Appeal from the United States District Court for the Eastern District of Pennsylvania.
Gibbons, Sloviter, Circuit Judges, and Caldwell, District Judge.*fn*
The School District of Philadelphia appeals from the orders of the district court permanently enjoining it from complying with its policy under which some teachers are transferred to other schools to maintain racial integration of faculty in each school. Teachers subject to transfer contend, and the district court agreed, that this policy violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Kromnick v. School District, 555 F. Supp. 249 (E.D. Pa. 1983). We reverse the judgment of the district court. I.
FACTS AND PROCEDURAL HISTORY
Under the policy challenged in this action, the Philadelphia Board of Education seeks to maintain a faculty ratio at each school of between 75% and 125% of the system-wide proportions of white and black teachers.*fn1 As a result, the racial composition of each school's faculty reflects that of the overall teaching staff.
To reach this objective, the School District annually reassigns some classroom teachers to other schools. The reassignment plan operates in two phases. First, there is a determination of the need for staff at each school. Because of declining student enrollment, each year many schools have fewer positions. Open positions are staffed in order of accumulated seniority at the school, and the least senior teachers are transferred from the school.However, if that would cause the school to fall outside the 75%/125% range, teachers of the overrepresented race are transferred even though they have more seniority. Also, if retirements cause a racial imbalance in the school's faculty outside the 75%/125% range, again the least senior teachers of the overrepresented race are transferred even though they may have more seniority than teachers of the other race. Only a small percentage of teachers transferred are transferred in derogation of seniority. In the last year, approximately 50 or 60 of the 1,100 teachers transferred were transferred to maintain the 75%/125% racial balance.
In the second phase of the reassignment plan, all the transferred teachers are entitled to choose new schools in descending seniority order, unless their choice would bring the selected schools outside the 75%/125% range.If so, those teachers are required to forego their preferred choice of transfer.
In considering the School District's policy, it is also necessary to keep in mind several factors. First, layoffs, as opposed to transfers, are determined by strict seniority. App. III at 185a; Brief for Appellees at 6. Second, teachers required to be transferred retain accumulated "building seniority," whereas those who seeks transfers generally lose that seniority. App. II at 137a. This affects transfer rights for the following school year. Third, transferred teachers retain a "right of return," or priority to any vacancies that recur at their former schools, if return will not upset the racial balance. App. III at 192a-93a.
Development of the Policy
The Philadelphia School System has long suffered from de facto segregation by race of students and faculty. Under Pennsylvania law, school districts may take steps to rectify a racial imbalance that is the product of de facto segregation as well as of de jure origin. Balsbaugh v. Rowland, 447 Pa. 423, 438, 290 A.2d at 85, 93 (1972). Also, the state, through the agency of the Pennsylvania Human Relations Commission (PHRC), may require a plan to eliminate de facto racial imbalances in schools. 447 Pa. at 432-33, 290 A.2d at 90; Pennsylvania Human Relations Commission v. Chester School District, 427 Pa. 157, 233 A.2d 290 (1967).
In 1968, the PHRC began proceedings under state law to compel the elimination of racially identifiable schools in Philadelphia. See School District v. Pennsylvania Human Relations Commission, 6 Pa. Commw. 281, 294 A.2d 410 (1972), aff'd as to other parties, 455 Pa. 52, 313 A.2d 156 (1973), (School District I); Pennsylvania Human Relations Commission v. School District, 23 Pa. Commw. 312, 352 A.2d 200 (1976) (School District II); Pennsylvania Human Relations Commission v. School District, 30 Pa. Commw. 644, 374 A.2d 1014 (1977), aff'd, 480 Pa. 398, 390 A.2d 1238 (1978) (School District III); Pennsylvania Human Relations Commission v. School District, 66 Pa. Commw. 154, 443 A.2d 1343 (1982) (School District IV). The state courts have generally preferred to allow the School District to establish "voluntary" plans in response to prodding by the PHRC because, as the Pennsylvania Supreme Court noted, the School District has "primary responsibility for the choice and implementation of an effective desegregation program." School District III, 480 Pa. at 428, 390 A.2d at 1253 (quoting Pennsylvania Human Relations Commission v. Chester School District, 427 Pa. 157, 181, 233 A.2d 290, 302 (1967)). The most recent state court action resulted in a consent agreement for a desegregation plan involving use of "magnet" schools. Despite these lengthy proceedings, the students of the School District still attend racially identifiable schools. See School District IV, 66 Pa. Commw. at 174, 443 A.2d at 1352.
PHRC guidelines espouse integration of faculty as well as of students as a means to eliminate the racial identifiability of schools and to achieve equal education for their students. See School District II, 23 Pa. Commw. at 317, 352 A.2d at 203. In 1969, the PHRC entered into a consent decree with the School District that required each elementary school to have at least 20% and each secondary school to have at least 10% of both black and white teachers. App. II at 115a. This decree supplemented a policy imposed in 1965, and still continuing, of assigning newly hired teachers in a manner that furthers racial balance. Appellee teachers do not attack this race-conscious initial assignment, which they consider "reasonable". Brief for Appellees at 4-5. Assignment on this basis aided faculty integration when there was an upsurge in hiring but voluntary transfers were also restricted in an effort to reach the 20% and 10% goals. Kromnick v. School District, 555 F. Supp. at 250.
In 1978, the School District's teacher assignment policies were again rewritten, this time because of the requirements of the federal government. In order to receive financing to assist in desegregation, the School District applied for federal aid then available under the Emergency School Aid Act (ESAA) Title VI, § 601, 20 U.S.C. §§ 3191-3207 (Supp V. 1981) (repealed effective October 1, 1982).*fn2 The Office of Civil Rights (OCR), of the Department of Health, Education and Welfare denied the application because the School District's desegregation plan was unsatisfactory. Among the deficiencies cited was insufficient integration of classroom teachers. The then-applicable ESAA regulations administered by OCR provided:
No educational agency shall be eligible for assistance under the Act if . . . it has . . . any practice, policy or procedure which results in discrimination on the basis of race . . . including the assignment of full-time classroom teachers to the schools of such agency in such manner as to identify any of such schools as intended for students of a particular race, color or national origin.
45 C.F.R.§ 185.43(b)(2) (1978) (emphasis added), redesignated 280.22(e) (1980) (repealed effective October 1, 1982). OCR found that teacher assignments in Philadelphia were "racially identifiable" despite the District's compliance with the numerical goals imposed under its consent decree with the PHRC.*fn3 In 1978 the School District's student population was 64.2% black, 6% Hispanic, and 31.6% white and its faculty was 63% white, 36% black and 1% other. OCR found that of 280 schools, 114 had 90% black students, whereas 60 schools had 80% white students. 61% of the black teachers were assigned to the schools with 90% black students, but only 8% were assigned to the schools with 80% white students. App. I at 58a-59a, 66a. OCR concluded that many schools that were racially identifiable by students had racially identifiable faculties and were "readily identifiable by the racial composition of their teaching staffs as intended for students of particular race . . . in violation of 45 C.F.R. 185.43(b)(2)." App. I at 59a.
OCR found that the District's teacher assignment policies had allowed too much choice of assignment for teachers in a system with de facto segregation. After intimating that this amounted to a conscious policy that might be unlawful or unconstitutional, the agency declined to revoke a determination of ineligibility, and concluded:
Compliance with the [PHRC consent decree] . . . was not sufficient to overcome the persistent pattern of racial identification of schools by faculty assignment. . . . In fact, the district has continued to allow teacher choice to determine teaching assignments even though, as the district representatives admitted, residential areas in the city are de facto segregated and teachers tend to choose schools nearest to their homes. Thus, it is our view that the natural, probable and foreseeable result of your district's teacher assignment policies was to maintain the racial identifiability of schools by the composition of their teaching staffs.
Letter from Herman R. Goldberg to Dr. Michael P. Marcase (August 8, 1978), App. I at 71a.
ESAA regulations provided for a "waiver" of eligibilty if the district undertook remedial action "so that the proportion of minority group full-time teachers at each school is between 75 percentum and 125 percentum of the proportion of such minority group teachers which exists on the faculty as a whole." 45 C.F.R. § 185.44(d)(3) (1978), redesignated 34 C.F.R. § 280.30(c) (1980), (repealed effective October 1, 1982). The School Board voted to comply with this 75%/125% standard, and adopted the policy described above, which went into effect immediately for the 1978-79 school year and has been continued for each year since.As a result, the School District received federal funds annually for desegregation.
Procedural History and Continued Use of the Policy
Four white teachers transferred under the 75%/125% policy, Lorraine Kromnick, Lorraine Brancato, Gladys Hirsh and Regina Katz, filed suit against the School District in December 1981, seeking declaratory and injunctive relief as well as money damages under the Constitution. Title VII of the Civil Rights Act of 1964, and 42 U.S.C. § 1983. Plaintiffs contended that the policy was an impermissible racial classification, but did not argue that its impact fell disproportionately on whites or blacks as a group.*fn4
The district court denied plaintiffs' motion for preliminary injunction primarily because the policy was mandated by OCR. See Kromnick v. School District, 555 F. Supp. 249, 252 (E.D. Pa. 1983). The court then granted plaintiffs' motion for certification as representatives, for declaratory and injunctive relief, of a mixed-race class of teachers affected by the 75%/125% policy.*fn5 The court also directed the School District to determine if OCR continued to require use of the 75%/125% policy. Id. at 252.
On June 23, 1982, the Office of Civil Rights of the Department of Education, now responsible for the ESAA program, found the School District "substantially in compliance" with the regulations. The agency commended the system for integrating the faculty and stsated that the district "is under no further obligation to continue to meet the 75%/125% standard." The agency also stated that "the district must continue to use nondiscriminatory policies" in placing teachers, and was "free to continue to maintain [the 75%/125% policy] if it so chooses." Letter from Frederick T. Cioffi, Director, Elementary and Secondary Education Division, Litigation, Enforcement and Policy Service, Department of Education to Superintendent Michael Marcase (June 23, 1982), App. II at 74a-75a.
The School Board voted, on August 2, 1982, to continue using the 75%/125% policy for the upcoming school year. Although the Board made no specific findings as to the continued need for this particular policy and did not canvass alternative race-conscious policies, the Board heard a report by its personnel department, later confirmed in a written study, that if the 75%/125% policy were abandoned in favor of free choice in teacher assignments, the level of faculty integration would slip.
At the trial on plaintiffs' motion for permanent injunction, the plaintiff teachers dropped their contention that the plan was unlawful for the years 1978-82, and limited their claims to the new period of voluntary adherence. Brief for Appellees at 3 n.2. The district court now held for plaintiffs, concluding that continued voluntary adherence to the 75%/125% policy violated the Equal ...