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 understanding, 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 AfricanAmerican 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 allBlack 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-ofchoice” 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 recommendations 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, sensitivity, 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 systemwide 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 assignments 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.