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September 18, 1980

The NATIONAL ASSOCIATION FOR NEIGHBORHOOD SCHOOLS OF PITTSBURGH, INC., and Janet R. Podnar, on her own behalf, and as parent and Guardian of David R. Podnar, Jr., a minor, and Charles W. Wilhere, Jr. and Paula Y. Wilhere, his wife, on their own behalf and as parents and guardians of Michael Wilhere, a minor, and Patrick J. Zilles and Bonnie B. Zilles, his wife, on their own behalf and as parents and guardians of Jennifer B. Zilles and Heather L. Zilles, minors, and Charles F. Kern and Nancy Lee Kern, his wife, on their own behalf and as parents and guardians of Kristen M. Kern, a minor, all of the above Individually and on behalf of all Others Similarly Situated,

The opinion of the court was delivered by: ROSENBERG

This action was brought by the plaintiffs, The National Association For Neighborhood Schools of Pittsburgh, Inc. and four individuals as parents and guardians of minor children against the Board of Public Education of the School District of Pittsburgh, Pennsylvania (Board). The National Association For Neighborhood Schools of Pittsburgh is a corporation, not for profit, and avers that it has approximately 1800 individuals dedicated to preventing the forced assignment of students to schools on the basis of race, class, or ethnic origin. The plaintiffs bring this action in their own behalf and "on behalf of all others similarly situated". They bring it as a class action.

 The defendant, Board, is the governing body of the Pittsburgh School District. This School District is a school district of Class 1A, pursuant to the laws of the State of Pennsylvania, as designated by the Commonwealth of Pennsylvania in 24 P.S. § 2-202.

 The plaintiffs charge that the defendant School District, as part of its functions, "has implemented a full-time mandatory program which assigns children including the named minor plaintiffs, to various schools based solely upon the race of those children."

 The action, it is alleged, is brought under 28 U.S.C. § 1343(3) and (4) (civil rights) *fn1" and 28 U.S.C. §§ 2201, 2202 (declaratory relief). *fn2" Its basis for class action, it is alleged, lies in the authority given in Federal Rule of Civil Procedure 23(a) and (b)(2). *fn3" It also bases its action here on its claim that the action by the defendant was in violation of the Fourteenth Amendment of the United States Constitution.

 What the plaintiffs by their pleadings and testimony desire of this court is not so much that the Board be stopped in its plan of desegregation by the use of the newly inaugurated busing system as commenced on September 2nd because of the compulsory busing of children "based solely upon race as implemented by defendant, pursuant to the Amended Pittsburgh Desegregation Plan", and a declaration that the method of selecting busing candidates among the children because of race is both unconstitutional and violative of the Civil Rights statutes; but rather and only that an end be put to compulsory busing as far as they are concerned.

 The complaint seeks as a remedy of this court a declaration that the defendant has violated the Civil Rights Act of 1871, 42 U.S.C. § 1983 and the Fourteenth Amendment to the United States Constitution, "by involuntarily assigning students to a particular school solely on the basis of race and/or establishing a quota system to achieve that end; and further declaring that defendant has violated the Civil Rights Act of 1964, 42 U.S.C. § 2000c through the use of compulsory busing to achieve that end"; and that this court issue a preliminary injunction to the plaintiffs in addition to awarding costs and attorneys fees, as well as for such other relief as this court may deem just.

 An application for a preliminary injunction was filed at the same time and pursuant thereto, I granted a hearing for Friday, September 5, 1980, at 10:00 o'clock a.m. to determine whether a preliminary injunction should issue. A hearing was held on the matter and innumerable witnesses were presented by both the plaintiffs and the defendant. *fn4"

 From the record and stipulation of counsel and from the evidence as a whole as presented by both parties, I make findings of fact.

 On March 8, 1968, the Human Relations Commission (Commission) directed the Board to submit a plan to correct the racial imbalance in Pittsburgh schools. Up to this time, the schools in the Pittsburgh system contained a large number of school buildings spread over various locations in the City. All of these were known as neighborhood schools. The neighborhood schools grew up with the character of population in which each of these schools existed. Thus, in an area which was heavily white in population, the character of the school population was heavily white, or if the neighborhood area was of a specific race, the character of the school population was of a specific race. This plan existed for many years before, and as the neighborhood changed or was influenced by the population of different kinds, so the character of the school population changed.

 The Board until that time, as previous Boards had acted, permitted the system to grow and change as it did without any interference in accordance with the population of each neighborhood area.

 The present approximate school population is 46,945 pupils. However, this population comprises residents of various ethnic and racial origin.


 In Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873, the United States Supreme Court set forth a hitherto unpracticed principle that the opportunity to an education, "where the State has undertaken to provide it, is a right which must be made available to all on equal terms." 347 U.S. at 493, 74 S. Ct. at 691.

 It was this principle which the Commonwealth of Pennsylvania through its agency, the Commission, adopted and put into practice what the Supreme Court had laid down as a mandatory directive to public school systems in the United States. The proposals, however, as submitted by the Board in its attempt to comply with the Commission's order, were found to be unacceptable. The Commission then began administrative procedure which led to a March 1971 final order requiring the Board to submit a plan to eliminate racial imbalance.

 This order was appealed to the Commonwealth Court of Pennsylvania. The Commonwealth Court held in School District of Pittsburgh v. Pennsylvania Human Relations Commission, 6 Pa. Cmwlth. 281, 294 A.2d 410 (1973) that the Commission had a right to compel the Board to submit a plan under the Human Relations statute.

 After that a series of negotiations between the Commission and the Board were held in an effort to arrive at a plan which would be in compliance with the directive of the Commission and be compatible with the Board's obligatory duties in the performance of its duties.

 Pursuant to these negotiations, the Board submitted another plan in order to comply with the Commission's 1972 order.

 This plan was also found unacceptable by the Commission.

 In August 1976, the Commission sought enforcement through another action in the Commonwealth Court and on January 13, 1977, the Commonwealth Court upheld the Commission and the Board took an appeal to the Supreme Court of Pennsylvania.

 On August 11, 1978, the Supreme Court of Pennsylvania affirmed the Commonwealth Court Order in Pennsylvania Human Relations Commission v. School District of Pittsburgh, 480 Pa. 398, 390 A.2d 1238 (1978).

 The Commonwealth Court then acting pursuant to the Supreme Court and upon remand ordered the Board to submit a plan to correct the racial imbalance on or before July 1, 1979. Such plan was submitted to the Commission in June 1979 and was again rejected by the Commission. Thereafter an amended plan was submitted to the Commission and was also rejected.

 On April 15, 1980 the Board filed a Petition in the Commonwealth Court seeking declaratory relief to the effect that its amended plan was in compliance with the Order of Court of November 8, 1978.

 The Commission responded with an answer and filed an application for rule to show cause why the Board should not be held in contempt.

 An evidentiary hearing was held on July 21, 1980 in the Commonwealth Court. Incidentally, the present plaintiffs sought intervention in the Commonwealth Court at this time but that intervention was denied and such denial was upheld by the Supreme Court.

 On July 24, 1980, the Commission applied to the Commonwealth Court to stay the implementation of the amended desegregation plan, because it did not go far enough in the efforts to unitize the Pittsburgh School system. The Commonwealth Court denied that application. No. 568 C.D.1971, Opinion filed July 24, 1980.

 The parties have offered into evidence the plan as it is now being instituted in the City of Pittsburgh with its effective date, September 2, 1980. ...

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