Appeal from the Order of the Pennsylvania Human Relations Commission in case of Pennsylvania Human Relations Commission v. Norristown Area School District, No. P-880.
Horace A. Davenport, for appellant.
Roy Yaffe, Assistant General Counsel, with him Sanford Kahn, General Counsel, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers.
[ 20 Pa. Commw. Page 556]
This appeal by the Norristown Area School District (District) from an order of the Pennsylvania Human Relations Commission (Commission) presents the issue posed, but not answered, in footnote 29 of the opinion of Mr. Justice Pomeroy writing for three Justices of our
[ 20 Pa. Commw. Page 557]
Supreme Court in Uniontown Area School District v. Pennsylvania Human Relations Commission, 455 Pa. 52, 80, 313 A.2d 156, 171 (1973)*fn1 -- that is, whether the Commission's definition of a segregated school is a regulation required when adopted to be filed with the Department of State by Section 21 of the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, as amended, 71 P.S. § 1710.21 and further required to be deposited with the Legislative Reference Bureau by the Commonwealth Documents Law, Act of July 31, 1968, P.L. 769, 45 P.S. § 1101 et seq.; or whether it is merely a statement of policy exempted from the filing and depositing requirements of the cited statutes.*fn2
[ 20 Pa. Commw. Page 558]
The definition in question appears in a document entitled "Recommended Elements of a School Desegregation Plan" promulgated jointly by the Commission and the State Department of Public Instruction (now the Department of Education) on May 15, 1968, and is as follows:
"How nearly does the desegregation plan bring the per cent Negro pupils in each building to within 30% of the per cent Negro pupils among the buildings of the same grade span?"
The District contends that the definition, although within the power of the Commission to make as decided by this and the Supreme Court in the Uniontown case, was an exercise of the Commission's legislative rule-making power*fn3 and hence a regulation required for its validity to have been adopted in accordance with statutory procedures. The District contends, therefore, that since the document entitled "Recommended Elements of a School Desegregation Plan," containing the definition, was neither filed as provided by the Administrative Agency Law nor deposited for inclusion in the Pennsylvania Code as required by the Commonwealth Documents Law, the ...