Pennsylvania Human Relations Commission v. Norristown Area School District

374 A.2d 671, 473 Pa. 334, 1977 Pa. LEXIS 721

• Court: Supreme Court of Pennsylvania
• Decided: June 3, 1977
• Docket: No. 297
• Status: Published

Opinions

OPINION OF THE COURT

ROBERTS, Justice.

This is an appeal¹ by the Norristown Area School Distrct (Norristown) from an order of the Commonwealth Court² affirming an order of the Pennsylvania Human Relations Commission (Commission) requiring Norristown to develop and submit a plan to eliminate racial segregation in its schools.³ Norristown asserts that the Commission’s definition of a segregated school is an invalid regulation because the Commission did not comply with the publication requirements of the Administrative Agency Law.⁴ It contends that the Commission’s order is based upon an invalid regulation and therefore should be vacated.

We hold that the Commission’s definition of a segregated school contained in the “Recommended Elements of a School Desegregation Plan,” is a general statement of policy and not an administrative regulation subject to the publication requirements of the Administrative Agency Law. In this adjudication, the Commission used the definition of a segregated school as a flexible guideline and not as a binding administrative regulation.⁵ We affirm.

I

Nine years ago, the Commission advised Norristown and 16 other Pennsylvania school districts that their schools were racially imbalanced,⁶ and asked them to develop and submit desegregation plans.⁷ To aid districts in formulating plans, the Commission and the Pennsylvania Department of Public Instruction (Department) set forth “Desegregation Guidelines for Public Schools” ⁸ on March 29, 1968. These guidelines were sent to the superintendent of schools of Norristown. The Commission and the Department also suggested “Recommended Elements of a School Desegregation Plan”⁹ on May 15, 1968. The Commission sponsored meetings and seminars during February and May of 1968 with Norristown and the other districts at which the desegregation guidelines and the recommended elements of a desegregation plan were fully discussed.

In June 1968, Norristown submitted a desegregation plan which the Commission rejected because it did not adequately provide for the methods and timetable by which racial imbalance would be corrected. Norristown submitted a supplementary plan which the Commission approved on May 11, 1969. From 1969 to 1972, Norris-town took some steps to effectuate its desegregation plan but made no efforts to desegregate grades kindergarten through the fourth grade. On December 5, 1972, Norris-town advised the Commission that it refused to correct the racial imbalance in grades kindergarten through fourth grade. The Commission interpreted Norristown’s refusal to desegregate as an amendment to Norristown’s May 11, 1969 plan. The Commission then disapproved Norristown’s desegregation plan. After numerous attempts at conciliation, the Commission filed a complaint on March 6, 1973, alleging, inter alia, that Norristown discriminated against pupils in its school system in that it sanctioned racially segregated schools by failing to adopt and implement an acceptable plan to reduce the amount of racial segregation. The complaint also alleged that Norristown’s failure to adopt a plan denied an integrated education to its students in violation of sections 5(i)(l) and (4)(g) of the Pennsylvania Human Relations Act (PHRA).¹⁰ After additional attempts at conciliation failed, the Commission conducted a public hearing in accordance with section 959 of the PHRA.¹¹ Norristown maintained that the hearing was “illegal.” For the first time, six years after the guidelines were announced, Norristown contended that the “Desegregation Guidelines for Public Schools” and the “Recommended Elements of a School Desegregation Plan” were invalid because the Commission had not filed them with the Department of State pursuant to the Administrative Agency Law.¹² Although Norristown cross-examined the Commission’s witness, Mr. Anliot, the Director of the Commission’s Education Division, it' did not present any evidence to refute the Commission’s evidence that Norristown had violated section 5(i) (1) of the PHRA. The Commission found that Norristown violated section 5(i) (1) of the PHRA and ordered Norristown to develop and submit a desegregation plan which would eliminate racial imbalance in its schools. Norristown appealed to the Commonwealth Court which unanimously affirmed the Commission’s order.¹³

We granted Norristown’s petition for allowance of appeal.

II

Norristown’s sole contention is that the Commission’s definition of a segregated school is invalid because it was not filed with the Department of State pursuant to the Administrative Agency Law.¹⁴ It asserts that the adjudication before the Commission was “illegal” because the Commission proceeded against Norristown on the basis of an invalid regulation. We agree with the Commonwealth Court which rejected Norristown’s contentions and affirmed the Commission’s order.

A. It is beyond cavil that the Commission is empowered to take steps to eradicate racial segregation found to exist within the school population of any Pennsylvania school district. In Pennsylvania Human Relations Commission v. Chester School District, 427 Pa. 157, 233 A.2d 290 (1967):

“[W]e laid to rest arguments . . . that the Human Relations Act did not permit the Commission to require school boards to take corrective measures to overcome de facto racial segregation within their districts.” (emphasis in original)

Balsbaugh v. Rowland, 447 Pa. 423, 433, 290 A.2d 85, 90 (1972). Accord, Pennsylvania Human Relations Commission v. Uniontown Area School District, 455 Pa. 52, 313 A.2d 156 (1973) (plurality opinion). In Chester, supra, we noted that:

“the Legislature undoubtedly envisioned a case-by-case approach to the elimination of racial imbalance in public schools. . . . The Human Relations Commission, whose function is to work with the parties to the dispute in an attempt to alleviate the source of the friction through ‘conference, conciliation and persuasion,’ and whose procedure is considerably more flexible than the courts, is, as the Legislature recognized, better equipped to deal with this problem than the courts.”

427 Pa. at 179, 233 A.2d at 301. Although “de facto segregation” is not defined in the PHRA, we recognized in Chester that this concept provides an adequate standard to allow the Commission to proceed on a case-by-case basis.¹⁵

After our decision in Chester, the Commission formulated “Desegregation Guidelines for Public Schools” and “Recommended Elements of a School Desegregation Plan” as flexible guidelines to aid its efforts to work with school districts to eliminate racial imbalance in the Commonwealth’s schools.¹⁶ Since the Commission is required to conciliate before it institutes formal proceedings against the parties, statements of policy are helpful to both the Commission and schools in achieving the mandate of the PHRA.¹⁷ By providing school districts with general statements of policy, the Commission encourages voluntary compliance with the PHRA by furnishing school districts with greater information concerning what is expected in desegregation plans.

In Pennsylvania Human Relations Commission v. Uniontown Area School District, 455 Pa. 52, 313 A.2d 156 (1973) (plurality opinion), we recognized that the Commission’s recommendation, that desegregation plans achieve a racial composition for each grade within 30% of the racial composition within the school district, is reasonable. It was noted that it is within the Commission’s power to pursue such a policy.¹⁸

B. Norristown argues that in announcing the “Desegregation Guidelines for Public Schools” and “Recommended Elements of a Desegregation Plan,” the Commission has engaged in rule-making. It asserts that these guidelines cannot serve as a basis for the Commission’s order. The Commission maintains that these guidelines are merely general statements of policy which are helpful in assisting both the Commission and school districts in developing desegregation plans. It argues that it has not treated these guidelines as administrative regulations having the force of law. The Commission contends that as general statements of policy, they are not subject to the publication requirements of the Administrative Agency Law. It asserts that nothing precludes it from using these statements of policy for guidance in its case-by-case adjudications.

We hold that the guidelines set forth in the “Recommended Elements of a School Desegregation Plan” and “Desegregation Guidelines for Public Schools” are statements of policy and not regulations subject to the filing and publication requirements of the Administrative Agency Law. The Commission disseminated statements of policy, made recommendations to school districts to effectuate these policies, and when conciliation attempts failed, proceeded by adjudication. We find nothing improper in this procedure.

The Administrative Agency Law envisions that administrative agencies may proceed by rule-making or adjudication. Compare 71 P.S. § 1710.21 (1962) with 71 P.S. § 1710.31 (1962). Under the PHRA, the Commission is authorized to promulgate rules and regulations,¹⁹ formulate policies and make recommendations to school districts to effectuate these policies,²⁰ and file complaints and conduct public hearings if efforts at conciliation fail.²¹ Nothing in the Administrative Agency Law or the PHRA prevents the Commission from proceeding by way of adjudication rather than by rule-making. Pennsylvania Human Relations Commission v. Chester School District, 427 Pa. 157, 179, 233 A.2d 290, 301 (1967) (“The Legislature undoubtedly envisioned a case-by-case approach to the elimination of racial imbalance in public schools”).²²

Administrative regulations are subject to the publication requirements of the Administrative Agency Law,²³ while statements of policy are exempt from the filing requirements.²⁴ Although we recognize that in some situations it may be difficult to differentiate between administrative regulations and statements of policy which are not rules or regulations,²⁵ we are persuaded by the language and form of the guidelines as well as the Commission’s characterization and treatment of the guidelines, that they are statements of policy.²⁶

The Commission asserts that it has not departed from its case-by-case approach to racial imbalance in schools, but has merely formulated general policy statements and made recommendations to aid school districts in developing plans which the Commission will find acceptable. The Commission maintains that it has not treated these guidelines as binding regulations,²⁷and makes no claim that they have the force of law.²⁸ As the Commonwealth Court observed:

“The Commission’s document, ‘Recommended Elements of a School Desegregation Plan,’ as its title suggests does not lay down hard and fast standards with which districts must comply in order to conform to the law. It merely poses questions concerning the plan for integration as means of testing the plan’s chances of proving acceptable to the Commission. The questions are most general in nature and there is nothing in the document which states or implies that nonconformity of the plan in any respect will bring automatic rejection. With regard to the Commission’s definition of a segregated school as one having a disparity of Negro students 30% greater or less than the per cent of Negro pupils among buildings of the same grade span, which is here principally complained of, the Commission asserts in its brief that it is not meant to be nor is it in practice inflexibly applied. Our experience confirms this assertion.” ²⁹

Pennsylvania Human Relations Commission v. Norristown Area School District, 20 Pa.Cmwlth. at 560, 342 A.2d at 467.

In holding that these guidelines are not regulations, we are persuaded by the reasoning of the Court of Appeals for the District of Columbia, a court with extensive experience in reviewing administrative determinations. In Pacific Gas & Electric Co. v. FPC, 164 U.S.App.D.C. 371, 506 F.2d 33 (1974), the FPC, in response to a natural gas shortage, issued an order directing pipeline companies which expected periods of shortage to file curtailment plans. There was a wide variety of priority schedules in the plans submitted. Sensing the need for guidance, the FPC adopted another “order” which set forth the FPC’s view of proper curtailment plans. The agency stated that in its view, curtailment plans should establish priorities based on the uses to which the gas would be put rather than on prior contractual commitments. The “order” further stated that the FPC intended to follow this priority schedule unless a company could establish that another priority schedule was in the public interest. A number of gas companies challenged the “order” alleging that it was a substantive rule which was invalid because the FPC had not followed rule-making procedures. The Court of Appeals rejected this contention and held that the FPC’s “order” was a general statement of policy which was exempt from the rule-making requirements of the Administrative Procedure Act, 5 U.S.C.A. §§ 551 et seq. (1967).

The court articulated the distinction between substantive rules which must be promulgated through rule-making procedures and statements of policy which require no such procedures:

“An administrative agency has available two methods for formulating policy that will have the force of law. An agency may establish binding policy through rule-making procedures by which it promulgates substantive rules, or through adjudications which constitute binding precedents. A general statement of policy is the outcome of neither a rulemaking nor an adjudication; it is neither a rule nor a precedent but is merely an announcement to the public of the policy which the agency hopes to implement in future rulemakings or adjudications. A general statement of policy, like a press release, presages an upcoming rulemaking or announces the course which the agency intends to follow in future adjudications.

The critical distinction between a substantive rule and a general statement of policy is the different practical effect that these two types of pronouncements have in subsequent administrative proceedings. . A properly adopted substantive rule establishes a standard of conduct which has the force of law. . . . The underlying policy embodied in the rule is not generally subject to challenge before the agency.

A general statement of policy, on the other hand, does not establish a 'binding norm’. ... A policy statement announces the agency’s tentative intentions for the future. When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued.” ³⁰

The court upheld the FPC’s decision to proceed by individual adjudications consistent with its statement of policy rather than by way of rule-making.

“The Commission issued the policy statement because the curtailment plans being submitted reflected sharp differences in philosophy which necessitated Commission guidance in the curtailment area. In the absence of such a policy statement, the Commission could have proceeded on an ad hoc basis and tentatively approved curtailment plans filed under section 4 of the Act which the Commission found to be just and reasonable. In following such a course the only difference from the present situation would be that the Commission would be acting under a secret policy rather than under the publicized guidelines of Order No. 467. The argument that an agency must follow rulemaking procedures when it elects to formulate policy by a substantive rule has no application in this case. Order No. 467 does not establish a substantive rule. Although the Commission is free to initiate a rulemaking proceeding to establish a binding substantive rule, the Commission apparently intends to establish its curtailment policies by proceeding through individual adjudications. Order No. 467 merely announces the general policy which the Commission hopes to establish in subsequent proceedings.”

506 F.2d at 41 (footnote omitted).

Like the FPC, the Commission has chosen to proceed through individual adjudications consistent with its general statement of policy. We find no abuse of discretion in the Commission’s actions. In light of the Commission’s duty to resolve disputes by “conference, conciliation and persuasion,” the adoption of statements of policy and guidelines can only aid the Commission’s delicate task of correcting racial imbalance in the Commonwealth’s schools. Moreover, general statements of policy encourage public dissemination of the Commission’s views prior to their actual application.³¹

C. The black enrollment in Norristown elementary schools is 23.13%. During the 1967-1968 school year, three elementary schools were predominately black. For example, in one school, 84.77 % of the students were black. Seven elementary schools had less than 6.5% black students.³² Some six years after Norristown was first asked to submit a desegregation plan, similar racial imbalance existed.³³ Norristown does not contend that this evidence is insufficient to constitute segregation within the meaning of the PHRA.

Order affirmed.

JONES, former C. J., did not participate in the decision of this case. MANDERINO, J., joined and filed a concurring opinion. POMEROY, J., filed a dissenting opinion in which EAGEN, C. J., joins.

APPENDIX A

March 29, 1968.

Desegregation Guidelines for Public Schools

Commonwealth of Pennsylvania.

The Pennsylvania Human Relations Commission together with the Department of Public Instruction of the Commonwealth of Pennsylvania set forth the following guidelines for school districts (administrative units) in dealing with segregation in public schools.

1. Segregation as a factor in public education

When any one public school building comes to be viewed as improperly exclusive in fact or in spirit; when it is viewed as being reserved for certain community groups; when morale, teacher and pupil motivation and achievement are affected by the racial imbalance, the school system is being adversely affected by segregation. In other words, segregation is not an arbitrary numerical relationship of one group to another. Segregation becomes a factor adversely affecting education when an untoward concentration of any racial group in one building begins to destroy the functioning of the entire system as a “common school.”

The common school has long been viewed as a basic social instrument in attaining our traditional goals of equal opportunity and personal fulfillment. The presence in a single school of children from varied backgrounds is an important element in the preparation of young people for active participation in the social and political affairs of our democracy.

In-so-far as possible every school building should reflect in its enrollment a cross section of the entire community.

2. Responsibility for correcting discriminatory actions

Any action, direct or indirect, overt or covert, which fosters racial segregation in the public schools, is against the public interest, and should not be taken by any public agency. Whenever any such action, past or present, has adversely affected public education, it is the responsibility of public school authorities to correct it, forthwith.

3. Racial inclusiveness of staff

A component of quality education is a racially inclusive staff at all professional, non-professional and administrative levels. A desegregated staff affords positive educational values. All children need role models with whose ethnic backgrounds they can identify, and they also need to be taught at times by those who are racially different. Nothing herein is to be interpreted as calling for discrimination in favor of less qualified teachers because of their race.

4. Desegregation a local responsibility

Responsibility for coping with segregation rests with local school authorities. This is in keeping with the spirit of local control. It allows consideration for local conditions which may affect desegregated education. Such policy allows for the widest innovation in school assignment and program to meet local needs. Hence, the Department of Public Instruction and the Human Relations Commission proceed in correcting segregated conditions by requiring that each local public school district affected submit its own plans for dealing with the problem as the first step in their enforcement procedure.

5. Program consistent with policy

The state agencies involved in supervising the desegregation process realize that changing policies and desegregation of pupils, teachers and staff are but the first steps in meeting the requirements of these guidelines. These agencies wish to cooperate with public school officials in every way possible to strengthen programs designed to produce mutual respect and trust between groups. They urge the reexamination of curriculum to make sure the contributions of all groups are included. They urge the reexamination of the treatment of all minorities in our common history. This they propose for all schools — not just those which have minority children enrolled. In other words, these proposals are designed to achieve good education for all children— not just special education for the minorities. Further, they ask cooperation of local school districts in the development of stronger programs of in-service training in human relations both for administrative staff and teachers.

6. Continuous evaluation and preventive action

Public school districts with concentrations which adversely affect education will be subject to continuing examination by the Pennsylvania Human Relations Commission and the Department of Public Instruction. Hence constant study and evaluation should be made at the local level to catch these undesirable trends in their incipient stages, and deal with them while they are in manageable proportions. In situations where action is being taken to apply corrective measures to existing concentrations, care should be taken to provide followup to make sure future imbalances do not occur.

7. Community participation

Local boards of education should make wide use of community involvement in the preparation of their plans.

APPENDIX B

May 15, 1968

Recommended Elements of a School Desegregation'Plan by Pennsylvania Human Relations Commission and Department of Public Instruction

1. Does the desegregation plan indicate the projected racial composition of each elementary and secondary school attendance area and the racial composition of the total staff of each building — as of the completion dates of each step?

2. Does the desegregation plan identify the location of proposed school building construction sites ?

3. How nearly does the desegregation plan bring the per cent Negro pupils in each building to within 30% of the per cent Negro pupils among the buildings of the same grade span?

4. Does the desegregation plan include procedures to affirmatively and effectively recruit and assign an integrated staff at all levels for all schools ?

5. Does the desegregation plan correct any untoward concentrations of professional or non-professional Negro staff in any buildings?

6. Does the desegregation plan equally match the services of its professional staff and program with the educational needs of each school building?

7. Does the desegregation plan include plans for in-service training of staff to meet the needs and problems incident to the implementation of desegregation plans?

8. Does the desegregation plan include steps to include intergroup education programming and the inclusion of the contributions of Negroes and other racial and ethnic groups in the history courses about Pennsylvania and the United States ?

9. Does the desegregation plan include a timetable indicating deadline dates by which each step will be completed ? Are these dates as early as possible ?

10. Does the desegregation plan indicate involvement of the community in its development and implementation?

11. Is the desegregation plan consistent with the Long Range Development Plan submitted to the Department of Public Instruction?

1 . We hear this appeal pursuant to the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, § 204(a), 17 P.S. § 211.204(a) (Supp.1976).

2 . Pennsylvania Human Relations Commission v. Norristown Area School District, 20 Pa.Cmwlth. 555, 342 A.2d 464 (1975).

3 . The Commission found that Norristown violated section 5(i)(l) of the Pennsylvania Human Relations Act (PHRA), Act of October 27, 1955, P.L. 744, § 5(i)(l), as amended, 43 P.S. § 955(i)(l) (Supp.1976), and ordered Norristown to “develop and submit to the Pennsylvania Human Relations Commission for its approval a plan and timetable for implementation of that plan which will eliminate racial imbalance in its schools.”

4 . Administrative Agency Law, Act of June 4, 1945, P.L. 1388, as amended, formerly codified in 71 P.S. § 1710.21, as amended by Act of June 26, 1963, P.L. 180. The Administrative Agency Law was repealed by Act of July 31, 1968, P.L. 769, art. VI, § 609(a)(14), 45 P.S. § 1609(a)(14) (Supp.1976). The publication requirements of the Administrative Agency Law have been superseded by the Commonwealth Documents Law, Act of July 31, 1968, P.L. 769, art. I, §§ 1101 et seq. (Supp.1976). Since the “Desegregation Guidelines for Public Schools” and the “Recommended Elements of a School Desegregation Plan” were set forth on March 29, 1968 and May 15, 1968 respectively, they are not subject to the Commonwealth Documents Law. With certain exceptions not applicable to regulations which were subject to the Administrative Agency Law, see 45 P.S. § 1402 (Supp.1976), the Commonwealth Documents Law exempts all regulations filed prior to its effective date. See 45 P.S. § 1208 (Supp.1976). Statements of policy filed prior to the effective date of the Commonwealth Documents Law are also exempt. See id. The Commonwealth Documents Law has been amended by the Act of July 9, 1976, P.L. 877, §§ 1 et seq., effective September 9, 1976, 45 Pa. C.S.A. §§ 501 et seq. (1977 Pamphlet). The title to the act has been deleted and the act has been revised. The 1976 amendment, however, has no effect on the present case. For convenience, this opinion will refer to this act as the Commonwealth Documents Law. For a discussion of the Administrative Agency Law and the Commonwealth Documents Law, see Zeiter, The New General Rules of Administrative Practice and Procedure and the Commonwealth Documents Law, 44 Pa.Bar Quarterly 109 (1972).

5 . In its brief, Norristown explicitly states that it is not challenging the substance of the Commission’s definition of a segregated school. Neither does Norristown raise the sufficiency of the evidence to support the Commission’s order.

6 . The Commission decided to first contact school districts with the most significant racial imbalance. The first districts contacted were those in which any one school building contained more than 80% black students and in which the percentage of black students in any building deviated 30% or more from the percentage of black students in the district.

7 . The Commission requested Norristown to develop a plan prior to the announcement of the guidelines at issue here.

8 . The “Desegregation Guidelines for Public Schools” sets forth the general policies of the Commission and the reasons why desegregation is an important social goal. It also advises school districts that desegregation is a local responsibility and offers the Commission’s assistance in achieving the goal of an integrated education. The “Desegregation Guidelines for Public Schools” are set forth in full in Appendix A.

9 . The “Recommended Elements of a School Desegregation Plan” sets forth 11 questions suggesting areas which a school district should consider in developing a desegregation plan. The “Recommended Elements of a School Desegregation Plan” are set forth in full in Appendix B.

10 . The complaint alleged:

“4. The respondent has in the past discriminated and continues until the present time to discriminate against pupils within its school system because of race, in that:

a. The respondent, the Norristown Area School District, has allowed and continues to allow the existence of public schools under its jurisdiction and control which are racially segregated.

b. The respondent has failed to adopt an acceptable plan and timetable for the implementation of such plan that would substantially reduce the amount of racial segregation in the Norristown Area public schools.

c. The respondent, by its present failure to adopt such plan and timetable, has withheld and continues to withhold the advantages of an integrated education from many pupils within the Norristown Area School District, denying them the equal protection of the law and equal educational opportunity.

d. The respondent’s failure to adopt such plan and timetable for desegregation results in a continued denial of equal educational advantages in violation of Section 5(i)(l) and 4(g) of the Pennsylvania Human Relations Act.”

11 . 43 P.S. § 959 (Supp.1976).

12 . Act of June 4, 1945, P.L. 1388, as amended, formerly codified in 71 P.S. § 1710.1 et seq. (1962), as amended by Act of June 26, 1963, P.L. 180.

13 . The Commonwealth Court held that the “Desegregation Guidelines for Public Schools” and the “Recommended Elements of a School Desegregation Plan” were “not regulations but statements of policy not required to be filed or deposited” with the Department of State pursuant to the Administrative Agency Law. Pennsylvania Human Relations Commission v. Norristown Area School District, 20 Pa.Cmwlth. 555, 561, 342 A.2d 464, 468 (1975). The court adopted the Commission’s view that the documents “[have] never been considered, by the Commission or the courts, to be rigid, hard and fast legislative regulation[s]. The use of [the 30% range] the limits of which were, itself, flexible and capable of extension, appeared both in theory and eventually in practice, to be the best method to carry out a flexible case-by-case approach to school [desegregation.” Id. at 560, 342 A.2d at 467 (insertions in original).

14 . Section 1710.21 of the Administrative Agency Law provided: “Regulations adopted after September 1, 1963, shall have no effect until copies of such regulation have been printed or reproduced by the adopting agency and are available for public distribution upon request, and a copy thereof certified by the executive officer, chairman or secretary of the agency is filed in the Department of State and the Legislative Reference Bureau in such form and size as shall be agreed upon by the Department of State and the Legislative Reference Bureau. All regulations shall be numbered serially and have indicated thereon the agency which adopted them, and shall be approved as to legality by the Department of Justice before they are filed in the Department of State and the Legislative Reference Bureau. Failure of the agency to submit a regulation to the Department of Justice for such approval shall invalidate the regulation. Copies of all regulations shall be made available by the adopting agency upon request.”

Act of June 4, 1945, P.L. 1388, as amended, formerly codified in 71 P.S. § 1710.21, as amended by Act of June 26, 1963, P.L. 180.

Norristown does not and could not contend that it did not receive notice of the “Desegregation Guidelines for Public Schools” and the “Recommended Elements of a School Desegregation Plan.” The Commission sent a copy of the “Desegregation Guidelines for Public Schools” to the superintendent of schools of Norristown and distributed the “Recommended Elements of a School Desegregation Plan” to Norristown during the seminars and conferences held in May, 1968.

15 . “[D]e facto segregation ‘remains undefined in its full concept,’ yet at the same time it is a meaningful term.” Pennsylvania Human Relations Commission v. Chester School District, 427 Pa. 157, 158, 233 A.2d 290, 291 (1967) quoting Pennsylvania Human Relations Commission v. Chester School District, 85 Dauph. 18, 25, aff'd. 209 Pa.Super. 37, 224 A.2d 811, 820 (1966).

16 . See supra notes 8 and 9.

17 . “As an informational device, the general statement of policy serves several beneficial functions. By providing a formal method by which an agency can express its views, the general statement of policy encourages public dissemination of the agency’s policies prior to their actual application in particular situations. Thus the agency’s initial views do not remain secret but are disclosed well in advance of their actual application. Additionally, the publication of a general statement of policy facilitates long range planning within the regulated industry and promotes uniformity in areas of national concern.”

Pacific Gas & Electric Co. v. F. P. C., 164 U.S.App.D.C. 371, 506 F.2d 33, 38 (1974).

18 . In Uniontown, the school districts alleged that the definition of a segregated school contained in the “Recommended Elements of a School Desegregation Plan” was arbitrary and capricious. This Court upheld the definition of a segregated school as reasonable and within the Commission’s statutory authority. Pennsylvania Human Relations Commission v. Uniontown Area School District, 455 Pa. 52, 313 A.2d 156 (1973) (Mr. Justice Pomeroy filed an opinion announcing the judgment of the court in which Mr. Justice Eagen (now Mr. Chief Justice) and Mr. Justice O’Brien joined. This writer filed a concurring opinion in which Chief Justice Jones and Mr. Justice Nix joined. Mr. Justice Manderino concurred in the result).

19 . The Commission shall have the power:

“(d) To adopt, promulgate, amend and rescind rules and regulations to effectuate the policies and provisions of this act.”

43 P.S. § 957(d) (1964).

20 . The Commission is authorized to:

“(e) To formulate policies to effectuate the purposes of this act, and make recommendations to agencies and officers of the Commonwealth or political subdivisions of government or board, department, commission or school district thereof to effectuate such policies.”

43 P.S. § 957(e) (1964).

21 . Section 959 provides that the Commission must first attempt to eliminate an unlawful discriminatory practice by “conference, conciliation and persuasion,” before it proceeds to public hearing on a complaint. 43 P.S. i 959 (Supp.1976).

22 . See NLRB v. Bell Aerospace Co., 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974); NLRB v. Wyman-Gordon Co., 394 U.S. , 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969); FPC v. Texaco, Inc., 377 U.S. 33, 84 S.Ct. 1105, 12 L.Ed.2d 112 (1964); SEC v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947); Pacific Gas & Electric Co. v. FPC, 164 U.S.App.D.C. 371, 506 F.2d 33 (1974); K. Davis, Administrative Law Treatise § 5.01 at 292 (1958); Bernstein, The NLRB’s Adjudication-Rule Making Dilemma Under the Administrative Procedure Act, 79 Yale L.J. 571 (1970); Robinson, The Making of Administrative Policy: Another Look at Rulemaking and Adjudication and Administrative Procedure Reform, 118 U.Pa.L.Rev. 485 (1970); Note, The Judicial Role in Defining Procedural Requirements for Agency Rulemaking, 87 Harv.L.Rev. 782 (1974).

23 . The Administrative Agency Law defines a “regulation:”

“ ‘Regulation’ means any rule, regulation or order in the nature of a rule or regulation, of general application and future effect, promulgated by an agency under statutory authority in the administration of any statute administered by or relating to the agency, or prescribing the practice or procedure before such agency.”

71 P.S. § 1710.2(e) (1962).

Regulations adopted after September 1, 1963, but before July 31, 1968, have no effect until copies are printed or reproduced by the agency and are made available to the public on request, and a certified copy is filed in the Department of State and the Legislative Reference Bureau. Act of June 26, 1963, P.L. 180, repealed by Act of July 31, 1968, P.L. 769, 45 P.S. § 1609(a)(14) (Supp.1976). Regulations adopted after July 31, 1968 are subject to the Commonwealth Documents Law, Act of July 31, 1968, P.L. 769, art. I, §§ 101 et seq., 45 P.S. §§ 1101 et seq. (Supp.1976).

24 . The Administrative Agency Law makes no reference to statements of policies. Statements of policy which are not rules or regulations are not subject to the publication requirements of the Administrative Agency Law. The Commonwealth Documents Law defines statements of policy as:

“any document, except an adjudication or a regulation, promulgated by an agency which sets forth substantive or procedural personal or property rights, privileges, immunities, duties, liabilities or obligations of the public or any part thereof, and includes, without limiting the generality of the foregoing, any document interpreting or implementing any act of Assembly enforced or administered by such agency.”

45 P.S. § 1102(13) (Supp.1976).

The Commonwealth Documents Law retained a similar definition of rule or regulation as the Administrative Agency Law. Compare 71 P.S. § 1710.2(e) (1962) with 45 P.S. § 1102(12) (Supp. 1976). This evidences a recognition that statements of policy can be other than rules or regulations.

25 . K. Davis, Administrative Law Treatise i 5.01 at 290 (1958); Comment, A Functional Approach to the Applicability of Section 553 of the Administrative Procedure Act to Agency Statements of Policy, 43 U.Chi.L.Rev. 430 (1976); Pacific Gas & Electric Co. v. FPC, 164 U.S.App.D.C. 371, 506 F.2d 33, 37-38 (1974).

26 . Pacific Gas & Electric Co. v. FPC, 164 U.S.App.D.C. 371, 506 F.2d 33, 39 (1974) (“Often the agency’s own characterization of a particular order provides some indication of the nature of the announcement.”); K. Davis, Administrative Law Treatise § 5.01 at 141-44 (Supp.1976); Functional Approach to the Applicability of Section 553 of the Administrative Procedure Act to Agency Statements of Policy, 43 U.Chi.L.Rev. 430 (1976).

27 . The Commission has approved desegregation plans in Allentown, Greater Johnstown, New Castle, Uniontown, and South Coatesville, all of which contain school buildings well outside of the 30% guideline recommended by the Commission. The Commonwealth Court found that the Commission had agreed to deviations from its recommendations with respect to Norristown itself:

“ . . the Commission has agreed that its recommendations of a proper racial balance should not be required to be adhered to in the case of kindergarten children and that allowances should and would be made by reason of the difficulty of busing in the narrow streets of Norristown.”

Pennsylvania Human Relations Commission v. Norristown Area School District, 20 Pa.Cmwlth. at 560, 342 A.2d at 467. The Commission’s treatment of “Desegregation Guidelines for Public Schools” and the “Recommended Elements of a School Desegregation Plan” in this and other cases supports its contention that these announcements are flexible statements of policy and not administrative regulations.

28 . The Commission recognizes that statements of policy are subject to modification and parties may challenge the substance of such policies. See K. Davis, Administrative Law Treatise § 5.01 (Supp.1976). However, Norristown only challenged the guidelines on procedural grounds. There is nothing to indicate that if Norristown had challenged the substance of the guidelines as applied to Norristown, the Commission would not have allowed them to raise this contention.

29 . The Commonwealth Court did note that the Commission’s order was somewhat inconsistent with the Commission’s position that the guidelines were statements of policies and not binding regulations. Subsequent to the Commonwealth Court decision, the Commission modified its order to permit Norristown to develop and submit a desegregation plan which did not conform to the “Recommended Elements of a School Desegregation Plan” if persuasive justification was presented. The Commission also modified the definition of a segregated school to permit deviations. Pursuant to Pa.R.A.P.1926, we granted the Commission leave to supplement the record and file its amended order with this Court.

30 . For a discussion of agency statements of policy see, K. Davis, Administrative Law Treatise, § 5.01 (Supp.1976); U.S. Department of Justice, Attorney General’s Manual on the Administrative Procedure Act 14-15 at 30 (1947); Parker, The Administrative Procedure Act: A Study in Overestimation, 60 Yale L.J. 581 (1951); A Functional Approach to the Applicability of Section 553 of the Administrative Procedure Act to Agency Statements of Policy, 43 U.Chi.L.Rev. 430 (1976).

31 . In asserting that the guidelines at issue should be treated as regulations, the dissent relies heavily on the benefits of notice and comment procedures for the adoption of administrative regulations. Even if the guidelines were regulations, however, no such notice and comment procedures would have been required. The Administrative Agency Law, which was in effect when the guidelines were conceived, only required that administrative regulations be filed and made available for public distribution. Act of June 4, 1945, P.L. 1388, as amended, formerly codified in 71 P.S. § 1710.21, as amended by Act of June 26, 1963, P.L. 180. The notice and comment requirements of the Commonwealth Documents law do not apply retroactively to regulations adopted prior to its July 1, 1969 effective date. See 45 P.S. §§ 1201-02, 1208 (Supp. 1976).

32 . Washington Elementary School 84.77% black enrollment

Gotwals Elementary School 72.29%

Rittenhouse Junior High 41.03%

Hancock Elementary School 39.27%

Hartranft Elementary 0%

Burnside Avenue Elementary .53%

Marshall Street Elementary 1.18%

Penn Square Elementary 3.10%

East Norristown Junior High 3.62%

Cole Manor Elementary 4.58%

Stewart Junior High 5.24%

Lincoln Elementary 6.21%

Roosevelt Elementary 10.25%

33 . Washington Elementary 84.41% black enrollment

Gotwals Elementary 77.72%

Hancock Elementary 43.33%

Burnside Elementary .29% (1 Black pupil)

Marshall Street Elementary 4.08%

Lincoln Elementary 6.53%

Cole Manor Elementary 6.72%

Roosevelt Elementary 12.31%

Paul V. Fly Elementary 13.02%