decided: June 3, 1977.
PENNSYLVANIA HUMAN RELATIONS COMMISSION
NORRISTOWN AREA SCHOOL DISTRICT, APPELLANT
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.
[ 473 Pa. Page 337]
OPINION OF THE COURT
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
[ 473 Pa. Page 338]
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
[ 473 Pa. Page 339]
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
[ 473 Pa. Page 340]
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
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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
[ 473 Pa. Page 342]
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,'
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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
[ 473 Pa. Page 344]
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"
[ 473 Pa. Page 345]
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
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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
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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 and treatment of the guidelines, that they are statements of policy.*fn26
The Commission asserts that it has not departed from its case-by-case approach to racial imbalance in schools, but has merely formulated general policy statements and made recommendations to aid school districts in developing plans which the Commission will find acceptable. The Commission maintains that it has not treated these guidelines as binding regulations,*fn27 and makes no claim
[ 473 Pa. Page 348]
that they have the force of law.*fn28 As the Commonwealth Court observed:
"The Commission's document, 'Recommended Elements of a School Desegregation Plan,' as its title suggests does not lay down hard and fast standards with which districts must comply in order to conform to the law. It merely poses questions concerning the plan for integration as means of testing the plan's chances of proving acceptable to the Commission. The questions are most general in nature and there is nothing in the document which states or implies that nonconformity of the plan in any respect will bring automatic rejection. With regard to the Commission's definition of a segregated school as one having a disparity of Negro students 30% greater or less than the per cent of Negro pupils among buildings of the same grade span, which is here principally complained of, the Commission asserts in its brief that it is not meant to be nor is it in practice inflexibly applied. Our experience confirms this assertion."*fn29
Pennsylvania Human Relations Commission v. Norristown Area School District, 20 Pa. Commw. at 560, 342 A.2d at 467.
[ 473 Pa. Page 349]
In holding that these guidelines are not regulations, we are persuaded by the reasoning of the Court of Appeals for the District of Columbia, a court with extensive experience in reviewing administrative determinations. In Pacific Gas & Electric Co. v. FPC, 164 U.S.App.D.C. 371, 506 F.2d 33 (1974), the FPC, in response to a natural gas shortage, issued an order directing pipeline companies which expected periods of shortage to file curtailment plans. There was a wide variety of priority schedules in the plans submitted. Sensing the need for guidance, the FPC adopted another "order" which set forth the FPC's view of proper curtailment plans. The agency stated that in its view, curtailment plans should establish priorities based on the uses to which the gas would be put rather than on prior contractual commitments. The "order" further stated that the FPC intended to follow this priority schedule unless a company could establish that another priority schedule was in the public interest. A number of gas companies challenged the "order" alleging that it was a substantive rule which was invalid because the FPC had not followed rulemaking procedures. The Court of Appeals rejected this contention and held that the FPC's "order" was a general statement of policy which was exempt from the rule-making requirements of the Administrative Procedure Act, 5 U.S.C.A. §§ 551 et seq. (1967).
The court articulated the distinction between substantive rules which must be promulgated through rule-making procedures and statements of policy which require no such procedures:
"An administrative agency has available two methods for formulating policy that will have the force of law. An agency may establish binding policy through rulemaking procedures by which it promulgates substantive rules, or through adjudications which constitute binding precedents. A general statement of policy is the outcome of neither a rulemaking nor an adjudication;
[ 473 Pa. Page 350]
it is neither a rule nor a precedent but is merely an announcement to the public of the policy which the agency hopes to implement in future rulemakings or adjudications. A general statement of policy, like a press release, presages an upcoming rulemaking or announces the course which the agency intends to follow in future adjudications.
The critical distinction between a substantive rule and a general statement of policy is the different practical effect that these two types of pronouncements have in subsequent administrative proceedings. . . . A properly adopted substantive rule establishes a standard of conduct which has the force of law. . . . The underlying policy embodied in the rule is not generally subject to challenge before the agency.
A general statement of policy, on the other hand, does not establish a 'binding norm'. . . . A policy statement announces the agency's tentative intentions for the future. When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued."*fn30
The court upheld the FPC's decision to proceed by individual adjudications consistent with its statement of policy rather than by way of rule-making.
"The Commission issued the policy statement because the curtailment plans being submitted reflected sharp differences in philosophy which necessitated
[ 473 Pa. Page 351]
Commission guidance in the curtailment area. In the absence of such a policy statement, the Commission could have proceeded on an ad hoc basis and tentatively approved curtailment plans filed under section 4 of the Act which the Commission found to be just and reasonable. In following such a course the only difference from the present situation would be that the Commission would be acting under a secret policy rather than under the publicized guidelines of Order No. 467. The argument that an agency must follow rulemaking procedures when it elects to formulate policy by a substantive rule has no application in this case. Order No. 467 does not establish a substantive rule. Although the Commission is free to initiate a rulemaking proceeding to establish a binding substantive rule, the Commission apparently intends to establish its curtailment policies by proceeding through individual adjudications. Order No. 467 merely announces the general policy which the Commission hopes to establish in subsequent proceedings."
506 F.2d at 41 (footnote omitted).
Like the FPC, the Commission has chosen to proceed through individual adjudications consistent with its general statement of policy. We find no abuse of discretion in the Commission's actions. In light of the Commission's duty to resolve disputes by "conference, conciliation and persuasion," the adoption of statements of policy and guidelines can only aid the Commission's delicate task of correcting racial imbalance in the Commonwealth's schools. Moreover, general statements of policy encourage public dissemination of the Commission's views prior to their actual application.*fn31
[ 473 Pa. Page 352]
C. The black enrollment in Norristown elementary schools is 23.13%. During the 1967-1968 school year, three elementary schools were predominately black. For example, in one school, 84.77% of the students were black. Seven elementary schools had less than 6.5% black students.*fn32 Some six years after Norristown was first asked to submit a desegregation plan, similar racial imbalance existed.*fn33 Norristown does not contend that this evidence is insufficient to constitute segregation within the meaning of the PHRA.
[ 473 Pa. Page 353]
March 29, 1968.
Desegregation Guidelines for Public Schools
Commonwealth of Pennsylvania.
The Pennsylvania Human Relations Commission together with the Department of Public Instruction of the Commonwealth of Pennsylvania set forth the following guidelines for school districts (administrative units) in dealing with segregation in public schools.
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 basic 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.
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In-so-far as possible every school building should reflect in its enrollment a cross section of the entire community.
2. Responsibility for correcting discriminatory actions
Any action, direct or indirect, overt or covert, which fosters racial segregation in the public schools, is against the public interest, and should not be taken by any public agency. Whenever any such action, past or present, has adversely affected public education, it is the responsibility of public school authorities to correct it, forthwith.
3. Racial inclusiveness of staff
A component of quality education is a racially inclusive staff at all professional, non-professional and administrative levels. A desegregated staff affords positive educational values. All children need role models with whose ethnic backgrounds they can identify, and they also need to be taught at times by those who are racially different. Nothing herein is to be interpreted as calling for discrimination in favor of less qualified teachers because of their race.
4. Desegregation a local responsibility
Responsibility for coping with segregation rests with local school authorities. This is in keeping with the spirit of local control. It allows consideration for local conditions which may affect desegregated education. Such policy allows for the widest innovation in school assignment and program to meet local needs. Hence, the Department of Public Instruction and the Human Relations Commission proceed in correcting segregated conditions by requiring that each local public school district affected submit its own plans for dealing with the problem as the first step in their enforcement procedure.
[ 473 Pa. Page 3555]
. Program consistent with policy
The state agencies involved in supervising the desegregation process realize that changing policies and desegregation of pupils, teachers and staff are but the first steps in meeting the requirements of these guidelines. These agencies wish to cooperate with public school officials in every way possible to strengthen programs designed to produce mutual respect and trust between groups. They urge the reexamination of curriculum to make sure the contributions of all groups are included. They urge the reexamination of the treatment of all minorities in our common history. This they propose for all schools -- not just those which have minority children enrolled. In other words, these proposals are designed to achieve good education for all children -- not just special education for the minorities. Further, they ask cooperation of local school districts in the development of stronger programs of in-service training in human relations both for administrative staff and teachers.
6. Continuous evaluation and preventive action
Public school districts with concentrations which adversely affect education will be subject to continuing examination by the Pennsylvania Human Relations Commission and the Department of Public Instruction. Hence constant study and evaluation should be made at the local level to catch these undesirable trends in their incipient stages, and deal with them while they are in manageable proportions. In situations where action is being taken to apply corrective measures to existing concentrations, care should be taken to provide follow-up to make sure future imbalances do not occur.
7. Community participation
Local boards of education should make wide use of community involvement in the preparation of their plans.
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May 15, 1968
Recommended Elements of a School Desegregation Plan
Pennsylvania Human Relations Commission
Department of Public Instruction
1. Does the desegregation plan indicate the projected racial composition of each elementary 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 inservice 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 other racial and
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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 desegregation plan indicate involvement of the community in its development and implementation?
11. Is the desegregation plan consistent with the Long Range Development Plan submitted to the Department of Public Instruction?
MANDERINO, Justice, concurring.
I join in the opinion of Mr. Justice Roberts, but would like to add additional comments concerning the use of the word imbalance in discussing unlawful discriminatory practices. The Pennsylvania Human Relations Act outlaws various discriminatory practices if such practices are based on a person's race, color, religious creed, ancestry, age, sex, national origin and in certain cases a person's handicap or disability. Every imbalance does not, per se, establish discriminatory practices. If it did, we would in effect be sanctioning a quota system. No public institution can have or is legally required to have a perfect balance. Therefore, a racial imbalance, or a sex imbalance, or a national origin imbalance does not in and of itself establish a discriminatory practice. If it did, then every institution would be required to have, in relation to the community's population, the same ratio of Catholic, females, blacks, Italians, Jews, blind persons and so on. I, therefore, object to the use of the word imbalance as implying a result brought about by unlawful practices.
When, however, a substantial degree of imbalance is present, one may reasonably infer that the substantial imbalance has resulted from unlawful activity. In this
[ 473 Pa. Page 358]
case, the statistical guidelines issued by the Human Relations Commission were simply an announcement as to the degree of imbalance which the Commission would consider as sufficient evidence from which to infer that the imbalance resulted from unlawful activity. Such guidelines are obviously helpful, indeed desirable. Regardless of the guidelines, however, the inference drawn by the Commission in this case that the degree of imbalance was sufficient to conclude that the Act had been violated was a reasonable inference to be drawn. If it were not, it could of course be struck down. Since the evidence before the Commission, however, indicated a substantial degree of imbalance, the Commission properly concluded that discriminatory practices existed and it could properly order a remedy.
A Commission order cannot be sustained merely on the basis of racial imbalance or any other kind of imbalance. Such an order can be sustained only if the imbalance presented is of such a substantial degree that it is reasonable to infer that unlawful discrimination preceded the imbalance.
POMEROY, Justice, dissenting.
I am obliged to dissent from the majority's disposition of the important question of administrative law presented by this appeal.*fn1 The Court holds that the mathematical definition of de facto segregation promulgated by the Human Relations Commission is but a general statement of policy, and so is not an administrative regulation subject to either the notice and comment requirements of the Commonwealth Documents Law, 45 Pa.C.S.A. § 1101
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the agency must comply with certain procedural requirements of the Commonwealth Documents Law, supra. These include providing public notice of the proposed rule, making a request for written comments by any interested party, giving due consideration to such comments, holding "hearings as seem appropriate," and submitting the finally-adopted rule for inclusion in the "Pennsylvania Code". 45 Pa.C.S.A. §§ 1201-1208. Three purposes, at the least, are served by these requirements: (1) they afford a democratic process of providing affected or interested citizens an opportunity to participate in the formulation of standards which govern their conduct; (2) they give the rulemaking agency the benefit of a wide spectrum of thought on the proposed rule; (3) they apprise regulated parties of prescribed conduct.*fn3 These purposes would seem to be particularly important with regard to the Commission's de facto segregation definition, touching as it does upon one of the more sensitive issues of our day and one about which informed judgment is divided. See Uniontown Area School District v. Pennsylvania Human Relations Commission, 455 Pa. 52, 63-75, 313 A.2d 156, 161-168 (1973). The Commission argues, however, that the definition in question is not a regulation within the meaning of the Act, but a guideline merely, a statement of policy without binding effect, and thus not subject to the notice and comment requirements of the statute.*fn4
[ 473 Pa. Page 361]
The majority is persuaded by the Commission's characterization of its rule for two reasons, neither of which can I accept. The first is "the language and form of the guidelines". Opinion of the Court ante at 678. By this I take it that the Court is referring to the wording of the title of the document which contains the segregation definition -- "Recommended Elements of a School Desegregation Plan" -- and the fact that the definition is framed not as an imperative but in the form of a question:
"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?"
To my mind, focusing on the grammatical format of a statement affords a weak basis indeed for determining the applicability of the statutory requirement here involved.
Even if one acknowledges that the heading of a statement and its linguistic style is not an altogether irrelevant factor in deciding whether an administrative announcement is a "regulation", surely the agency's characterization of it as "guideline", "recommendation", or "policy statement", being both self-serving and conclusory, is entitled to but little weight in a court's decision as to what in actuality is the nature of the statement and whether the agency must comply with notice and comment procedure. In an analogous situation, our courts have declined to allow form to be determinative and have held that an informal agency letter could suffice as an appealable administrative "adjudication" for purposes of § 2(a) of the Administrative Agency Law. See Finkle v. Pa. State Real Estate Commission, 17 Pa. Commw. 221, 331 A.2d 593 (1975); Newport Homes, Inc. v. Kassab, 17 Pa. Commw. 317, 332 A.2d 568 (1975). See also Columbia Broadcasting System v. United States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563 (1942). Applying that reasoning here, it is the Commission's application of its
[ 473 Pa. Page 362]
rule which should receive the major consideration. As the Court of Appeals for the Third Circuit held in Texaco v. F.P.C., 412 F.2d 740, 744 (1969), a court must look to the operation of an agency's ruling and determine whether or not "rights and obligations" are imposed on affected parties.
Recognizing that this is the more important inquiry, the majority does purport to look to the "treatment of the guidelines." Opinion of the Court ante at 678. It concludes, however, that the Commission's de facto segregation definition has not been applied in a binding fashion. I disagree.
The Commission's "guideline" characterization is belied by the express terms of its final orders filed in this and other cases. In the present case, the Commission's order directs the school district to submit a desegregation plan which will eliminate racial imbalance, a condition which the order flatly declares to be present in schools "having a percent Negro enrollment less than or more than 30% of the percent of Negro pupils among the buildings of the same grade"; the order also stipulates that the plan shall conform to the "Recommended Elements" definition of de facto segregation.*fn5 In Uniontown, supra, the Commission issued five similar orders in regard to the five school districts involved in that appeal. 455 Pa. at 59-60, 313 A.2d 156. More recently, in the case of Pennsylvania Human Relations Commission v. School District of Philadelphia, 23 Pa. Commw. 312, 352 A.2d 200 (1976), the Commonwealth Court observed that the Commission in that case "insisted that any plan
[ 473 Pa. Page 363]
submitted by the District must bring all of the Philadelphia schools within its Recommended Element No. 3." Id. 23 Pa. Commw. at 325, 352 A.2d at 208. It is difficult to imagine how any rule or regulation formally adopted in accordance with law could be given a more imperative rendering than this.*fn6 In the light of these cases, I have no hesitation in saying that the rule before us "establishes a standard of conduct which has the force of law." Pacific Gas & Electric Co. v. F.P.C., 164 U.S.App.D.C. 371, 506 F.2d 33, 38 (1974).*fn7
The Commission argues, however, that this characterization of its rule as an inflexible norm is inaccurate; it asserts that deviations from the 30 percent range definition have in fact been permitted. It is on the basis of this assertion (in addition to the above "language" argument) that the majority concludes that the definition is not a regulation subject to notice and comment requirements.
Although the Commission cites no reported decisions to support its claim, it may be conceded that on occasion
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it does make exceptions to its "guidelines".*fn8 Thus among the Commission's conclusions of law in the instant adjudication is the following:
" Absent persuasive justification for an exception to 'Recommended Elements of a School Desegregation Plan' number 3, a segregated school is one in which its percent Negro enrollment is less than or more than 30 percent of the percent Negro pupils among the buildings of the same grade span." (Emphasis added).
Accepting this statement as an accurate illustration of the manner in which the Commission applies its pronouncement, the definition may thus be described as a general rule to which exceptions will be made, but only for "persuasive" reasons. It operates, then, in the same manner as a rebuttable presumption and has the full force of substantive law, shifting the burden of persuasion to respondents in Human Relations Commission proceedings.*fn9 As such, it is nothing less than a "regulation" as that term is used in the statute in question. See
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to the facts at hand.*fn11 That point aside, I add a few words concerning the propriety of the Commission's foresaking rulemaking in favor of an adjudicative approach.
In Uniontown, 455 Pa. at 75, 313 A.2d 156, the plurality held that the Commission's definition of de facto segregation could not be viewed as an interpretation of legislative intent with regard to the proscription against "unlawful discriminatory practice[s]" in the Human Relations Act, 43 P.S. § 955. The rule was upheld, however, because of a finding that in the Human Relations Act the General Assembly had granted to the Commission broad "legislative" (as contrasted with "interpretative") power under the Act; given that finding, the rule relative to segregation was as "binding upon a court as a statute", review being limited to an ascertainment of "reasonableness". Id. at 76, 313 A.2d at 169.
I am of the view that in exercising a power which is legislative in nature, an administrative agency in this Commonwealth should establish through the rule making process some identification or definition of conduct which it will monitor and which will cause it to take remedial action. The agency's basic legislative tenets should be announced through rule making as the closest approximation to the legislative process, rather than by ad hoc decision-making, which approaches the judicial
[ 473 Pa. Page 367]
process.*fn12 The Human Relations Commission has been endowed by the General Assembly with a broad grant of legislative power, for the Act itself nowhere defines the conduct which is interdicted, viz., discrimination. If the Commission is to have the relatively unrestrained authority to identify discrimination of the kinds prohibited by the Act and then to fashion remedies to eliminate those evils, it seems to me that the Commission should be held to strict compliance with notice and comment requirements -- i. e., rulemaking procedures -- which facilitate the openness and accountability which should accompany legislative decision-making.*fn13 It would, of course, still be for the Commission to apply the rules or regulations it had promulgated on a case-by-case basis as they arise; but the basic rules of the game would be known ahead of time. Where, however, the Commission carries out its legislative mandate in the absence of a regulation properly adopted as prescribed by law, it does so on an undefined basis, insulated from significant guidance or restraint from either statute, rule, or court.*fn14
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To limit the exercise of unbridled administrative discretion, as well as to avoid the possibility of inconsistent treatment of individual cases, Professor Davis proposes that there should be a "requirement, judicially enforced, that administrators must strive to do as much as they reasonably can do to develop and to make known the needed confinements of discretionary power through standards, principles, and rules." K. C. Davis, Administrative Law Treatise § 6.13, at 278 (Supp.1970). See also Davis, Administrative Law in the Seventies §§ 2.00-2.00-6 (1976); R. Stewart, "The Reformation of American Administrative Law", 88 Harv.L.Rev. 1667, 1698-1702 (1975). I find that advice sound in general, and of particular pertinence to the case at bar.
In sum, it is my view that the usefulness, delicacy and importance of the task confided to the Human Relations Commission but serve to emphasize that accomplishment of its undertaking should not be jeopardized by an avoidance of the process which is best designed to make known to the public that which the public can expect and that which is required of it.