Did Maryland's 1970 school staffing integration rule require racial hiring quotas, and was it still valid?

MD AG Opinion 99-88: Did the staffing rule require quotas?

Plain-English summary

In 2014, the Superintendent and Board of Education of St. Mary's County asked whether a 1970 State Board of Education regulation remained valid and enforceable. COMAR 13A.07.05.01 required local boards to develop and implement personnel plans "for the attainment of racial balance" reflective of their jurisdictions and to report on implementation.

The Attorney General concluded that the regulation did not require a racial quota, a fixed numerical ratio, or a preference in an individual hiring or promotion decision. The phrase "racial balance" was ambiguous in isolation, so the opinion examined the rule's desegregation history, State Board minutes, a contemporaneous Charles County decision, and later agency practice.

That record showed an effort to move public schools from formal desegregation toward lasting integration. The State Board wanted fair employment procedures, active recruitment of qualified Black educators, broader candidate networks, staff diversity, and monitoring that could reveal discrimination. It had expressly rejected a specific numerical ratio shortly before adopting the statewide rule.

The opinion read the population comparison as an aspirational and diagnostic measure. Minority employment data could help identify exclusionary practices and assess progress, but did not dictate whom a school system had to hire, place, or promote.

That construction mattered constitutionally. Race-based quotas and preferences in public employment would trigger strict scrutiny and could be invalid without a compelling interest and narrow tailoring. Targeted outreach, broad recruiting, equal procedures, and collection of workforce data did not necessarily impose different treatment based on race and were therefore much less constitutionally problematic.

The Attorney General concluded that the Integration Rule remained on the books and was facially valid under this non-quota interpretation. Plans submitted in 1971 could still be implemented to serve the rule's purpose, and the Maryland State Department of Education could require reports. The opinion deferred to the State Board on what, if anything, its later minority-recruitment, diversity, and equal-employment policies required of local boards.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion said for affected groups in 2014

Local school boards

The regulation required plans and implementation directed toward fair and inclusive staffing. It did not, as construed by the opinion, require a board to choose one applicant over another to meet a racial percentage.

School superintendents and human-resources officials

The opinion approved the general use of targeted recruitment, clear promotion procedures, broad candidate outreach, and racial or ethnic workforce statistics as tools for identifying discrimination and widening opportunity.

Maryland education officials

MSDE could still request implementation reports under the rule. The State Board's later policies had become the more active means of addressing minority recruitment, and the opinion left their application to the State Board's education-policy authority.

Teachers and job applicants

The opinion read the rule as protecting equal consideration and inclusive access to employment opportunities. It did not create an entitlement to a position based on race or authorize an individualized racial preference.

Civil-rights organizations

The rule remained a valid source of policy supporting nondiscrimination, minority recruitment, and reporting, but the opinion did not treat population parity as an enforceable hiring quota.

Common questions

Did the Integration Rule require school staff to match the county's racial percentages?
No. The opinion treated "racial balance" as an aspirational goal and workforce statistics as diagnostic, not as a binding percentage for individual employment decisions.

Could a school board use a racial quota under the rule?
The opinion said the rule did not require quotas or hiring preferences. It expressed serious constitutional doubt about reading the rule to demand individualized race-based decisions.

What employment practices did the opinion associate with the rule?
It identified active recruitment of qualified minority candidates, fair and clear promotion procedures, inclusive hiring networks, equal treatment, workforce data review, and implementation reporting.

Why did the opinion look beyond the regulation's words?
"Racial balance" could carry more than one meaning. The opinion used the State Board's 1970 statements, meeting records, related decisions, and implementation history to determine the intended meaning and to avoid an unconstitutional construction.

Did the rule still exist in 2014?
Yes. The opinion said it remained an MSDE regulation and that the 1971 plans could still be implemented for the non-quota purpose the opinion identified.

Did the opinion decide what current diversity policies required?
No. It deferred to MSDE and the State Board on whether their later minority-employment, diversity, and equal-opportunity policies required any particular action by local boards.

Background and legal framework

The Integration Rule emerged from Maryland's transition after Brown v. Board of Education. Brown invalidated legally segregated schools, and later decisions required school systems to dismantle dual systems in student assignment, faculty, staff, transportation, activities, and facilities.

By 1970, Maryland officials viewed physical desegregation as largely accomplished but saw continuing problems in employment opportunity, faculty diversity, cultural understanding, and relationships within newly integrated schools. The State Board's contemporaneous Charles County decision approved extra recruitment efforts for qualified Black applicants while rejecting specific numerical ratios and lower qualification standards.

COMAR 13A.07.05.01 required local boards to create and implement personnel plans aimed at racial balance, submit the plans by January 1, 1971, and provide reports requested by MSDE. The opinion found little evidence that the State Board or MSDE ever used the rule to impose a quota or decide an individual employment matter.

Title VII, 42 U.S.C. § 2000e-2(a), prohibited employment discrimination based on race. The Equal Protection Clause imposed strict scrutiny when government distributed employment benefits or burdens through individual racial classifications. Cases including Wygant, Parents Involved, Fisher, and Hazelwood shaped the opinion's distinction between constitutionally suspect preferences and generally permissible outreach, recruitment, and data collection.

The opinion also applied ordinary regulation-interpretation principles, deference to an agency's reading of its own rule, and constitutional avoidance. Those principles supported the narrower reading that preserved the rule as a nondiscrimination and inclusive-recruitment measure.

Citations and references

Regulation and federal provisions:

• COMAR 13A.07.05.01, Maryland school personnel Integration Rule
• 42 U.S.C. § 2000e-2(a), Title VII employment discrimination
• U.S. Const., Amend XIV, § 1, Equal Protection Clause
• 42 U.S.C. § 2000d, Title VI nondiscrimination in federally assisted programs
• 42 U.S.C. §§ 2000c(b), Civil Rights Act definition of desegregation discussed in the opinion

Cases:

• Brown v. Board of Education, 347 U.S. 483 (1954), invalidating state-required school segregation
• Green v. County School Board of New Kent County, 391 U.S. 430 (1968), duty to eliminate dual school systems
• Fisher v. University of Texas at Austin, 133 S.Ct. 2411, 2419 (2013), strict review and racial balancing
• Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 720 (2007), strict scrutiny for individual racial classifications
• Wygant v. Jackson Bd. of Ed., 476 U.S. 267 (1986), race-based public-school layoff policy
• Hazelwood School District v. United States, 433 U.S. 299, 308 (1977), relevant labor market in a remedial employment analysis

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/2014/99oag88.pdf

Original opinion text

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.