Appeals from the Orders of the Pennsylvania Human Relations Commission in cases of Pennsylvania Human Relations Commission v. The School District of Philadelphia, No. P-697; Pennsylvania Human Relations Commission v. Board of Public Education of the School District of Pittsburgh, Pennsylvania, No. P-691; Pennsylvania Human Relations Commission v. Uniontown Area School District, No. P-719; Pennsylvania Human Relations Commission v. New Castle Area School District, No. P-720, and Pennsylvania Human Relations Commission v. New Kensington-Arnold School District, No. P-710.
Gillian R. Gilhool, Assistant Counsel, with her Edward B. Soken, General Counsel, and Martin Horowitz, Assistant Counsel, for appellant, The School District of Philadelphia.
Justine M. Johnson, Solicitor, with him Bernard Markovitz, Assistant Solicitor, and Thomas J. Cox, Jr., Assistant Solicitor, for appellant, Board of Public Education of the School District of Pittsburgh.
Herbert Margolis, with him Ray, Buck, Margolis, Mahoney & John, for appellant, Uniontown Area School District.
Jonathan Solomon, with him Joseph Solomon and Solomon and Solomon, for appellant, New Castle Area School District.
Robert J. Key, with him Philip Corbin, Jr., for appellant, New Kensington-Arnold School District.
Stanton W. Kratzok, Assistant Attorney General, and Jay Harris Feldstein, Assistant General Counsel, with them Roy Yaffe, Assistant Attorney General, S. Asher Winikoff, General Counsel, and J. Shane Creamer, Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer and Rogers. Judge Manderino did not participate. Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Wilkinson. Dissenting Opinion by Judge Mencer.
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).*fn1 It is unfortunate 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 432-33, 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 ...