rationale has been used to prove job discrimination without a finding that those allegedly being excluded could qualify for those jobs in roughly the same ratio as they appear in the population. Since no evidence was presented, we cannot assume the percentage who could qualify for such positions. Therefore, the aforesaid statistic is not meaningful, and we do not have to determine whether it is relevant in making a determination on the issue of racial discrimination.
Since the facts of the instant case do not lend themselves to the percentage rationale, plaintiffs must show discrimination by direct proof. The only direct proof offered by the plaintiffs was a newspaper article allegedly quoting Mayor Tate to the effect that he would not appoint any more blacks to the Board of Education. However, since said newspaper article is inadmissible hearsay, there is no direct proof of discrimination in this record.
Further, plaintiffs would have us construe Section 12-206(c) of the Educational Supplement to hold that the phrase "representative of the community" refers to racial balance. However, the interpretation of this statute would more properly be decided by the State courts, and we take no position thereto. Similarly, while it is clear that the Mayor has not appointed the chief executive officer of the various organizations selected for representation on the Panel as required by the Educational Supplement, such violations have no bearing on the charges of racial discrimination and should also be decided by the State courts.
CONCLUSIONS OF LAW
1. This Court has jurisdiction of this case under 28 U.S.C. 1343(3).
2. This action is properly maintainable as a class action on behalf of black students and parents, on behalf of black organizations which qualify for membership on the Educational Nominating Panel, and on behalf of all black citizens of Philadelphia.
3. The fact that there have been alleged violations of the Charter in appointments to the Educational Nominating Panel, such as the failure to appoint chief executives of organizations to the Panel and failing to appoint at-large members to adequately represent the entire community, are not relevant in determining whether racial discrimination was involved with the appointments and such issues should be litigated in the State courts.
4. In the context of the facts found by this Court, the percentage rationale cannot be used to establish a prima facie case of racial discrimination by defendant in violation of the Fourteenth Amendment in the appointment of members to the Educational Nominating Panel.
5. The plaintiffs failed to prove that the Educational Nominating Panel was appointed in violation of the Fourteenth Amendment to the Constitution of the United States.
6. Plaintiffs' complaint is, therefore, dismissed with prejudice.