Dissenting Opinion by
Judge Mencer:I respectfully dissent. I do not believe that the records in these cases support a finding of a de facto segregation1 and, in the absence of this prerequisite, the Pennsylvania Human Relations Commission (Commis*292sion) is without the authority to order these school districts to submit plans to achieve racial balance in its public schools. The Commission does not assert that there exists any de jure racial segregation in these cases. In 1954, the Supreme Court of the United States held that it is unconstitutional for a state to enforce the segregation of school pupils in a racial basis. Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954). It seems to me that the common impression which developed from that decision was that the Court had ordered the racial integration of the public schools. Even some courts seemed to miss the distinction between legal desegregation and physical integration.
In 1971, the Supreme Court again enunciated that “racial imbalance” and “segregation” are not synonymous terms and that the Federal Constitution does not require that every school reflect the racial composition of the school system as a whole. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S. Ct. 1267, 28 L. Ed. 2d 554, rehearing denied, 403 U.S. 912, 91 S. Ct. 2200, 2201, 29 L. Ed. 2d 689 (1971).
In 1967, the Pennsylvania Supreme Court held that the Pennsylvania Human Relations Act2 permitted the Pennsylvania Human Relations Commission to require school boards to take corrective measures to overcome de facto racial segregation within their districts. Pennsylvania Human Relations Commission v. Chester School District, 427 Pa. 157, 233 A. 2d 290 (1967). In Chester, unlike here, there was no serious question as to the existence of de facto segregation. Justice Robert’s opinion in that case stated that “[a]t the time of the hearing the racial composition of the schools ip question was:
*293 White
Douglass 1
Dewey-Mann 0
Franklin 10
Lincoln 69
Washington 0
Watts 0
Negro Total % Negro
527 528 99 1
823 823 100
1018 1028 99
490 559 87
782 782 100
344 344 100
“Clearly, the above figures, which are not disputed, satisfy any definition of de facto segregation.” 427 Pa. at 178, 233 A. 2d at 301. I certainly agree with that inescapable conclusion, but here we have figures that just as clearly do not satisfy any definition of de facto segregation.3
This then brings a consideration of these cases to the vital question. What constitutes de facto segregation? It is the Commission’s determination, that the ratio of 55% blacks and 45% whites in certain schools constitutes de facto segregation, which compels me to dissent.4
*294Our Supreme Court has stated in significant footnotes in both Pennsylvania Human Relations Commission v. Chester School District, 427 Pa. at 158-59 n.l, 233 A. 2d at 291 n.-l, and Balsbaugh v. Rowland, 447 Pa. 423, 434-35 n.6, 290 A. 2d 85, 91 n.6 (1972), that “[a]s the courts below observed, de facto segregation ‘remains undefined in its full concept/ yet at the same time it is a meaningful term. 85 Dauph. 18, 25, [40 D. & C. 2d 493, 501, aff'd mem., 209 Pa. Superior Ct. 37,] 224 A. 2d 811, 820 (1966). According to one student of the problem, ‘de facto segregation may be defined simply as the racial imbalance in schools which occurs when the number of Negroes in a compact Negro area becomes so great that drawing school zone boundaries on a geographical basis causes the great majority of Negro children to attend schools which are overwhelmingly Negro in population.’ Kaplan, Segregation Litigation and the Schools — Part I: The New Rochelle Experience, 58 Nw. L. Rev. 1, 2 (1963). See also, United States v. Jefferson County Bd. of Educ., 372 F. 2d 836, 878 n. 92 (5th Cir. 1966), for other definitions of the term.”
Here in three of. these cases (Uniontown, New Castle, and New Kensington-Arnold), we do not have a great majority of black children attending schools which are overwhelmingly black in population. Here we do have the school districts protesting and denying the finding of the Human Relations Commission that de facto segregation exists in their schools.. It is exactly this feature which removes these cases from the controlling ambit of Balsbaugh v. Rowland, supra, where Justice Pomeroy was careful to point out that Balsbaugh was . being decided on the basis that the existence of de facto segregation was not challenged. These significant words appear in Balsbaugh: “It is to be noted that so far as the record before us shows, no challenge of any kind has been made by appellants to the legality or *295propriety of the directive of the Commission that steps be taken to create a better racial balance, nor was this directive contested by the school Board. . . .
“. . . Although the Plan may have been prompted by the Commission order to do away with school segregation____” 447 Pa. at 433, 290 A. 2d at 90-1. (Emphasis supplied.)
In Balsbaugh, de facto segregation was conceded to exist whereas, in certain of the present cases, de facto segregation is denied. We must examine the records to ascertain whether de facto segregation has been established by substantial evidence, because, if it has not, the Human Relations Commission cannot direct the appellants to submit a plan.
The Commission’s findings of fact stating the variable standard of “disproportionate racial concentration”, applied by the Commission to the ratios of black and white pupils found in these public schools to determine that they were segregated, are unsupported by evidence as findings of fact and erroneous as conclusions of law. The records are completely devoid of any evidence whatsoever that the Commission’s standard (that a segregated school is one in which “the percent of Negro pupils is less than or more than thirty (30%) percent of the percent of Negro pupils in schools of the same grade span of a school district”5) properly defines segregation.
Questioned at the hearing in the Philadelphia case about this standard, which was first promulgated in Recommended Elements of a School Desegregation Plan by the Commission jointly with the Department of Public Instruction, the Commission’s witness referred merely to the opinion of those who participated in devising the formula that it seemed fair and reasonable to them. *296This witness also lamely noted how the Commission’s standard differed from Massachusetts’ unfair, flat 50% formula and California’s and New Jersey’s unfair, though judicially defined, “substantial” imbalance standard. There was no testimony as to why measurement of racial imbalance by the racial composition of the school population of school districts is appropriate at all. Indeed, the Commission’s witness admitted that it was without “scientific basis”.
Plainly, the Human Relations Commission merely adopted a general policy in its Recommended Elements and then applied that policy to the public schools in these proceedings without considering the particular conditions of school segregation in the various schools. The Superior Court condemned such administrative practice in Aizen v. Pennsylvania Public Utilities Commission, 163 Pa. Superior Ct. 305, 316, 60 A. 2d 443, 449 (1948): “A previously adopted policy may not furnish the sole basis for the commission’s action in a particular case. Policy cannot be made a substitute for evidence in a proceeding before it. The conditions of a particular case may require the reversal of any administrative policy. No declared regulatory policy by the commission may preclude the future exercise of its functions as an administrative agency of the legislature. Such a declaration of policy cannot be a finality rcgardless of circumstances.”
As a conclusion of law, the Commission’s variable standard of disproportionate racial concentration is equally arbitrary and capricious and surely contrary to law. Measurement of racial imbalance solely by the public school population of a single school district leads to patently arbitrary results. As pointed out before, the Commission found the Uniontown schools to have de facto racial segregation where one school out of fifteen had 55.9% blacks but found that a junior high school in *297PMladelpMa with 84% blacks was not racially segregated.
I have no quarrel with the quotations of law from Chester and Balsbaugh which the majority calls forth. However, each and every one is founded upon an undisputed or unchallenged existence of de facto segregation. It is true that, once de facto segregation is established, it is the Commission’s, not the judiciary’s, province to deal with the problem and to exercise its expertise to eliminate the existing segregation. Accordingly, I do differ with the majority’s statement that “[t]he argument of appellants that classroom facilities With 55% black and 45% white could not be said to be in any substantial racial imbalance, even though the District has a 9% black and 91% white school popula tion, is one that must be made to the Human Relations Commission and not to this Court.”
Therefore, I conclude that these records do not support, by substantial evidence, a finding of de facto segregation or discrimination by the school districts. I would sustain these appeals and vacate the Commission’s orders directing the school districts here to submit plans to eliminate alleged racial imbalance.
In the case of the School District of Pittsburgh v. Pennsylvania Human Relations Commission, No. 568 Commonwealth Docket 1971, the appellant concedes that de facto racial segregation exists but persuasively contends that the Commission ignored the statutory procedural requirements mandating that the Commission endeavor to eliminate the practice complained of by conference, conciliation and persuasion prior to conducting a hearing on a complaint filed against the School District of Pittsburgh.
Act of October 27, 1955, P. U. 744, as amended, 43 P.S. §951, et seq.
In Uniontown Area School District, one elementary school, East End, has 55.9% blacks in its student body. The Park School has 36% blacks and none of the other fourteen schools in the district has more than 17.4% blacks in its student body, although there are 89 pupils in Special Education, of which 23.5% were blacks. On September 22, 1970, the New Castle Area School District operated fourteen schools and eleven of these had no more than 15.7% of their student bodies black. The percentages of blacks in the remaining three schools were 23.1%, 47.2% and 58.2%. A similar situation exists in the New Kensington-Arnold School District where eight of their ten schools had no more than 13.8% of their student body black. The percentages of blacks in the remaining two schools were 21.3% and 55.8%.
Contrast this with the conclusion reached by the Commission relative to the Philadelphia School District for the school year 1970-71, when 60.5% of the Philadelphia public school population was black, where the Commission found as findings of fact that a Philadelphia senior high school 72% black was not segregated, a Philadelphia junior high school, 84% black was not segregated and a Philadelphia elementary school 77% black was not segregated.
Finding of Fact No. 10, Pennsylvania Human Relations Commission v. The School District of Philadelphia, No. 524 C.D. 1071.