Philadelphia v. Educational Equality League Petition for Writ of Certiorari

    IN THE

Supreme Court of the United States
____________ (L

October Term, 1972 No.------

THE MAYOR OF THE CITY OF PHILADELPHIA AND 
THE EDUCATIONAL NOMINATING PANEL OF THE 

CITY OF PHILADELPHIA,
Petitioners

v .

EDUCATIONAL EQUALITY LEAGUE, et al„
Respondents

Petition for a Writ of Certiorari to the 
United States Court of Appeals 

for the Third Circuit

HOWARD D. SCHER
Assistant City Solicitor

JOHN MATTIONI
Deputy City Solicitor

MARTIN WEINBERG
City Solicitor
Counsel for Petitioners

1520 Municipal Services Bldg.
Philadelphia, Pa. 19107

THE LEGAL INTELLIGENCER, G6 NORTH JUNIPER STREET, PHILA., PA. 19107



TABLE OF CONTENTS

Page
Opinion Below ..........................................................  2

Jurisdiction .............................................................. 2

Questions Presented.................................................  2

Statutory Provisions Involved................................... 3

Statement of the Case...............................................  10

Reasons for Granting the W r it ..................................  15

Conclusion................................................................ 29

Appendix.................................................................  30

Opinion and Judgment of District Court and Court of 
Appeals and Order Amending Opinion of Court 
of Appeals...................................................... 30, 38

TABLE OF CITATIONS
Cases:
Alexander v. Louisiana, 405 U.S. 625 (1972 ................  22

Commonwealth ex rel. Carroll v. Tate, et al„ 442 Pa.
45 (1971 )...................................... 23,24

Commonwealth ex rel. Specter v. Vignola, 446 Pa. 1
(1971)................  .26,27

Educational Equality League et al. v. Tate et al., 333
F. Supp. 1202 (E.D. Pa. 1971) . . ! ....................  2

Keim v. United States, 177 U.S. 289 (1899)................  25

Marbury v. Madison, 1 Cranch 135(1803)................ 24, 25

Naef v. Allentown, 424 Pa. 597 (1967).......................  27

Philadelphia v. Sacks, 418 Pa. 193 (1965)..................  27

Schluraff v. Rzymek, 417 Pa. 144 (1965).................... 27

Turner v. Fouche, 396 U.S. 346 (1970).......................  22
i



TABLE OF C ITATIO NS— (Continued)

Cases: Page
United States v. Yellow Cab Company, 338 U.S. 338

(1949)...........................................................21,22

Statutes:
Federal Constitutional and Statutory Provisions:

U.S. Const., Art. II, Section 2 .............................3, 24
28 U.S.C. 1254(1)...........................................  2
28 U.S.C. 1343(3)...........................................  10
42 U.S.C. 1983 ................................................... 12

Pennsylvania Statutory Provisions:
First Class City Public Education Home Rule Act 

of August 9, 1963, P.L. 643; 53 P.S. §13202 . . 3
Philadelphia Home Rule Charter....................... 3, 4
Philadelphia Home Rule Charter, Educational

Supplement ...............................................  4

Miscellaneous:
5A Moore’s Federal Practice Chapter 5 2 ............... 22
Rule 52(a) F.R.C.P....................................................17, 21

ii



IN THE

Supreme Court of the United States

October T erm ,1972 No .■

THE MAYOR OF THE CITY OF PHILADELPHIA AND 
THE EDUCATIONAL NOMINATING PANEL OF THE 

CITY OF PHILADELPHIA,
Petitioners

v .

EDUCATIONAL EQUALITY LEAGUE, et al„
Respondents

Petition for a Writ of Certiorari to the 
United States Court of Appeals 

For the Third Circuit

The Petitioners,1 the Mayor of the City of Philadelphia 
and the Educational Nominating Panel, respectfully pray 
that a Writ of Certiorari issue to review the judgment and 
opinion of the United States Court of Appeals for the Third 
Circuit entered in this proceeding on January 11, 1973, as 
modified on February 21, 1973, reversing the judgment of 
the United States District Court for the the Eastern District 
of Pennsylvania; finding that the former Mayor of the City 
of Philadelphia had discriminated on the basis of race in 
appointing to the Educational Nominating Panel; and 
requiring the present Mayor of the City of Philadelphia to 1

1. When the cause was adjudicated in the District Court the 
Mayor of the City of Philadelphia was the Honorable James H. J. 
Tate. However, since the first Monday in January 1972, the Hon­
orable Frank L. Rizzo has been Mayor. Mayor Rizzo has never 
been made a party to this action.

1



2

submit evidence of his non-discrimination to the District 
Court on remand.2

OPINION BELOW

The opinion, as modified, of the Court of Appeals, not 
yet reported, appears in the Appendix hereto. The opinion 
rendered by the United States District Court for the Eastern 
District of Pennsylvania is reported at 333 F. Supp. 1202 
(E.D. Pa. 1971), and appears in the Appendix hereto.

JURISDICTION

The judgment of the Court of Appeals for the Third 
Circuit was entered on January 11, 1973. A timely petition 
for re-hearing and re-hearing en banc was denied on Feb­
ruary 22, 1973, and this Petition for Certiorari was filed 
within ninety days of that date. The Court’s jurisdiction is 
invoked under 28 U.S.C. Section 1254(1).

QUESTIONS PRESENTED

Whether the Court of Appeals’ reversal based on a 
finding of direct evidence of intent to discriminate on the 
basis of race on the part of the former Mayor of the City of 
Philadelphia violated the constraint of Rule 52(a) F. R. C. P., 
which limits reversals to clearly erroneous findings.

Whether evidence of statistical under-representation of 
black persons combined with an opportunity to discrimi­
nate is the appropriate formula to shift the burden of proof 
in this case:

2. Respondents, the Educational Equality League, Floyd L. 
Logan, W. Wilson Goode, Veronica Kellam, by her mother and next 
friend, Elizabeth Kellam, and Michael Green, by his father and next 
friend, Coolidge Green on behalf of themselves and all others 
similarly situated, moved for the “Declaration of a Class Action” 
which the District Court granted stating: “It is clear that a class con­
sisting of all blacks in the City of Philadelphia meets all the require­
ments of Rule 23(a).”



3

(1) Where the chief elected official’s discretionary 
appointment power is being reviewed by the Court;

(2) Where the qualifications for appointment are defi­
nite and limiting and have never been subjected to constitu­
tional attack;

(3) Where, regardless of the executive’s involvement 
and the limiting qualifications, the positions available are 
so small in absolute number as to make statistical under­
representation inconclusive at best; and

(4) Where the unrebutted evidence discloses that 
under former Mayor Tate, minorities made very impressive 
advancements in all fields and at all levels of City govern­
ment.

Whether the Court of Appeals was justified in fashion­
ing its Order prospectively where the foundation of the 
holding was based on evidence of practices of former Mayor 
James H. J. Tate’s administration and where absolutely no 
evidence exists that the present Mayor, not a party to the 
action, Frank L. Rizzo, has discriminated.

STATUTORY PROVISIONS INVOLVED 

United States Constitution, Article II:

Section 2. The President . . . shall nominate 
and, by and with the advice and consent of the Senate, 
shall appoint . . .  all other officers of the United 
States. . . . But the Congress may by law vest the 
appointment of such inferior officers, as they think 
proper in the President along. . . .

First Class City Public Education Home Rule Act of August 
9, 1963, P.L. 643 [53 P.S. §13202 (Pocket Part 1972-73)]:

Article II, Section 2: Cities empowered. Any city 
of the first class may frame and adopt charter provi­
sions governing the administration of a separate and 
independent home rule school district. . . .

Philadelphia Home Rule Charter, Adopted by the Electors 
April 17,1951:



4

Section 3-404. All other officers. Except as ex­
pressly otherwise provided in this charter, all ap­
pointed officers and all members and all officers of 
boards and commissions shall serve at the pleasure 
of the appointing power. . . .

Philadelphia Home Rule Charter, Educational Supplement, 
Adopted by the Electors, May 18,1965:

ARTICLE XII 
PUBLIC EDUCATION

CHAPTER 1
THE HOME RULE SCHOOL DISTRICT

Section 12-100. The Home Rule School District.
A separate and independent home rule school district 

is hereby established and created to be known as “The 
School District of Philadelphia.”

Section 12-101. The New District to Take Over All 
Assets and Assume All Liabilities of the Predecessor School 
District.

The home rule school district shall
(a) succeed directly the now existing school district 

for all purposes, including, but not limited to, receipt of all 
grants, gifts, appropriations, subsidies or other payments;

(b) take over from the now existing school district all 
assets, property, real and personal, tangible and intangible, 
all easements and all evidences of ownership in part or in 
whole, and all records, and other evidences pertaining 
thereto; and

(c) assume all debt and other contractual obligations 
of the now existing school district, any long term debt to 
be issued, secured and retired in the manner now provided 
by law.



5

CHAPTER 2
THE BOARD OF EDUCATION

Section 12-200. The Board Created; Its Function.

There shall be a Board of Education of the School Dis­
trict of Philadelphia which shall be charged with the ad­
ministration, management and operation of the home rule 
school district.

Section 12-201. Members of the Board; Method of 
Selection.

There shall be nine members of the Board of Education 
who shall be appointed by the Mayor from lists of names 
submitted to him by the Educational Nominating Panel, 
or, if enabling legislation is enacted by the General Assem­
bly of the Commonwealth, elected on a non-partisan basis 
by the qualified voters of the city, all as more fully set forth 
in later sections of this Chapter.

Section 12-202. Eligibility for Board Membership.

Members of the Board of Education shall be registered 
voters of the City. No person shall be eligible to be ap­
pointed or elected to more than two full six-year terms.

Section 12-203. Terms of Board Members.

The terms of members of the Board of Education shall 
begin on the first Monday in December and shall be six 
years except that (1) of the first members of the Board 
appointed and if later there be an elective Board, of the first 
members elected, three shall be appointed or elected for 
terms of two years, three for terms of four years, and three 
for terms of six years, and (2) if the General Assembly 
enacts legislation permitting the election of members of 
the Board on a non-partisan basis, the terms of all ap­
pointed members shall expire on the first Monday of 
December immediately following the municipal election 
at which the first elective Board is elected.



6

Section 12-204. Removal of Members of the Board.

Members of the Board of Education may be removed 
as provided by law.

Section 12-205. Vacancies on the Board.

A vacancy in the office of member of the Board of 
Education shall be filled for the balance of the unexpired 
term in the same manner in which the member was 
selected who died or resigned. If a member of the Board 
is removed from office, the resulting vacancy shall be 
filled as provided by law.

Section 12-206.EducationalNominatingPanel; Method 
of Selection.

(a) The Mayor shall appoint an Educational Nominat­
ing Panel consisting of thirteen (13) members. Members 
of the Panel shall be registered voters of the City and shall 
serve for terms of two years from the dates of their appoint­
ment.

(b) Nine members of the Educational Nominating 
Panel shall be the highest ranking officers of City-wide 
organizations or institutions which are, respectively:

(1) a labor union council or other organization 
of unions of workers and employes organized and 
operated for the benefit of such workers and employes,

(2) a council, chamber, or other organization 
established for the purpose of general improvement 
and benefit of commerce and industry,

(3) a public school parent-teachers association,

(4) a community organization of citizens estab­
lished for the purpose of improvement of public educa­
tion,

(5) a federation, council, or other organization 
of non-partisan neighborhood or community associ­
ations,



7

(6) a league, association, or other organization 
established for the purpose of improvement of human 
and inter-group relations,

(7) a non-partisan committee, league, council, 
or other organization established for the purpose of 
improvement of governmental, political, social, or 
economic conditions,

(8) a degree-granting institution of higher educa­
tion whose principal educational facilities are located 
wihin Philadelphia, and

(9) a council, association, or other organization 
dedicated to community planning of health and wel­
fare services or of the physical resources and environ­
ment of the City.

(c) In order to represent adequately the entire com­
munity, the four other members of the Educational Nom­
inating Panel shall be appointed by the Mayor from the 
citizenry at large.

(d) In the event no organization as described in one 
of the clauses (1) through (9) of subsection (b) exists within 
the City, or in the event there is no such organization any 
one of whose officers is a registered voter of the City, the 
Mayor shall appoint the highest ranking officer who is a 
registered voter of the City from another organization or 
institution which qualifies under another clause of the 
subsection.

(e) A vacancy in the office of member of the Educa­
tional Nominating Panel shall be filled for the balance of 
the unexpired term in the same manner in which the mem­
ber was selected who died, resigned, or was removed.

(f) The Educational Nominating Panel shall elect its 
own officers and adopt rules of procedure.

Section 12-207. The Educational Nominating Panel; 
Duties and Procedure.

(a) The Mayor shall appoint and convene the Educa­
tional Nominating Panel (1) not later than May twenty-



8

fifth of every odd-numbered year, and (2) whenever a 
vacancy occurs in the membership of the Board of Edu­
cation.

(b) The Panel shall within forty (40) days submit to 
the Mayor three names of qualified persons for every place 
on the Board of Education which is to be filled. If the Mayor 
wishes an additional list of names, he shall so notify the 
Panel within twenty (20) days. Thereupon the Panel shall 
within thirty (30) days send to the Mayor an additional list 
of three qualified persons for each place to be filled. The 
Mayor shall within twenty (20) days make an appointment 
or, as provided in the following subsection, certify a nomi­
nation from either list for each place to be filled.

(c) If the General Assembly of the Commonwealth 
shall have previously enacted enabling legislation per­
mitting members of the Board of Education to be elected 
on a non-partisan basis, not later than September fifteenth 
of the odd-numbered year in which the legislation was 
enacted or the ensuing odd-numbered year, the Mayor shall 
select nine names from either one or two lists of 27 names 
submitted by the Educational Nominating Panel according 
to the procedure set forth in subsection (b) and shall certify 
those nine names to the county board of elections as his 
nominations for members of the Board of Education. In 
certifying the names of his nominees to the county board 
of elections the Mayor shall designate three of his nominees 
as candidates for terms of two years, three for terms of four 
years and three for terms of six years. The ballots or ballot 
labels shall not contain any party designation for any of 
the candidates nominated by the Mayor, and under each 
name there will be a space permitting the voter to write 
in the name of any other person. In every instance the 
Mayor s candidate will be elected if, but only if, he receives 
more votes than any other candidate whose name is written 
in. In every subsequent odd-numbered year, three members 
of the Board shall be nominated by the Mayor from names 
submitted to him by the Educational Nominating Panel 
and elected in the same manner provided by this subsection.



9

and whenever a vacancy occurs the procedure for filling 
it shall be similar whether the vacancy be filled at a special 
election proclaimed by the Mayor or at a municipal election.

(d) The Educational Nominating Panel shall invite 
business, civic, professional, labor, and other organizations, 
as well as individuals, situated or resident within the City 
to submit for consideration by the Panel the names of 
persons qualified to serve as members of the Board of 
Education.

(e) Nothing herein provided shall preclude the Panel 
from recommending and the Mayor from appointing or 
nominating persons who have previously served on any 
board of public education other than the Board of Educa­
tion created by these charter provisions.



10

STATEMENT OF THE CASE

The jurisdiction of the District Court was invoked 
under 28 U.S.C. Section 1343 (3) alleging violation of 42 
U.S.C. Section 1983. Specifically, the Educational Equality 
League alleges that the former Mayor of the City of Phila­
delphia discriminated on the basis of race in his appoint­
ments to the Educational Nominating Panel, in May of 
1971.

The method of appointing persons to the Educational 
Nominating Panel is established by the Educational Sup­
plement to the Philadelphia Home Rule Charter, approved 
by the electors on May 18, 1965, pursuant to the Act of 
August 9, 1963, P. L. 643, 53 P. S. Sections 13201-13223. 
The constitutionality of the Charter has not been ques­
tioned.

The Charter provides that during every odd-numbered 
year the Mayor shall appoint and convene a panel of 13 
qualified persons to be called the Educational Nominating 
Panel ( “Panel”). The function of this panel is to nominate 
three persons for each vacancy on the Board of Education 
of the School District of Philadelphia (“Board”). From the 
three persons (or six persons since, if the Mayor desires an 
additional three persons for each vacancy, he merely 
requests additional names), the Mayor selects and appoints 
a person to the vacancy on the Board. The Mayor’s appoint­
ments to the Board have not been challenged, nor indeed, 
has the quality or dedication of the actual appointees 
been questioned.

The qualifications for appointment to the Panel vary. 
Four (4) Panel members must be from the “citizenry at 
large” “ [i]n order to represent adequately the entire 
community. . . .” Charter, 12-206(c).3 The remaining 
nine (9) panel members “shall be the highest ranking

3. The Mayor can, i f  he chooses on his own initiative, 
appoint from additional organizations of his own selection to 
fill these four “at large” positions.



11

officers of City-wide organizations or institutions. . . 
Charter, 12-206(b). These organizations are described with 
particularity as:

(1) a labor union council or other organization 
of unions of workers and employes organized and 
operated for the benefit of such workers and employes,

(2) a council, chamber, or other organization 
established for the purpose of general improvement 
and benefit of commerce and industry,

(3) a public school parent-teachers association,
(4) a community organization of citizens es­

tablished for the purpose of improvement of public 
education,

(5) a federation, council, or other organization 
of non-partisan neighborhood or community asso­
ciations,

(6) a league, association, or other organization 
established for the purpose of improvement of human 
and inter-group relations,

(7) a non-partisan committee, league, council, 
or other organization established for the purpose of 
improvement of governmental, political, social, or 
economic conditions,

(8) a degree-granting institution of higher edu­
cation whose principal educational facilities are 
located within Philadelphia, and

(9) a council, association, or other organization 
dedicated to community planning of health and wel­
fare services or of the physical resources and environ­
ment of the City.

Charter, 12-206(b) (1>(9).

On May 25, 1971, Mayor Tate appointed and con­
vened the Panel.

On August 6, 1971 the Educational Equality League 
sued Mayor Tate and the Panel alleging the Mayor made 
his appointments on racial criteria in violation of the Civil



12

Rights Act of 1866, 42 U.S.C. Section 1983 and requesting 
a speedy hearing, an injunction against the panel from 
acting, a judgment declaring that the Mayor discriminated 
on the basis of race and an order directing the Mayor to 
appoint a panel “fairly representative of the racial com­
position of the school community.” Complaint, p. 8.

After expedited pre-trial discovery was completed a 
hearing was held on August 25 and September 7, 1971 
before the Honorable Raymond Broderick, Judge of the 
United States District Court for the Eastern District of 
Pennsylvania.

At the hearing, the Educational Equality League at­
tempted to offer evidence to support two theories: that the 
Mayor directly and personally discriminated against black 
persons when he appointed the Panel; and that the statisti­
cal evidence demonstrating the percentage of blacks in the 
general population of Philadelphia and the percentage of 
black students in the population of the School District of 
Philadelphia as compared with the percentage of blacks 
appointed to the thirteen member Panel creates a pre­
sumption of discrimination by the Mayor.

The Mayor and Panel offered evidence to support 
several theories of defense: that the appointments of the 
Mayor are protected from judicial interference by virtue 
of the executive’s inherent discretion and the consti­
tutionally mandated doctrine of separation of powers; that 
the Mayor’s appointments satisfied the qualifications 
required by the Charter; that the qualifications required by 
the Charter vitiated the applicability of the Educational 
Equality League’s statistical theory since more than mere 
citizenship and residency are required by the Charter to 
qualify for appointment to the Panel; and that the statisti­
cal theory is invalid as applied to the Panel since the Panel 
is so small that each individual change on the Panel results 
in extremely large changes in percentages. Finally, evi­
dence established that the Mayor personally championed 
the expansion of opportunity for blacks in City employment 
as well as in appointed and elective political positions and



13

evidence was offered to contradict any assertion of personal 
discrimination as to the Mayor.

On November 8, 1973, the District Court issued its 
Findings of Facts, Conclusions of Law and Order, dis­
missing the complaint with prejudice. 333 F. Supp. 1202.

The District Court found inapplicable the “percentage 
rationale,” i.e., the Educational Equality League’s theory 
that a prima facie case or presumption of discrimination 
can be proved by comparing the percentage of blacks in 
the population of the City of Philadelphia with the per­
centage of blacks appointed to the 1971 Panel. 333 F. 
Supp. at 1207.

The District Court discussed but refused to find that 
the Mayor had discriminated on the basis of race in his 
appointments to the 1971 Panel.

The District Court did not reach the questions of 
executive discretion and separation of powers, although it 
expressed doubts as to its power to interfere with the dis­
cretion of an elected executive in his discretionary ap­
pointments. 333 F. Supp. at 1206.

The District Court did not reach or discuss the inap­
plicability of the percentage rationale in relation to the 
qualifications required by the Charter beyond citizenship 
and residency.

On November 9, 1971, the Educational Equality 
League filed a Notice of Appeal to the United States Court 
of Appeals for the Third Circuit.

On December 5, 1972 argument on the briefs was 
heard by Judges Van Dusen, Gibbons and Hunter.

On January 11, 1973 the Court of Appeals issued its 
judgment vacating the judgment of the District Court 
except as to the Educational Nominating Panel, and re­
manding the cause to the District Court for further pro­
ceedings.

Timely Petitions for Rehearing were filed by each 
party, and a Petition for Rehearing En Banc was filed by 
the Mayor of the City of Philadelphia. All were denied, the 
Educational Equality League’s on February 21, 1973 and 
the Mayor’s on February 22, 1973.



14

On February 21, 1973 the Court of Appeals entered 
an order amending its order of January 11, 1973. The 
Court of Appeals found as a fact that the appointments by 
the Mayor to the Panel were not within the executive’s 
discretion and that the selection process had a discrimina­
tory effect. The Court of Appeals applied the percentage 
rationale holding that demonstrating under-representation 
and an opportunity for discrimination is all that is neces­
sary to establish a prima facie case. Finally, the Court of 
Appeals found as a fact that the former Mayor had dis­
criminated on the basis of race in his selections to the 
Panel and based on this finding, required the present 
Mayor to submit the bases for his executive judgments to 
the scrutiny of the District Court on remand.

These findings by the Court of Appeals were directly 
contrary to those made by the District Court. Furthermore, 
it failed to consider the evidence adduced that directly 
contradicted the witness relied upon by the Court of 
Appeals, and the evidence establishing that Mayor Tate 
had personally opened areas of opportunity to minorities 
that had previously been denied them.

The Mayor of the City of Philadelphia and the Edu­
cational Nominating Panel moved the Court of Appeals for 
a Stay of its Mandate pending Petition to the Supreme 
Court for a Writ of Certiorari. The Court of Appeals ordered 
its mandate stayed for 15 days with “no further extension.
. . .” Order of United States Court of Appeals, March 2, 
1973.



15

REASONS FOR GRANTING THE WRIT

Although ostensibly involving only one relatively 
insignificant panel appointed by the highest elected official 
of the City of Philadelphia, this case involves grave national 
consequences. As a direct result, and without precedent, the 
present Mayor of the City of Philadelphia, without even 
having been accused of racial discrimination, is required to 
submit his executive judgment to the District Court for the 
Eastern District of Pennsylvania regarding the selection 
of members of the Panel. The Mayor of the City of Phila­
delphia has the power of appointment to a broad variety 
of boards and commissions by virtue of statutes, Home Rule 
Charter, and Ordinance. Now, if and when racial per­
centage disparities appear, the Mayor will be subjected to 
the burden of disproving racial discrimination. Likewise, 
both statewide and nationally, the logical progeny of the 
holding of the United States Court of Appeals for the Third 
Circuit would require elected officials throughout the nation 
to defend and offer positive proof of their nondiscrimination 
in their executive appointments, whenever percentage 
disparities appear.

Perhaps, the most obvious situation is with the judi­
ciary. If we assume a disproportionately small percentage 
of blacks in the Federal judiciary as compared to their 
proportion of the national population, this case would 
require the President of the United States substantiate by 
positive proof his nondiscrimination in his judicial appoint­
ments and further substantiate his proper consideration 
of blacks when making these appointments.

But, beyond the conclusions of law reached by the 
Court of Appeals there is one finding of fact of grave per­
sonal importance. The United States Court of Appeals for 
the Third Circuit found as a fact that the former Mayor of 
the City of Philadelphia James H. J. Tate, engaged in 
unlawful racial discrimination in his appointments to the 
Educational Nominating Panel. It held that his appoint­
ments to the Panel were “tainted.” It held that there was



16

direct proof of the former Mayor s personal discrimination 
against black people.

Without attempting to portray former Mayor Tate as 
anything more than an astute politician, the record which 
Mayor Tate established over his decades of public service 
evidences a total commitment to the expansion of oppor­
tunities to minority groups, including black persons, at all 
levels of public service employment as well as in political 
appointments. The record in the District Court discloses 
an ever-increasing number of black persons employed at 
all levels of government service over the decade of former 
Mayor Tate’s administration. And yet, as the result of the 
Court of Appeals opinion the final but critical and unfair 
judgment of Mayor Tate’s Administration is that of dis­
crimination against black persons on the basis of their race. 
The evidence of non-discriminatory public service was 
overwhelming. The evidence to the contrary was unsub­
stantial.

This Court should grant the Petition for this reason 
if for no other, for it is now the true Court of last resort. A 
finding of racial discrimination in the face of over-all 
employment of black people exceeding by nearly ten per­
cent (10%) their proportion of the population of the City 
is hardly justified.

Finally, in terms of relief, the Court of Appeals has 
directed the District Court to apply the Appellate Court’s 
Finding of Fact that Mayor Tate discriminated to the new 
Mayor, Frank L. Rizzo. There is no evidence in the record 
concerning the administration of Mayor Rizzo. The Court 
of Appeals has, nevertheless, ordered that Mayor Rizzo 
submit evidence to substantiate his nondiscrimination in 
appointments to the Educational Nominating Panel. Thus, 
not only has the Court of Appeals arbitrarily made Findings 
of Fact which the District Court could not have made, but 
it has now assumed that the finding of racial discrimination 
can in some way be transferred to another person who 
obviously could not have been a party to its first finding. 
Such a decision would, it seems, bind all future Mayors,



17

constituting an unlawful infringement of the constitutional 
scheme of government.

Point 1
In direct conflict with Rule 52(a) of the Federal Rules of 

Civil Procedure as well as numerous decisions of this 
Court, the Court below made findings of fact not only 
without finding clear error by the District Court but 
without any support on the record before it.

As has been discussed above, the Court of Appeals 
reversed the District Court on two bases.

The Educational Equality League had offered two 
theories in support of their cause of action. One involved 
indirect proof of discrimination by the so-called “percen­
tage rationale.” The other involved direct proof of dis­
crimination on the part of the Mayor, the appointing 
authority.

In its Opinion and Order of November 8, 1971, the 
District Court discussed and reviewed the purported direct 
evidence of discrimination offered by the Educational 
Equality League. It rejected this testimony.

The Court of Appeals specifically reversed the Order 
of the District Court and made findings of fact unsupported 
in the record and without establishing clear error. It found 
that a number of black oriented organizations met the 
specifications of seven of the nine categories of Section 
12-206(b) of the Charter (Court of Appeals, Opinion Page 6), 
and that one witness, Mr. W. Wilson Goode testified with­
out contradiction or objection that the then Mayor had 
stated he would appoint no blacks to the Board of Education 
in addition to the two already on it (Court of Appeals, 
Opinion Page 6). The Court of Appeals found that Deputy 
Mayor Zecca was unaware of the existence of black ori­
ented organizations which were within the requirements 
of Section 12-206(b) of the Charter (Court of Appeals, 
Opinion Page 6). Finally, the Court of Appeals found that 
the District Court had “overlooked” Goode’s testimony about



18

the Mayor’s statement referred to above (Court of Appeals, 
Opinion Page 7).

In fact, there is no evidence of qualifying black organi­
zations existing in the categories required by the Charter. 
Goode testified but was contradicted by witnesses for the 
Mayor of the City of Philadelphia: Clarence Farmer, Chair­
man of the Philadelphia Human Relations Commission 
and Anthony P. Zecca, Deputy to the then Mayor James 
H. J. Tate. Goode testified that there were one or two 
organizations which had black leadership which satisfied 
the categories of the Charter. However, in his own testi­
mony, the deficiencies of these organizations are made 
evident. For example, to satisfy the qualifications of Section 
12-206(b)(l), Goode offered the United Negro Trade Union. 
His testimony was:

Q. What does the United Negro Trade Unions 
represent?

A. That represents all of the union officials who 
are black and who are in unions in Philadelphia. It is 
a kind of council of other officials of other black unions. 
(Goode, N.T. 4-5.)

It is apparent that the District Court refused to find 
that there were black organizations which qualified under 
the Charter because, by definition, an organization which 
is limited to black membership is not a City-wide organiza­
tion. None of the organizations which are represented on 
the Educational Nominating Panel have membership which 
is exclusive or exclusionary. With the possible exception 
of the Urban League, the organizations referred to by Goode 
excluded non-black membership.

On the other hand, Zecca’s testimony disclosed that 
the organizations selected satisfied precisely the require­
ments of the Charter. The fact that Zecca knew of no other 
organizations to qualify under 12-206(b) (1), proves no­
thing, other than that there may be no other such organi­
zation in the City of Philadelphia of such qualifications.



19

Furthermore, Zecca’s testimony discloses the conscientious 
effort made to comply with the specific provisions of the 
Charter. In short, there is no evidence to substantiate the 
finding made by the Court of Appeals that there exists a 
number of black-oriented or black-lead organizations which 
meet the specifications of the Charter. The blacks on the 
Panel came from organizations that were black-lead, but 
which were not discriminatory in their membership.

The Court of Appeals improperly found that: “al­
though the District Court made no finding on the subject, 
Mr. Goode testified, without contradiction or objection, 
that shortly before the 1969 panel was due to be appointed 
at a time when there was one vacancy for which the 1967 
panel had not yet made its nominations, the Mayor 
stated that he would appoint no blacks to the Board of 
Education in addition to the two already on it.” (Court of 
Appeals, Opinion Page 6).

Even if true, this statement was allegedly made with 
reference to the 1969 Panel and not the 1971 Panel. There 
is no testimony at all relating to the appointment of the 
1971 Panel or Board appointments from its nominations.

This statement by Goode was, furthermore, clearly 
and directly contradicted by the testimony of Zecca. Zecca 
testified:

Q. Mr. Zecca, we were discussing earlier a state­
ment by Mayor Tate in 1969 that he would not ap­
point any additional Negroes to the School Board and 
you said you didn’t recall that statement.

A. I said I don’t think he made such a statement.
Q. Well all right.
May I show you a very bad copy of the page of the 

Philadelphia Inquirer, Saturday, May 3, 1969, and 
the article says, “he indicated”, referring to the 
Mayor, “he would not appoint another Negro to the 
Board because the Negro community has good repre­
sentation in the two Negroes now serving on the 
Board.”

* * *



20

Do you recall that article?
A. The witness: “I don’t recall the article spe­

cifically but it doesn’t say he is not going to name 
another member. It said that he indicated that he 
wouldn’t name another member; and this is, of course, 
the reporter’s version of this, but the quote said the 
Negro community has good representation in the two 
Negroes now serving on the Board.

They may have asked him whether he was going 
to appoint anymore Negroes to the Board and he said 
the Negro community has good representation on the 
Board as it is; just like it has excellent representation 
right in this story.” (Zecca, N.T. 259-261)

In fact, the entire colloquy involves the Mayor’s 
intention to appoint persons to the Board, and not the 
Panel. As has previously been stated the Educational 
Equality League has made no challenge to the appoint­
ments to the Board, but has limited its grievance to the 
appointments made to the Panel. Therefore, the testimony 
offered with regard to the Board is irrelevant. But beyond 
its irrelevancy, it is clearly contradicted by the testimony 
of Zecca which indicates that the statement may not have 
been made and if it was made may have been a misquote.

It was improper for the Court of Appeals to make a 
finding which the District Court refused to make based 
upon obvious hearsay which was contradicted by other 
proper evidence. This type of evidence, involving credibility 
and demeanor, is best left to the determination of a district 
court.

Also improper was the misstatement by the Court of 
Appeals of the District Court’s Finding of Fact No. 17:

The person assigned by the Mayor of Phila­
delphia to choose the groups under the enumerated 
categories Deputy Mayor Anthony Zecca, at the time 
of the hearing in the instant case was unaware of the 
existence of many of these black organizations. (Ap­
pendix, Page 6a) (Emphasis added.)



21

The Court of Appeals stated that:

The District Court found that Deputy Mayor 
Zecca was unaware of the existence of black oriented 
organizations which were within the requirements 
of Section 12-206(b). (Court of Appeals, Opinion 
Page 6.)

The statement by the Court of Appeals is internally 
inconsistent in that black orientation is a requirement 
which is mutually exclusive of the requirement that 
organizations be Citywide in nature.

Rule 52 (a) of the Federal Rules of Civil Procedure 
prohibits a Court of Appeals from setting aside Findings 
of Fact made by a District Court unless those findings are 
clearly erroneous.

Findings of Fact shall not be set aside unless 
clearly erroneous, and due regard shall be given to 
the opportunity of the trial court to judge of the 
credibility of the witnesses.

Rule 52 F.R.C.P.

Rule 52 is particularly applicable to the situation in 
which the intention of a party is at issue. Here, Goode 
testified to the intention of the Mayor. As this Court said 
in United States v. Yellow Cab Company:

Finding as to the design, motive and intent with 
which men act depend peculiarly upon the credit 
given to witnesses by those who see and hear them.
.. . The trial court listened to and observed the officers 
who had made the records from which the govern­
ment would draw an inference of guilt and concluded 
that they bear a different meaning from that for which 
the government contends.

It ought to be unnecessary to say that Rule 52 
applies to appeals by the government as well as to 
those by other litigants. There is no exception which 
permits it, even in an anti-trust case, to come to this



22

Court for what virtually amounts to a trial de novo 
on the record of such findings as intent, motive and 
design. While, of course, it would be our duty to 
correct clear error, even in findings of fact, the 
government has failed to establish any greater 
grievance here than it might have in any case where 
the evidence would support a conclusion either way 
but where the trial court has decided to weigh more 
heavily for the defendants. Such a choice between two 
permissible views of the weight of evidence is not 
“clearly erroneous.”

United States v. Yellow Cab Company, 338 U.S. 338, 341- 
342(1949).

So long as the Finding of Fact or failure to find a fact 
is substantiated on the record, the District Court’s finding 
or failure to find may not be reversed. See also, 5 A Moore’s 
Federal Practice Chapter 52.

The burden of proof remains upon the plaintiff even 
in civil rights cases. The conduct of the Court of Appeals 
in this case would assume that any statement by a person 
that another has discriminated, must be taken as true. 
This is not only legally improper, but also contrary to 
human experience.

Point 2

The decision below is in direct conflict with both Federal 
and Pennsylvania law regarding the appointing 
power of elected officials.

The second theory upon which the United States 
Court of Appeals based its reversal of the District Court’s 
judgment is that of the percentage rationale. Construing 
the decisions of this Court in Turner v. Touche, 396 U.S. 
346 (1970) and Alexander v. Louisiana, 405 U.S. 625 
(1972) the Court of Appeals held that to prevail under the 
percentage rationale a



23

plaintiff need not show a deliberate practice of 
discrimination; a prima facie case is established by 
a demonstration that blacks were under represented 
and that there was an opportunity for racial dis­
crimination. Opinion of the Court of Appeals, Page 10.

While this theory of proof has been applied to jury 
selection cases, voting registration cases and employment 
discrimination cases, it has never been applied to situa­
tions in which the discretion of a duly elected official in 
his appointing power has been in question. Indeed, there 
are a variety of reasons for not applying the percentage 
rationale to this and similar situations, the most funda­
mental of which is that principle of American political 
philosophy that requires the three branches of government 
to be separate and coequal and that no one branch should 
be the repository of ultimate power. This principle requires 
that the judicial branch be loath to interfere in areas of 
purely legislative or executive concern and likewise in 
areas of judicial concern the executive and legislative 
branches should not interfere. As the Pennsylvania 
Supreme Court recently stated:

The line of separation or demarcation between 
the Executive, the Legislative and the Judicial, and 
their respective jurisdiction of powers, has never 
been definitely and specifically defined, and perhaps 
no clear line of distinction can ever be drawn.

Commonwealth ex rel. Carroll v. Tate et al., 442 Pa. 45, 
51 (1971).

In Carroll v. Tate, supra, the issue involved a legisla­
tive encroachment on the judiciary. This case, of course, 
involves a judicial invasion of the executive. Great caution 
must be employed in this area, for as the Pennsylvania 
Supreme Court continued:

The very genius of our tripartite government is 
based upon the proper exercise of their respective 
powers together with harmonious cooperation between



24

the three independent branches. Commonwealth ex 
rel. Carroll v. Tate, et al., supra 53.

Included in this Court’s consideration of the issues 
here, must, therefore, be the constant consideration of the 
fundamental principles of American government. The 
United States Constitution in Article II, Section 2, places 
in the executive branch certain defined powers. These 
powers are given generally by and with the advice and 
consent of the Senate, however, the Constitution further 
provides:

[B]ut the Congress may by law vest the appoint­
ment of such inferior officers, as they think proper in 
the President alone . . . U.S. Const, art. II, §2.

The landmark decision in Marbury v. Madison, 1 
Cranch 135 (1803) presents an analogous situation on the 
national level. The importance of the President’s discretion 
might be considered far greater than the Mayor’s discretion. 
And yet, the difference is only one of quantity and not 
quality. For the prerogatives of the executive branch in a 
tripartite government are constant, and any court, as the 
representative of the judiciary, should not interfere in this 
area.

The facts of Marbury are so well known they need only 
be summarized here. Plaintiff was an appointee of the 
President and while the appointment had been made, it had 
not been delivered. Plaintiff sought an Order in Mandamus 
commanding the Secretary of State to deliver the appoint­
ment. In discussing the correctness of the remedy, the 
Court said:

With respect to the officer to whom it would be 
directed, the intimate political relation subsisting 
between the President of the United States and the 
heads of departments, necessarily renders an illegal 
investigation of the acts of one of those high officers 
peculiarly irksome, as well as delicate; and excites 
some hesitation with respect to the propriety of enter­
ing into such investigation.



25

Marbury, supra 71.

But more importantly:

Where the head of a department acts in a case 
in which executive discretion is to be exercised . . . 
it is again repeated, that any application to a Court to 
control, in any respect, his conduct would be rejected 
without hesitation.

Marbury, supra 71.

The first paragraph quoted above, speaks of the bases 
for the doctrine of judicial restraint in political questions, 
a policy argument. However, the second paragraph, states 
a principle of law which denies judicial interference in the 
area of executive discretion. Applied to the present litiga­
tion, Marbury stands for the proposition that lawful appoint­
ments within the discretion of the Mayor may not be 
disturbed except that once an irrevocable appointment is 
made a Court may order its ministerial execution. Although 
the complaint in the matter at hand does not directly ask 
for mandamus, the actual relief granted by the Court of 
Appeals requires the dissolution of appointments and new 
appointments made. These new appointments must more 
adequately represent the black population. This adequate 
representation can only be achieved by increasing the 
number of blacks on the Panel. Therefore, the present 
Mayor of the City of Philadelphia is required to appoint 
more blacks than at present to the Panel. The import of this 
decision of the Court below requires that the Mayor abandon 
his judgment and discretion and perform that purely execu­
tive function of appointing in an automatic and ministerial 
way. This or any similar limitation on the powers of the 
chief executive is totally impermissible and the District 
Court properly refused to entertain such an invasion of 
executive discretion, although it did not reach the issue. As 
this Court said in Kcim v. United States. 177 U.S. 289 
(,1899):



26

The appointment to an official position in the 
government, even if it be simply a clerical position, 
is not a mere ministerial act but one involving the 
exercise of judgment. The appointing power must 
determine the fitness of the applicant; whether or not 
he is the proper one to discharge the duties of the 
position. Therefore, it is one of those acts over which 
the Courts have no general supervising power.

The particular reasons for the executive’s discretion 
in this case are readily discernible in the record and are 
in keeping with the theme of the entire Home Rule Charter, 
the organic law of the City of Philadelphia. That theme or 
theory of government is to place in the hands of the execu­
tive the responsibility for his actions. It is obvious that only 
if the Mayor has the right to choose will the responsibility 
for the choice be his.

The general principle of law mandated by the doctrine 
of separation of powers requires that the judiciary not inter­
fere in the executive’s discretionary appointments; and the 
organic law of the City of Philadelphia, the Philadelphia 
Home Rule Charter, and the general law of the Common­
wealth of Pennsylvania requires non-interference in such 
appointments as well. Subject to those specifically provided 
for qualifications, all appointees to boards and commissions 
under the Home Rule Charter are appointed and serve at 
the pleasure of the Mayor. Section 3-404 of the Home Rule 
Charter provides as follows:

All other officers. Except as expressly otherwise 
provided in this Charter, all appointed officers and 
all members and all officers of boards and commis­
sions shall serve at the pleasure of the appointing 
power and until their successors are qualified.

The Charter’s statement on the law is consistent with 
that of the Commonwealth. In Commonwealth ex rel. 
Specter v. Vignola, 446 Pa. 1 (1971) the Supreme Court of 
Pennsylvania held that:



27

Appointed public officers are removable from 
office at the pleasure of the appointing power. . . .

Commonwealth ex rel. Specter v. Vignola, supra. Accord, 
Naef v. Allentown, 424 Pa. 597 (1967); Philadelphia v. 
Sacks, 418 Pa. 193 (1965); Schluraff v. Rzymek, 417 Pa. 
144(1965).

Absent proof of actual discrimination by the Mayor, 
there can be absolutely no justification for the Court of 
Appeals’ opinion. The record clearly refutes any discrimina­
tion in these specific appointments.

The Petition should, therefore, be granted.

Point 3
The Court below was unjustified in requiring that the pres­

ent Mayor, the Honorable Frank L. Rizzo, submit 
“evidence that the organizations in the black com­
munity which qualify have received proper considera­
tion” in making his appointments to the Panel.

The present suit was brought against James H. J. Tate. 
At no time was evidence produced regarding the adminis­
tration of Frank L. Rizzo, Tate’s successor in office. Mayor 
Rizzo had not yet assumed office. In fact the decision of the 
District Court was made prior to Mayor Rizzo’s election. 
Therefore, there could be no evidence whatsoever regarding 
the practices of the present Mayor, Frank L. Rizzo, before 
the United States Court of Appeals for the Third Circuit. 
And yet, anomalously, the Court of Appeals ordered the staff 
of Mayor Rizzo to submit to the District Court evidence of 
non-discrimination in appointments to the Panel.

Footnote 21 of the Court of Appeals’ decision suggests 
the rationale for this direction to the District Court.

“21. Mayor Tate has been succeeded by the Hon­
orable Frank L. Rizzo and the present case has, of 
course, involved no showing that Mayor Rizzo has in 
any way discriminated against blacks. Nevertheless,



28

on this record, Mr. Zecca continues as a Deputy Mayor 
and since this Court finds that plaintifff has shown 
on this record discrimination in regard to the present 
panel, the Federal Courts must assure that the appoint­
ment of the 1973 panel is free from taint. Cf Conover
v. Montemuro,------F. 2 d -------(1972) (3rd Cir. No.
71-1871, filed December 20, at page 13)” (Court of 
Appeals, Opinion page 12.) (Emphasis added.)

There is no record to substantiate the assumption that 
Mr. Zecca has today any responsibility for appointments 
to the Panel. Zecca is Deputy to Mayor Rizzo. Under Mayor 
Tate he was alone in this position. However, under the 
present Mayor, Philip R. T. Carroll is the Mayor’s immediate 
subordinate and it is he who oversees the Mayor’s office. 
Zecca, as Deputy to the Mayor, shares this title with 
Michael Wallace, Esquire. In addition, there are now three 
assistants to the Mayor. Based on the change in personnel, 
it would be equally reasonable to assume that the entire 
nomination process for membership or appointments to 
Boards and Commissions has been considerably altered. 
Although there is no evidence bearing on the subject, the 
fact is that the procedure for filling such positions has been 
completely revised.

Even if Mayor Tate can properly be found to have 
practiced personal discrimination, there is no justification 
on this record to assume or even suspect, that Mayor Rizzo 
would act in a similar manner. Therefore, the direction to 
the Court below to enjoin the present Mayor from dis­
crimination is both unwarranted and unjustified. The 
selection process with respect to the Panel had been chal­
lenged only as it involved the then Mayor Tate. While 
systematic exclusion remains unlawful, there was and is 
no such allegation as to the present administration.



29

CONCLUSION

For these reasons, a Writ of Certiorari should issue to 
review the judgment and opinion of the Third Circuit.

Respectfully submitted,

HOWARD D. SCHER
Assistant City Solicitor

JOHN MATTIONI
Deputy City Solicitor

MARTIN WEINBERG 
City Solicitor

1520 Municipal Services Bldg. 
Philadelphia, Pa. 19107



30

APPENDIX

IN  THE
UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 71-1938

EDUCATIONAL EQUALITY LEAGUE, et al.

v.

HONORABLE JAMES H. J. TATE, et al.

FINDINGS OF FACT 
CONCLUSIONS OF LAW AND ORDER

Broderick, J. November 8,1971

This class action was brought by the Educational 
Equality League and certain named individuals on behalf 
of themselves and all other similarly situated in Phila­
delphia, seeking injunctive and other relief to prohibit the 
defendant, Mayor of Philadelphia, James H. J. Tate, from 
continuing his alleged racial discrimination in making 
appointments to the Educational Nominating Panel, which 
nominates members to the Philadelphia School Board.

After a hearing on the merits on August 25th and 
September 7, 1971, and a complete study of the applicable 
law and the briefs of the parties, we make the following:

FINDINGS OF FACT

1. It is stipulated that the population ot the uity oi 
Philadelphia is 1,948,609, of whom 653,791 are black.

2. In the 1970-1971 school year, the public school 
population of the City of Philadelphia was 60.5% black.

3. In the 1970-1971 school year, the public elementary 
school population of Philadelphia was 60.2% black.



31

4. In the 1970-1971 school year, the public junior 
high school and middle school population of Philadelphia 
was 65% black.

5. In the 1970-1971 school year, the public senior 
high school population of Philadelphia was 56.2% black.

6. In the 1970-1971 school year, the public vocational 
school population of Philadelphia was 59.9%.

7. In 1968-69, 42%, or 116 of the 279 schools in the 
public school systems, had enrollments of over 95% black 
or over 95% white; in 1970-71, 49%, or 139, of the schools 
had over 95% one-race enrollments.

8. In 1968-69, 90,105 black students, 54.1% of said 
students, were in schools with over 95% black enrollment; 
in 1970-71 the number had increased to 96,014, or 56.7%.

9. The Educational Nominating Panel was set up by 
the Educational Supplement to the Home Rule Charter, for 
the purpose of screening applications for school board ap­
pointments and nominating three individuals for each 
vacancy on the School Board for the Mayor s consideration.

10. The Educational Nominating Panel consits of 13 
members, 9 of whom are appointed to fulfill certain 
classifications set out in the Section 12-206 of the Edu­
cational Supplement and four (4) are at-large appoint­
ments.

11. In 1965 the first panel was appointed with ten
(10) white and three (3) black members.

12. In 1967 the second panel was appointed with 
eleven (11) white and two (2) black members.

13. In 1969 the third panel was appointed with twelve 
(12) white and one (1) black members.

14. In 1971 the fourth panel was appointed with 
eleven (11) white and two (2) black members.

15. The first list of nominees submitted to the Mayor 
in 1971 consisted of five (5) whites and four (4) blacks for 
the three (3) vacancies on the school board.

16. There are several organizations reflecting the 
views and participation of the black community which 
could qualify under subsections 1, 2. 3, 4, 5. 6 and 9 of 
Section 12-206(,b). (7 of the 9 enumerated classes.)



32

17. The person assigned by the Mayor of Phila­
delphia to choose the groups under the enumerated cate­
gories, Deputy Mayor Anthony Zecca, at the time of the 
hearing in the instant case was unaware of the existence 
of many of these black organizations.

18. Of fifty-six appointments to non-civil service 
positions with salaries in excess of $20,000 who are 
presently serving, five of these, or 9% of the total, were 
black.

19. The Mayor has made three hundred eighty eight 
(388) appointments to Boards, Authorities and Commis­
sions, who are presently serving, of whom forty-seven (47) 
or twelve (12) percent were black.

20. The Board of Education has two (2) blacks of the 
total membership of nine (9), or twenty-two (22) percent.

21. Although the Charter provides that the chief 
executive of the organizations enumerated in §12-206(b) 
of the Educational Supplement be appointed to the panel, 
persons other than chief executives have been appointed.

DISCUSSION

Plaintiffs brought this class action under 42 U.S.C. 
§1983 seeking declaratory and injunctive relief to end 
alleged racial discrimination in the appointment of 
members to the Educational Nominating Panel pursuant 
to the provisions of the Educational Supplement of the 
Philadelphia Home Rule Charter (hereinafter referred to 
as the Educational Supplement). More specifically, plain­
tiffs allege violations of the Equal Protection Clause of the 
Fourteenth Amendment, the Pennsylvania Human Rela­
tions Act, and the express provisions and intended purpose 
of the Educational Supplement, in that Mayor Tate sys­
tematically excluded Negroes from said Educational 
Nominating Panel.

Preliminary to reaching the merits of plaintiffs 
claim, we must first ascertain whether plaintiffs should be 
certified as a class pursuant to Rule 23 of the Federal Rules



33

of Civil Procedure. It is clear that a class consisting of all 
blacks in the City of Philadelphia meets all the require­
ments of Rule 23(a) in that: “(1) the class is so numerous 
that joinder of all members is impracticable” ; (2) there is 
a complete identity on all issues of law and facts; (3) the 
claims of the representative parties are identical to other 
members of the class; and (4) there is competent represen­
tation by the parties bringing the suit. Moreover, the class 
clearly falls within the purview of Rule 23(b)(2), because 
it alleges that defendant has acted on grounds which affect 
all members of the class. Therefore, it is clear that the class 
must be confirmed.

The Educational Nominating Panel is a thirteen- 
member body appointed by the Mayor to screen applicants 
for membership on the school board and nominate three 
candidates for each current vacancy on the school board 
(Section 12-207(b) of the Educational Supplement). Nine 
(9) members of said Panel are required by Section 12-206(b) 
of the Educational Supplement to be the highest ranking 
officer of an enumerated city-wide organization or institu­
tion described in detail in that section with the remaining 
four (4) appointees chosen by the Mayor from the citizenry 
at large to ensure adequate representation of the entire 
community (Section 12-206(c)).

In deciding whether, in fact, racial discrimination was 
practiced in Mayor Tate’s nominations to the panel plain­
tiffs ask us to hold that a prima facie case of discrimination 
can be made out by a mere showing that blacks comprise 
a substantial portion of the population, that some blacks 
are qualified to serve, and that few if any blacks have served 
in the past. In urging this result plaintiffs rely on cases such 
as Hernandez v. Texas, 374 U.S. 475 (1954), United States 
v. Greenwood Municipal Separate School System, 406 F.2d 
1086 (5th Cir. 1969), and Alabama v. United States, 304 
F.2d 583 (5th Cir.), a ff’d. 371 U.S. 37 (1962). This Court 
recognizes that this general rule has been applied in certain 
types of cases. As was clearly stated by the Fifth Circuit in 
United States r. Jefferson County Board of Education. 372



34

F.2d 836 (5th Cir. 1966); a ff’d on rehearing en banc, 380 
F.2d 383 (5th Cir. 1967), cert, denied sub nom., Board of 
Education of the City of Bessemer v. United States, 389 
U.S. 840 (1967):

This Court has frequently relied on percentages 
in jury exclusion cases. Where the percentage of 
Negroes on the jury and jury venires is dispropor­
tionately low, compared with the Negro population 
of a county, a prima facie case is made for deliberate 
discrimination against Negroes. Percentages have 
been used in other civil rights cases. A similar infer­
ence may be drawn in school desegregation cases, 
when the number of Negroes attending school with 
white children is manifestly out of line with the ratio 
of Negro school children to white children in public 
schools. Id. at 887.

However, this rule has been confined to voting rights, 
employment, school desegregation and jury cases. E.g., 
Noiris v. Alabama, 294 U.S. 587 (1935) (Juries); Alabama 
v. United States, supra (voting); United States v. Green­
wood Municipal Separate School District, supra (schools); 
United States v. Hayes International Corp., 415 F.2d 1038 
(5th Cir. 1969) (employment).1 No case has been called 
to our attention in which this rule has been applied to an 
elected chief executive in the exercise of his discretionary

1. One case, T u r n e r  v .  F o u c h e ,  s u p r a ,  has applied the per­
centage rationale to a school board. However, that case is clearly 
distinguishable from the instant case. In T u r n e r  the body which 
appointed the school board was a grand jury, which should have 
been constituted from all eligible members of the community. The 
absence of an appropriate number of blacks on the grand jury 
raised the presumption of discrimination. Thus, in essence, T u r n e r  

was a grand jury case. In the instant case, 9 of the appointments 
were limited by law and all citizens are not eligible. Moreover, 
unlike the situation in T u r n e r ,  the Educational Nominating Panel 
does not have the authority to appoint Board members but rather 
only has the authority to submit names to the Mayor. Thus, T u r n e r  

is not controlling in this case.



35

appointive power. We do have reservations as to whether 
the Courts have the authority to exercise control over the 
chief executive in such circumstances; however, we need 
not decide this question since the facts presented in the 
instant case render use of this test unfeasible.

It is undisputed that sixty (60) percent of the Phila­
delphia Public School population and thirty-three (33) 
percent of the Philadelphia population is black. Plaintiffs 
contend that the 60% figure should be used in determining 
whether there has been discrimination in appointments 
to the panel. With this reasoning, we do not concur. The 
standard when using a percentage rationale to establish 
a prima facie case of discrimination has always been the 
number of blacks qualified to fill the jobs in which the 
alleged discrimination is taking place. E.g., Turner v. 
Fouche, 396 U.S. 346 (1970); Hernandez v. Texas, supra. 
In the instant case that figure would depend on the adult 
population of Philadelphia, which is approximately 33%.

Mayor Tate’s appointments to the Panel include two 
blacks out of the thirteen appointees, or approximately 
fifteen point four (15.4) percent of the panel. In its six-year 
history, the panel has had from 1 to 3 blacks (8% to 23%). 
With only thirteen members on the Educational Nominat­
ing Panel, the addition or subtraction of one member of any 
ethnic or racial group results in a change of eight (8) percent 
in that group’s representation. In this Court’s opinion, 
such wide fluctuations based on small numerical changes 
in membership on the Panel result from the limited size 
of the Panel and render such statistics meaningless as an 
indicator of racial discrimination. Furthermore, in the cases 
wherein the percentage rationale has been adopted, there 
were a large number of blacks within the population 
eligible for a large number of positions. This is not the 
situation in the instant case where a small board is involved, 
and we cannot find that the absence of additional blacks 
from a thirteen-member panel proves discrimination.

Plaintiffs rely heavily on the fact that only 8.9% 
(5 of 56) of Mayor Tate’s appointments for positions with



36

salaries in excess of $20,000 have been black. Plaintiffs 
admit that this fact has no direct bearing on the issues 
before us, but state that it is relevant to show a pattern of 
discrimination. However, no case has been presented to 
us, nor does our research disclose any case, in which a per­
centage rationale has been used to prove job discrimina­
tion without a finding that those allegedly being excluded 
could qualify for those jobs in roughly the same ratio as 
they appear in the population. Since no evidence was 
presented, we cannot assume the percentage who could 
qualify for such positions. Therefore, the aforesaid statistic 
is not meaningful, and we do not have to determine 
whether it is relevant in making a determination on the 
issue of racial discrimination.

Since the facts of the instant case do not lend them­
selves to the percentage rationale, plaintiffs must show 
discrimination by direct proof. The only direct proof of­
fered by the plaintiffs was a newspaper article allegedly 
quoting Mayor Tate to the effect that he would not appoint 
any more blacks to the Board of Education. However, since 
said newspaper article is inadmissible hearsay, there is 
[no direct proof of discrimination in this record.]

Further, plaintiffs would have us construe Section 
12-206(c) of the Educational Supplement to hold that the 
phrase “representative of the community” refers to racial 
balance. However, the interpretation of this statute would 
more properly be decided by the State courts, and we take 
no position thereto. Similarly, while it is clear that the 
Mayor has not appointed the chief executive officer of the 
various organizations selected for representation on the 
Panel as required by the Educational Supplement, such 
violations have no bearing on the charges of racial dis­
crimination and should also be decided by the State courts.

CONCLUSIONS OF LAW

1. This Court has jurisdiction of this case under 
28 U.S.C. 1343 (3).



37

2. This action is properly maintainable as a class 
action on behalf of black students and parents, on behalf 
of black organizations which qualify for membership on the 
Educational Nominating Panel, and on behalf of all black 
citizens of Philadelphia.

3. The fact that there have been alleged violations of 
the Charter in appointments to the Educational Nominat­
ing Panel, such as the failure to appoint chief executives 
of organizations to the Panel and failing to appoint at-large 
members to adequately represent the entire community, 
are not relevant in determining whether racial discrim­
ination was involved with the appointments and such 
issues should be litigated in the State courts.

4. In the context of the facts found by this Court, the 
percentage rationale cannot be used to establish a prima 
facie case of racial discrimination by defendant in viola­
tion of the Fourteenth Amendment in the appointment of 
members to the Educational Nominating Panel.

5. The plaintiffs failed to prove that the Educational 
Nominating Panel was appointed in violation of the 
Fourteenth Amendment to the Constitution of the United 
States.

6. Plaintiffs’ complaint is, therefore, dismissed with 
prejudice.

Accordingly, the following Order is entered:

ORDER

AND NOW, to wit, this 8th day of November 1971, 
it is hereby ORDERED AND DECREED that the complaint 
in the above-captioned matter is dismissed with prejudice.



38
UNITED  STATES COURT OF APPEALS

F o r  t h e  T h i r d  C i r c u i t

No. 71-2042

EDUCATIONAL EQUALITY LEAGUE, FLOYD L. LOGAN, 
W. WILSON GOODE, VERONICA KELLAM, by her 
mother and next friend, ELIZABETH KELLAM, and 

MICHAEL GREEN, by his father and next friend, 
COOLIDGE GREEN on behalf of themselves and 

all others similarly situated
Appellants

v.

HONORABLE JAMES H. J. TATE, Mayor of the 
City of Philadelphia, and

THE EDUCATIONAL NOMINATING PANEL

(D. C. Civil Action No. 71-1938)

A p p e a l  F r o m  t h e  U n i t e d  S t a t e s  D i s t r i c t  C o u r t  
F o r  t h e  E a s t e r n  D i s t r i c t  o f  P e n n s y l v a n ia

Argued December 5, 1972

Before V a n  D u s e n , G ib b o n s  a n d  H u n t e r , 
Circuit Judges

EDWIN D. WOLF, ESQ. 
of Lawyers’ Committee 
for Civil Rights under Law, 

Attorney for Appellants 
LEVY ANDERSON, ESQ. 

City Solicitor



39

JOHN MATTIONI
Deputy Citv Solicitor 

HOWARD D. SCHER
Assistant City Solicitor 
Attorneys for Appellees

OPINION OF THE COURT

(Filed January 11, 1973)

V an D usen, Circuit Judge.

Plaintiffs instituted their class action under 42 U.S.C. 
§1983 (1970) in August 1971 against the Honorable James 
11. J. Tate (“Mayor”), then Mayor of Philadelphia, and the 
Educational Nominating Panel (“Panel”).1 They alleged 
that the Panel had been appointed in a racially discrimina­
tory 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 
die action.1 2 From that order plaintiffs appeal. This court 
has reviewed the applicable law, which now includes two 
significant cases decided after the district court order,3 
and has concluded that it is compelled to vacate the dis­
trict court order and to direct the district court to grant 
appropriate relief.4

1. Although defendants did not question the propriety of 
suing the Panel under $1983, it would appear that the Panel is not 
a “person” under this section and thus not liable to such a suit. 
See U n i t e d  S ta te s  e x  ret. G i t t l e m a c k e r  v .  C o u n t y  o f  P h i la d e lp h ia ,  

413 F.2d 84 (3d Cir. 1969). Consequently, the district court was 
correct in dismissing plaintiffs’ complaint as to the Panel.

2. The district court opinion in support of this order is re­
ported at 333 F. Supp. 1202 (E.D. Pa. 1971).

3. A l e x a n d e r  v. L o u i s i a n a .  405 U.S. 625 (1972); and S m ith  

v . Y e a g e r ,  465 F.2d 272 (3d Cir. 1972), cer t ,  d e n i e d  s u b  n o m .  N e w  

J e r s e y  v. S m i t h ,  41 U.S.L.W. 3341 (U.S., Dec. 18, 1972).
4. The dismissal in favor of the Panel, however, will be af­

firmed. See note 1, su p ra .



40

The Educational Supplement of the Philadelphia 
Home Rule Charter (Educational Supplement) provides 
that the mayor appoint the members of the Board of Edu­
cation. 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.5 
Each Panel serves two years, commencing at or before 
May 25 of odd-numbered years.

5. Section 12-206(a)-(b) provides:
“(a) The Mayor shall appoint an Educational Nominating 

Panel consisting of thirteen (13) members. Members of the 
Panel shall be registered voters of the City and shall serve for 
terms of two years from the dates of their appointment.

“(b) Nine members of the Educational Nominating Panel 
shall be the highest ranking officers of City-wide organizations 
or institutions which are, respectively:

“(1) a labor union council or other organization of 
unions of workers and employes organized and operated 
for the benefit of such workers and employes,

“(2) a council, chamber, or other organization es­
tablished for the purpose of general improvement and 
benefit of commerce and industry,

“(3) a public school parent-teachers association,
“(4) a community organization of citizens estab­

lished for the purpose of improvement of public educa­
tion,

“(5) a federation, council, or other organization of 
non-partisan neighborhood or community associations,

“(6) a league, association, or other organization 
established for the purpose of improvement of human 
and inter-group relations,

“(7) a non-partisan committee, league, council, or 
other organization established for the purpose of improve­
ment of governmental, political, social, or economic con­
ditions,



41

The Chairman of the Educational Home Rule Charter 
Commission, which drafted the Educational Supplement, 
contemplated that the composition of the Panel would "con­
stitute 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 seg­
ments.”6 The rationale of the Panel-Mayor-Board arrange­
ment was explained as follows:7

“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 com­
munity, is the appropriate appointing authority' for 
the School Board. As such, the Mayor is permitted 
sufficient discretion in School Board selection to pre­
serve 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 pro­
duces 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

Note 5— C o n t in u e d

“(8) a degree-granting institution of higher educa­
tion whose principal educational facilities are located 
within Philadelphia, and

“(9) a council, association, or other organization 
dedicated to community planning of health and welfare 
services or of the physical resources and environment 
of the City."

6. Exhibit D-7, reproduced at App. 15a.
7. Suppl. App. 4a-5a.



42

to finance it. Therefore, it is proper to restrict Panel 
membership to residents of the City; yet, its composi­
tion 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 offi­
cers of City-wide organizations, he could select more 
or all thirteen members from such categories if he 
wishes. However, through the four at-large member­
ships, 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 dedi­
cated community groups and civic agencies in our 
City.

“The Supplement requires the Panel to solicit 
nominations from all community elements and agen­
cies, 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, ap­
pointed 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.8 At the time the 1971 Panel was being

8. Apparently the appointment of one of the two blacks on 
the 1971 Panel occurred because, after a qualifying city-wide or­
ganization had been selected but before its president could be 
appointed to the Panel, the white president was succeeded by a 
black.



43

appointed, blacks constituted about 33.5*7 of the popula­
tion of Philadelphia and a much greater percentage, 609r, 
of the students in the public school system. A number of 
black-oriented organizations met the specifications of seven 
of the nine categories of section 12-206(b).

The Mayor not testifying, the only evidence relating 
to the inner workings of the Mayor’s appointment ma­
chinery came from W. Wilson Goode, one of the plaintiffs, 
and from Deputy Mayor Anthony Zecca, the person re­
sponsible for recommending to the Mayor organizations 
which met the requirements of section 12-206(b). Although 
the district court made no finding on the subject, Mr. Goode 
testified, without contradiction or objection, that shortly 
before the 1969 Panel was due to be appointed at a time 
when there was one vacancy for which the 1967 Panel had 
not yet made nominations, the Mayor stated that he would 
appoint no blacks to the Board of Education in addition to 
the two already on it.9 Mr. Goode also accused the Mayor 
of not reappointing to the 1969 Panel organizations which 
served on the 1967 Panel because of dissatisfaction with the 
1967 Panel’s having included so many blacks among its 
nominees.10 11

Deputy Mayor Zecca testified that he had no knowl­
edge of the use of racial criteria in the appointment 
process,11 but was unable to recall why the 1967-1969 
changes had been made.12 [The district court found that 
Deputy Mayor Zecca was unaware of the existence of black- 
oriented organizations which were within the requirements 
of section 12-206(b).13

9. N T. 14-17 of Document 14 (E.D. Pa., Civil No. 71-1938). 
If the Mayor decided, prior to receiving nominees from the Panel, 
to exclude black nominees from consideration, an inference may 
be drawn that the Mayor in similar manner excluded blacks from 
consideration as members of the 1971 Panel.

10. Id.
11. N.T. 212.
12. N.T. 222.
13. See Finding of Fact 17 at p. 1204 of 333 F. Supp. For 

example. Deputy Mayor Zecca apparently thought that only the



44

Assessing all the evidence, the district court ruled that 
the reasoning of Turner v. Fouche, 396 U.S. 346 (1970), 
where the Supreme Court held that plaintiffs had estab­
lished a prima facie case of discrimination, did not apply 
to the present situation. Nevertheless, the court examined 
this situation as if Turner v. Fouche were controlling and 
concluded that on these facts plaintiffs had not made out 
a prima facie case. The low percentage of blacks on the 
Panel was meaningless, the court decided, because the 
Panel’s small size invalidated comparisons between the 
racial composition of its membership and that of the 
population of Philadelphia. The court also rejected as 
unpersuasive various statistics regarding the Mayor’s 
record in appointing blacks to other positions in the city 
government.14

Having thus found no indirect evidence of discrimina­
tion, the district court went on to hold that plaintiffs had 
not established a direct case of discrimination, either, over­
looking Mr. Goode’s testimony about the Mayor’s statement 
referred to earlier in this opinion.15 The court apparently

AFL-CIO and the Greater Philadelphia Chamber of Commerce fit 
the specifications, respectively, of section 12-206(bXl) and (2). 
S e e  N.T. 248-52. According to the testimony of Mr. Goode, the 
United Negro Trade Unions would qualify under section 12-206(b)- 
(1) and both the Greater Philadelphia Community Development 
Corporation and the Greater Philadelphia Enterprise Development 
Corporation, among others, under section 12-206(b)(2). N.T. 4-5 of 
Document 14 (E.D. Pa., Civil No. 71-1938). The highest ranking 
officers of these three organizations are black.

Despite Deputy Mayor Zecca’s good faith, his failure to fa­
miliarize himself with these eligible organizations would, given 
his important position in the selection process, support an infer­
ence that the selection process had a discriminatory effect.

14. Because of our conclusion, it is unnecessary to discuss 
whether the district court erred in evaluating these sets of data.

15. In view of the result reached on plaintiffs’ federal claims, 
the district court declined to exercise pendent jurisdiction over 
plaintiffs’ claim that the Mayor had also violated state law— namely, 
various provisions of the Educational Supplement-—in selecting 
Panel members.



45

concluded that the Deputy Mayor's ignorance of black- 
oriented organizations did not amount to discrimination 
against blacks.

It should be noted at the outset that plaintiffs are 
not seeking to establish any sort of racial quota for member­
ship on the Panel. No group can demand “as a matter of 
substantive constitutional right, any particular degree of 
racial balance or mixing. . . .” Swann v. Charlotte- 
Mecklenburg Board of Education, 402 U.S. 1, 24 (1971). 
Plaintiffs ask only that the Mayor of Philadelphia not ex­
clude blacks from proper consideration when making 
appointments to the Panel. Almost a century ago the 
Supreme Court articulated the rationale of the Fourteenth 
Amendment:16

“It ordains that no State shall deprive any person of 
life, liberty, or property, without due process of law, or 
deny to any person within its jurisdiction the equal 
protection of the laws. What is this but declaring that 
the law in the States shall be the same for the black as 
for the white; that all persons, whether colored or 
white, shall stand equal before the laws of the States, 
and, in regard to the colored race, for whose protection 
the amendment was primarily designed, that no dis­
crimination shall be made against them by law be­
cause of their color? The words of the amendment, it 
is true, are prohibitory, but they contain a necessary 
implication of a positive immunity, or right, most 
valuable to the colored race,— the right to exemption 
from unfriendly legislation against them distinctively 
as colored,— exemption from legal discriminations, 
implying inferiority in civil society, lessening the 
security of their enjoyment of the rights which others 
enjoy, and discriminations which are steps toward 
reducing them to the condition of a subject race.”

Such is still the law. As the Supreme Court said in Turner 
v. Fouche, 396 U.S. 346, 362 (1970), “the appellants and the

16. S t r a u d e r  v. W e s t  V i r g in ia .  100 U.S. 303, 307-08 (1880).



46

members of their class do have a federal constitutional 
right to be considered for public service without the burden 
of invidiously discriminatory disqualifications.”

Defendants attempt to distinguish Turner v. Fouche 
on two grounds. First, they suggest that it was significant 
in Turner v. Fouche that the instrument for selecting the 
members of the School Board was a grand jury, which 
grand jury was alleged to have been chosen in a discrimi­
natory manner. In other words, defendants argue that the 
Fourteenth Amendment applies more forcefully to grand 
juries than to some other public body such as the Panel 
here, even though the Panel plays a role in the Philadelphia 
school system analogous to the grand jury in Turner v. 
Fouche. The answer to this argument is that there is no 
place for discrimination anywhere in the public school 
system. See Brown v. Board of Education, 347 U.S. 483, 
493-95 (1954). Secondly, defendants reason that a member 
of the executive must have considerable discretion in the 
choice of his personal staff and that the Fourteenth Amend­
ment should not be interpreted to restrain the exercise of 
this discretion. It is unnecessary for this court to decide 
whether the Fourteenth Amendment is limited in this way, 
because it is clear from the language of the Educational 
Supplement and from the legislative history quoted earlier 
that the Panel was not intended to operate as part of the 
staff of the Mayor.

Having determined that discrimination in the appoint­
ment of the Panel was impermissible, we turn to the ques­
tion of whether the plaintiffs succeeded in proving that 
there in fact was discrimination against blacks.

In holding in favor of the plaintiffs in Turner v. 
Fouche, the Supreme Court relied on three factors: the 
substantial difference between the proportion of blacks on 
the list from which the grand jury was chosen (37%) and 
in the general population (60%); the elimination of 171 
blacks out of the 178 persons found to lack “intelligence” 
or “uprightness;” and the failure of the jury commissioners 
to familiarize themselves with the black community. In



47

Alexander v. Louisiana. 405 U.S. 625, 630 (1972), the Court 
pointed out that the various steps taken in the selection 
process resulted in the ' progressive decimation of potential 
Negro grand jurors” and that ” [ t ] he racial designation on 
both the questionnaire and the information card provided 
a clear and easy opportunity for racial discrimination.” 
This court recently reviewed Turner v. Fouche and Alex­
ander v. Louisiana and held that to prevail a plaintiff need 
not show a deliberate practice of discrimination; a prima 
facie case is established by a demonstration that blacks 
were under-represented and that there was an opportunity 
for racial discrimination. Smith v. Yeager, 465 F.2d 272, 
278-79 (3d Cir. 1972), cert, denied sub nom. New Jersey v. 
Smith, 41 U.S.L.W. 3341 (U.S., Dec. 18, 1972). We also 
found that ignorance on the part of a jury commissioner 
had considerable importance. Id. at 277.

In the present case the opportunity for discrimination 
cannot be denied. Unfortunately, the parties did not intro­
duce the expert testimony of a statistician on whether the 
frequency of black appointments to the 13-member Panel 
fell outside the range to be expected were race not a factor. 
However, the small proportion of blacks on the Panel is sig­
nificant in light of the racial composition of the public 
schools, which are about 60% black. Because one qualifica­
tion for Panel membership is interest in the public school 
system and because the parents of school children are likely 
to have this interest, a colorblind method of selection 
might be expected to produce that many more black Panel 
members. Thus, properly considered, the small proportion 
of blacks on the Panel points toward the possibility of dis­
crimination. This implication is consistent with the infer­
ences to be drawn from the testimony on the Mayor’s Panel 
and Board selection processes.163

We have carefully gone over the record and have con­
cluded that it made out a prima facie case of discrimination 
under the above-cited cases. Although on notice of the 
potential need to present evidence to rebut such prima

16a. S e e  notes 9 and 13 above.



48

facie case evidence,17 defendants did not offer any reason­
able explanations. The only testimony relevant to such 
explanations was that of Deputy Mayor Zecca,18 and 
“affirmations of good faith in making individual selections 
are insufficient to dispel a prima facie case of systematic 
exclusion.” Alexander v. Louisiana, 405 U.S. 625, 632 
(1972); see also Turner v. Fouche, supra at 361; Burton v. 
Wilmington Pkg. Auth., 365 U.S. 715, 725 (1961).19 Ac­
cordingly, the defendants failed on this record to rebut the 
prima facie case as a matter of law.

It will be the district court’s function to determine the 
precise nature of the relief to which plaintiffs are entitled. 
Plaintiffs have limited their complaints to the method of 
selection of Panel members; they have in no way chal­
lenged the operation of the Panel, that is, the confirmed 
nominations the Panel has made.20 Consequently, we 
hold that the district court should issue a declaration that 
the selection of the members of the 1971 Panel has violated 
the Fourteenth Amendment and an injunction restraining 
the Mayor and his successors from considering any 
nominees for the Board submitted by such Panel. Because 
of the nearness of the expiration of the 1971 Panel’s term 
of office, it may be unnecessary to have its members

17. S e e  N.T. 106-08, 111-13.
18. The distinguished members of the Panel testified as to its 

operation. There was nothing in the record to suggest any im­
propriety whatsoever on their part. However, the question at issue 
is how they were appointed, not how they conducted themselves.

19. In the B u r t o n  case, s u p r a , the Court used this language 
at page 725:

“ . . . [N ]o  State may effectively abdicate its responsibili­
ties [under the Fourteenth Amendment] by either ignoring 
them or by merely failing to discharge them whatever the 
motive may be. It is of no consolation to an individual denied 
the equal protection of the laws that it was done in good faith.
20. S e e  N.T. 265-66. Counsel for plaintiff's conceded at N.T. 

266 that this case is not concerned “with the composition of the 
School Board.” Past nominations which have not been confirmed 
through appointment to the Board by the Mayor will be ineffective.



49

replaced via a proper selection process. However, the 
district court should enjoin the present Mayor from dis­
criminating in regard to the 1973 or future Panels and 
should require that before the 1973 Panel is selected, the 
Mayor or his staff submit to the court evidence that 
organizations in the black community which qualify for the 
various categories of section 12-206(b) of the Educational 
Supplement have received proper consideration.21

The district court’s order dismissing plaintiff’s com­
plaint will be vacated, except as to the Educational 
Nominating Panel, and the case remanded to the district 
court for further proceedings consistent with this opinion.

21. Mayor Tate has been succeeded by the Honorable Frank 
Rizzo and the present case has, of course, involved no showing that 
Mayor Rizzo has in any way discriminated against blacks. Never­
theless, on this record, Mr. Zecca continues as a Deputy Mayor and 
since this court finds that plaintiffs have shown on this record 
discrimination in regard to the present Panel, the federal courts 
must assure that the appointment o f the 1973 Panel is free from 
taint. Cf . C o n o v e r  v . M o n t e m u r o ,  —  F.2d —  (3d Cir. No. 71-1871, 
at p. 13 of slip opinion of 12/20/72). Also, we repeat that the defen­
dant Mayor never testified and the court passes no personal judg­
ment on him, but it is required to act on the basis of the record 
before it.

A True Copy:

Teste :

C lerk  o f  the U n i t e d  States C o u r t  o f  A ppea ls  
f o r  the T h ird  C ircuit.



50

U N ITED  STATES COURT OF APPEALS

F o r  t h e  T h i r d  C i r c u i t

No. 71-2042

EDUCATIONAL EQUALITY LEAGUE, FLOYD L. LO­
GAN, W. WILSON GOODE, VERONICA KELLAM, 
by her mother and next friend, ELIZABETH KEL­
LAM, and MICHAEL GREEN, by his father and next 
friend, COOLIDGE GREEN on behalf of themselves 
and all others similarly situated, Appellants

v.

HONORABLE JAMES H. J. TATE, Mayor of the 
City of Philadelphia, and 

THE EDUCATIONAL NOMINATING PANEL

(D. C. Civil Action No. 71-1938)

O n A p p e a l  F r o m  t h e  U n i t e d  S t a t e s  D i s t r i c t  
C o u r t  F o r  t h e  E a s t e r n  D i s t r i c t  

O f P e n n s y l v a n ia

Present: V a n  D u s e n , G ib b o n s  and H u n t e r , 
Circuit Judges



51

JUDGMENT

This cause came on to be heard on the record from 
the United States District Court for the Eastern District 
of Pennsylvania and was argued by counsel.

On consideration whereof, it is now here ordered 
and adjudged by this Court that the judgment of the said 
District Court, filed November 8, 1971, be, and the same 
is hereby vacated, except as to the Educational Nominat­
ing Panel, and the cause remanded to the said District 
Court for further proceedings consistent with the opinion 
of this Court.

ATTEST:

Clerk

January 11, 1973



52
U NITED  STATES COURT OF APPEALS

F o r  t h e  T h i r d  C i r c u i t

No. 71-2042

EDUCATIONAL EQUALITY LEAGUE, FLOYD L. LOGAN, 
W. WILSON GOODE, VERONICA KELLAM, by her 
mother and next friend, ELIZABETH KELLAM, and 
MICHAEL GREEN, by his father and next friend, 
COOLIDGE GREEN on behalf of themselves and 
all others similarly situated, Appellants

v.

HONORABLE JAMES H. J. TATE, Mayor of the 
City of Philadelphia, and 

THE EDUCATIONAL NOMINATING PANEL

Present V a n  D u s e n , G ib b o n s  and H u n t e r , 

Circuit Judges

ORDER AMENDING OPINION

It is ORDERED that page 11 of the slip opinion filed 
January 11, 1973, in the above matter is amended as fol­
lows:

A. The wording after the semi-colon in the second 
sentence in the paragraph beginning on that page is 
changed to read as follows:

“they do not challenge the operation of the panel in­
sofar as it resulted in appointments to the Board made 
prior to the filing of this civil action in August 1971.20”

B. The following wording is added at the end of the 
first sentence in footnote 20: “in August 1971.”



53

C. This sentence is inserted immediately after the 
first sentence in footnote 20:

On remand, the district court should consider the 
continuing effectiveness of appointments to the Board 
made after August 1971 on the basis of all the facts 
which may be developed at the hearing on such re­
mand.”

By the Court:
F r a n c is  L. V a n  D u se n  

Circuit Judge

Dated: February 21, 1973.

A True Copy:

Teste :

Clerk  of the U n i te d  States Court of Appea ls  
f o r  the  T h ird  Circuit.



54

U N ITED  STATES COURT OF APPEALS

F o r  t h e  T h i r d  C i r c u i t

No. 71-2042

EDUCATIONAL EQUALITY LEAGUE, FLOYD L. LO­
GAN, W. WILSON GOODE, VERONICA KELLAM, 
by her mother and next friend, ELIZABETH KEL­
LAM, and MICHAEL GREEN, by his father and next 
friend, COOLIDGE GREEN, on behalf of themselves 
and all others similarly situated, Appellants

v.

HONORABLE JAMES H. J. TATE, Mayor of the 
City of Philadelphia, and 

THE EDUCATIONAL NOMINATING PANEL

SUR PETITION FOR REHEARING

Present: S e i t z , Chief Judge, and V a n  D u s e n , 
A l d i s e r t , A d a m s , G i b b o n s , R o s e n n  and H u n t e r , 

Circuit Judges



55

The petition for rehearing filed by appellees in the 
above entitled case having been submitted to the judges 
who participated in the decision of this court and to all the 
other available circuit judges of the circuit in regular 
active service, and no judge who concurred in the decision 
having asked for rehearing, and a majority of the circuit 
judges of the circuit in regular active service not having 
voted for rehearing by the court in banc, the petition for 
rehearing is denied.

By the Court,

L-.

FRANCIS L. VAN DUSEN 
Judge

Dated: February 11, 1973



b -
•V ■ ■.