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decided: April 20, 1982.


Original jurisdiction in case of Pennsylvania Human Relations Commission v. Board of Public Education of the School District of Pittsburgh.


Frederick A. Boehm, with him Thomas M. Rutter, Jr., Goehring, Rutter & Boehm, for School Board.

Ellen M. Doyle, Assistant General Counsel, with her Robert S. Mirin, General Counsel, for Commission.

David Max Baer, with him Gary R. Truitt, Hilner, Baer, Truitt & Fraas, for Amicus Curiae, The National Association for Neighborhood Schools of Pittsburgh, Inc. et al.

Thomas M. Kerr, with him Jon G. Hogue and Judith L. Maute, Titus, Marcus & Shapira, for Amicus Curiae, Interracial, Ad Hoc Group of Parents and Taxpayers.

President Judge Crumlish and Judges Mencer, Rogers, Blatt, Craig, MacPhail and Williams, Jr. President Judge Crumlish and Judges Rogers, Blatt, Williams, Jr., Craig, MacPhail and Doyle. Opinion by Judge Craig. This decision was reached prior to the resignation of Judge Mencer.

Author: Craig

[ 66 Pa. Commw. Page 221]

The Pittsburgh Board of Public Education initiated this original jurisdiction proceeding by its petition for an evidentiary hearing to establish its alleged compliance with school desegregation orders, to which the Pennsylvania Human Relations Commission filed its answer and an application to hold the Board in contempt for non-compliance.

Although the record herein has established quite clearly that the Pittsburgh Board has not yet achieved 100% desegregation, as defined by the Commission, it is also quite clear that the Pittsburgh Board has taken an important step by moving from its initial voluntary plan*fn1 to a compulsory desegregation program pursuant to our 1977 and 1978 orders.*fn2 The Amended Plan, now before us, employs busing of more than one out of every three students in the system, involving black and white students in equal numbers. The Amended Plan has resulted in the reorganization of the grade structure system-wide, by the closing of 15 elementary schools, and by redistricting 12 elementary schools, as

[ 66 Pa. Commw. Page 222]

    well as other measures. The Pittsburgh Board has achieved total desegregation compliance at the middle school level.

Without destroying the benefits thus far achieved by all the members of the Pittsburgh Board and by the Commission,*fn3 our obligation is to consider the attainability of even fuller compliance with the Recommended Elements and guidelines of the Commission which have been long accepted in these proceedings as reasonably defining the goals, with awareness that the Pennsylvania Supreme Court requires "some degree of flexibility in recognition of the fact that a plan which fails to satisfy some aspect of the Recommended Elements may prove acceptable if the District demonstrates that substantial and persuasive justification exists for any such departure." Human Relations Commission v. Pittsburgh School District, 480 Pa. 398, 419, 390 A.2d 1238, 1248 (1978).

The Commission, in its pleadings and brief, has not brooked any departure by the Pittsburgh Board from the state's percentage definition of a desegregated high school, between 28% and 53% black, and of a desegregated elementary school, between 36% and 68% black; the Commission's argument rejects the Pittsburgh Board's attempt to employ a 5% or 10% leeway on either side. However, as noted below, the Commission

[ 66 Pa. Commw. Page 223]

    itself, in listing further changes, has proposed results which would transgress its own guidelines. We are hard put to conclude that the Commission may insist on exactitude for the Pittsburgh Board as to the guideline numbers, but not for itself. Moreover, the Commission, by finding justification for noncompliance as to 13 elementary schools and at least 3 high schools, clearly acknowledges that compliance must be less than total.

If we accept the Commission's stated percentage limits as the legal guidelines, on the ground that there must be some basic references and because the Pittsburgh Board has not contested those percentages in legal terms, a study of the testimony and exhibits make it clear that this court cannot safely issue a pat solution by simply adopting the additional recommendations -- the "Proposal" -- which the Commission presented one week before the hearing at Judge Wilkinson's suggestion, as a group of illustrations, rather than as absolute and final requirements. A dissenting Pittsburgh Board member, testifying as a Commission witness, stated that the Proposal was to be taken "as a general indication of what could be done . . .", not "100% literally."


1. One hundred percent adherence to the rather mechanical percentage definitions of desegregation cannot be mandated when the Commission itself agrees that such total adherence is unattainable.

2. We cannot mandate absolute adherence to the Commission's quickly-developed Proposal when the Proposal, as regarded even by dissenting Pittsburgh Board members, was intended only to state 'general indications' of what can be done further.

[ 66 Pa. Commw. Page 2243]

. This court certainly cannot mandate specifically the execution of any item in the illustrative Proposal by the Commission which would result in any desegregated school becoming segregated according to the Commission's own percentage definitions, although we certainly should not prohibit any such steps, where the Commission and the Pittsburgh Board agree that a lesser degree of segregated status would be preferable.

Because these proceedings -- the Pittsburgh Board's petition for evidentiary hearing and the State's application for contempt -- have been addressed to our original jurisdiction, Human Relations Commission, 480 Pa. at 411, 390 A.2d at 1244,*fn4 and because this court has conducted an evidentiary hearing covering the whole matter, we have the power and duty under Pa. R.A.P. 106 to make findings of fact and conclusions of law, precisely as we did in the opinion by Judge Rogers in Human Relations Commission v. Philadelphia School District, 23 Pa. Commonwealth Ct. 312, 352 A.2d 200 (1976). Both sides, with the acquiescence of the hearing judge, submitted written requests for findings of fact and conclusions of law.

The findings and conclusions supported by the record will be stated after preliminary discussion.


We must first assess the extent of compliance accomplished by the Amended Plan and then the extent of justification, if any, for such noncompliance as remains.

[ 66 Pa. Commw. Page 225]

The unattainability of absolute compliance is forthrightly acknowledged in the Commission's illustrative Proposal by an Exhibit J listing 13 elementary schools which the Commission would allow to remain out of strict numerical compliance, with the Commission's stated justification for each.

Hence, we cannot properly hold the Pittsburgh Board to be in contempt upon the basis that compliance is less than total in terms of the Commission's percentage standards.

Moreover, with respect to compliance determination, the record reveals some confusion as to percentages, one example being Schenley High School. Testimony by dissenting Board Member Vitti, as a Commission witness, and the Commission's Proposal both describe Schenley as 77% black, but the correct percentage for Schenley apparently is 87% black, as confirmed by the Commission's own Exhibit L, prepared by the same Commission staff member. (Commission counsel has thoughtfully appended to the brief an updated school membership report as of September, 1979 and 1980 which, although not of record, is consistent with Commission Exhibit L.)

This problem of accuracy, understandable in the midst of many numerical details, illustrates why we cannot adopt the Commission's Proposal wholesale or otherwise specify further moves in a rigid manner.

Middle Schools

Total compliance has been achieved with respect to desegregation at the middle school grade level (6-8). Although no more than is required by law, that achievement must be recognized as a product of extensive redistricting and reassignment, as well as very substantial capital expenditures. The middle school result is acknowledged by the minority report of the Pittsburgh Board's dissenting members, one of whom,

[ 66 Pa. Commw. Page 226]

Dr. Engel, testified that, at least initially, he had "accepted" the middle school approach "as a planning assumption." Of course, the middle school pattern, despite its compliance in itself, remains an important subject for attention because of its inevitable continuing relationship ...

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