Original jurisdiction in case of Pennsylvania Human Relations Commission v. School District of Philadelphia.
Roy Yaffe, Assistant General Counsel, with him Sanford Kahn, General Counsel, for petitioner.
Martin Horowitz, Assistant Counsel, for respondent, School District.
Lawrence I. Boonin, for School Board member, Boonin.
Stephen F. Freind, with him Freind & Willmann, for intervenors, Harry and Anne Marie Gwynne, et al. and Dr. and Mrs. Albert List, Jr., et al.
William H. Ewing, with him Goodman & Ewing, for amicus curiae, Mt. Airy Neighbors, Inc.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers.
[ 23 Pa. Commw. Page 313]
Before us are petitions of the Pennsylvania Human Relations Commission for enforcement of its order upon the School District of Philadelphia that the latter submit a plan and timetable for the elimination of racial imbalance in the public schools of the City of Philadelphia.
The Commission's order, which amended an earlier order of the Commission affirmed by us in Philadelphia School District v. Human Relations Commission, 6 Pa. Commonwealth Ct. 281, 294 A.2d 410 (1972), reads as follows:
"And Now, this 25th day of September, 1972, pursuant to the Opinion and Order of the Commonwealth Court of Pennsylvania in The School District of Philadelphia v. Pennsylvania Human Relations Commission (No. 524 Commonwealth Docket, 1971), dated August 17, 1972, and upon consideration of the foregoing Findings of Fact and Conclusions of Law and pursuant to Section 9 of the Pennsylvania Human Relations Act, the Pennsylvania Human Relations Commission
[ 23 Pa. Commw. Page 314]
"A. Respondent, The School District of Philadelphia, to develop and submit to the Pennsylvania Human Relations Commission by January 2, 1973, for approval by the Commission, a plan and timetable for implementation thereof that will eliminate racial imbalance*fn1 in its schools. Such plan shall conform to the 'Recommended Elements of a School Desegregation Plan,' dated May 15, 1968, attached hereto and made part hereof with the exception of paragraph four of said 'Recommended Elements.'
"B. That the plan and timetable for its implementation submitted shall accomplish the following:
1. Elimination of racial imbalance in all vocational-technical schools by the beginning of the school year 1973-74.
2. Elimination of racial imbalance in all senior high schools by the beginning of the school year 1973-74.
3. Elimination of racial imbalance in all junior high schools by the beginning of the school year 1973-74.
4. Elimination of racial imbalance in all middle schools by the beginning of the school year 1973-74.
5. Elimination of racial imbalance in all elementary schools in and by the following steps:
(a) By the beginning of the school year 1973-74, reducing by at least one-third the number of elementary schools with racial imbalance.
[ 23 Pa. Commw. Page 315]
(b) By the beginning of the school year 1974-75, reducing by at least one-half the remaining number of elementary schools with racial imbalance.
(c) By the beginning of the school year 1975-76, eliminating any remaining racial imbalance in elementary schools.
"C. That the plan and timetable for its implementation submitted shall:
1. Include beginning and completion dates for each desegregation step, together with the projected desegregation results of each step in terms of the number and identity of Respondent's schools and the number of the Respondent's pupils changed from a status of racial imbalance to racial balance.
2. Avoid transportation of pupils for lengths of time or distance that risk their health or significantly impinge on their education process. If the results of this stipulation is that racial imbalance will not be corrected in all schools, this plan must include justification acceptable to the Commission for this modification.
3. Not place an undue share of the participation in reassignment or transportation on one racial group.
"D. That any decentralization plan adopted or implemented by Respondent be consistent with this Amended Final Order.
"E. That Respondent shall forthwith cease and desist from opening any new school without a racially-balanced pupil enrollment.
"F. That Respondent in applying for approval of the Pennsylvania Department of Education of any steps in school building projects shall provide the
[ 23 Pa. Commw. Page 316]
Commission with the following data concerning the facility:
1. The location of the building site.
3. Attendance area boundaries.
4. Projected enrollment by race.
"G. That Respondent report to the Commission as follows:
1. By February 1 of each year, for as long as the Commission shall require it to comply with this Order, the pupil enrollment by race of each school building in Respondent's district, on report forms to be provided by the Commission.
2. By June 1 and December 1 of each year, for as long as the Commission shall require it to comply with this Order, a progress status regarding its curricular desegregation programs.
"H. That the Pennsylvania Human Relations Commission shall retain jurisdiction in this matter and reserves the right to amend this Amended Final Order from time to time to ensure that the public school enrollment within The School District of Philadelphia will continue to remain racially-balanced."
As may be supposed, the history of the efforts of the Pennsylvania Human Relations Commission to require the School District of Philadelphia to submit a plan and timetable for curing racial imbalance, and the efforts of the District, faced with enormous demographical, geographical, financial, social and political problems, to respond, is long. It begins with our Supreme Court's decision in Pennsylvania Human Relations Commission v. Chester School District, 427 Pa. 157, 233 A.2d 290 (1967), that the Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 951 et seq. proscribed de facto segregation of black students in the public schools of Pennsylvania, and that the Act empowers
[ 23 Pa. Commw. Page 317]
the Commission to order school districts to cure such conditions. The Commission and the Pennsylvania Department of Public Instruction (now the Department of Education) on May 15, 1968 jointly prepared and thereafter used a document called "Recommended Elements of a School Desegregation Plan" referred to in its Amended Final Order to the District. See Pennsylvania Human Relations Commission v. Norristown Area School District, 20 Pa. Commonwealth Ct. 555, 342 A.2d 464 (1975). The "Recommended Elements" are as follows:
"1. Does the desegregation plan indicate the projected racial composition of each elementary and and secondary school attendance area and the racial composition of the total staff of each building as of the completion dates of each step?
"2. Does the desegregation plan identify the location of proposed school building construction sites?
"3. 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?
"4. Does the desegregation plan include procedures to affirmatively and effectively recruit and assign an integrated staff at all levels for all schools?
"5. Does the desegregation plan correct any untoward concentrations of professional or non-professional Negro staff in any buildings?
"6. Does the desegregation plan equally match the services of its professional staff and program with the educational needs of each school building?
"7. Does the desegregation plan include plans for in-service training of staff to meet the needs and problems incident to the implementation of desegregation plans?
"8. Does the desegregation plan include steps to include intergroup education programming and the inclusion of the contributions of Negroes and
[ 23 Pa. Commw. Page 318]
other racial and ethnic groups in the history courses about Pennsylvania and the United States?
"9. Does the desegregation plan include a timetable indicating deadline dates by which each step will be completed? Are these dates as early as possible?
"10. Does the desegegration plan indicate involvement of the community in its development and implementation?
"11. Is the desegregation plan consistent with the Long Range Developmental Plan submitted to the Department of Public Instruction?"
In the year 1968 the Commission and the School District commenced discussions of what should and could be done in the Philadelphia District. The District filed a plan in June of 1969 which the Commission disapproved. Neither this plan nor the Commission's reasons for disapproving it are in the record. The Commission ultimately conducted hearings and issued the order requiring the submission of a further plan and timetable, which order was the subject of our deliberations in Philadelphia School District v. Human Relations Commission, supra. The Amended Final Order of September 25, 1972 followed.
The District, which did not appeal our decision in Philadelphia School District v. Pennsylvania Human Relations Commission, supra,*fn1 failed to submit a plan, and on August 6, 1973 the commission filed its first petition for
[ 23 Pa. Commw. Page 319]
enforcement of the Amended Final Order. The District filed an answer, the Commission filed a reply, we conducted an evidentiary hearing and on November 14, 1973, by Judge Wilkinson, ordered the District to submit a plan and timetable for implementation to the Commission on or before February 15, 1974. On that date the District filed a plan proposing in immediate future the busing of students from seven predominantly black schools and one predominantly white school to six other schools, the possibility of other such operations in the future and other measures, including the pairing of a "significant number of adjacent schools . . . which have a potential for pairing." There is evidence in the record that the number of schools which the District thought capable of being paired might be as low as fifteen and as high as forty. The Commission disapproved this plan and on April 2, 1974 filed a second petition for enforcement, requesting, inter alia, that this Court appoint a master. We conducted further hearings and on June 2, 1974 appointed the Honorable David H. Kurtzman, formerly Secretary of Public Instruction of Pennsylvania, as an expert to review the District's plan of February 15, 1974, and to report his recommendations on or before September 1, 1974. On August 29, 1974, Dr. Kurtzman filed his report, recommending that the District should be required as a first step to reassign and bus pupils in a designated portion of the City and to use this experience as a model for other areas in the future. Judge Wilkinson conducted a further hearing on September 24, 1974 at which both the Commission and the District presented evidence in opposition to Dr. Kurtzman's proposal.
On October 1, 1974, Judge Wilkinson ordered both the Commission and the District to prepare final definitive plans and to submit them to the Court on or before January 31, 1975. On the request of both parties this time was extended until July 7, 1975, and within that time both parties filed plans which we will describe later in this opinion.
[ 23 Pa. Commw. Page 320]
We conducted four days of hearing in August, 1975, at which each the Commission and the School District explained its plan and produced objections to the other's proposal. Interested members of the public were also heard, most of whom expressed opposition to the Commission's plan. Before the hearings we permitted intervention of the members of a group of persons calling themselves Citizens Committee for Neighborhood Schools and at the time of hearing we permitted the intervention of a number of other interested individuals.
In December 1975, the full court heard the argument of counsel for the Commission, the District and the two groups of individuals.
The facts we find to be established by the record, which, for the convenience of counsel in their review of this opinion we give seriatim, are as follows:
1. The School District of Philadelphia is coterminous with the City limits of Philadelphia. The City has an area of 129 square miles. The distance from the extreme northeastern boundary line to the extreme southwestern is about 24 miles. The City extends inland from the west bank of the Delaware River for distances up to 10 miles.
2. During the 1974-1975 school year, according to latest complete statistics in the record, 266,500 persons were enrolled in the public schools. The Roman Catholic parochial school system educates an additional approximately 100,000 students, most of whom are white.
3. Of the 266,500 students of the District, 164,558, or 61.7 percent, are black and 88,480, or 33.2 percent, are white. The balance, 5.1 percent, are the minorities for which the District keeps records -- American Indian, Oriental and Spanish Surnamed.
4. The categories of public schools are Senior and Vocational High Schools; Junior High Schools and Middle Schools; Elementary Schools and Special Schools.
5. The Senior High Schools which accommodate 61,373 students are 59.4 percent black and 37.4 percent
[ 23 Pa. Commw. Page 321]
white. The Vocational Technical High Schools which have 5,786 students are 67.1 percent black and 27.8 percent white. The Junior High School students number 35,869, of which 70.9 percent are black and 22.5 percent are white. The Middle Schools with 18,046 students are 63 percent black and 35.8 percent white. The school population of the Elementary Schools is 141,598, of which 59.9 percent are black and 34.1 percent are white. The Special Schools which have 3,828 pupils are 68.2 percent black and 26.3 percent white.
6. The name Junior High School is given to schools generally accommodating students from grade 7 through 9. The term Middle School is applied to schools accommodating students from grade 5 through 8 or 9. High Schools generally conduct classes from the 9th to the 12th grade. There is great variation in the grade structures in particular Elementary Schools. It may be from Kindergarten to 8, Kindergarten to 7, Kindergarten to 6, Kindergarten to 5, Kindergarten to 4, or Kindergarten to 1. One school, Lamberton, teaches students from Kindergarten through the 11th grade.
7. There appear to be 30 High Schools, four Vocational Technical High Schools, 27 Junior High Schools, 17 Middle Schools, and 198 Elementary Schools, and 18 Special Schools. There are, therefore, 294 schools in the system.
8. The Philadelphia School District is divided into eight numbered administrative districts. The District is further divided into 21 so-called School Planning Areas, bearing designation by letters from A to U. The eight administrative districts and the 21 School Planning Areas are shown by this map.
[ 23 Pa. Commw. Page 322]
[ 23 Pa. Commw. Page 3239]
. Administrative District 8, popularly referred to as the Northeast, is seven miles long and between five and six miles wide. There are 39,812 students in Administrative District 8, 95.5 percent of which are white and 3.5 percent are black. In Administrative District 1, located at the extreme Southwestern corner of the school district, there are 41,488 students, of whom 90.2 percent are black and 9.6 percent are white. In District 4, adjoining District 1 on the North, there are 37,987 students, of which 95.5 percent are black and four percent are white. In District 2, adjoining District 1 on the East, there are 28,248 students, 83.3 percent black and 10.2 percent white. Stated in general terms, the Northeastern section of the City is overwhelmingly white and the Southwestern part is overwhelmingly black.
10. The proportions of black and white students in the other administrative districts are as follows: District 3, with 18,372 students, 54.3 percent black, 38.4 percent white.
District 5, with 29,457 students, 41.3 percent black, 32 percent white, and 26.5 percent Spanish surname.
District 6, with 40,855 students, 80.1 percent black, 18.8 percent white; and
District 7, 30,321 students, 33.5 percent black, seven percent Spanish surname, and 58.7 percent white.
11. The total number of students and the percentage of black and white students in the twenty-one School Planning Areas are as follows:
Area Total Students Percentage Black