decided: January 11, 1973; As Amended February 20, 1973.
(D.C. Civil Action No. 71-1938) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Van Dusen, Gibbons and Hunter, Circuit Judges
VAN DUSEN, Circuit Judge.
Plaintiffs instituted their class action under 42 U.S.C. § 1983 (1970) in August 1971 against the Honorable James H. J. Tate ("Mayor"), then Mayor of Philadelphia, and the Educational Nominating Panel ("Panel").*fn1 They alleged that the Panel had been appointed in a racially discriminatory manner. After considering the stipulated facts and the testimony and exhibits both sides introduced, the district court entered an order on November 8, 1971, dismissing the action.*fn2 From that order plaintiffs appeal. This court has reviewed the applicable law, which now includes two significant cases decided after the district court order,*fn3 and has concluded that it is compelled to vacate the district court order and to direct the district court to grant appropriate relief.*fn4
The Educational Supplement of the Philadelphia Home Rule Charter (Educational Supplement) provides that the mayor appoint the members of the Board of Education. The function of the Panel is to submit to the mayor the names of persons best qualified to serve on the Board. The Panel nominates three persons for each place on the Board to be filled, and an additional three persons if the mayor requests such additional names. The mayor must choose solely from these nominees. See section 12-207(b) of Educational Supplement. The Panel, which has thirteen members, is itself chosen by the mayor. Nine members must be the highest ranking officers of specified types of city-wide organizations, and four are chosen at large.*fn5 Each Panel serves two years, commencing at or before May 25 of odd-numbered years.
The Chairman of the Educational Home Rule Charter Commission, which drafted the Educational Supplement, contemplated that the composition of the Panel would "constitute a balanced representation or cross-section of the people of the entire community -- all of the community's ethnic, racial, economic, or geographic element and segments."*fn6 The rationale of the Panel-Mayor-Board arrangement was explained as follows:*fn7
"Selection of the School Board is the key feature of the Charter Supplement. The concept is that the Mayor, as the Chief Executive of the City, elected by and accountable to the entire electorate and community, is the appropriate 'appointing authority' for the School Board. As such, the Mayor is permitted sufficient discretion in School Board selection to preserve such accountability. On the other hand, the Panel is a mechanism for dignified recruitment and screening of top-caliber candidates for the important community post of School Board member.
"The Panel would play a crucial role in selection. It would be constituted and composed in a manner that safeguards the Mayor's accountability, that produces representativeness of the entire community, and that assures responsiveness to community change and development over the years.
"The Panel would perform a governmental role in helping to select a School Board which administers the public school system and the public funds required to finance it. Therefore, it is proper to restrict Panel membership to residents of the City; yet, its composition will permit the Mayor to select members who are dedicated to the improvement of the larger regional community and whose perspective encompasses the state-wide and national implications of the public education task.
"While the Mayor would be required to select nine members of the Panel from among the principal officers of City-wide organizations, he could select more or all thirteen members from such categories if he wishes. However, through the four at-large memberships, distinguished citizens would not be precluded from serving on the Panel merely because they are not officially identified with a particular community organization at a particular time.
"By specifying categories, rather than particular organizations, in the Charter, the Proposals recognize that community organizations and civic agencies change with time, and that over a period of years there can be wide representation of the many dedicated community groups and civic agencies in our City.
"The Supplement requires the Panel to solicit nominations from all community elements and agencies, study the qualifications of nominees, screen and select nominees, and make recommendations to the Mayor."
This legislative history serves as the background for the facts of which plaintiffs complain. The first Panel, appointed in 1965, had ten white and three black members. The white-black ratios of the 1967, 1969, and 1971 Panels were, respectively eleven and two, twelve and one, and eleven and two.*fn8 At the time the 1971 Panel was being appointed, blacks constituted about 33.5% of the population of Philadelphia and a much greater percentage, 60%, of the students in the public school ...