The appeals now before us are from the decision of the Commonwealth Court in Philadelphia School District v. Pennsylvania Human Relations Commission, 6 Pa.Commw. 281, 294 A.2d 410 (1972) in which that court affirmed orders issued by the Commission to five school districts (Philadelphia, Pittsburgh, Uniontown, New Castle and New Kensington-Arnold) upon a finding by the Commission of a violation by each district of section 5(i)(1) of the Human Relations Act, Oct. 27, 1955, P.L. 744, as amended, 43 P.S. § 955 (Supp. 1973-74).
In September of 1967, this Court held that under the section of the Human Relations Act set forth in note 1, the Commission was empowered to correct de facto segregation occurring in the public schools of this State. Pennsylvania Human Relations Commission v. Chester School District, 427 Pa. 157, 233 A.2d 290 (1967). Although we noted at the outset that the term "de facto segregation" was not fully defined,
"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.
"Insofar as possible every school building should reflect in its enrollment a cross section of the entire community." Shortly thereafter, on May 15, 1968, the
"VI. A racially-segregated or racially-imbalanced school is one whose concentration of Negro or white pupils is disproportionate to the enrollment of that particular racial group in all of the schools of the same grade span of a school district.
"VII. A disproportionate racial concentration of pupils in a public school consists of a pupil enrollment in which the percent of Negro pupils is less than or more than thirty (30%) percent of the percent of the Negro pupils in schools of the same grade span of a school district, as defined by the Complainant and Pennsylvania Department of Education in `Desegregation Guidelines for Public Schools' and `Recommended Elements of a School Desegregation Plan'."
The appeals of New Castle, Uniontown and New Kensington-Arnold were consolidated for decision with similar appeals taken by Philadelphia and Pittsburgh in the Commonwealth Court,
All agree that the core issue here is the power of the Commission to adopt its definition of racial imbalance, or, put somewhat differently, whether its definition in fact accurately interprets Section 5(i) (1) of the Human Relations Act.
We begin by observing that we have not decided this question previously. In Chester, as pointed out earlier, we found it unnecessary to adopt any particular definition of what degree of racial imbalance constituted de facto segregation. In Balsbaugh, taxpayers in Harrisburg filed a complaint in equity against the Harrisburg City School District, seeking to enjoin the implementation of a desegregation plan drawn up by the school district at the request of the Human Relations Commission.
The appellant-school districts ask us to say that the Legislature's intention in defining as an "unlawful discriminatory practice" the act of refusing, withholding, or denying "to any person because of his race . . . either directly or indirectly, any of the accommodations, advantages, facilities or privileges of [a] place of public accommodation. . . ." 43 P.S. 955 (Supp. 1973-74), was not to require that every school building in the Commonwealth reflect to a mathematical precision the racial makeup of the school district as a whole. Were that in fact the approach required, this Court would have great difficulty in saying that such was or was not the Legislature's intention.
As the Commission states in its brief, a search of the Human Relations Act for standards useful in defining de facto segregation is unavailing; "none are stated in the Act itself."
Federal law: Where segregation is "de facto", as distinguished from "de jure", the federal constitutional law as announced by the Supreme Court of the United States forbids only intentionally discriminatory acts. Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 93 S.Ct. 2886, 37 L. Ed. 2d 548 (1973); Spencer v. Kugler, 404 U.S. 1027, 30 L. Ed. 2d 723 (1972), aff'g 326 F.Supp. 1235 (D.N.J. 1971).
Prior to the recent Keyes [Denver School District] decision requiring that the complainant show affirmative discriminatory action, some federal decisions
While federal courts have so far not found it necessary to adopt any particular definition of de facto segregation, one district court, in holding that the constitution reaches imbalance caused by residential patterns, observed as follows: "However, segregation in the sense of racial imbalance, exists in the Springfield school system. While the experts did not agree on what constitutes racial imbalance in general, or in Springfield in particular, it is unnecessary to define the term. In light of the ratio of white to non-white in the total population of the City of Springfield [80% white], I do find, however, that a non-white attendance of appreciably more than fifty percent in any one school is tantamount to segregation." (Emphasis added.) Barksdale v. Springfield School Committee, 237 F.Supp. 543, 544 (D. Mass., vacated on other grounds, 348 F.2d 261 (1st Cir. 1965)).
One distinguished federal jurist, Judge J. Skelly Wright, in his opinion in Hobson v. Hansen, 269 F.Supp. 401 (D.D.C. 1967), aff'd sub nom. Smuck v. Hobson, 408 F.2d 175 (D.C. Cir. 1969), wrote as follows: "In these findings and throughout the opinion . . . `segregation' will denote the state of racial separateness in the schools, regardless of cause. For expressing the degree of segregation in Washington schools, the court will call a school `predominantly' Negro (or white) if 85% or more of its students are of that race. This cut-off point is relevant to evidence adduced by the parties respecting the state of segregation beyond which the education or social advantages attached to integration disappear." 269 F. Supp. at 411 n.9.
More recently a sociologist from Harvard University, Dr. Thomas F. Pettigrew, gave his views as to integration in Bradley v. School Board of Richmond, 338 F.Supp. 67, 194 (E.D. Va.), rev'd, 462 F.2d 1058 (4th
The Legislature in Illinois in its Armstrong Act has mandated its school boards to achieve racial balance through periodic review and gerrymandering of neighborhood school attendance zones.
In Jackson v. Pasadena City School District, 59 Cal.2d 876, 31 Cal.Rptr. 606, 382 P.2d 878 (1963),
Massachusetts has dealt with the problem of racial imbalance by statute in the Massachusetts Racial Imbalance Act of 1965, St. 1965, c.641. The Act specifically defines the term "racial imbalance" as referring to a "ratio between non-white and other students in public schools which is sharply out of balance with the racial composition of the society in which non-white children study, serve and work. For the purpose of this section, racial imbalance shall be deemed to exist when the percent of non-white students in any public school is in excess of fifty percent of the total number of students in such school." (Emphasis added.) In School Committee of Boston v. Board of Education, 352 Mass. 693, 227 N.E.2d 729 (1967), appeal dismissed for want of a substantial federal question, 389 U.S. 572, 19 L. Ed. 2d 778 (1968), the Supreme Judicial Court of Massachusetts upheld the Act against constitutional attack similar to that defeated in Tometz, supra.
In New York, the Board of Regents promulgates the state policy on racial imbalance. As of 1964, the Board stated that balance "was an important means to a good education, but not . . . an end in itself"
Other Authorities: An extensive research study conducted at the behest of the U.S. Department of Health, Education and Welfare makes a strong case for the proposition that the quality of education offered in a school in which students come predominantly from families of lower economic status (which unfortunately is to a large extent synonymous with Negro families) is measurably inferior to that offered in schools where the majority of children were middle class. "[Comparing the test results], in every case but one the highest average score is recorded for the Negro pupils where more than half of their classmates were white." U.S. Dept. of H.E.W., Office of Education, Equality of Educational Opportunity 28 (J. Coleman ed. 1966) (the "Coleman Report") (emphasis added). In the following year, the United States Commission on Civil Rights reexamined the data upon which the Coleman Report was based and issued a report of its own, concluding with the following recommendation, inter alia, for legislative action:
"1. Congress should establish a uniform standard providing for the elimination of racial isolation in the schools.
"In prescribing such a reasonable standard, there is much to commend the criterion already adopted by the legislature in Massachusetts and the Commissioner of Education in New York, defining as racially imbalanced, schools in which Negro pupils constitute more than 50 percent of the total enrollment. It was found in this report that when Negro students in schools with more than 50 percent Negro enrollment were compared with similarly situated Negro students in schools with a majority white enrollment, there were significant differences in attitude and performance. It is the schools that have a majority-Negro enrollment that tend to be regarded and treated by the community as segregated and inferior schools. Although there are many factors involved, the racial composition of schools that are majority-Negro in enrollment tends to be less stable than that of majority-white schools and to be subject to more rapid change.
In summary of the foregoing review, it appears that the mathematical definition of de facto segregation which the Commission has adopted and which we are asked to say is not a statement of the Legislature's intention in proscribing "unlawful discriminatory practice[s]" under the Human Relations Act
Although we are of opinion that the Commission's definition of de facto segregation is not statutorily mandated, this is not to say that the Commission was
"The Commission shall have the following powers and duties:
. . .
"(d) To adopt, promulgate, amend and rescind rules and regulations to effectuate the policies and provisions of this act.
"(e) To formulate policies to effectuate the purposes of this act, and make recommendations to agencies and officers of the Commonwealth or political subdivisions of government or board, department, commission or school district thereof to effectuate such policies.
. . .
"(k) From time to time but not less than once a year, to report to the Legislature and the Governor describing in detail the investigations, proceedings and hearings it has conducted and their outcome, the decisions it has rendered and the other work performed by it, and make recommendations for such further legislation concerning abuses and discrimination because of race, color, religious creed, ancestry, age or national origin as may be desirable."
There is a well-recognized distinction in the law of administrative agencies between the authority of a rule adopted by an agency pursuant to what is denominated by the textwriters as legislative rule-making power and the authority of a rule adopted pursuant to interpretative rule-making power. The former type of rule "is the product of an exercise of legislative power by an administrative agency, pursuant to a grant of legislative power by the Legislative body", and "is valid and is as binding upon a court as a statute
An interpretative rule on the other hand depends for its validity not upon a law-making grant of power, but rather upon the willingness of a reviewing court to say that it in fact tracks the meaning of the statute it interprets. While courts traditionally accord the interpretation of the agency charged with administration
Whether or not the Human Relations Commission's definition of de facto segregation is backed by legislative as distinguished from merely interpretative power is in turn a question of "whether or not it is issued pursuant to a grant of law-making power". Davis, supra, § 5.03, at 302. The statutory provisions quoted above evidence to us a legislative intent to empower the Commission to do a good deal more than merely interpert the Act. The Commission can "adopt, promulgate and rescind rules and regulations to effectuate the policies and provisions of [the] act" and can "formulate policies to effectuate the purposes of [the] act". One of the declared purposes of the Human Relations Act is "to assure equal opportunities to all individuals and to safeguard their rights at places of public accommodation.. . ." 43 P.S. § 952(b) (Supp. 1973-74). The equal opportunity safeguarded in schools, of course, is
We note additionally that the Commission's view requiring maximum racial mixing corresponds to the remedy a federal court would order, after Brown v. Board of Education (I), 347 U.S. 483, 98 L. Ed. 873 (1954), following a finding of de jure segregation. See Green v. County School Board, 391 U.S. 430, 438, 20 L. Ed. 2d 716 (1968) (requiring elimination of segregation "root and branch"). Paraphrasing only slightly what we said in Balsbaugh v. Rowland, — "If [maximum racial mixing] may be [the] acceptable, and indeed required, [remedy] in attempting to overcome racial segregation where that condition is historically of de jure origin, it would indeed be anomalous if [it] were nevertheless considered to be unreasonable, discriminatory and therefore unconstitutional . . . when voluntarily employed by a state to rectify an imbalance which is the product of de facto segregation." 447 Pa. at 438. The Commission's definition of the concept of de facto segregation is therefore upheld as within the legislative powers conferred by section 7 of the Act.
The orders of the Commonwealth Court are affirmed.
Mr. Justice MANDERINO concurs in the result.
APPENDIX New Castle Sch. Dist. New Kensington-Arnold Uniontown ----------------------------------------------------------------------------------------------------------------------- Percentage of Negro 11% 9.5% 8.4% Students in the elementary school "grade span." Percentage Range 7.7-14.3% 6.5-12.5% 5.9-10.9% Permissible under PaHRC Definition (% Negro Students) in any school. Actual Percentage of 6 schools - 0% 1 schools - 0% 4 schools - 0% Negro Students in 1 " - 0.5% 1 " - 0.23% 1 " - 0.6% in each School. 1 " - 3.9% 1 " - 0.96% 1 " - 1.1% 1 " - 23.1% 1 " - 1.6% 1 " - 1.2% 1 " - 47.2% 1 " - 4.3% 1 " - 1.6% 1 " - 58.2% 1 " - 9.1% (o.k.) 1 " - 3.9% ____ 1 " - 10.6% (o.k.) 1 " - 7.3% (o.k.) 11 schools - all "racially 1 " - 13.8% 1 " - 12.8% imbalanced" 1 " - 21.3% 1 " - 36.0% 1 " - 55.8% 1 " - 55.9% ____ ____ 10 schools - 8 "racially 13 schools - 12 "racially imbalanced" imbalanced" Percentage of Negro 8.8% Students in the junior high school "grade span." Percentage Range Permissible under Note: The junior high school PaHRC Definition "grade-spans" in the (% Negro Students) school districts of in any school 6.2-11.4% New Kensington-Arnold and Uniontown are not Actual Percentage of 1 schools - 3.6% involved here. Negro Students in 1 " - 15.7% in each school. ___ 2 schools - both "racially imbalanced"
I concur in the result reached by the majority solely on the ground that the orders of the Human Relations Commission are within its statutory authority.
The public policy of this Commonwealth is "to safeguard [the] rights [of all individuals] at places of public accommodation . . . ." Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, § 2(b), as amended, 43 P.S. § 952(b) (Supp. 1973). The definition of "place of public accommodation" specifically includes "kindergartens, primary and secondary schools, [and] high schools." Id. at 43 P.S. § 954(l) (Supp. 1973). The Legislature has declared that it is unlawful to "[r]efuse, withhold from, or deny to any person because of his race, color, religious creed, ancestry or national origin, . . . either directly or indirectly, any of the accommodations, advantages, facilities or privileges of [a] place of public accommodation. . . ." Id. at 43 P.S. § 955(i) (l) (Supp. 1973). To effectuate the purposes of this Act, the Legislature created the Pennsylvania Human Relations Commission and vested in it the power to "adopt, promulgate, amend and rescind rules and regulations to effectuate the policies and provisions of [the] act," Id. at 43 P.S. § 957(d) (1964), and to "formulate policies to effectuate the purpose of [the] act. . . ." Id. at 43 P.S. § 957(e) (1964).
The wisdom of the actions of the Commission is not subject to this Court's review. Our single jurisprudential task is to determine whether the Commission's actions are within the authority delegated to it by the Legislature. Pennsylvania Human Relations Commission v. Chester School District, 427 Pa. 157, 233 A.2d 290 (1967); cf. Pennsylvania Human Relations Commission v. Alto-Reste Park Cemetery Association, 453 Pa. 124, 306 A.2d 881 (1973). A court reviewing the actions of an administrative agency "is not at liberty to substitute its own discretion for that of administrative
The majority, applying this test, has, in my view, correctly concluded that "the Commission's view that maximum possible racial mixing within a school district's buildings fosters equal educational opportunity cannot be said to be beyond the Commission's authority, arbitrary or unreasonable." Having so concluded, the inquiry must end.
The Commonwealth Court correctly affirmed the orders of the Human Relations Commission. See Alto-Reste Park Cemetery Association, supra; Chester School District, supra. Accordingly, I concur in the result.
Mr. Chief Justice JONES and Mr. Justice NIX join in this concurring opinion.
"[We considered other definitions of segregation] at great length. Before the Commission and Department adopted this definition, the Commission first contracted with New York University Center of Human Relations and Community Studies and Services, Dan W. Dodson, specifically; secondly, it pulled together the definitions of what constitutes racially imbalanced schools that have come forth from other states and from other state courts and departments of education and a great length and very intensively considered those alternate definitions. It, for example, considered the definition in the Massachusetts Racial Imbalance Act of 1965, and the comparable position of the Commissioner of Education of New York State which deemed that a school is racially imbalanced if it has a 50 per cent or more Negro pupils. This was concluded by the Commission and Department to be too narrow, too rigid and without the reality of a proportion of black pupils in a particular public school district or particular grade span.
"It also considered the definition of the Supreme Courts of California and New Jersey which simply said that a racially imbalanced school was one with substantial imbalance, and, once again, this was rejected by the Department and Commission as too imprecise. So that the final definition was felt to be one that could be realistically — that a state of racial balance and desegregation of a school could be realistically achieved and, most importantly, would be based on the reality of each school district separately." Uniontown Record at 22a-24a.
Example One: Assume a school district in which 10% of the elementary school students are Negroes. Each elementary school of this district must have a percentage of Negro students in the range of 7 — 13% (10% x 30% (permissible deviation) = 3%).
Example Two: As above, but with a Negro percentage of 50%. A school within the range 35% — 65% Negro is "racially balanced" (50% x 30% (permissible deviation) = 15%).
We additionally note that in its "develop and submit" orders entered against the appellant-school districts, the Commission, applying its definition of racial imbalance, found the districts to have racially segregated faculties as well, and ordered affirmative steps to increase minority representation on appellants' faculties. The Commonwealth Court, however, unanimously refused to approve the orders as applicable to faculties and in its answer to the petition for allowance of appeal, the Commission informed us that it had "voted to comply with the Commonwealth Court's decision rather than appeal it and has amended its original order accordingly".
42 U.S.C. § 2000c-6(a) (1970) authorizes the Attorney General to institute legal actions on behalf of persons who claim to be the victims of racial segregation in public schools, but with the following limitation: "[N]othing herein shall empower any official or court of the United States to issue any order seeking to achieve a racial balance in any school by requiring the transportation of pupils or students from one school to another or one school district to another in order to achieve such racial balance, or otherwise enlarge the existing power of the court to insure compliance with constitutional standards." See also 45 C.F.R. § 180.2(b) (1972).
It is possible, therefore, that federal funds may be unavailable to defray the cost of whatever transportation of pupils may be incurred in complying with the orders of the Commission. The exact impact on school financing cannot be determined until such time as desegregation plans acceptable to the Commission are adopted. We note, however, that New Kensington-Arnold possesses no school buses at all and lacks cafeteria equipment to provide lunches for children unable to walk home at noon.
For a discussion of the Education Act Amendments, see Comment, Interpreting the Anti-Busing Provisions of the Education Amendments Act of 1972, 10 Harv. J. Legis. 256 (1972); A.J. Goldberg, The Administration's Anti-Busing Proposals — Politics Makes Bad Law, 67 Nw. U.L. Rev. 319 (1972).
"An integrated school system does not mean — and indeed could not mean in view of the residential patterns of most of our major metropolitan areas — that every school must in fact be an integrated unit. A school which happens to be all or predominantly white or all or predominantly black is not a `segregated' school in an unconstitutional sense if the system itself is a genuinely integrated one."
* * *
"[T]he question then becomes what reasonable affirmative desegregative steps district courts may require to place the school system in compliance with the constitutional standard. In short, what specifically is the nature and scope of the remedy?"
* * *
"[I]n school desegregation cases, as elsewhere, equity counsels reason, flexibility and balance. * * * I am aware, of course, that reasonableness in any area is a relative and subjective concept. But with school desegregation, reasonableness would seem to embody a balanced evaluation of the obligation of public school boards to promote desegregation with other, equally important educational interests which a community may legitimately assert. Neglect of either the obligation or the interests destroys the evenhanded spirit with which equitable remedies must be approached."
In Bell application of Dr. Wolff's formula to the Gary school system (54% Negro) produced the following definition of an integrated school: a building with a Negro pupil percentage between 36% and 72%. As we will later indicate, more recent sociological studies show that it is the predominantly Negro school (or more precisely the predominantly lower economic class school) which is to be avoided if possible. Thus, in a school district that is approximately 50% Negro, permissible deviation would be minimal. It is a peculiar feature of the Commission's formula that at the higher percentages of Negro students (50% for example), the formula permits a deviation of plus or minus 15%, while at the lower percentages (10% as is the case in these appeals), the formula permits only plus or minus 3%. One might argue that the sensitivity to deviation were better reversed.
"Today, there is much debate over `tipping points' both in schools and neighborhood housing. The evidence is inadequate and hence precludes a precise sociological-psychological definition of `balance'. But a statute must have some definition in order to operate efficiently and effectively. The inconclusiveness of sociological evidence should not deter states from beginning to correct racial imbalance. In the present Act, a figure of fifty percent nonwhite, although an arbitrary number, is such a beginning. As a suitable starting point, fifty percent has support in New York, the federal courts, and the U.S. Commission on Civil Rights.
* * *
"The focus should be on the point at which the percentage of non-white students in a school deprives them of an equal educational opportunity and not on whether each school has a minimum percentage of non-white students in its population." Id. at 93, 95.
As we held in Chester, we think the standard of the Act (safeguarding equal educational opportunity from harmful effects of racial segregation) coupled with the procedural safeguards of the Administrative Agency Law and the Commonwealth Documents Law permit approval of the possession by the Commission of power by nature legislative.
In 1968, for example, the year in which the Commission settled on its definition, it informed the Legislature:
"[G]uidelines for desegregating public schools were approved and issued jointly by the Commission and [the Department of Public Instruction], and were sent March 29 to [seventeen school districts with any one school containing more than 80% Negro pupils]. . . .
"The guidelines stated that, insofar as possible, every school building should reflect in its enrollment a cross section of the entire community." (Emphasis added.)
Pa. Human Relations Commission, Thirteenth Annual Report 5 (1968). The Commission's view of what constituted de facto segregation was brought to the attention of the Legislature in the two succeeding years as well. See Fourteenth Annual Report at 16 (1969), and the January-June Report of 1970.
Prior to the effective date of the new Commonwealth Documents Law, Act of July 31, 1968, P.L. 769, No. 240, 45 P.S. § 1101 et seq. (Supp. 1973-74), the rules and regulations of the Commission were required by section 21 of the Administrative Agency Law, Act of June 4, 1945, as amended, 71 P.S. § 1710.21, to be placed on file with the Department of State for the examination of interested citizens. The Commission's definition of de facto segregation does not appear to have been published as a rule or regulation; certainly it was not among those existing rules and regulations brought over into the Pennsylvania Code under the Commonwealth Documents Law. Under that new Law, an agency preparing to adopt a rule must give public notice of its intention, 45 P.S. § 1201, must "review and consider any written comments submitted", 45 P.S. § 1202, and "may hold such public hearings as seem appropriate". Although 45 P.S. § 1204 does exempt certain types of regulations from this process, legislative (as contrasted with interpretative) rules are not excepted.
In NLRB v. Wyman-Gordon Co., 394 U.S. 759, 22 L. Ed. 2d 709 (1969), six Justices of the Supreme Court of the United States indicated that the parallel provisions of the federal Administrative Procedure Act were mandatory and that federal agencies could not bypass the legislatively specified procedures for policy formulation (procedures designed to bring a broad spectrum of opinion to bear) in favor of a procedure of developing policy by adjudicatory proceedings.
In exercising a power legislative in nature, we think it necessary to comply fully with legislatively-prescribed procedures. See L.L. Jaffe, Judicial Control of Administrative Action 566 (1965). Whether or not the Commission's definition, formulated in an administrative procedure of unspecified nature, adopted without the broad public notice required under the Documents Law, and unpublished as a rule or regulation so complies are questions which we do not now pass upon and which must await proper presentation.