Butera & Detwiler, Philip R. Detwiler, King of Prussia, for appellant.
Roy Yaffe, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case. Manderino, J., joined and filed a concurring opinion. Pomeroy, J., filed a dissenting opinion in which Eagen, C. J., joins.
This is an appeal*fn1 by the Norristown Area School Distrct (Norristown) from an order of the Commonwealth Court*fn2 affirming an order of the Pennsylvania Human Relations Commission (Commission) requiring Norristown to develop and submit a plan to eliminate racial segregation in its schools.*fn3 Norristown asserts that the Commission's definition of a segregated school is an invalid regulation because the Commission did not comply with the publication requirements of the Administrative Agency Law.*fn4 It contends that the Commission's order
is based upon an invalid regulation and therefore should be vacated.
We hold that the Commission's definition of a segregated school contained in the "Recommended Elements of a School Desegregation Plan," is a general statement of policy and not an administrative regulation subject to the publication requirements of the Administrative Agency Law. In this adjudication, the Commission used the definition of a segregated school as a flexible guideline and not as a binding administrative regulation.*fn5 We affirm.
Nine years ago, the Commission advised Norristown and 16 other Pennsylvania school districts that their schools were racially imbalanced,*fn6 and asked them to develop and submit desegregation plans.*fn7 To aid districts in formulating plans, the Commission and the Pennsylvania Department of Public Instruction (Department) set forth "Desegregation Guidelines for Public Schools"*fn8
on March 29, 1968. These guidelines were sent to the superintendent of schools of Norristown. The Commission and the Department also suggested "Recommended Elements of a School Desegregation Plan"*fn9 on May 15, 1968. The Commission sponsored meetings and seminars during February and May of 1968 with Norristown and the other districts at which the desegregation guidelines and the recommended elements of a desegregation plan were fully discussed.
In June 1968, Norristown submitted a desegregation plan which the Commission rejected because it did not adequately provide for the methods and timetable by which racial imbalance would be corrected. Norristown submitted a supplementary plan which the Commission approved on May 11, 1969. From 1969 to 1972, Norristown took some steps to effectuate its desegregation plan but made no efforts to desegregate grades kindergarten through the fourth grade. On December 5, 1972, Norristown advised the Commission that it refused to correct the racial imbalance in grades kindergarten through fourth grade. The Commission interpreted Norristown's refusal to desegregate as an amendment to Norristown's May 11, 1969 plan. The Commission then disapproved Norristown's desegregation plan. After numerous attempts at conciliation, the Commission filed a complaint on March 6, 1973, alleging, inter alia, that Norristown discriminated against pupils in its school system in that it sanctioned racially segregated schools by failing to adopt and implement an acceptable plan to reduce the
amount of racial segregation. The complaint also alleged that Norristown's failure to adopt a plan denied an integrated education to its students in violation of sections 5(i)(1) and (4)(g) of the Pennsylvania Human Relations Act (PHRA).*fn10 After additional attempts at conciliation failed, the Commission conducted a public hearing in accordance with section 959 of the PHRA.*fn11 Norristown maintained that the hearing was "illegal." For the first time, six years after the guidelines were announced, Norristown contended that the "Desegregation Guidelines for Public Schools" and the "Recommended Elements of a School Desegregation Plan" were invalid because the Commission had not filed them with the Department of State pursuant to the Administrative Agency Law.*fn12 Although Norristown cross-examined the Commission's witness, Mr. Anliot, the Director of the Commission's Education Division, it did not present any evidence to refute the Commission's evidence that Norristown had violated section 5(i)(1) of the PHRA. The
Commission found that Norristown violated section 5(i)(1) of the PHRA and ordered Norristown to develop and submit a desegregation plan which would eliminate racial imbalance in its schools. Norristown appealed to the Commonwealth Court which unanimously affirmed the Commission's order.*fn13
We granted Norristown's petition for allowance of appeal.
Norristown's sole contention is that the Commission's definition of a segregated school is invalid because it was not filed with the Department of State pursuant to the Administrative Agency Law.*fn14 It asserts that the adjudication
before the Commission was "illegal" because the Commission proceeded against Norristown on the basis of an invalid regulation. We agree with the Commonwealth Court which rejected Norristown's contentions and affirmed the Commission's order.
A. It is beyond cavil that the Commission is empowered to take steps to eradicate racial segregation found to exist within the school population of any Pennsylvania school district. In Pennsylvania Human Relations Commission v. Chester School District, 427 Pa. 157, 233 A.2d 290 (1967):
"[W]e laid to rest arguments . . . 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." (emphasis in original)
Balsbaugh v. Rowland, 447 Pa. 423, 433, 290 A.2d 85, 90 (1972). Accord, Pennsylvania Human Relations Commission v. Uniontown Area School District, 455 Pa. 52, 313 A.2d 156 (1973) (plurality opinion). In Chester, supra, we noted that:
"the Legislature undoubtedly envisioned a case-by-case approach to the elimination of racial imbalance in public schools. . . . The Human Relations Commission, whose function is to work with the parties to the dispute in an attempt to alleviate the source of the friction through 'conference, conciliation and persuasion,'
and whose procedure is considerably more flexible than the courts, is, as the Legislature recognized, better equipped to deal with this problem than the courts."
427 Pa. at 179, 233 A.2d at 301. Although "de facto segregation" is not defined in the PHRA, we recognized in Chester that this concept provides an adequate standard to allow the Commission to proceed on a case-by-case basis.*fn15
After our decision in Chester, the Commission formulated "Desegregation Guidelines for Public Schools" and "Recommended Elements of a School Desegregation Plan" as flexible guidelines to aid its efforts to work with school districts to eliminate racial imbalance in the Commonwealth's schools.*fn16 Since the Commission is required to conciliate before it institutes formal proceedings against the parties, statements of policy are helpful to both the Commission and schools in achieving the mandate of the PHRA.*fn17 By providing school districts with general statements of policy, the Commission encourages voluntary compliance with the PHRA by
furnishing school districts with greater information concerning what is expected in desegregation plans.
In Pennsylvania Human Relations Commission v. Uniontown Area School District, 455 Pa. 52, 313 A.2d 156 (1973) (plurality opinion), we recognized that the Commission's recommendation, that desegregation plans achieve a racial composition for each grade within 30% of the racial composition within the school district, is reasonable. It was noted that it is within the Commission's power to pursue such a policy.*fn18
B. Norristown argues that in announcing the "Desegregation Guidelines for Public Schools" and "Recommended Elements of a Desegregation Plan," the Commission has engaged in rule-making. It asserts that these guidelines cannot serve as a basis for the Commission's order. The Commission maintains that these guidelines are merely general statements of policy which are helpful in assisting both the Commission and school districts in developing desegregation plans. It argues that it has not treated these guidelines as administrative regulations having the force of law. The Commission contends that as general statements of policy, they are not subject to the publication requirements of the Administrative Agency Law. It asserts that nothing precludes it from using these statements of policy for guidance in its case-by-case adjudications.
We hold that the guidelines set forth in the "Recommended Elements of a School Desegregation Plan"
and "Desegregation Guidelines for Public Schools" are statements of policy and not regulations subject to the filing and publication requirements of the Administrative Agency Law. The Commission disseminated statements of policy, made recommendations to school districts to effectuate these policies, and when conciliation attempts failed, proceeded by adjudication. We find nothing improper in this procedure.
The Administrative Agency Law envisions that administrative agencies may proceed by rule-making or adjudication. Compare 71 P.S. § 1710.21 (1962) with 71 P.S. § 1710.31 (1962). Under the PHRA, the Commission is authorized to promulgate rules and regulations,*fn19 formulate policies and make recommendations to school districts to effectuate these policies,*fn20 and file complaints and conduct public hearings if efforts at conciliation fail.*fn21 Nothing in the Administrative Agency Law or the PHRA prevents the Commission from proceeding by way of adjudication rather than by rule-making. Pennsylvania Human Relations Commission v. Chester School District, 427 Pa. 157, 179, 233 A.2d 290, 301 (1967) ("The Legislature undoubtedly envisioned a case-by-case approach to the elimination of racial imbalance in public schools").*fn22
Administrative regulations are subject to the publication requirements of the Administrative Agency Law,*fn23 while statements of policy are exempt from the filing requirements.*fn24 Although we recognize that in
some situations it may be difficult to differentiate between administrative regulations and statements of policy which are not rules or regulations,*fn25 we are persuaded by the language and form of the guidelines as well as the Commission's characterization ...