Maryland Attorney General Opinion 99OAG088

88 [99 Op. Att’y

EDUCATION

PUBLIC SCHOOLS – DESEGREGATION – MEANING OF STATE

BOARD OF EDUCATION REGULATION REQUIRING PLANS

TO ATTAIN “RACIAL BALANCE” BETWEEN SCHOOL

FACULTY AND STAFF AND THE SURROUNDING

POPULATION

August 20, 2014

Michael J. Martirano, Ed.D.

Superintendent, St. Mary’s County Public Schools

Counsel to the Board of Education of St. Mary’s County

(“County Board”), on your behalf and on behalf of the County

Board, asked whether a 1970 school-integration regulation

promulgated by the State Board of Education (“State Board”)

remains a valid, enforceable requirement of State law. The

regulation at issue—which we will refer to as the “Integration

Rule”—applies to the “hiring, placement, and promotion of all

personnel” and directs county boards to develop and implement

plans and procedures “for the attainment of racial balance, at the

various levels of the public school system, reflective of the

population of their respective jurisdictions” and to submit those

documents to the Maryland State Department of Education

(“MSDE”) by January 1, 1971. COMAR 13A.07.05.01. The

regulation also directs MSDE to “require and review reports from

local boards on the implementation of this regulation.”

It is our understanding that the County Board’s opinion

request was prompted by a complaint that the St. Mary’s County

Branch of the National Association for the Advancement of

Colored People (“NAACP”) filed with the County Board alleging

that the County Board was not currently in compliance with the

racial balancing requirements in the regulation. After the County

Board and Superintendent requested this Opinion, the NAACP

submitted comments on the continuing viability and applicability

of the regulation. And, on our request, MSDE conducted a search

of its records to find information that might shed light on the

intent of the State Board, which adopted the rule by resolution in

the summer of 1970.

At the outset, we note that the Integration Rule, in plain

terms, requires the County Board to take two sets of actions: (1)

to submit its “plans and procedures” for attaining racial balance

by January 1, 1971, and (2) to implement those plans and

Gen. 88] 89

procedures. Your question does not relate to the first

requirement. Although none of the entities involved in this

process has been able to locate the plan the County Board

submitted more than forty years ago, no one suggests that the

County Board failed to submit the required plan. The real

question here is the continuing viability of the second

requirement, the obligation to implement the plan. We see that

question as a general one, not focused on any particular measure

that the County Board might have included in its 1971 plan. We

therefore will address only the broad question that you have

posed: whether the Integration Rule required the County Board to

adopt, and requires the County Board to implement, employment

policies that would be vulnerable to challenge under the current

law on the use of racial classifications in employment.

In developing our opinion on the question you raise, we have

had the benefit of two thorough and thoughtful analyses of the

history of school desegregation and how it relates to the

development and application of the Integration Rule. Counsel to

the County Board expressed the view that the rule required only a

one-time plan submission and that, if the rule were interpreted as

imposing a continuing requirement of mathematical racial

balance, it would be unconstitutional in light of the significant

developments in anti-discrimination law that have occurred since

1970, particularly the Supreme Court’s open disapproval of

“racial balancing” as a policy goal. See, e.g., Fisher v. University

of Texas at Austin, 133 S.Ct. 2411, 2419 (2013) (describing

“racial balancing” as “patently unconstitutional”); Freeman v.

Pitts, 503 U.S. 467, 494 (1992) (“Racial balance is not to be

achieved for its own sake”). The St. Mary’s County Branch of

the NAACP, in its response, stated that it saw the Integration Rule

as not about “the absence or presence of plans and procedures . . .

submitted by a date certain,” but about requiring local boards to

use their “professional skill and creativity” to develop general

policies relating to faculty recruitment, retention, and promotion

“that do not run afoul of the equal protection of individuals in its

school system.” NAACP, St. Mary’s Branch, Response to

Maryland Attorney General on COMAR 13A.07.05.01 at 1, 7

(April 16, 2012).

We conclude that, although the text of the Integration Rule is

ambiguous as to what achieving “racial balance” might mean, the

State Board’s statements about the types of employment practices

needed to achieve equity in a particular local school

system—made just two weeks before it adopted the Integration

90 [99 Op. Att’y

Rule—indicate that the rule was not intended to remedy past

discrimination through the establishment of an employment quota

for any racial group. Although our conclusion on this point

differs somewhat from that set forth in the only published

decision to mention the rule, see Vaughns v. Board of Educ. of

Prince George’s County, 742 F. Supp. 1275 (D. Md. 1990), we

believe the historical record that we have been able to uncover

demonstrates that the rule looks forward, not backward. The

State Board intended the rule to require local boards of education

to adopt and report on nondiscriminatory and inclusive

employment policies—including efforts to recruit, retain, and

promote qualified minority teachers, administrators, and other

staff—that would promote diversity, foster cultural under-

standing, and set the conditions for a lasting integration of

Maryland’s public schools.

It is further our opinion that the Integration Rule, so

construed, is valid under current law. Therefore, a local school

board plan that in 1971 set continuing policies of

nondiscriminatory and inclusive employment may still be

implemented to achieve the purposes of the Integration Rule, and

MSDE may still require reports; the rule remains on the books as

an MSDE regulation. As we will explain below, however, MSDE

has since developed more detailed approaches to promoting

minority employment to pursue the promises of Brown v. Board

of Education within the framework of the Supreme Court’s more

recent pronouncements on the permissible use of racial

classifications in the fields of employment and education. We

defer to MSDE and the State Board on the matter of what actions,

if any, its current diversity and equal employment opportunity

policies require of local boards.

I

Background

The Integration Rule was originally adopted on July 29,

1970, as one of three bylaws approved by the State Board to deal

with racial integration of Maryland’s public schools. The

regulation remains in the same form as when promulgated more

than forty years ago:

.01 Integration.

Local boards of education shall develop and

implement plans and procedures for the

attainment of racial balance at the various

levels of the public school system, reflective

Gen. 88] 91

of the composition of the population of their

respective jurisdictions. These plans and

procedures shall apply to the hiring, placing,

and promotion of all personnel employed at

the various levels of the school system. The

plans and procedures provided in this

regulation shall be submitted to the State

Department of Education by January 1, 1971.

The Department shall also require and review

reports from local boards on the

implementation of this regulation.

COMAR 13A.07.05.01.

Because the Integration Rule itself gives no instruction on

the methods by which county boards were to carry out its

purpose, we have turned to the context in which the State Board

adopted it, and particularly to the State Board’s consideration,

while it was formulating the rule, of two other issues involving

the integration of staff through equitable employment practices.

The issues addressed by the State Board in 1970 are in turn best

understood in the wider frame of school desegregation in

Maryland since Brown, and so we begin by sketching a summary,

by no means exhaustive, of the parts of that history that will most

aid in our construction of the rule.1

A. School Desegregation in Maryland: A Brief History

1. Desegregation from 1954-64

When the Supreme Court issued its landmark decision in

Brown v. Board of Education, 347 U.S. 483 (1954) (“Brown I”),

Maryland was one of seventeen states that, by law, required

separate public schools for white and Black students. Md. Ann.

Code, art. 77, §§ 124, 207-08 (1951). Brown I declared that state

action in establishing or maintaining racially separate schools was

unconstitutional because it denied minority students the equal

protection of the law guaranteed by the Fourteenth Amendment:

1

For an interesting and illuminating account of segregation in St.

Mary’s County, see In Relentless Pursuit of an Education: African

American Stories from a Century of Segregation (1865-1967) (Unified

Committee for Afro-American Contributions of St. Mary’s County,

Inc., ed. 2006).

92 [99 Op. Att’y

“We conclude that in the field of public education the doctrine of

‘separate but equal’ has no place. Separate educational facilities

are inherently unequal.” 347 U.S. at 495.

A year later, in Brown II, the Court considered the manner in

which the defendant school systems were to “transition to a

system of public education freed of racial discrimination.” Brown

v. Board of Educ., 349 U.S. 295, 299 (1955) (“Brown II”). The

Court did not prescribe any particular method for desegregating

the schools, but instead directed local officials to fashion their

own plans addressing the particular problems that existed in each

local school system. Under Brown II, courts reviewing the

actions of local school systems were to “consider the adequacy of

any plans [that school officials] . . . may propose to meet these

problems and to effectuate a transition to a racially

nondiscriminatory school system.” Id. School systems were

ordered to make a “prompt and reasonable start” toward

desegregation, id. at 300, and to move forward with “all deliberate

speed.” Id. at 301.

So, with Brown II, each local school system in 17 states

became responsible for creating, based on local circumstances, its

own plan to dismantle its racially segregated system and to begin

operating its public schools without regard to race. The resulting

patchwork of desegregation plans varied widely, not only from

state to state but also within each state; they differed not only in

method but perhaps even more notably in pace, as Brown II

provided neither a definite timetable for eliminating the effects of

prior racial segregation nor a clearly defined end point.2

2

Justice Powell described the uncertainty that existed following

Brown I and II:

The great contribution of Brown I was its

holding in unmistakable terms that the

Fourteenth Amendment forbids state-compelled

or state authorized segregation of public schools.

347 U.S., at 488, 493-495. Although some of the

language was more expansive, the holding in

Brown I was essentially negative: It was

impermissible under the Constitution for the

States, or their instrumentalities, to force

children to attend segregated schools. The

forbidden action was de jure, and the opinion in

Brown I was construed—for some years and by

many courts—as requiring only state neutrality,

Gen. 88] 93

In Maryland, the immediate legal consequence of the Brown

decisions was that all State constitutional and legislative acts

requiring segregation were rendered “nullities” and that State and

local school authorities acquired an immediate legal duty to begin

efforts to comply with the Supreme Court’s mandate. See 40

Opinions of the Attorney General 175, 176 (1955) (describing the

effect of the Brown holdings on State law). Nonetheless, five

years after Brown II, one third of the school systems in Maryland

had not even begun to desegregate; as of fall 1960, approximately

two thirds of Maryland’s public schools had admitted no African-

American students at all.3

In Maryland, as in other states required to dismantle racially

segregated schools, a number of school systems initially adopted

“freedom of choice” plans. Under this kind of plan, typically one

or two grade levels each year would be opened to both Black and

white students, but only those students who requested transfers

out of their formerly one-race schools would be considered for

reassignment to a different school. See, e.g., Robinson v. Board

of Educ. of St. Mary’s County, 143 F. Supp. 481, 491 (D. Md.

1956) (describing freedom of choice plans in other districts); see

also Board of Educ. of St. Mary’s County v. Groves, 261 F.2d

527, 528-29 (4th Cir. 1958) (describing plan of “gradual

integration” beginning with voluntary transfers to elementary

schools in 1957 and some high school grades in 1959); Pettit v.

Board of Educ. of Harford County, 184 F. Supp. 452, 453-54

(1960) (describing Harford County’s voluntary transfer plan for

desegregation). Because these plans typically did little or nothing

to encourage Black students to seek a transfer to a formerly all-

allowing “freedom of choice” as to schools to be

attended so long as the State itself assured that

the choice was genuinely free of official

restraint.

Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 220

(1973) (Powell, J., concurring in part and dissenting in part).

3

The State Board’s minutes of February 22, 1961, note: “Each

member of the Board was given a copy of a report on the ‘Status of

Desegregation in Former White Maryland Public Schools’ for the

period of the fall of 1955 through the fall of 1960. In the fall of 1960

there were 34,148 colored pupils in 362 of the State’s 1,025 public

schools. Eight of the 24 school systems as yet have no desegregated

schools; however, no school system has indicated an unwillingness to

desegregate.”

94 [99 Op. Att’y

white school, or white students to transfer to a formerly all-Black

school, in many cases “freedom of choice” plans did not lead to

significant changes in the school attendance patterns that had been

created under segregation. See, e.g., Christmas v. Board of Educ.

of Harford County, 231 F. Supp. 331, 333 (D. Md. 1963) (stating

that of 2,100 Black students in that system, 1,600 remained in all-

Black schools); Vaughns v. Board of Educ., 355 F. Supp. 1034,

1035 (D. Md. 1972) (“During the 1964-65 school year, the last

year in which the ‘freedom of choice’ plan was in operation, over

82% of the [Prince George’s] County’s black student population

attended schools which were 100% black and over 73% of the

white students attended schools which were over 95% white.”).

Partly in response to the distressingly slow early pace of

school desegregation, Congress enacted Titles IV and VI of the

Civil Rights Act of 1964.4 The two provisions “together

constitute[d] the congressional alternative to court-supervised

desegregation” and thus represented “a congressional mandate for

change—change in the pace and method of enforcing

desegregation.” U.S. v. Jefferson County Bd. of Educ., 372 F.2d

836, 849, 852 (5th Cir. 1966). Under Title VI, federal funds made

available to local school systems were withheld from any system

that continued to discriminate on the basis of race in violation of

the Fourteenth Amendment.5 To administer the Title VI program,

the Act created the Office of Civil Rights within the U.S.

Department of Health, Education, and Welfare (“HEW”) and

authorized the U.S. Commissioner of Education to monitor local

school systems and award funds on the basis of compliance with

the Act. In accordance with those provisions, HEW’s Office of

Civil Rights issued in December 1964 its first set of regulations

on the conditions to be met for funding. Non-Discrimination in

Federally-Assisted Programs, 29 Fed. Reg. 16298 (Dec. 4, 1964)

(codified at 45 C.F.R. §§ 80.1 et seq.); see also Price v. Denison

Indep. School Dist. Bd. of Educ., 348 F.2d 1010, 1013 (5th Cir.

Tex. 1965) (describing the regulations).

4

Act of July 2, 1964, Pub.L. 88-352, Title IV, §§ 401-410, 78 Stat.

246-249, 42 U.S.C. §§ 2000c to 2000c-9; Title VI, § 601, 78 Stat. 252,

42 U.S.C. § 2000d.

5

Section 601 of the Civil Rights Act provides: “No person in the

United States shall, on the ground of race, color, or natural origin, be

excluded from participation in, be denied the benefits of, or be

subjected to discrimination under any program or activity receiving

Federal financial assistance.”

Gen. 88] 95

While the enactment of Title VI “mobilize[d] in aid of

desegregation the United States Office of Education and the

Nation’s purse,” Jefferson County, 372 F.2d at 849-50, Title IV

empowered the U.S. Attorney General to bring civil enforcement

actions to require desegregation of dual school systems. Thus, as

a consequence of Titles IV and VI, from the mid-1960s the other

branches of the federal government began working alongside the

federal courts as additional engines driving local school systems

to desegregate.6

2. Desegregation from 1965-70

In addition to the federal government’s expanded role, the

mid-1960s also brought greater clarity as to what was required of

a local school system in order to eliminate the effects of prior

discrimination. For most jurisdictions, ending racial

discrimination in the assignment of pupils was deemed the largest

and most pressing administrative challenge. Implementation of

issues perceived to be secondary—such as the assignment of

teachers on the basis of race—was frequently deferred.

Christmas, 231 F. Supp. 333 (noting that from 1957 to 1964 the

county school system had neither hired any Black teachers for,

nor assigned any to, “the formerly white, now desegregated

schools”).

In 1965, the Supreme Court dispelled the idea that

desegregating the public schools’ professional staff could be

deferred as a secondary obligation. First, in Bradley v. School

Board of Richmond, 382 U.S. 103 (1965), the Court held that

courts could no longer approve school desegregation plans

without considering “the impact on those plans of faculty

allocation on an alleged racial basis.” Id. at 103. The Court also

declared that “[d]elays in desegregating school systems are no

longer tolerable.” Id. at 105. Six weeks later, in Rogers v. Paul,

the Court held that students who were not yet in desegregated

grades “plainly” had legal standing to challenge the racial

allocation of faculty on the theory that “racial allocation of faculty

6

For a more detailed chronology of the sequence of the enactment

of the Civil Rights Act, President Johnson’s executive orders, HEW’s

promulgation of its Title VI regulations and policies, and the enactment

of the Elementary and Secondary Education Act of 1965, which

significantly increased federal aid to schools—and thus the incentive to

comply with Title VI— see Jefferson County, 372 F.2d at 850-51.

96 [99 Op. Att’y

denies them equality of educational opportunity without regard to

segregation of pupils.” 382 U.S. 198, 200 (1965).

Just as the federal courts were beginning to include school

faculty and staff within the desegregation mandate, HEW also

began to require local school systems to include within their

desegregation plans measures designed to desegregate staff. The

regulations that HEW had adopted in late 1964 outlined three

separate ways in which school systems could qualify for federal

funds: (1) submit an Assurance of Compliance (for systems that

never practiced segregation, or had successfully desegregated);

(2) operate under a court-ordered desegregation plan; or (3)

desegregate under a “voluntary plan” approved by HEW. See 29

Fed. Reg. at 16300. In April 1965, HEW’s Office of Civil Rights

issued policies on the desegregation of public elementary and

high schools, which identified the subjects that school systems

were to address in their voluntary plans. As to faculty and staff

assignments, HEW’s Policy Statement gave these broad

instructions:

Faculty and staff desegregation. All

desegregation plans shall provide for the

desegregation of faculty and staff in

accordance with the following requirements:

a. Initial assignment. The race, color, or

national origin of pupils shall not be a factor

in the assignment to a particular school or

class within a school of teachers,

administrators or other employees who serve

pupils.

b. Segregation resulting from prior

discriminatory assignments. Steps shall also

be taken toward the elimination of

segregation of teaching and staff personnel in

the schools resulting from prior assignments

based on race, color, or national origin . . . .

Office of Educ., U.S. Dep’t of Health, Educ. & Welfare, General

Statement of Policies Under Title VI of the Civil Rights Act of

1964 Respecting Desegregation of Elementary and Secondary

Schools, § V(B)(1) (1965) (reproduced at Price, 348 F.2d at

1016). The HEW also pressed school systems to accelerate the

pace of desegregation. In its policy statement it set “the fall of

1967 as the target date for total desegregation for applicant school

systems . . . .” Price, 348 F.2d at 1013.

Gen. 88] 97

Maryland schools took steps to cooperate with HEW in

carrying out the desegregation mandate. The Maryland State

Board of Education adopted a resolution to comply with Title VI

“and all requirements imposed by or pursuant to the regulations of

[HEW] . . . .” State Board Resolution No. 1965-15 (Feb. 24,

1965). Also beginning in 1965, HEW representatives met

individually with most of Maryland’s 24 local school systems to

advise them of HEW’s desegregation regulations, inform them

that the freedom-of-choice policy would not be approved beyond

the school year 1967-68, and discuss the desegregation plan they

were required to submit beginning with the 1966 school year.

Minutes of the State Board of Education (March 30, 1966) at

2465. The State Board’s minutes indicate that “[State

Superintendent] Dr. Sensenbaugh informed the Board that

guidelines for the Civil Rights Act of 1964 have been received by

school systems in the State and they have been asked by the U.S.

Office of Education to develop a program of desegregation that

will meet the requirements of the U.S. Office.” Id.

Despite the additional impetus toward desegregation

provided by the 1964 Civil Rights Act, and by HEW in particular,

as of the mid-1960s desegregation in some parts of Maryland and

in many states remained far behind where the courts had

anticipated it should be a decade after the Brown decisions. As of

1965, for example, the Fifth Circuit noted that no faculty

desegregation at all had occurred in Alabama, Louisiana, and

Mississippi. See Jefferson County, 372 F.2d at 853-54 (noting

that “none of the 30,500 Negro teachers in Alabama, Louisiana,

and Mississippi served with any of the 65,400 white teachers in

those states”). Of the 99 court-approved “freedom of choice”

plans in the Fifth Circuit, 79 did not even include provisions on

faculty desegregation. Id. at 861 n.52.7 In 1966, the Jefferson

County court related, less than 1% of Black students in Alabama,

Mississippi, and Louisiana were attending desegregated schools,

and “the entire region encompassing the Southern and border

states [including Maryland] had 10.9 per cent of their Negro

children in school with white children.” Id. at 854 (emphasis in

the original).

7

In 1967, the U.S. Commission on Civil Rights issued a report

titled “Racial Isolation in the Schools,” which documented the lack of

progress since Brown in desegregating southern schools.

98 [99 Op. Att’y

Some counties in Maryland were significantly ahead of this

pace. However, as late as 1966, many of the State’s school

systems had yet to make major changes in the numbers of

students attending bi-racial schools. For the 1966-67 school year,

HEW ordered 18 of Maryland’s 24 school systems to submit

voluntary desegregation plans. Early in 1966, the Maryland State

Advisory Committee to the U.S. Commission on Civil Rights had

published a study on the progress made thus far in 14 of those 18

jurisdictions, more than a decade since Brown II. See “Report on

School Desegregation in 14 Eastern Shore and Southern

Maryland Counties” (Feb. 1966). As the data in that Report

suggest, for a number of counties, achieving complete

desegregation by 1970 would require a decisive acceleration in

the process over the ensuing three years.

To offer one example, the desegregation plan for St. Mary’s

County that was in place in 1966 provided for “freedom of

choice” at the elementary and junior high levels, the closing of

two all-Black high schools, and assignment of students to the

remaining schools solely according to geography. Id. at 37. As

of the time of the Report, however, few if any of St. Mary’s

County schools were truly integrated. According to the Report,

the public school system in St. Mary’s County at that time

comprised 21 schools with 8,053 students—5,858 white and

2,195 Black. Id. at 36. Fifteen schools were described as

“desegregated” and were attended by 945 Black students. Six

schools (3 all-white and 3 all-Black) had not been desegregated,

meaning that 1,250 Black students—or more than 50% of all

Black students—still attended completely segregated schools. Id.

The desegregation of faculty, too, had barely begun. St.

Mary’s had reported a total of 362 teachers and principals

employed by the school system, of whom 87 were Black. Five of

the 87 Black teachers or principals were said to be on “biracial

staffs,” leaving 82 of the 87 segregated from their white faculty

peers, most likely at schools attended either exclusively or

overwhelmingly by Black students.8

8

A number of other counties in Maryland followed a similar

pattern. See, e.g., Christmas, 231 F. Supp. at 333 (observing that in

Harford County no faculty desegregation had occurred as of 1964); see

also MSBE Resolution No. 1968-11, attached to Minutes of the State

Board of Education (Feb. 28, 1968) (approving the Somerset County

School Reorganization Plan, which provided for certain changes to be

completed by Fall 1970, and stating that, “Faculty integration, which

Gen. 88] 99

For those school systems that had yet to fulfill their

obligations under Brown I and II, the Supreme Court’s 1968

decision in Green v. County School Board of New Kent County,

391 U.S. 430 (1968), signaled that gradual progress was no longer

enough. In Green, the Court considered whether a “freedom-of-

choice” plan was an adequate desegregation remedy where, after

three years in operation, only 15% of the African-American

students in the system had transferred to the formerly all-white

school and no white students had transferred to the Black school.

Id. at 441. The school board contended that it had fulfilled its

constitutional obligation to desegregate by adopting a plan that

allowed every student, regardless of race, to freely choose which

of the school district’s two schools he or she wanted to attend. Id.

at 437. The board further claimed that its plan “may be faulted

only by reading the Fourteenth Amendment as universally

requiring ‘compulsory integration,’” which the board insisted “the

wording of the Amendment will not support.” Id.

Rejecting these contentions, the Court in Green reaffirmed

that school boards “operating state-compelled dual systems

were . . . clearly charged with the affirmative duty to take

whatever steps might be necessary to convert to a unitary system

in which racial discrimination would be eliminated root and

branch.” Id. at 437-38. The Court then gave specific directions on

what school boards were obligated to do: they were to eliminate

all aspects of school operations that had been made racially

identifiable under segregation—the student body, faculty, staff,

transportation, extracurricular activities, and facilities. Id. at 435.

Thus, in 1968, the Supreme Court made clear, with

particularity, that a school board had not fulfilled its constitutional

duty to eliminate its dual system “root and branch” until no area

of school operations, including the racial mix of its student body,

faculty, or staff, marked a particular school as formerly all-white

or all-Black.9 If a “freedom-of-choice” plan would not produce

that level of actual integration, it failed as a remedy for past

has been begun, will be substantially expanded in 1969 with both white

and Negro teachers being affected.”).

9

To the same effect, the revised Policies that HEW issued in

March 1968 stated: “Compliance with the law requires integration of

faculties, facilities, and activities, as well as students, so that there are

no Negro or other minority group schools and no white schools—just

schools.” 33 Fed. Reg. 4955, 4956 (March 18, 1968).

100 [99 Op. Att’y

discrimination and so could no longer be approved: “The burden

on a school board today is to come forward with a plan that

promises realistically to work, and promises realistically to work

now.” Id. at 439 (emphasis in original).

In 1969, the Court repeated that message of urgency in

Alexander v. Holmes County Board of Education, 396 U.S. 19

(1969). In Alexander, decided October 29, 1969, the Supreme

Court vacated an appellate court order allowing certain school

systems additional time—until the next school term—in which to

desegregate. Id. at 20. The Court pointedly refused to accept any

further delay, stating that the time for “all deliberate speed” had

run out. Id.

On December 1, 1969, the Fifth Circuit effectuated that

mandate in its consolidated review of another group of school

desegregation orders that had been issued by various lower courts.

See Singleton v. Jackson Municipal Separate School Dist., 419

F.2d 1211, 1216 (5th Cir. 1969) (en banc) (stating that, under

Alexander, the “new modus operandi is to require immediate

operation as unitary systems”). The Fifth Circuit ordered that,

within two months, every defendant school board was to assign

“the principals, teachers, teacher aides and other staff who work

directly with children at a school” in such a way “that in no case

will the racial composition of a staff indicate that a school is

intended for Negro students or white students.” Id. at 1217-18.

Then, articulating what came to be known as the “Singleton rule,”

the Fifth Circuit ordered: “For the remainder of the 1969-70

school year the district shall assign the staff described above so

that the ratio of Negro to white teachers in each school, and the

ratio of other staff in each, are substantially the same as each such

ratio is to the teachers and other staff, respectively, in the entire

school system.” Id. at 1218; see also, e.g., 36 Fed. Reg. 11769

(June 18, 1971) (HEW description of the “Singleton rule”).

On the next day, the Fourth Circuit applied substantially the

same rule in Nesbit v. Statesville City Board of Education, also a

group of consolidated cases, when it directed lower courts to

include the integration of faculty in their desegregation orders.

418 F. 2d 1040 (4th Cir. 1969). The Fourth Circuit specifically

required that “the ratio of Negro and white faculty members of

each school shall be approximately the same as the ratio

throughout the system.” Id. at 1042. The Supreme Court later

approved desegregation plans using this same formula in United

States v. Montgomery County Board of Education, 395 U.S. 225

(1969), and again in Swann v. Charlotte-Mecklenburg Board of

Education, 402 U.S. 1 (1971). However, neither HEW nor the

Gen. 88] 101

federal courts mandated that school boards achieve any particular

level of system-wide minority employment solely as an element

of the desegregation remedy.

From this general survey of school desegregation before

1970, it is worth highlighting several developments that helped to

set the conditions for the State Board’s adoption of integration

guidelines in July 1970. First, the desegregation process occurred

unevenly in Maryland, such that large-scale changes in student

attendance and faculty assignments in some systems occurred

only in the late 1960s. Second, the Singleton rule, applied by both

HEW and the federal courts as a standard part of the

desegregation remedy, sought to achieve a balance in the racial

distribution of faculty and staff among the schools in a particular

school system, but did not otherwise address minority

employment levels within the system as a whole or the racial mix

of faculty and staff. See, e.g., Morton v. Charles County Bd. of

Educ., 520 F.2d 871, 872-73 (4th Cir. 1975) (looking at whether

“the ratio of black and white faculty members in each school” did

not vary by more than 25% from the system-wide ratio). And

finally, with the Supreme Court’s decisions in Green and

Alexander, the gradualist phase of school desegregation had come

to an end; in the words of the Singleton court, the Supreme Court

had “sent the doctrine of deliberate speed to its final resting

place.” Singleton, 419 F. 2d at 1216. By 1970, no “racially

identifiable” school could be legally maintained in a state where

racial segregation had formerly been imposed by law.

B. The State Board’s Promulgation of the Integration

Rule in 1970

According to State Board minutes, the Superintendent of

Schools advised the Board in February 1970 that the formal,

tangible aspects of desegregation had largely been accomplished

in Maryland, and what remained was the human relations problem

of how to effectively integrate white and Black students into

mixed-race schools:

[T]here has been an elimination of the dual system of

education as far as the physical operation goes but that there are

additional steps that need to be taken relative to the development

of programs and the improvement of relationships of all groups in

employment practices and other aspects of integration.

102 [99 Op. Att’y

Minutes of the State Board of Education (Feb. 26, 1970) at

333. To that end, Superintendent Sensenbaugh had appointed an

Advisory Committee on Ethnic and Cultural Minorities “to work

on the problem of how to integrate the cultural heritage of

minorities into the educational program.” Id. The

Superintendent’s remarks thus suggest that MSDE, at least,

believed the process of desegregation had entered a new phase,

requiring a new focus on eliminating sources of racial division

and misunderstanding.

The Advisory Committee developed a wide-ranging set of

recommendations for ways to improve interpersonal and

intercultural understanding, including policies to prevent

discrimination in hiring, assignment, and promotion of staff. For

example, specific recommendations offered by the Advisory

Committee included a plan for “broad and intensive inservice

training programs in inter-group relations . . . that are directed

toward positive attitudinal and behavioral changes of

administrators, teachers, and students.” Minutes of the State

Board of Education (April 29, 1970) at 363 (Advisory Committee

Recommendation D.3). Another recommendation proposed that

teacher certification programs include courses in human relations

“that provide an understanding of cultural and ethnic groups.” Id.

at 365 (Recommendation D.4). While some of the recom-

mendations included proposals regarding desegregation of

personnel and nondiscrimination,10 we found no indication that

the Advisory Committee recommended creating minority hiring

preferences or establishing numeric targets for minority

employment.

The Advisory Committee recommendations were discussed

and debated at various times over the first half of 1970, though

little of the substance of those discussions was recorded. A

“suggested resolution” was presented to the State Board on April

10

Several such proposals were listed for reference to the Attorney

General, presumably for advice on whether the State Board could

legally adopt them. One such proposal stated, “The Maryland State

Department of Education shall require the local school districts to

develop and implement plans and procedures for, and submit reports

on, desegregation of personnel.” Minutes of the State Board of

Education (April 29, 1970) at 366. Another stated, “[MSDE] shall

require each local school district to prepare policy statements on hiring,

placing, and advancing school personnel at all levels, to develop and

use plans and procedures for desegregating personnel, and to submit

such plans and procedures to [MSDE].” Id.

Gen. 88] 103

29, 1970, stating a new “Policy on Ethnic and Cultural

Minorities.” As in the discussion from February of the same year,

the suggested policy statement includes an expression of the

importance of addressing the less tangible aspects of integration.

The suggested resolution states in relevant part:

It is imperative that local boards of education

complete the integration of schools including

the assignment of pupils, teaching staff, and

other personnel. Further, all steps shall be

taken to establish school conditions which

will guarantee each pupil’s right to learn and

to participate in a democratic school climate

and to offer the opportunity to develop

intercultural understandings and values.

Res. No. 1970-25, attached to Minutes of the State Board of

Education (April 29, 1970).

At the same time it was considering the Advisory Committee

report and the formulation of a new policy, the State Board was

also considering two other matters involving the hiring and

assignment of minority faculty and staff. First, MSDE staff and

State Board members had voiced concerns about a relative decline

in Black employment around this time, particularly among

principals, and had raised questions about the fairness and

inclusiveness of county boards’ employment practices. On

September 30, 1969, for example, the Board heard a report of the

employment of principals, by race, from 1954 to 1968. Minutes

of the State Board of Education (Sept. 30, 1969) at 275. In

presenting the report, the Associate State Superintendent

indicated that it was “for information only and not for action since

the staff will make recommendations which might ameliorate the

situation.” Id.11

11

In the interim, the State Board considered a second report on the

employment, by race, of principals in the elementary and secondary

schools in the State, this one for the school year 1968-69. See Minutes

of the State Board of Education (June 24, 1970) at 385. This second

report suggested that African-Americans were being held to a higher

standard than whites in the selection of principals and that “generally

black principals have more training in terms of certification

requirements than white principals.” Id.

104 [99 Op. Att’y

Although formal Board action on the report would have to

wait for those recommendations, one State Board member

observed that the data included in the report might be

immediately “helpful” in a second matter that had “just been

brought to the attention of the Board,” this one concerning

Charles County. Id. The case began with a dispute over the

selection of majorettes at La Plata High School that subsequently

encompassed “a variety of complaints” about the operation of the

Charles County school system. Morton v. Charles County Bd. of

Educ., 520 F.2d 871, 875 (4th Cir. 1975). The State Board

appointed a task force to address these complaints and to prepare

a report on a number of related issues, including the county

board’s hiring and assignment practices. The task force filed its

report on April 24, 1970, and the State Board issued its opinion

on July 16, 1970. See Charles County Branch of NAACP v.

Charles County Board of Education, 1 MSBE Op. 43 (1970).

In its July 1970 Charles County opinion, the State Board

extensively discussed the task force’s recommendations on the

recruitment and hiring of Black faculty. In Recommendation No.

7, the task force had advised that “qualified black personnel be

deliberately and extensively recruited,” that the number of visits

to predominantly black colleges be “significantly increased,” and

that black staff members should be included on all recruiting

teams. Id. at 48. The State Board first described the issues it was

undertaking to address:

This recommendation of the task force goes

to the heart of the present dispute. The

question has been asked by administrators of

the Charles County school system whether

the school administration is not expected to

be totally colorblind in its hiring policy. The

question has also been posed as to whether

deviation from present hiring practices would

mean that persons would be employed on the

basis of race, without regard to

qualifications.

To lay down guidelines in this area which are

both fair and useful standards when

educational administrators are called upon to

apply them is not an easy task. Nevertheless,

it is one which this Board must undertake.

Gen. 88] 105

Id. The State Board then gave the following instruction to the

school board about how it should go about the process of hiring

faculty:

We hold that truly colorblind administration

of our public schools must remain our

ultimate goal. We must recognize, however,

that we are now in a period of transition, in

which we are trying to move from a

historical background of second-class

citizenship for one group to a social order

which offers first-class citizenship to all. In

order to achieve this end we must be aware

of the fact that if present administrators fail

to take the racial factor into account, they

might permit white predominance not

because they intentionally discriminate but

because they will be drawing on their

personal acquaintances and their personal

contacts for personnel suggestions and

recommendations. So as to provide the kind

of balance in the school administration that

will permit all groups in the population to

feel that they are fairly represented it is

necessary for the school systems to make an

extra effort in recruitment to look for

qualified black applicants. We emphasize, in

this context, that the applicants must indeed

be qualified. We are not suggesting that

standards be lowered in order to employ

black teachers and administrators.

Id. at 49.

The State Board also responded to the task force’s

Recommendation No. 9, which advised that Charles County

“adopt a policy and practice of employing, assigning, and

promoting black staff members at a ratio that will produce greater

equity and that will insure black students a greater opportunity for

motivation and achievement”:

In our discussion of teacher recruitment . . .

we have stated our reasons for giving

consideration to racial factors in the

application of employment policies. We

106 [99 Op. Att’y

believe that the same considerations should

apply in balanced assignments and in

promotions. To be sure, we do not construe

the task force’s recommendation to require a

specific numerical ratio for black

assignments and promotions. We construe

the recommendation simply to require racial

balance. As so construed, we approve this

recommendation.

Id. The State Board also approved and “urge[d the] prompt

implementation” of the task force’s recommendation that the

county board “establish fair and clear procedures for promotion

that apply equally to all candidates” and “make these procedures

and their implementation visible to all professional staff within

the system and to all candidates outside the system, so that all

candidates follow the procedure for selection and know the status

of their candidacy.” Id. at 48 (Recommendation No. 5). The

Board also approved a recommendation to increase the

“representation of black professional administrators and teachers”

on the district’s Screening Committee. Id. (Recommendation

No. 6).

On July 29, 1970—just two weeks after it rendered its

decision in the Charles County matter—the State Board turned to

the new statewide personnel policy that it had been formulating in

response to the recommendations of the Advisory Committee on

Cultural and Ethnic Minorities and the hearings held that spring.

That day, the State Board approved bylaws 660, 661, and 661:1,

which established what is now the Integration Rule:

WHEREAS, The dual system of public

education has been eliminated in the public

schools of the State; and

WHEREAS, Steps have been taken to

proceed with the integration of ethnic and

cultural minorities in all aspects of public

education; and

WHEREAS, The State Board of Education

considers it necessary and appropriate to

provide guidelines for such integration in its

bylaws; now, therefore, be it

RESOLVED, That Bylaw 761, 761:1, 761:2,

and 761:3 are hereby repealed and the

following bylaws are hereby enacted:

Gen. 88] 107

660 Assignment of Personnel

661 Integration

661:1 Integration of Personnel

Local boards of education shall develop

and implement plans and procedures for the

attainment of racial balance at the various

levels of the public school system, reflective

of the composition of the population of their

respective jurisdictions. Such plans and

procedures shall apply to the hiring, placing,

and promotion of all personnel employed at

the various levels of the school system. The

plans and procedures provided herein shall

be submitted to the State Department of

Education by January 1, 1971. The

Department shall also require and review

reports from local boards on the

implementation of this Bylaw.

Minutes of the State Board of Education (July 29, 1970) at 398;

see also Res. No 1970-39, “Policy on Ethnic and Cultural

Minorities” (attached to Minutes). By that same resolution, the

State Board adopted two other bylaws, which addressed,

respectively, requirements that all schools include courses “for

developing understanding and appreciation of ethnic and cultural

minorities” and that “organization of school activities shall

provide for the involvement of students regardless of sex, race,

creed, or national origin.” Id. (adopting bylaws 325:1 and 761:1,

now codified at COMAR 13A.04.05.03A (requiring schools to

provide “appropriate instruction for developing knowledge,

understanding, and appreciation of cultural groups in society”)

and 13A.08.01.16, respectively).

Little of the discussion relating to the formal adoption of the

integration bylaws is captured in the minutes of the State Board.

However, the statements of the Superintendent, the character of

the recommendations, and the form of the adopting resolution

leave little doubt that the State Board considered each of the three

bylaws to be measures that would aid in the successful integration

of schools. Each is forward-looking and explained by reference

to the anticipated needs of schools moving from desegregation to

integration. By contrast, we found no statements of the State

Board or MSDE staff purporting to examine or measure the extent

108 [99 Op. Att’y

of past employment discrimination in particular jurisdictions, nor

did we see attempts to justify the bylaw on such grounds.

This is not to say that the State Board was unaware or

unconcerned about past employment discrimination; it was

neither. But its overriding purpose in adopting the Integration

Rule appears to have been to set the conditions for successful

integration, including the establishment of fair and inclusive

employment policies to attain “racial balance” at all levels.

The kinds of initiatives that appear to have been envisioned

by the State Board are similar to those that had been implemented

under the federal Emergency School Assistance Program of 1970

(“ESAP”). President Nixon announced ESAP in a major national

address on school desegregation on March 24, 1970. Its purpose

was to provide federal funds to meet the special needs of school

systems that were in the “terminal phase” of desegregation,

including programs to promote understanding among students,

staff, and parents; curriculum revision; extra training for teachers

to prepare them for working in a desegregated environment;

development of new student assessment techniques; and

community liaison services. See, e.g., 45 C.F.R. §§ 181.1–181.3

(first published at 35 Fed. Reg. 13442 (Aug. 22, 1970)). Later

remarks by Senator Mondale on the shortcomings in the

implementation of ESAP, and on the need for similar legislation,

offer some insight into how policymakers at this time tended to

view the problem of “integration” in the context of public

schools:

I hope that as we consider the school

integration legislation now pending in

Congress we can somehow recognize that

integration implies more than just the

mixing of children behind school doors. It

can be successful only if there are programs

designed to emphasize those human

elements—the warmth, receptivity, sen-

sitivity, and respect which children and

adults must have for each other if we are to

get along together in our society. I believe

that integration, not mere desegregation, is

an indispensable element in our education

process. But it won’t work, indeed it will

fail, unless federal aid designed to help

integration is directed toward the kind of

culturally sensitive programs designed to

foster human understanding.

Gen. 88] 109

117 Cong. Rec. S6659 (daily ed. March 16, 1971) (statement of

Sen. Mondale). From what we have been able to determine from

the administrative record, Bylaw 661:1 and the Integration Rule

were cut from this same cloth.

We acknowledge that the historical account of the

Integration Rule provided here differs somewhat from the

explanation provided in the Vaughns v. Board of Education of

Prince George’s County litigation, which generated the only

published court decision that mentions the Integration Rule.

Vaughns involved efforts to desegregate the student body, faculty,

and staff of the Prince George’s County school system between

1971 and the conclusion of the litigation in 1998. See Vaughns v.

Board of Educ. of Prince George’s County, 355 F. Supp. 1034 (D.

Md. 1972); Vaughns v. Board of Educ. of Prince George’s

County, 18 F. Supp. 2d 569 (D. Md. 1998) (approving

settlement). The Vaughns court touched upon the Integration

Rule in a 1990 opinion addressing the system’s “assignment of

teachers in order to achieve certain degrees of racial integration.”

Vaughns v. Board of Educ. of Prince George’s County, 742 F.

Supp. 1275, 1277 (D. Md. 1990). In that opinion, the court

related that, in a non-evidentiary hearing held in open court, “the

parties agreed that the [Integration Rule] was issued, in part, as a

response to ‘pressure’ from HEW to cure past racial segregation

in the public schools, including discrimination in faculty hiring

and assignment.” Id. at 1278 n.8.

The description offered by the parties—which did not

include the State Board—would have appeared, 20 years after the

fact, as a plausible explanation of how the Integration Rule came

about, but it cannot be squared with the historical record that the

State Board has been able to uncover during the preparation of

this opinion. The State Board minutes include no discussion of

HEW policy as an influence on the creation of the Rule, and we

have found no evidence that it was ever HEW policy to encourage

State or county school officials to hire minority job applicants in

proportion to their numbers in the population at large, whether as

a generalized “cure” for past discrimination or for any other

reason. As mentioned above, HEW regulations at that time were

concerned with the distribution of white and Black faculty in

schools across the district in order to avoid the establishment of

“racially identifiable” schools; HEW regulations did not make the

overall level of minority employment an element of the

desegregation remedy. Instead, the historical record indicates that

the State Board promulgated the Integration Rule not as a remedy

110 [99 Op. Att’y

for past discriminatory hiring practices, but in an effort to create

the conditions that would allow for the complete and successful

integration of Maryland schools. As discussed in Section C.1.

below, this distinction is constitutionally significant.

C. Implementation of the Integration Rule from 1971 to

the Present

Although the historical record describes in some detail the

origins of the Integration Rule, it is considerably less helpful on

the rule’s implementation. The State Board’s records appear not

to include either the “plans and procedures” that school systems

were required to submit by January 1, 1971, or the local board

“reports” that the State Board was to “require and review.”

COMAR 13A.07.05.01. The same appears to be the case for St.

Mary’s County; the County Board indicates that it submitted the

necessary plan but has not been able to provide a copy of it.

Other sources, however, allow us to sketch the historical

narrative of integration in the years after the rule’s promulgation.

In 1971, HEW revised its guidelines for school systems

desegregating under a voluntary plan and expressly adopted the

Singleton Rule. In the revised guidelines, HEW tied plan

compliance to the achievement of a sufficiently uniform racial

distribution of teachers and administrators, such that no school in

the system would be racially identifiable as a white or Black

school by the composition of its faculty. See 36 Fed. Reg. 11769

(June 18, 1971) (“Nondiscrimination in Elementary and

Secondary Schools: School Staffing Practices”). And while

school districts had “for the past several years reported to HEW’s

Office for Civil Rights on the racial and ethnic composition of

their staffs,” HEW announced that it would take a more active

role in monitoring school employment:

[I]t will now be HEW’s policy to make

further inquiry into staffing practices

whenever it appears from this or other

information either that a school district may

be making its assignment of teachers or staff

to particular schools on a basis that tends to

segregate, or that the racial or ethnic

composition of its staff throughout the

system may be affected by discriminatory

hiring, firing, promotion, dismissal, or other

employee practices.

Id.

Gen. 88] 111

Federal oversight of school systems’ compliance with Titles

VI and VII also increased in 1974, when the Equal Employment

Opportunity Commission (“EEOC”), jointly with HEW’s Office

of Civil Rights, began requiring local school systems to submit

two types of race and ethnicity reports (“EEO-5”): one EEO form

covered the race and ethnicity of the entire workforce of the

public school system, while a second covered the race and

ethnicity of the workforce of each individual school within the

system. See 60 Fed. Reg. 63010 (Dec. 8, 1995) (giving the

history of the reports). Sometime thereafter, based on MSDE’s

review of the available records, it appears that MSDE began

monitoring minority employment trends using the EEOC

reporting system rather than implementation reports under the

Integration Rule.

In 1996, however, the EEOC discontinued the requirement

that each individual school file an EEO-5 form. 61 Fed. Reg.

33659 (June 28, 1996) (amending 29 C.F.R. § 1602.41).

According to current MSDE staff, MSDE continued to review the

school-system-wide EEO-5 forms which were submitted

biennially. Also according to MSDE staff, if the review indicated

that there might be an issue concerning racial balance in a

particular school system, the Director of the Office of Equal

Opportunity would contact the superintendent of the school

system and discuss the issue informally. It is our understanding

that MSDE’s review of EEO-5 forms ceased altogether in 2002

when the EEOC encouraged school systems to file them by

diskette, magnetic tape, or other electronic format. See 67 Fed.

Reg. 45113 (July 8, 2002). Thereafter, MSDE did not receive a

copy automatically.

Since 2002, MSDE has not received any written reviews or

formal reports on the further implementation of the Integration

Rule. In fact, MSDE staff were unable to locate any

implementation reports among the files remaining from this

period. And while the State Board’s minutes from this period

reflect staff briefings to the State Board on equity in employment,

the minutes do not refer to any actions—taken under the

Integration Rule or otherwise—to compel local boards to increase

their percentage of minority employees through hiring

preferences, set-asides, or quotas. The minutes also contain no

evidence that the Integration Rule was relied upon to decide or

justify any particular employment decision. MSDE does,

however, continue to gather and compile information on the racial

112 [99 Op. Att’y

make-up of the school systems’ employees. See, e.g., Maryland

Teacher Staffing Report (2012-2014).

II

Analysis

You have asked whether the Integration Rule imposes any

current obligations on local boards of education and, if so,

whether those obligations are valid and enforceable. In particular,

you wish to know whether the regulation currently requires local

boards of education to achieve a “racial balance” in employment

that reflects the racial composition of the local population. Our

answer addresses, first, whether the State Board intended to

impose such a requirement when it adopted the Integration Rule,

and, second, whether the rule is still valid.

A. The Integration Rule Does Not Set a Hiring Quota or

Preference Linked to the Racial Make-Up of a County’s

General Population; Rather, it Sets Racial Balance as an

Aspirational Goal that May be Met Through Efforts Such

As Recruitment.

Agency rules or regulations are interpreted in the same

manner that statutes are interpreted. See, e.g., Crofton

Convalescent Ctr., Inc. v. Dep’t of Health & Mental Hygiene, 413

Md. 201, 216 (2010) (“rely[ing] on principles of statutory

interpretation to determine the meaning [of a regulation]”);

Maryland Port Admin. v. Brawner Contracting Co., 303 Md. 44,

60 (1985) (“[O]ur holdings relative to the interpretation of statutes

are equally applicable to the interpretation of rules.”). Like

statutes, “rules have ‘some object, goal, or purpose’; the task of

construction is to discern that purpose and carry it out sensibly.”

73 Opinions of the Attorney General 57, 62 (1988) (citing

Kaczorowski v. City of Baltimore, 309 Md. 505, 513 (1987)). We,

like a court, must “direct our analysis, at the outset, to the plain

language of the statute in question.” La Valle v. La Valle, 432

Md. 343, 355 (2013). Thus, where the plain language of the rule,

in context, is unambiguous, the task of construction ends. Crofton

Convalescent, 413 Md. at 216. But where the plain language is

susceptible to more than one reasonable interpretation, we must

“resolve the ambiguity by searching for legislative intent in other

indicia, including the history of the legislation or other relevant

sources intrinsic and extrinsic to the legislative process.”

Lockshin v. Semsker, 412 Md. 257, 276 (2010). Here, in addition

to the text of the rule, we are guided by the statement of purpose

that the State Board included in the resolution adopting the rule,

Gen. 88] 113

the State Board’s meeting minutes reflecting the development of

the rule, and the State Board’s contemporaneous explanation of

how it understood the term “racial balance.”

Two additional canons of interpretation are relevant here.

First, an agency’s interpretation of its own regulation should be

accorded “‘controlling weight unless it is plainly erroneous or

inconsistent with the regulation.’” Ideal Fed. Sav. Bank v.

Murphy, 339 Md. 446, 461 (1995) (quoting Bowles v. Seminole

Rock & Sand Co., 325 U.S. 410, 414 (1945)); see also Adventist

Health Care, Inc. v. Md. Health Care Comm'n, 392 Md. 103, 120

(2006). We thus look to the available information on how the

State Board applied the rule after its adoption. And, we must be

mindful of the doctrine of “constitutional avoidance,” which

cautions against interpreting a statute or regulation in a way that

would render it unconstitutional when another interpretation is

“reasonably possible.” See, e.g., Koshko v. Haining, 398 Md.

404, 425 (2007); Weaver v. United States Info. Agency, 87 F.3d

1429, 1436 (D.C. Cir. 1996) (applying canon of constitutional

avoidance to regulation). Thus, if it is reasonably possible to

construe the Integration Rule in a way that makes it constitutional,

we must prefer that construction.

The plain language of the Integration Rule mandates the

development of “plans and procedures.” The regulation is not

itself an employment plan, but a guideline for the plans and

procedures that each local board of education must create and

implement. The first sentence of the regulation requires that those

plans and procedures shall have a certain aim: “Local boards of

education shall develop and implement plans and procedures for

the attainment of racial balance at the various levels of the public

school system, reflective of the population of their respective

jurisdictions.” COMAR 13A.07.05.01. The second sentence

describes the scope of the plans: “These plans and procedures

shall apply to the hiring, placing, and promotion of all personnel

employed at the various levels of the school system.” Id. The

third sentence sets January 1, 1971, as the deadline for submission

of the plan, but the regulation does not otherwise include any

timetable for achieving the goal of “racial balance . . . reflective

of the composition of the population . . . .” Id. The final sentence

provides for reports: “The Department shall also require and

review reports from local boards on the implementation of this

regulation.” Id.

114 [99 Op. Att’y

The Integration Rule is unambiguous in some respects; the

county boards clearly had to submit plans by January 1, 1971, and

then submit whatever reports MSDE required. It is not clear

from the text of the regulation, however, what the term “racial

balance” means. Does it require school systems to hire (or not

hire) minority candidates until the percentage of minority faculty

and staff matches that of the surrounding community? Or was

“racial balance” intended more generally as an aspirational goal

that would not determine specific hiring decisions? In either case,

the constitutional validity of setting “racial balance” as a system-

wide goal must be assessed. Before reaching that question,

however, we must try to determine what the State Board intended

its regulation to do.

B. The Integration Rule Does Not Require Policies that

Establish a Racial Preference or Quota

We begin by recognizing that the State Board, when it used

the term “racial balance,” was not writing on a blank slate; by

1970, the term appears to have developed a generally accepted

meaning. During the 1960s, “racial balancing” had come to

describe measures designed to promote actual integration of

educational institutions, as opposed to freedom of choice plans

and other measures designed simply to discontinue de jure

discrimination. “Racial balancing” included measures employed

as a race-conscious means to undo student attendance or teacher

assignment patterns that had been required by law under

segregation and that persisted despite the elimination of such

laws. See, e.g., Owen M. Fiss, Racial Imbalance in the Public

Schools: The Constitutional Concepts, 78 Harv. L. Rev. 564

(1965) (arguing that race-conscious policies to address de facto

segregation in public schools are necessary and constitutional).

They also included measures employed as a matter of education

policy, to better prepare students for life in a multicultural society.

See Anderson v. San Francisco Unified School District, 357 F.

Supp. 248, 251 n.7 (N.D. Cal. 1972) (noting district’s voluntary

1968 education policy to achieve “faculty racial and ethnic

balance”).12 “Racial balance,” it seems, was understood to mean

12

In March 1968, the Board of Education of the San Francisco

Unified School District adopted an Affirmative Action Policy, which

provided in part:

It is the policy of the Board of Education to

implement a program of faculty racial and ethnic

balance which more closely approximates the

Gen. 88] 115

a policy that looked beyond the elimination of de jure segregation

toward the goal of affirmative integration—the creation of a more

racially balanced student body and faculty.13 The term was thus

used in contradistinction to policies, like “freedom of choice”

plans, that were indifferent to the ultimate outcome, where

nondiscrimination alone is the goal, regardless of whether it

perpetuates imbalances created by past discrimination or results in

schools that are only nominally desegregated. See, e.g.,

McDaniel v. Barresi, 402 U.S. 39, 41 (1971) (reversing Supreme

Court of Georgia’s holding that Fourteenth Amendment prohibits

assignment of students based on race in order to achieve racial

balance in formerly segregated school system).

Congress, in the Civil Rights Act of 1964, used the term

“racial balance” in this sense to distinguish between measures

necessary to end de jure discrimination and those undertaken to

correct for de facto segregation of school populations. The Act

defined “desegregation” to mean “the assignment of students to

public schools and within such schools without regard to their

race, color, religion, or national origin.” 42 U.S.C. §§ 2000c(b).

racial and ethnic distribution of the total school

population so long as such efforts maintain or

improve quality of education.

Anderson, 357 F. Supp. at 251 n.7. Administrative regulations to

implement the policy explained that it was intended, in part, to improve

the aspirations of minority students in schools with large minority

populations and, in schools with large numbers of white children and

teachers, to offer “integrated experiences.” Id. at 251.

13

Notably, the Civil Rights Act of 1964 contained provisions

distinguishing the concept of “racial balance” from “desegregation,”

and limiting federal officials’ authority to pursue the former as opposed

to the latter. See 42 U.S.C. §§ 2000c(b) (defining “desegregation” to

mean “the assignment of students to public schools and within such

schools without regard to their race, color, religion, or national origin,

but ‘desegregation’ shall not mean the assignment of students to public

schools in order to overcome racial imbalance”); 2000c-6 (stating that

the powers granted to the Attorney General to institute federal lawsuits

does not “empower any official or court of the United States to issue

any order seeking to achieve a racial balance in any school by requiring

the transportation of pupils or students from one school to another”);

see also Swann, 402 U.S. at 16-17 (construing these provisions as

limiting federal executive powers under the Act, but not as limiting

courts’ remedial powers to eliminate dual systems of education).

116 [99 Op. Att’y

It specifically provided, however, that “‘desegregation’ shall not

mean the assignment of students to public schools in order to

overcome racial imbalance.” Id. Congress also made clear that

the remedial provisions of the Act did not “empower any official

or court of the United States to issue any order seeking to achieve

a racial balance in any school by requiring the transportation of

pupils or students from one school to another . . . .” 42 U.S.C.

§ 2000c-6. Justice Powell, writing as Circuit Justice, observed

that Congress, in the Act, had used the phrase “achieve a racial

balance” in the sense of “eliminating ‘de facto segregation’”—

which the Act did not permit—as opposed to remedial measures

necessary to end de jure segregation. Drummond v. Acree, 409

U.S. 1228, 1230 (1972). Although the Supreme Court ultimately

concluded that the limitations within these provisions of the Civil

Rights Act did not “restrict” the Court’s existing remedial powers,

see Swann, 402 U.S. at 16-17, it directed that the focus of those

powers “must be on dismantling dual school systems rather than

on achieving perfect racial balance.” Drummond, 409 U.S. at

1230.

When used in the context of desegregation cases, then,

“racial balancing” denoted an accepted constitutional practice

when necessary to eliminate the effects of de jure segregation. In

that setting, achieving “racial balance” could entail the

assignment of students or faculty to particular schools expressly

based on race. See, e.g., Swann, 402 U.S. at 25 (approving use of

prescribed mathematical ratios of white and Black students in

each school as “a starting point in shaping a [desegregation]

remedy.”). But where race has been used as an assignment

criterion to advance goals beyond the dismantling of dual school

systems, courts have frequently disapproved of the practice, often

under the rubric of “racial balancing.” See id. at 24 (disapproving

notion that there is a “substantive constitutional right [to] any

particular degree of racial balance or mixing”).

In Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424

(1976), for example, a 1970 decree to desegregate the city’s

school system included a “no majority of any minority” provision,

which the district court interpreted to require periodic adjustment

of attendance zones to prevent that from occurring. Id. at 431-33.

The Supreme Court rejected that feature of the decree, holding

that, once “a racially neutral system of student assignment” had

been established, the district court exceeded its authority by

requiring annual readjustment of attendance zones to redress

disparities not caused by the school system. Id. at 434-35. The

district court had erred, the Court held, because it had ordered

Gen. 88] 117

racial balance not as “a ‘starting point in the process of shaping a

remedy,’ which Swann indicated would be appropriate, but

instead as an ‘inflexible requirement’ . . . .” Id. at 434 (quoting

Swann, citations omitted).

Thus, in many later cases, “racial balancing” is used by

courts to describe, and disapprove, policies designed to achieve a

particular distribution of benefits according to race through the

use of quotas, set-asides, or other forms of racial preference. See,

e.g., Fisher v. University of Texas at Austin, 133 S. Ct. 2411,

2419 (2013) (citing disapproval of “racial balancing”); Parents

Involved in Community Schools v. Seattle School District No. 1,

551 U.S. 701, 732 (2007); Grutter v. Bollinger, 539 U.S. 306, 330

(2003); Eisenberg v. Montgomery County Bd. of Educ., 197 F.3d

123, 130-31 (4th Cir. 1999), cert. denied, 529 U.S. 1019 (2000);

Tuttle v. Arlington County School Board, 195 F.3d 698, 707 (4th

Cir. 1999). None of these cases held, however, that the aspiration

for a more “balanced” or representative outcome is illegitimate in

itself, only that the means to promote such goals are subject to

constitutional limits on the use of race as a criterion for assigning

students or faculty.

Turning now to the Integration Rule, the historical context

and plain language of the rule show that the State Board was not

indifferent to the racial composition of the faculty and staff of

public schools. In prescribing plans and procedures for the

attainment of “racial balance . . . reflective of the composition of

the population,” the State Board set a goal that it believed would

promote successful integration. The regulation does not,

however, explicitly state what sorts of plans and procedures are

appropriate to achieve that goal. Our interpretive task, therefore,

is to determine whether the State Board’s regulation requires a

certain racial balance among school staff, which might suggest a

quota or other form of preference, or whether the goal was to be

pursued in other ways. As we explain below, we are persuaded

that the State Board did not intend the Integration Rule to

establish a system of racial preferences.

First of all, the rule states its employment goals in general

terms, using language that does not lend itself to precise definition

or a rigid numerical standard. For example, the rule calls for

“racial balance” rather than a specific percentage target or range,

and calls for such balance to be “reflective of . . . the composition

118 [99 Op. Att’y

of the local population” rather than equal or proportional to it.14

Indeed, the State Board explicitly adopted the Integration Rule as

“guidelines” for the “integration of cultural minorities in all

aspects of public education,” Resolution No. 1970-39, and not as

a hiring quota. These textual clues suggest that the State Board

did not intend “racial balance” to constitute a binding norm.

Contemporaneous agency materials confirm that suggestion.

The Board’s own use and discussion of the term in the Charles

County opinion, issued less than two weeks before the Board

adopted the Integration Rule, provide no indication that the State

Board viewed the goal of “racial balance” to signify more than

inclusiveness. See Charles County Branch of NAACP, 1 MSBE

Op. 43. That opinion, in which the State Board repeatedly

referred to “balance,” offers important insight into what the State

Board meant by the term and why implementation of inclusive

employment practices, such as minority recruitment efforts, was

needed.

The State Board used the term “balance” in its discussion

and approval of the recommendations made by the task force it

had appointed to study the operations of the Charles County

school system. Addressing the task force’s recommendation that

“qualified black personnel be deliberately and extensively

recruited,” the Board explained that “we are trying to move from

a historical background of second-class citizenship for one group

to a social order which offers first-class citizenship to all.” Id. at

49. The Board noted the risk that “white predominance” in

staffing might occur if “present administrators” were to draw

alone on “their personal acquaintances and their personal contacts

for personnel suggestions.” Id. The Board’s objective in acting

on the recommendation, then, was “to provide the kind of balance

in the school administration that will permit all groups in the

population to feel that they are fairly represented . . . .” Id.

Achieving that balance necessitated “an extra effort in recruitment

to look for qualified black applicants,” id., but not a hiring quota.

14

Public comments on the rule appear to have used similarly

imprecise terminology. For example, the minutes for the State Board’s

July 16, 1970 meeting report a proposal from George Foster, President

of the Charles County Branch of the NAACP, urging “the Board to

consider very strongly a program that will force the superintendent to

have a balance of teachers to be representative of the black

community.” Minutes of the State Board of Education (July 16, 1970)

at 388B.

Gen. 88] 119

The State Board used the term “balance” again when it

addressed the recommendation that Charles County “adopt a

policy and practice of employing, assigning, and promoting black

staff members at a ratio that will produce greater equity and that

will insure black students a greater opportunity for motivation and

achievement.” Id. The Board’s explanation of its qualified

approval of that recommendation is particularly instructive on the

Board’s use of the term “balance”:

In our discussion of teacher recruitment . . .

we have stated our reasons for giving

consideration to racial factors in the

application of employment policies. We

believe that the same considerations should

apply in balanced assignments and in

promotions. To be sure, we do not construe

the task force’s recommendation to require a

specific numerical ratio for black assign-

ments and promotions. We construe the

recommendation simply to require racial

balance. As so construed, we approve this

recommendation.

Id. at 50 (emphasis added). And, as to promotion, the State Board

approved, and “urge[d] . . . prompt implementation” of, the

recommendation that the county board “establish fair and clear

procedures for promotion that apply equally to all

candidates . . . .” Id. at 48.

Thus, two weeks before it adopted the Integration Rule, the

State Board viewed “balance” in employment as measurable by

whether “all groups in the population feel that they are fairly

represented.” Id. at 49. According to the State Board, “racial

balance” did not require a quota and did not imply that counties

were required to grant preferences to minority candidates in

individual hiring and promotion decisions. Further, the State

Board indicated that “racial balance” was to be achieved by “fair

and clear procedures for promotion that apply equally to all

candidates.” Id. at 48. In effect, striving for “balance” was

regarded as a means to prevent discrimination—conscious or

not—and to ensure that the local board’s hiring, recruitment, and

promotion efforts were both fair and inclusive.

The need for proactive measures of this kind may be readily

inferred from the counter-example of a segregated school system

120 [99 Op. Att’y

in Texas that desegregated its faculty without adhering to formal

policies. See Fort Bend Indep. Sch. Dist. v. City of Stafford, 651

F.2d 1133 (5th Cir. 1981). There, prior to desegregation, minority

teachers made up approximately 18% of the Fort Bend school

system’s faculty. Id. at 1135. By the 1968-69 academic year, the

district’s first year operating without any one-race schools, only

9.8% of its faculty was African-American, and that percentage

continued to decline through 1974-75. Id. According to the

school superintendent, “district officials generally perceived black

teachers formerly assigned to the black schools to be unqualified

to assume equivalent positions in desegregated schools.” Id. at

1136. A number of African-American teachers were indirectly

pressured to resign or retire, knowing that they likely faced

demotion. Id. The school district also lacked a formal

recruitment program. Instead, the superintendent “would seek

applicants primarily by requesting referrals from his friends and

colleagues in education,” and “since most of his professional

acquaintances were white, this process produced few minority

applications for teaching positions” in the district. Id.; see also

Rock v. Norfolk & Western Ry. Co., 473 F.2d 1344, 1347 (4th Cir.

1973) (word-of-mouth hiring and job assignment system tended

to perpetuate discrimination against African-Americans).

The Integration Rule’s emphasis on achieving “racial

balance” in school staffing decisions can therefore be seen as an

effort to guard against the type of exclusionary policies that the

Texas case exemplified and that the Board had cautioned against

in its Charles County opinion. Given the State Board’s disavowal

of any purpose to approve a “specific numerical ratio for black

assignments and promotions” in that opinion, we should be

cautious about attributing such intent to the Board under its

Integration Rule.

Our interpretation of the regulation is also consistent with

the State Board’s and MSDE’s application of the Rule. We

describe in Part I of this opinion how, before and after adoption of

the Integration Rule, the State Board and MSDE tracked minority

employment trends and hoped to improve them. As the following

passage from the State Board’s 1971 minutes suggests, however,

the Board used employment statistics as “diagnostic tools” rather

than bases for selection of individual employees for hiring or

promotion:

Mr. Schifter [a member of the State Board]

said he believed we should address ourselves

to work on actual adherence by the county

systems to a program of giving all people,

Gen. 88] 121

including black people, full opportunity of

teaching and engaging in supervision.

Numbers in themselves will be self

defeating. He said major problem areas

should be identified in order to distinguish

them from those problems of less

significance or no problem at all. Mr.

Schifter stated that recruitment policies

should be examined because little progress

has been made in the sense of more equitable

distribution of the staff. Mr. Schifter felt that

it was important that the department take a

look at every subdivision to make certain no

discrimination is taking place. He

recommended that a citizens’ committee

working with staff be appointed for the

specific task of drawing up a roster that

would be available State-wide for

recruitment purposes. Mr. Schifter said such

an arrangement would be an incentive for

people to get on the list. Using the list for

employment purposes would be voluntary.

Minutes of the State Board of Education (Oct. 27, 1971) at 590.

Such remarks are consistent with a State policy to root out

discrimination and encourage more inclusive employment

practices, and they suggest that underrepresentation of minority

teachers is better addressed through targeted recruitment efforts

than through hiring quotas. In other words, the Board’s concern

was to ensure equal treatment for minority candidates, not simply

to achieve a numerical hiring goal. See id.

Indeed, we found no instance where the Integration Rule

was relied upon to make or explain an individual hiring decision.

For example, in Nutter v. Cecil County Board of Education, 1

MSBE Op. 60 (July 28, 1971), an administrative appeal of a

county employment decision, the Board’s only allusion made to

“State policy” concerned the county board’s duty to recruit and

consider minority job candidates. The petitioner in Nutter was a

former principal of a formerly all-Black school who had lost her

principal’s job when the school was closed as part of the local

desegregation plan. When a later principal vacancy arose, she

applied for the position, but the county board hired a white

candidate. The State Board upheld that decision, observing that

122 [99 Op. Att’y

the County had “made an affirmative effort to recruit Negro

administrators . . . as required by State policy.” Id. at 61.

Moreover, we found no evidence that MSDE took formal

action to enforce the regulation by requiring the attainment of

particular employment levels. In short, MSDE’s application of

the Integration Rule, during that period when MSDE relied upon

it, does not indicate that MSDE or the State Board understood the

regulation to create a quantifiable employment standard or require

the counties to make race-based hiring decisions in order to meet

an employment goal.

We therefore conclude that the State Board used the term

“racial balance” as an aspirational goal and used minority

employment numbers not as an enforceable requirement, but as a

diagnostic tool for the county boards to gauge their progress

toward attaining that goal. The Rule thus functioned as an

assessment mechanism for the State Board and a guideline for

county boards on the requirements for successful integration of

public schools. We next consider whether the Integration Rule,

given the meaning we ascribe to it, is valid under current law

governing nondiscrimination in public employment.

C. Validity of the Integration Rule, as Construed as a

Measure to Identify Discriminatory Practices, Encourage

Recruitment Efforts, and Evaluate the Attainment of

“Racial Balance”

As we have construed the Integration Rule, it required local

boards to formulate employment policies that would further the

true integration of their schools, required them to implement those

policies, and provided the State Board with a mechanism for

assessing the various systems’ progress towards integration. We

have little concern with the proposition that the State Board may

require reports that would enable it to identify discriminatory

practices. Certainly, then, the Integration Rule remains viable for

these purposes. That leaves the question of whether an

aspirational goal that school personnel reflect the composition of

a jurisdiction’s population is permissible under current law, and,

if so, what measures may be taken to attain it.

1. The Law Prohibits Race-Based Discrimination in

Employment Through Quotas or Hiring Preferences

Both Title VII of the Civil Rights Act and the Equal

Protection Clause of the Fourteenth Amendment of the United

States Constitution prohibit discrimination in employment on the

Gen. 88] 123

basis of race. As relevant here, Title VII makes it unlawful for an

employer (1) “to fail or refuse to hire or to discharge” any

individual, or otherwise to racially discriminate against any

individual “with respect to his compensation, terms, conditions, or

privileges of employment,” or (2) “to limit, segregate, or

classify,” on grounds of race, “any employees or applicants for

employment in any way which would deprive or tend to deprive

any individual of employment opportunities or otherwise

adversely affect his status as an employee . . . .” 42 U.S.C.

§ 2000e-2(a).

The Fourteenth Amendment’s Equal Protection Clause

presents a more stringent standard for using race in employment

decisions than does Title VII. See, e.g., Johnson v. Transp.

Agency, 480 U.S. 616, 628 n.6 (1987) (Title VII’s statutory

prohibition “was not intended to extend as far as that of the

Constitution”). The Equal Protection Clause provides that “[n]o

State shall . . . deny to any person within its jurisdiction the equal

protection of the laws.” U.S. Const., Amend XIV, § 1.

Accordingly, the Supreme Court has held that, “when the

government distributes burdens or benefits on the basis of

individual racial classifications, that action is reviewed under

strict scrutiny.” Parents Involved in Community Schools v.

Seattle School District No. 1, 551 U.S. 701, 720 (2007). Strict

scrutiny requires the government to prove that its actions advance

a “compelling interest” and that its use of the racial classification

is “narrowly tailored” to promote that interest. Id.

In the employment context, the courts have applied the strict

scrutiny standard to invalidate non-remedial quotas, employment

preferences, and other policies that require employers to take race

into account in individualized employment actions. In Wygant v.

Jackson Bd. of Ed., for example, the Court applied strict scrutiny

to invalidate a school district’s race-based layoff policy that

insulated certain minority teachers from system-wide cutbacks to

which all other teachers were exposed. 476 U.S. 267 (1986). The

school district had relied largely on the argument that its layoff

policy was necessary to remedy societal discrimination against

minorities, rather than to remedy discrimination caused by the

state. The Court applied strict scrutiny and held that remedying

general, societal discrimination could not justify allocating

individual benefits and burdens based on race. See id. at 274-75.

The strict scrutiny standard, while difficult to meet, is not

“fatal in fact.” Grutter, 539 U.S. at 326. The Supreme Court has

124 [99 Op. Att’y

recognized at least two “compelling interests” that can support the

use of racial classifications in the school context: (1) remedying

the effects of past intentional discrimination; and (2) achieving

student body diversity in a higher educational setting. Parents

Involved, 551 U.S. at 720-22; see also Schuette v. Coalition to

Defend Affirmative Action, ___ U.S. ___, 134 S. Ct. 1623, 188 L.

Ed. 2d 613, 621 (2014) (plurality opinion) (observing that “the

consideration of race in admissions is permissible, provided that

certain conditions are met”). A majority of the Court has also

indicated that governments have a compelling interest in

achieving a diverse student body and preventing racial isolation in

primary and secondary schools. See id. at 783, 797-98 (Kennedy,

J., concurring in part and concurring in the judgment);15 id. at

838-43 (Breyer, J., dissenting); see also Department of Justice,

“Guidance on the Voluntary Use of Race to Achieve Diversity

and Avoid Racial Isolation in Primary and Secondary Schools,”

available at http://www.justice.gov/crt/about/edu/documents/

guidanceelem.pdf (last visited July 23, 2014) (providing guidance

on the application of Parents Involved).

Moreover, the Court has not foreclosed the possibility that

other compelling interests may exist. For example, some courts

have held that a state has a compelling interest in achieving

diversity in law enforcement. See, e.g., Alexander v. Milwaukee,

474 F.3d 437, 445 (7th Cir. 2007); Petit v. City of Chicago, 352

F.3d 1111, 1114 (7th Cir. 2003); Patrolmen’s Benevolent Ass’n v.

City of New York, 310 F.3d 43, 52 (2d Cir. 2002). In the

educational setting, one state court and numerous commentators

have suggested that governments may also have a compelling

interest in ensuring faculty diversity, at least in colleges and

universities. See, e.g., University and Community College System

of Nevada v. Farmer, 930 P.2d 730, 735 (Nev. 1997); Patrick M.

15

Because no single opinion in Parents Involved garnered a

majority of the Court, Justice Kennedy’s opinion is considered

controlling, as it represents “the narrowest grounds” for invalidating the

two plans. Marks v. United States, 430 U.S. 188, 193 (1977)

(describing rule applicable to interpretation of fractured decisions of the

Court); see Hart v. Community School Bd. of Brooklyn, New York

School Dist. # 21, 536 F. Supp. 2d 274, 283 (E.D.N.Y. 2008) (applying

Marks to Parents Involved); N.N. v. Madison Metro. Sch. Dist., 670 F.

Supp. 2d 927 (W.D. Wisc. 2009) (same). And because the four

dissenting justices agreed with Justice Kennedy’s conclusion that

school systems may consider race as one part of a broader pursuit of

diversity, his views on the issue represent those of a majority of the

Court.

Gen. 88] 125

Garry, The Next Step in Diversity: Extending the Logic of

Grutter v. Bollinger to Faculty Tenure, 82 Denv. U.L. Rev. 1

(2004); but see Taxman v. Board of Educ. of Piscataway T’ship,

91 F.3d 1547, 1563-65 (3d Cir. 1996) (absent a remedial purpose,

educational goal of faculty diversity did not justify a school

district’s discrimination against the majority).

Even if a statute or policy serves a compelling interest,

however, it must be narrowly tailored to that interest to survive

strict scrutiny. To support a law intended to remedy state

discrimination, for example, a government must have a “strong

basis in evidence” of the discrimination, and any remedy must

target only “the effects of identified discrimination” within the

relevant governmental unit. See City of Richmond v. J.A. Croson

Co., 488 U.S. 469, 500 (1989). And race-based policies designed

to achieve diversity in education likely must advance a broad

concept of diversity of which racial diversity is only one factor.

See Grutter, 539 U.S. at 324-25; Parents Involved, 551 U.S. at

788-89 (Kennedy, J., concurring).

Thus, if the Integration Rule were construed to require

individualized race-based hiring preferences, we have doubts that

it would survive strict scrutiny. We found no evidence in the

historical record that the State Board understood the rule as a

remedy for discriminatory hiring practices as much as a means to

foster a more diverse and culturally enriched educational setting.

Moreover, the “remedy” the rule might be read to require—hiring

minority candidates to attain racial balance “reflective of the

population of their respective jurisdictions”—would almost

certainly run afoul of Supreme Court precedent, which requires

that any remedial teacher-hiring measure be tied to the “qualified

public school teacher population in the relevant labor market.”

Hazelwood School District v. United States, 433 U.S. 299, 308

(1977).

By contrast, and as discussed in the following sections of

this opinion, recruitment policies that might help to increase the

number of qualified Black teachers from which schools could

recruit do not raise the same constitutional concerns.16 Under the

16

And if teaching could be made equally attractive and open to all

parts of the community, it would not be unrealistic for the Board to

strive for a representative workforce. See, id. at 307 (quoting

Teamsters v. U.S., 431 U.S. 324, 336 (1977), that nondiscriminatory

hiring practices may ordinarily be expected “in time” to result in a

126 [99 Op. Att’y

canon of “constitutional avoidance,” we are to interpret the rule to

avoid an unconstitutional construction if “reasonably possible.”

See Koshko, 398 Md. at 425. We need not resort to such

interpretive conventions here, however, because, as explained

above, we do not believe that the Integration Rule was intended to

require quotas or individualized hiring preferences.

2. The Courts Have Viewed Recruitment and Outreach

Efforts that are Directed to a Racial Group and

Intended to Promote Diversity as “Race-Neutral”

Measures and Thus Not as Discrimination Subject to

Strict Scrutiny.

The Constitution does not require an “unyielding insistence

that race cannot be a factor” in government decision-making.

Parents Involved, 551 U.S. at 787 (Kennedy, J., concurring).

Although “[t]he enduring hope is that race should not matter[,] the

reality is that too often it does.” Id. In part due to this reality, not

all race-conscious employment policies have triggered strict

scrutiny. Sussman v. Tanoue, 39 F. Supp. 2d 13, 25 (D.D.C.

1999) (outreach effort unaccompanied by “actual preferences” did

not trigger strict scrutiny), affirmed sub nom. Sussman v. Powell,

64 F. App’x 248 (D.C. Cir. 2003). Where the government does

not allocate benefits or burdens based on race and does not create

a system that imposes “different treatment based on a [racial]

classification,” it is “unlikely” that strict scrutiny will apply.

Parents Involved, 551 U.S. at 789 (Kennedy, J., concurring)

(emphasis added).

A government can therefore “be racially ‘aware’ or

‘conscious’ by, for instance, amassing statistics on the racial and

ethnic makeup of its faculty and encouraging broader recruiting of

racial and ethnic minorities, without triggering the equal

protection clause’s strict scrutiny review.” Honadle v. Univ. of

Vermont, 56 F. Supp. 2d 419, 428 (D. Vt. 1999); see, e.g., Parents

Involved, 551 U.S. 701, 789 (Kennedy, J., concurring) (listing

among “race-conscious” mechanisms unlikely to demand strict

scrutiny “recruiting students and faculty in a targeted fashion; and

tracking enrollments, performance, and other statistics by race”)

(emphasis added); Duffy v. Wolle, 123 F.3d 1026, 1038-39 (8th

Cir. 1997), cert. denied 523 U.S. 1137 (1998) (“An employer’s

workforce “more or less representative of the racial balance and ethnic

composition of the population in the community from which employees

are hired.”).

Gen. 88] 127

affirmative efforts to recruit minority, female applicants does not

constitute discrimination.”), abrogated on other grounds by

Torgerson v. City of Rochester, 643 F. 3d 1031 (8th Cir. 2011));

Peightal v. Metropolitan Dade County, 26 F.3d 1545, 15557-58

(11th Cir. 1994) (describing fire department’s outreach and

solicitation of minority applications as “race-neutral” measures

that fire department tried before resorting to preferences); Shuford

v. Alabama State Bd. of Educ., 897 F. Supp. 1535, 1552 (M.D.

Ala. 1995) (finding that efforts to enlarge candidate pool by

targeted recruitment did not trigger equal protection analysis); but

cf. MD/DC/DE Broadcasters Ass’n v. FCC, 236 F.3d 13, 20-24

(D.C. Cir. 2001) (invalidating under strict scrutiny FCC rule

requiring licensees to conduct “targeted outreach” to minorities

and women); Safeco Ins. Co. v. City of White House, 191 F.3d

675, 692 (6th Cir. 1999) (“Outreach efforts may or may not

require strict scrutiny.”).

It also appears that targeted outreach and recruitment

measures are permissible even if they include an aspirational

hiring goal for minority employees, so long as the aspirational

goal does not pressure employers to make individual hiring

decisions based on race. See Sussman, 39 F. Supp. 2d at 25-28

(upholding FDIC’s non-preferential affirmative action plan

despite “action items” or goals to increase representation of

specific groups in specific jobs). The crux of the matter is thus

whether the aspirational goal has, in Justice O’Connor’s words,

“operational significance,” or is instead a broad aspirational

statement of policy about the kind of workforce the agency would

like to have. See Johnson, 480 U.S. at 654 (O’Connor J.,

concurring).

In this context, courts have examined whether the mere

existence of recruitment or hiring goals, by themselves, affected

individual employment decisions. Without evidence that they

have, such goals have generally been regarded as lawful. See,

e.g., Caulfield v. Board of Educ. of the City of New York, 632

F.2d 999, 1007 (2d Cir. 1980) (agreement for efforts to achieve

levels of minority participation “within a range representative of

the racial and ethnic composition of the relevant qualified labor

pool” presented no “case or controversy” without demonstration

that goal had affected consideration of any individual’s job

application); McHenry v. Commonwealth of Pa. State Sys. of

Higher Educ., 50 F. Supp. 2d 401, 411-12 (E.D. Pa. 1999)

(“‘aspirational’ policies” did not establish a racial preference); see

also Hall v. Kutztown Univ., 1998 U.S. Dist. LEXIS 138, *104

128 [99 Op. Att’y

(E.D. Pa. Jan. 12, 1998) (aspirational documents and policy to

recruit broadest possible applicant pool and hire the most

qualified did not establish a “tendency to discriminate”).

To be sure, some courts have applied strict scrutiny to

purportedly aspirational goals that were not mandatory but

inevitably pressured employers to make individualized hiring

decisions based on race. See, e.g., Safeco Ins. Co., 191 F.3d at

689-92; Schurr v. Resorts Int’l Hotel, Inc., 196 F.3d 486 (3d Cir.

1999); Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344

(D.C. Cir. 1998). But the policies at issue in these cases included

explicit penalties for employers that failed to reach the hiring

goals. See, e.g., Schurr, 196 F.3d at 493 (explaining that “in

providing for sanctions if [employers] cannot demonstrate good

faith efforts to comply with those goals, the regulations were

intended to influence employment decisions generally and may,

as here, affect concrete decisions”); Lutheran Church, 141 F.3d at

353 (noting that failure to meet hiring goals could trigger “intense

review” or increased penalties for equal employment opportunity

violations). Under those circumstances, the employers may well

have felt pressure to take race into account in individual hiring

decisions. Where there is no enforcement mechanism for failure

to meet such hiring goals, however, there is no similar pressure.

See Sussman, 39 F. Supp. 2d at 25-28.

Just as the absence of an enforcement mechanism tends to

make a hiring goal aspirational, the lack of a timetable for

achieving that goal tends to indicate that efforts to increase

workforce diversity do not constitute a hiring preference. As the

Court observed in Johnson, the fact that a hiring plan “contains no

explicit end date” suggests that the agency “anticipated only

gradual increases in the representation of minorities and women”

and not a short-term hiring preference. 480 U.S. at 639. Such

aspirational hiring goals in and of themselves are probably not

subject to strict scrutiny. With these principles in mind, we next

evaluate the Integration Rule’s constitutionality.

3. As a General Proposition, the Integration Rule—as

Construed to Set Goals and Not to Require the Use

of Race in Individual Hiring, Placement, and

Promotion Decisions—is Likely Constitutional

As noted in our introduction, you have not asked us to

address any particular provision in the 1971 plan that the County

Board adopted under the Integration Rule. As a general

proposition, therefore, we conclude that plans that comport with

the Integration Rule, which we have interpreted not to require

Gen. 88] 129

race-based quotas and individualized hiring preferences, would

pass constitutional muster. Given the Rule’s absence of precise

hiring and promotion quotas, or any timetable for attaining

specific employment levels, we think its core function of

promoting diversity by preserving opportunities for minority

candidates makes the Integration Rule the type of measure that a

majority of justices in Parents Involved would have upheld as

reasonable. We conclude, then, that the Integration Rule, as we

construe it, is facially valid.17

The Integration Rule was originally conceived as a means to

encourage the racial diversity of administrators, teachers, and

other staff in the public schools by preventing discrimination and

requiring outreach to the African-American community. Such

diversity or “racial balance” was regarded by the State Board as

critical to the successful integration of the public schools where

all students would be equally encouraged and motivated to learn,

regardless of race. Most likely, the Board viewed the Integration

Rule as a transitional measure, a necessary bridge between the

segregationist past and a more inclusive future.

In the more than forty years since the rule’s adoption, the

need for policies to promote fairness and inclusion for all remains.

What has changed, however, are the specific policies that the

State Board has employed to accomplish the task. In Part I, we

noted that, probably due to an increased federal role in monitoring

minority employment trends, the plans required by the Integration

17

Without the St. Mary’s County plan itself or a historical narrative

as to its application, we express no view as to how an as-applied

challenge to the Integration Rule might fare. In deciding whether to

apply strict scrutiny in such a challenge, a court would have to conduct

a fact-based inquiry to determine whether, in practice, the rule forced

counties to make individual hiring decisions based on race. The

process of preparing an Opinion of the Attorney General is not suited to

such factual determinations. We therefore have not assessed whether a

plan, if it contains provisions that have not expressly expired, required

the County schools to implement any individualized hiring preferences

or quotas that would have “operational significance” in individual

employment decisions and thus be subject to strict scrutiny. Nor do we

wish to foreclose local school boards from devising hiring, assignment,

or promotion policies that take race into account if they believe that

those policies would survive strict scrutiny. The conclusions we reach

here are limited to the constitutionality of the Integration Rule, not

race-based policies more generally.

130 [99 Op. Att’y

Rule appear to have been rather quickly supplanted by EEO

reports as the State Board’s primary tool for identifying local

problems in minority employment. Unsurprisingly, in subsequent

years, the State Board developed newer approaches to address the

evolving challenges of maintaining a diverse workforce.

An important shift seems to have occurred in 1988, with the

State Board’s adoption of its “Action Plan for Minority

Recruitment.” The Action Plan was developed in response to an

MSDE report on minority recruitment, which concluded that, due

in part to the national scale of the problem, a systemic statewide

plan of action was necessary. See MSDE, “Task Force on

Recruiting Minorities for Professional Staff Positions: Report to

the State Superintendent” (March 1, 1988). The Task Force

offered recommendations for various statewide actions to increase

the pool of minority teaching candidates, improve recruitment,

reduce barriers to hiring, retention, and promotion of minority

candidates, and increase support to retain minority educators.

Those recommendations appear to have served as the basis

for MSDE’s Action Plan for Minority Recruitment. The minutes

of the meeting at which the State Board adopted the Action Plan

state:

The plan was developed in response to a task

force finding that “the numbers of minority

students in schools are on the rise while the

numbers of minority teachers are

decreasing.”

The plan outlines steps being taken by the

Department in conjunction with local school

systems and institutions of higher education

to:

Promote teaching as a career for

minority students;

Attract minority career-changers and

retirees to teaching;

Assist schools in recruitment and

retention of minority teachers;

Reduce barriers to minorities in

pursuing careers in education.

Activities to achieve these goals include

reviving Future Teachers of Maryland clubs

in high school and in colleges and

Gen. 88] 131

universities, concentrating recruitment of

teachers in selected geographical areas,

holding workshops for teachers who have not

passed the National Teacher Exams, and

encouraging policy changes at all levels to

reduce racial barriers to education careers.

Minutes of the State Board of Education (Aug. 31, 1988).

Other programs and initiatives have been adopted over the

intervening years to address these same issues. Only last year, for

example, the General Assembly passed legislation to study and

make recommendations on strategies “to increase and improve the

recruitment, preparation, development, and retention of high

quality minority teachers in elementary and secondary education

in the State.” 2013 Md. Laws, ch. 286, § 1(a). The workgroup

selected to perform that study issued its report in December

2013.18 See Minority Teacher Recruitment, Study and Report

(Dec. 2013).

We have not been able to find any express indication that the

Action Plan or these subsequent policies were intended to replace

the local plans required by the Integration Rule. However, the

absence of any evidence that the State Board has continued to

apply the rule suggests that these more recent policies have

overtaken the Integration Rule as the State Board’s preferred

means of addressing their common goal of ensuring fair and

inclusive faculty-hiring practices. We leave to the State Board,

through the exercise of its broad visitatorial power over education

policy, to determine how best to pursue that goal moving forward

and what regulatory tools are best suited to achieve it.

18

Many other government policies and guidelines have emerged for

achieving diversity in our public schools. In March 2009, for example,

the Office of the Attorney General issued a report titled “Strengthening

Diversity in Maryland Colleges and Universities: A Legal Roadmap.”

While that report focuses on post-secondary education, much of the

guidance on workplace diversity is applicable to elementary and

secondary schools as well. See Report, pp. 17-19. Similarly, the U.S.

Department of Education and the U.S. Department of Justice have

published “Guidance on the Voluntary Use of Race to Achieve

Diversity and Avoid Racial Isolation in Elementary and Secondary

Schools” (December 2011). Non-governmental groups have also

published guidance on this topic. See, e.g., Center for American

Progress, “Increasing Teacher Diversity” (November 2011).

132 [99 Op. Att’y

III

Conclusion

In our view, the plain language of the Integration Rule is

susceptible to more than one reasonable interpretation with

respect to the obligations it imposes on local school systems to

adopt policies to attain a “racial balance” reflective of their

communities. Our consideration of the available evidence

regarding the State Board’s intent in adopting the Integration Rule

leads us to conclude that the regulation was intended to prevent

discriminatory employment practices and ensure that school

officials take active steps to include minority candidates for hiring

or promotion on an equal basis with white candidates. So

construed, we believe the Integration Rule would be

constitutional.

It is further our opinion that the Integration Rule remains on

the books as an MSDE regulation and that the plans submitted in

1971 may still be implemented to achieve the rule’s purpose, as

described herein. The State Board, however, has since developed

other approaches to promoting minority employment and we

defer to the State Board on the matter of what actions, if any, its

current diversity and equal employment opportunity policies

require of local boards.

Douglas F. Gansler

Attorney General of Maryland

Jeffrey L. Darsie

Assistant Attorney General

Adam D. Snyder

Chief Counsel, Opinions & Advice

* Elizabeth M. Kameen, Assistant Attorney General, contributed

significantly to the preparation of this opinion.