39 Pa. Commw. 222 | Pa. Commw. Ct. | 1978
Lead Opinion
Opinion by
The appellants (hereinafter collectively referred to as the School District) seek review of two orders of the Court of Common Pleas of Allegheny County' in an equity action brought by appellees, parents of students assigned to the newly established Baxter Mid-
Since the factual background and prior history of this case have been fully set forth in our opinion in Rankin v. School District of Pittsburgh, 33 Pa. Commonwealth Ct. 129, 381 A.2d 195 (1977), we need not repeat it in detail here. Briefly, the appeal stems from a decision by the School District in 1975 to convert Baxter Elementary School into a middle grade center as part of a district-wide change in the grade pattern in the district. Appellees objected to the opening of Baxter as a middle grade center on the ground that- the District’s assignment of students who had previously attended predominantly black elementary schools would create a new segregated school in the District. The chancellor found establishing Baxter as a middle grade center with an enrollment of 99 per cent black students constituted a violation of an order of the Pennsylvania Human Relations Commission (Commission)
The School District first argues that there was no basis for the chancellor to take remedial action because by converting Baxter into a middle grade center students were merely transferred from one segregated school to another, and thus, the School District action created no “incremental segregative effect.” The School District further argues that the Supreme Court of the United States has limited the power of a court of equity in school desegregation cases only to situations where School District action in fact causes an “incremental segregative effect.” See Dayton Board of Education v. Brinkman, 433 U.S. 406 (1977). Such reliance on Dayton, supra, is misplaced. Dayton limited the equity powers of federal district courts in fashioning remedies for segregation caused by admittedly neutral school board decisions which did not cure the prior violation of federal constitutional rights. Neither the Dayton decision nor the language therein can at this late date breathe new life into the School District’s old argument that it has done no harm because it has not increased segregation in the Pittsburgh schools. To make clear what was stated in our prior decision in Rankin, supra, the violation of the Commission’s order was the specific illegal conduct which justified the chancellor’s remedial action. The order as well as the guidelines of the Commission were in turn directed to the affirmative legislative policy of the Commonwealth evidenced by Section 7 of the Pennsylvania Human Relations Act
Having so concluded, however, we must agree with the School District that the chancellor exceeded his powers in ordering the School District to “cooperate” with a committee selected by appellees, parents of Reizenstein Middle School and the Commission. As this Court noted in Rankin, supra, the inherent discretionary power of school boards regarding the assignment of students
Accordingly, we will enter the following
Order
And Now, December 13, 1978, the order of the Court of Common Pleas of Allegheny County at No. Gr.D. 75-19178 in Equity, dated May 19,1978, as amended by the order dated August 3, 1978, as further amended by the order of August 4, 1978, is hereby affirmed with the modification that there be and is hereby deleted therefrom the direction that the School District “cooperate” with a committee selected by appellees, parents of Reizenstein Middle School and the Commission.
The appellees have filed a motion to quash, the appeals of the School District arguing in substance that the order is interlocutory, that the School District has failed to comply with Pa. R.C.P. Nos. 1518 and 1519, and that the appeals are frivolous. We herewith deny the motion to quash on the grounds that in view of our order in RanMn, supra, the May 19, 1978 order constituted a final order in directing Baxter be closed as a middle grade center and that Pa. R.C.P. Nos. 1518 and 1519 are inapplicable to that order and finally in view of the modification the appeals are not frivolous.
Appellees filed a cautionary appeal at 1441 C.D. 1978 from the May 19, 1978 decree indicating they were preserving their rights so that “issues that they believe were incorrectly decided below may be presented and argued to this Court.” Although discussed in their brief and mentioned at oral argument, we do not consider that it is being seriously pressed at this time. In any event, we do not perceive that it has any merit.
The Commission’s amended order, dated September 25, 1972, specifically ordered the School District not to open any new schools without a racially balanced student enrollment, as defined by the guidelines established by the Commission.
Act of October 27, 1955, P.L. 755, as amended, 43 P.S. §957.
See Section 310 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §13-1310.
Concurrence in Part
Concurring and Dissenting Opinion by
I concur with the order of the majority of the court and the able opinion of Judge Wilkinson in
With the following emphasis being my own, I point out that the questioned portion of Judge Flaherty’s amending order of August 3, 1978, dealing with submission of a comprehensive plan, actually states that:
[T]he plaintiffs shall select a committee which shall cooperate with the School District of the City of Pittsburgh in the formulation of the said plan along with amicus curiae in the case.
I note that the quoted language imposes a mandate upon the plaintiffs rather than upon the school district. Although there may be a technical question concerning the directing of a mandate to the plaintiffs who instituted the proceeding, it would seem that the absence of objection by those plaintiffs clears up the technicality.
Thus viewed, the quoted wording cannot, and should not, be interpreted as requiring the School District to subject its proposed plan to veto by either a committee of plaintiffs or amicus curiae.
A fair interpretation of this language is that it is a direction to plaintiffs that they organize themselves to remain in cooperative communication with the school district during formulation of the plan, not to supervise the school district, but so that the school district may afford to itself the benefit of input from an identifiable representation of those who have established standing in the case.
Because one of the problems in the history of this matter appears to be difficulty of communication, I would permit the questioned portion of the order to stand.
