Appeals, Nos. 55, 58 and 59, March T., 1973, from orders of Commonwealth Court, Nos. 744, 769 and 931 C.D. 1971, in cases of Uniontown Area School District v. Pennsylvania Human Relations Commission; New Castle Area School District v. Same; New Kensington-Arnold School District v. Same. Orders of Commonwealth Court affirmed. Same cases in Commonwealth Court: 6 Pa. Commonwealth Ct. 281. Appeal by school districts to Commonwealth Court from orders of Pennsylvania Human Relations Commission. Order entered affirming orders of Commission in part and remanding for further proceedings, opinion by WILKINSON, J., dissenting opinion by MENCER, J. School districts appealed.
Herbert Margolis, with him Ray, Buck, Margolis, Mahoney & John, for Uniontown Area School District, appellant.
Jonathan Solomon, with him Joseph Solomon, and Solomon & Solomon, for New Castle Area School District, appellant.
Robert J. Key, with him Philip Corbin, Jr., for New Kensington-Arnold School District, appellant.
Jay Harris Feldstein, Assistant Attorney General, with him Israel Packel, Attorney General, for appellee.
Before Jones, C.j., Eagen, O'brien, Roberts, Pomeroy, Nix and Manderino, JJ.
Opinion BY MR. JUSTICE POMEROY
The appeals now before us are from the decision of the Commonwealth Court in Philadelphia School District v. Pennsylvania Human Relations Commission, 6 Pa. Commonwealth Ct. 281, 294 A.2d 410 (1972) in which that court affirmed orders issued by the Commission to five school districts (Philadelphia, Pittsburgh, Uniontown, New Castle and New Kensington-Arnold) upon a finding by the Commission of a violation by each district of section 5(i)(1) of the Human Relations Act, Oct. 27, 1955, P.L. 744, as amended, 43 P.S. § 955 (Supp. 1973-74).*fn1
In September of 1967, this Court held that under the section of the Human Relations Act set forth in note 1, the Commission was empowered to correct de facto segregation occurring in the public schools of this State. Pennsylvania Human Relations Commission v. Chester School District, 427 Pa. 157, 233 A.2d 290 (1967). Although we noted at the outset that the term " de facto segregation" was not fully defined,*fn2 we found it unnecessary in Chester to state any particular definition because we there observed that "the . . . figures, which are not disputed, satisfy any definition of de facto segregation."*fn3 (Emphasis added.) 427 Pa. at 178. While we did not think that it followed from the absence from the Human Relations Act of any particular definition that the General Assembly had unconstitutionally delegated its law-giving power to the Commission, we pointed out that the availability of judicial review under the Administrative Agency Law would "provide adequate protection . . . [s]hould the commission at some future date abuse its authority," id., and that in so empowering the Commission to act against de facto segregation, "the Legislature undoubtedly envisioned a case-by-case approach." 427 Pa. at 179. Since the date of our decision in Chester, the Legislature has not amended the Human Relations Act in a manner which would suggest disagreement, and we therefore persevere in our belief that, indeed, the Human Relations Act does speak to segregation that does not arise from official policy or acts.*fn4
On March 29, 1968, subsequent to Chester, the Human Relations Commission together with the Department of Public Instruction adopted through a procedure not elucidated by the records in these appeals a document entitled "Desegregation Guidelines for Public Schools", which described itself as "set[ting] forth guidelines for school districts" and which contained the following paragraph:
"1. Segregation as a factor in public education
"When any one public school building comes to be viewed as improperly exclusive in fact or in spirit; when it is viewed as being reserved for certain community groups; when morale, teacher and pupil motivation and achievement are affected by the racial imbalance, the school system is being adversely affected by segregation. In other words, segregation is not an arbitrary numerical relationship of one group to another. Segregation becomes a factor adversely affecting education when an untoward concentration of any racial group in one building begins to destroy the functioning of the entire system as a 'common school'.
"The common school has long been viewed as a basis social instrument in attaining our traditional goals of equal opportunity and personal fulfillment. The presence in a single school of children from varied backgrounds is an important element in the preparation of young people for active participation in the social and political affairs of our democracy.
"Insofar as possible every school building should reflect in its enrollment a cross section of the entire community." Shortly thereafter, on May 15, 1968, the Commission and the Department of Public Instruction adopted a document entitled "Recommended Elements of a School Desegregation Plan", one of the tests of which was -- "3. How nearly does the desegregation plan bring the percent Negro pupils in each building to within 30% of the percent Negro pupils among the buildings of the same grade span?"*fn5
In its undertaking to apply these principles to the 634 odd school districts in Pennsylvania, the Commission resolved for purposes of administrative manageability to proceed first against those districts (17 in number) in which any one school building contained more than 80% Negro pupils and in which the permissible deviation (30%) was violated. When in the early Spring of 1970 all but two (Philadelphia and Pittsburgh) of these districts had adopted or were in the process of adopting a plan of desegregation acceptable to the Commission, the Commission then approached the eight school districts in which any one school building contained more than 50% Negro pupils and in which the permissible deviation was exceeded.*fn6 To that end the Commission sponsored in June, 1970 a conference at Allenberry, Pennsylvania to which representatives of the school districts of New Castle, Uniontown and New Kensington-Arnold, among others, were invited and at which the Commission explained its "Desegregation Guidelines for Public Schools" and its "Recommended Elements of a School Desegregation Plan". The three appellant-school districts, however, failed to submit desegregation plans acceptable to the Commission. In late 1970 or early 1971, therefore, the Commission issued complaints against the three individually and, after a hearing in each case, found as a fact that --
"VI. A racially-segregated or racially-imbalanced school is one whose concentration of Negro or white pupils is disproportionate to the enrollment of that particular racial group in all of the schools of the same grade span of a school district.
"VII. A disproportionate racial concentration of pupils in a public school consists of a pupil enrollment in which the percent of Negro pupils is less than or more than thirty (30%) percent of the percent of the Negro pupils in schools of the same grade span of a school district, as defined by the Complainant and Pennsylvania Department of Education in 'Desegregation Guidelines for Public Schools' and 'Recommended Elements of a School Desegregation Plan.'"*fn7 Applying that "fact" to the statistics of the appellant districts (set out in the Appendix to this opinion), the Commission found as a conclusion of law that each district was in violation of Section 5(i)(1) of the Human Relations Act.*fn8 Consequently, the Commission entered a final order directing each district to "develop and submit" a plan and timetable for implementation that would eliminate racial imbalance as defined by the Commission.
The appeals of New Castle, Uniontown and New Kensington-Arnold were consolidated for decision with similar appeals taken by Philadelphia and Pittsburgh in the Commonwealth Court,*fn9 and the Commission's "develop and submit" orders were affirmed. The court held that the school districts' arguments -- that a finding of de facto segregation was unwarranted and that the standards employed by the Commission (the 30% test, supra) were arbitrary and capricious -- were "put to rest" in Chester, supra, and in our more recent decision in Balsbaugh v. Rowland, 447 Pa. 423, 290 A.2d 85 (1972). The latter case was read by the Commonwealth Court as approving the very definition involved in these appeals, but with a permissible deviation of 10% instead of 30%. The argument against the Commission's definition of racial imbalance, the Commonwealth Court concluded, "is one that must be made to the Human Relations Commission and not to this Court". 6 Pa. Commonwealth Ct. at 286.*fn10 We granted review at the request of the appellant-school districts and in light of the public importance of the issue presented. We now affirm.*fn11
All agree that the core issue here is the power of the Commission to adopt its definition of racial imbalance, or, put somewhat differently, whether its definition in fact accurately interprets Section 5(i)(1) of the Human Relations Act.
We begin by observing that we have not decided this question previously. In Chester, as pointed out earlier, we found it unnecessary to adopt any particular definition of what degree of racial imbalance constituted de facto segregation. In Balsbaugh, taxpayers in Harrisburg filed a complaint in equity against the Harrisburg City School District, Seeking to enjoin the implementation of a desegregation plan drawn up by the school district at the request of the Human Relations Commission.*fn12 The Commission was not a party to that action and, as we noted, "no challenge of any kind has been made by appellants to the legality or propriety of the directive of the Commission that steps be taken to create a better racial balance, nor was this directive contested by the School Board". 447 Pa. at 433. In stead, we viewed the Balsbaugh issue as that of the power of the appellee school board under the Public School Code of 1949 to implement such a plan; we did not there interpret Section 5(i)(1) of the Human Relations Act, nor were we called upon to examine the power here asserted by the Commission to adopt its definition.
The appellant-school districts ask us to say that the Legislature's intention in defining as an "unlawful discriminatory practice" the act of refusing, withholding, or denying "to any person because of his race . . . either directly or indirectly, any of the accommodations, advantages, facilities or privileges of [a] place of public accommodation. . . ." 43 P.S. 955 (Supp. 1973-74), was not to require that every school building in the Commonwealth reflect to a mathematical precision the racial makeup of the school district as a whole. Were that in fact the approach required, this Court would have great difficulty in saying that such was or was not the Legislature's intention.
As the Commission states in its brief, a search of the Human Relations Act for standards useful in defining de facto segregation is unavailing; "none are stated in the Act itself."*fn13 The Commission's Director of Education, by his testimony, informs us that the proffered definition of de facto segregation is unique in the United States and that it was adopted after consideration and rejection of other definitions of the term in use elsewhere. It will be useful to review those other definitions.
Federal law: Where segregation is "de facto", as distinguished from "de jure", the federal constitutional law as announced by the Supreme Court of the United States forbids only intentionally discriminatory acts. Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 93 S. Ct. 2886, 37 L. Ed. 2d 548 (1973); Spencer v. Kugler, 404 U.S. 1027, 30 L. Ed. 2d 723 (1972), aff'g 326 F. Supp. 1235 (D.N.J. 1971).*fn14 It is clear, therefore, that our Human Relations Act reaches segregation not yet remediable under constitutional theories. Congress has forbidden federal courts to attempt correction of de facto segregation*fn15 by assignment or transportation of pupils. This statute, of course, has not affected the power of federal courts to remedy unconstitutional (i.e., de jure) segregation, Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U.S. 1, 17-18, 28 L. Ed. 2d 554 (1971), nor does it affect the power of this State to deal with de facto segregation as a matter of state law.*fn16
Prior to the recent Keyes [Denver School District] decision requiring that the complainant show affirmative discriminatory action, some federal decisions*fn17 had dealt with arguments based on the necessity for achieving racial balance. In Swann v. Charlotte-Mecklenburg Bd. of Education, supra, for example, the argument was made that the district court had relied on a mathematical formula or "norm" in remedying de jure segregation. The Supreme Court answered: "If we were to read the holding of the District Court to require, as a matter of substantive constitutional right, any particular degree of racial balance or mixing, that approach would be disapproved and we would be obliged to reverse. The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole. " (Emphasis added.) 402 U.S. at 24. In Cisneros, cited supra at note 14, the Fifth Circuit, although of the view that the distinction between de facto and de jure was meaningless when Mexican-American and Negro school children attended neighborhood schools which were overwhelmingly minority-populated, refrained from adopting any mathematical view of to what extent racial mixing would be required. See also Mapp v. Board of Education of Chattanooga, 477 F. 2d 851, 857 (6th Cir. 1973) (WEICK, J., dissenting: "There is no provision in the Constitution which can be read as saying that the races must be mixed in each and every school in the system. . . .").*fn18
In Bell v. School City of Gary, Indiana, 213 F. Supp. 819, 829 (N.D. Ind., aff'd, 324 F. 2d 209 (7th Cir. 1963), cert. denied, 377 U.S. 924, 12 L. Ed. 2d 216 (1964)), a Dr. Max Wolff*fn19 testified for plaintiffs and defined a segregated school as "'any school where the percentage of Negro to white students was one-third greater or one-third less than the percentage of Negro students to white students in the entire system.'" The court in Bell replied: "Dr. Wolff cited no authority for his definition of segregated schools other than himself. Dr. Wolff's definition of a segregated school may be a good sociological definition, but the Court can find no authority which would indicate that it is a good legal definition." 213 F. Supp. at 829.
While federal courts have so far not found it necessary to adopt any particular definition of de facto segregation, one district court, in holding that the constitution reaches imbalance caused by residential patterns, observed as follows: "However, segregation in the sense of racial imbalance, exists in the Springfield school system. While the experts did not agree on what constitutes racial imbalance in general, or in Springfield in particular, it is unnecessary to define the term. In light of the ratio of white to non-white in the total population of the City of Springfield [80% white], I do find, however, that a non-white attendance of appreciably more than fifty percent in any one school is tantamount to segregation. " (Emphasis added.) Barksdale v Springfield School Committee, 237 F. Supp. 543, 544 (D. Mass., vacated on other grounds, 348 F. 2d 261 (1st Cir. 1965)).
One distinguished federal jurist, Judge J. Skelly Wright, in his opinion in Hobson v. Hansen, 269 F. Supp. 401 (D.D.C. 1967), aff'd sub nom. Smuck v. Hobson, 408 F. 2d 175 (D.C. Cir. 1969), wrote as follows: "In these findings and throughout the opinion . . . 'segregation' will denote the state of racial separateness in the schools, regardless of cause. For expressing the degree of segregation in Washington schools, the court will call a school 'predominantly' Negro (or white) if 85% or more of its students are of that race. This cutoff point is relevant to evidence adduced by the parties respecting the state of segregation beyond which the education or social advantages attached to integration disappear." 269 F. Supp. at 411 n.9.
More recently a sociologist from Harvard University, Dr. Thomas F. Pettigrew, gave his views as to integration in Bradley v. School Board of Richmond, 338 F. Supp. 67, 194 (E.D. Va.), rev'd, 462 F. 2d 1058 (4th Cir. 1972), aff'd per curiam by an equally divided court, 412 U.S. 92, 93 S. Ct. 1952, 36 L. Ed. 2d 771 (1973). His testimony is thus summarized by the District Court: "To achieve 'integration', in Dr. Pettigrew's terms, one must have the 'mix plus positive interaction, as we would want to say, between whites and blacks'. Current research indicates that in order to achieve these benefits there is an optimum racial composition which should be sought in each school. Dr. Pettigrew placed this at form 20% to 40% black occupancy. These figures are not all hard and fast barriers, but merely indicate to the racial composition range in which inter-action of a positive sort is the more likely to occur. Social science is not such an exact science that the success or failure of integration depends upon a few percentage points. The lower level of 20% fixes the general area below which the black component takes on the characteristic of a token presence. Where only a few black students are in the particular school, there simply are insufficient numbers for them to be represented in most areas of school activities. Such participation would be crucial to the success of integration. The high level of 40% is linked not to the likely behavior of the students so much as it is to the behavior of their parents. When the black population in a school rises substantially above 40%, it has been Dr. Pettigrew's experience that white students tend to disappear from the school entirely at a rapid rate. . . ."*fn20
State Law: According to one author,*fn21 there are twelve states which by policy discourage racial imbalance in public schools and six states which enforce that policy in some manner -- Illinois, Pennsylvania, California, Massachusetts, New Jersey and New York.
The Legislature in Illinois in its Armstrong Act has mandated its school boards to achieve racial balance through periodic review and gerrymandering of neighborhood school attendance zones.*fn22 The statute by its terms would seem to preclude transportation of students as a tool in achieving balance. In Tometz v. Board of Education, Waukegan School District No. 61, 39 Ill. 2d 593, 237 N.E. 2d 498 (1968), the Supreme Court of Illinois upheld the Act against a claim that the state could not constitutionally make race a factor in drawing school boundaries. The court held, however, that while racial balance is a "paramount consideration", it was not the sole relevant consideration in adopting a school boundary. It specifically approved the action of the lower court in considering "traffic, distance, finance [and] classroom capacity". 237 N.E. 2d at 505.
In Jackson v. Pasadena City School District, 59 Cal. 2d 876, 31 Cal. Rptr. 606, 382 P. 2d 878 (1963), the Supreme Court of California held that an action in which a Negro child complained of being assigned to a predominantly Negro neighborhood school would withstand a demurrer, concluding that -- "a student under some circumstances would be entitled to relief where, by reason of residential segregation, substantial racial imbalance exists in his school. . . . The right to an equal opportunity for education and the harmful consequences of segregation require that school boards take steps, insofar as reasonably feasible, to alleviate racial imbalance in schools, ...