Elmer Britton v. South Bend Community School Corporation

posed minority layoff provision the no POSNER, Before CUDAHY and Circuit hiring protect gains it had made in FAIRCHILD, Judges, and Senior Circuit goal, black teachers to reach the mandated Judge. decree, having prior consent teaching minority representation on the CUDAHY, Judge. Circuit equal mi- approximately staff that of the This is a “reverse discrimination” case nority population. negotia- student required which we are to determine wheth leading Agreement up tions to the 1980-83 bargaining agree er a clause in a collective Representatives of lasted two weeks. ment teachers’ union between a and a NEA-South Bend met with teachers layoffs “mi prohibits school district that negotiations to discuss after the concluded teachers, nority” layoffs of white Agreement. XXI- Article terms clause, pursuant to that violate II, meeting. Section 9 was discussed Equal language Protection Clause of the either The exact F.Supp. provision presented Fourteenth Amendment or Title VII of at the Rights meeting, Act of 42 U.S.C. 2000e the document distributed to Civil but § changes in seq. Although the district court relied teachers listed articles et clearly indicated previous earlier decision in contracts on its Janowiak Cor prefer over Bend, that the clause would blacks City F.Supp. porate South layoffs. Teachers (N.D.Ind.1983), rev’d, in the event of 750 F.2d 557 whites of the NEA-South (7th Cir.1984), not members we reversed after the who were which (about Bend one-fourth of South opinion its in this case Bend district court issued teachers) meet- clause, to attend that F.Supp. 1223 were allowed approving the to vote. Those (N.D.Ind.1984), ing were not allowed the district court. but we affirm Act, union members of the Indiana Teacher Tenure teachers who were Ind.Code (1982). seq. et Britton v. Agreement a substantial 20-6.1-4-1 ratified § Inj. member Community Corp., Bend margin. Tr. 83-88.1 No School repre- a claim for unfair (N.D.Ind. the union ever filed 11, 1982). filed No. S82-283 June Code. See Indiana under the sentation complaint was amended delete the F.Supp. Ind.Code 20-7.5-1-7 aspect, forty- action eventually class labeling the (apparently mistakenly plaintiffs one individual teacher were “grievance.”) as a appropriate claim named instead.2 April Late in white teachers 5, 1982, On October the teachers filed an were be notified that their contracts in the action Indiana courts vari for cancellation. After considered Corporation and its Trus Board of including all-night an hear proceedings ous (sometimes “Board”) simply tees for a passed the Board ing on June mandate under 20-6.1-4-12 section con affirming the a resolution on June alleged Indiana Code based on of violations the 188 laying and off tract cancellations Act, the Indiana Teacher Tenure violations F.Supp. 1226-27. See teachers. rights resulting from in of the manner XXIII, 9 of the Pursuant to Article Section layoff hearings the conducted which were Agreement, no teachers black Andrews South and other state claims. of teachers laid laid off. The number were Community Corp., Bend School P- No. under subsequently reduced to 146 off was (St. 5, 1982). Joseph Cir.Ct. filed Oct. Bend Communi South in a consent order The to feder defendants removed case Corp. v. National Education ty School court, received al where it case number Bend, No. N-7015 (St. Association-South was consolidated with Brit and S82-485 29, 1982), Cir.Ct., Sept. Joseph approved ton. Corporation agreed to the which for filed a Plaintiff teachers motion F.Supp. at forty-two recall teachers. 5, 1982, preliminary injunction on October minority n. 2. of the no Because 14, upon Item which court held Record the forty-eight teachers layoff provision, evidentiary hearing on 9 and November an to, less similar but with with certifications 10, 1982, argument and on December oral than, forty-eight of the laid off 2, F.Supp. The at 1228. 1982. Cf. job. on remained the white teachers by order on December motion was denied 1982, 11, two of laid off June the On 15, tried to liability The issue of was 1982. -a class suit teachers filed action white two-day April in a trial on 26 and court the District for the United States Court the 27, post-trial 1984. Both sides submitted Indiana, alleging that Northern District findings fact and proposed and briefs against on them layoffs discriminated argument was of law. Oral conclusions of the race violation account their 3, August 1984. heard on Amendment, 42 U.S.C. Fourteenth §§ 1984, court September the district Rights Civil Act On Title VII of the & and order. seq., 2000e et a memorandum and entered U.S.C. § granted evidentiary on transcript That motion was December of the 1. References to the 10, 1983, parties hearing injunction dismissed preliminary motion and those on the March 10, 1982, desig- F.Supp. be on and will held November 9 from the action. 593 transcript "Inj. nated Tr." References actually plaintiffs recalled Fifteen liability April 26 and held bench on on trial remaining year, but the for the 1982-83 school 27, 1984, designated will “Tr. Tr.” twenty-six those teachers were not. Thirteen of apparently immediately recalled duly com- plaintiff teachers have 2. All of layoffs enough but for seniority withstand the filing procedures plied with the administrative layoff provision. remain- minority bringing discrimi- requisite a Title VII race prevail vari- on their thirteen would need right sue let- suit have received nation and feder- pendent as well as on the state claims ous A motion Tr. Record Item 28. ters. Tr. right rein- establish a in order to al claims plaintiff judgment two partial summary teachers, 8; App. damages. Pl.Br. at statement Edler, filed L. H. Keller and required segregated the district utes Indiana 1223. In its decision F.Supp. at on the fed- up found for the defendants until court schools 1949. Act of March claims, holding minority layoff the no (present eral ch. 1949 Ind.Acts 603 permissible and to be constitutional clause version codified at Ind.Code 20-8.1-2-1 § declined to ex- The court under Title VII. seq. (1982)). et pendent jurisdiction over ercise its Our review of the record indicates that claims, and dismissed plaintiffs’ state law period the earliest for which there is infor- prejudice. ap- The teachers without them minority mation about minority layoff arguing that the no peal, period is 1963-64. For (and pur- layoffs they suffered clause minority teaching staff South Bend was it) (1) Equal Protection suant to violate teaching total staff. Def. 3.5% Amendment, (2) of the Fourteenth Clause minority Ex. H. In 1968-69 teachers ac- Rights Act of Title VII of Civil slightly counted for a increased 6.8% seq., et 2000e the Indiana U.S.C. § teaching staff.3 Id. For 1969 and later Act, Tenure 20-6.1-4-1 Teacher Ind.Code years, expansive the record includes more (1982). seq. et evidence of discrimination recruitment, hiring pro- Bend in the B. motion teachers.4 On March segregation long history of racial 13, 1975, Mines, Kenneth director for Re- in Indiana is chronicled gion Rights V of the Office for Civil v. Board United States in detail Health, Education, Department then Indianapolis, Commissioners School Welfare, Superintendent sent a letter to the (S.C.Ind.1971), F.Supp. 658-77 Corporation. of the School Def. Ex. M-6. denied, Cir.), aff'd, 474 F.2d 81 The letter refers to an October 1969 on-site 920, 93 37 L.Ed.2d 1041 Corporation’s compli- review of the School Indianapolis Deseg Note, see also Rights ance with Title VI of the Civil Act regation: Segregative Intent and the In 42 U.S.C. 2000d. The review Remedy, 14 Ind.L.Rev. terdistrict encompassed complaints by groups several (1981). Slavery legally and sanc 803-04 discriminatory and individual citizens of against blacks existed tioned discrimination segregative practices,5 and and other as- period during Indiana’s territorial and dur Corporation’s compli- pects of the School early history as a state. its The letter listed five areas in which ance. 659-61, F.Supp. pre at 663. Even in the Rights evidence the Office for Civil found public years Indiana’s schools Civil War part of racial discrimination on the segregated simply were excluded black Corporation. of these areas School Two Id. at 663. Ratification of the children. minority were recruitment teachers and in Fourteenth Amendment had little effect promotions for black and female teachers. schools; passed the state a stat Indiana’s stated that the Office had The letter also authorizing in 1869 black children to ute (January recent and October school, requiring segregated reviewed but attend 1974) Indeed, completed by forms Id. at 663-64. statistical systems. the stat- proposition minority comprised as a bit of abstract 3. In 1968-69 six- merit of this students body. logic, unsupportable percent it is in the real teen of the student Def.Ex.H. we think course, corresponding figure legally segregated in in The for 1963-64 is not schools world. Of the record. Education the South before Brown v. Board of unique may demand for black have created 4. focus is on the better doc- of the dissent teachers, dynam- says little about racial but years This umented around and after 1978. Bend, general, Indiana. In we ics in South however, hardly provides approach, an ade- vagaries of numbers and ratios in think the history. quate perspective the relevant hypothetical real and situations are less various simple history of than the black restrictive says need be no corre- 5. The dissent that “there (or non-participation) participation teacher segregation and discrimination lation between” against Bend schools. the South may be the black teachers. Whatever According particular, remarked Superintendent’s office. letter on the ra- letter, improve- cially discriminatory assignment teacher “indicate little these forms Corporation, practices the School hiring promotion regard with ment required Corporation M-6, School to submit 2. minority Def. Ex. teachers.” forty-five days a within in a Superintendent responded Dake any vestiges eliminate discrimina- Ex. April Def. lengthy letter of M-3, Ex. tion. Def. at 3. After further things de- Among other the letter M-5. correspondence consultation and with the Corporation’s efforts to tailed the School Corporation, the School Office for Civil teachers, included minority recruit which Rights, letter of March directed predominantly number visits Corporation compli- the School to submit a 1971-72, colleges and universities plan ance included an assurance that The letter listed the number more Corporation would in the future main- minority new staff hired for the seven recruitment, non-discriminatory hiring tain (total- years 1974-75 academic M-2, assignment practices. Def. Ex. 165) explain the small ling and tried num- change minority staff total Meanwhile, had a number individuals resignations staff ber filed an action in the United States District M-5, period.6 Ex. the same Def. over seeking District of Court Columbia 6-7. directing Department injunction an Regional August Office of Health, Education, com- and Welfare to many letter to school dis- the OCR sent a proceedings against mence enforcement tricts, Ex. including Bend. Def. several school districts that been found possible M-4. letter concerned compliance HEW not to Title with layoffs out discriminatory impact carried Among the named school districts was VI. letter rules. The pursuant Community Corpo- the South Bend School racially seniority rules stated that ration. The District Court found that perpetuated if the effect of unbiased Corporation had found in viola- discriminatory personnel practices in past voluntary of Title VI and that neither tion assign- recruitment, hiring, promotion and enforce- compliance had been achieved nor The in the case of ment. letter noted that instituted, and proceedings had been ment mi- had to hire districts that failed school HEW commence enforcement ordered years, and so nority teachers until recent Weinberger, proceedings. Brown disproportionate a number would have (D.D.C.1976). F.Supp. 1215 status, the low persons such with Trustees considered In 1978 Board system-wide a standard would use of in discrimination aspects certain potentially disproportionate hence a —and ways to its system eradicate school and minority group discriminatory on —effect when, began at discussions effects. M-4, at 1-2. persons. Def. Ex. during term a mem- meeting her the last Rights conducted for Civil Office Board, held on June ber of in remained second on-site review but Eugenia Braboy moved that the Board Ms. 6, 1975, goal By setting five-year letter October unsatisfied. adopt a resolution Corporation implement pro- adopt informed the School and the Office which to within in the that Cor- racial imbalance grams had the School to reduce the that it determined (and especially that associat- compliance system with the poration was not schools). The racially identifiable Def. Ex. M-3. ed with Title VI. provisions of meetings resignation mony at one of the Board’s compare the 6. The letter did not period over the of black teachers the turnover to that of white teachers of black teachers rate comparable that of white teachers. attempt explain was the number otherwise or resignations K-3, at 1. was testi- Def.Ex. teachers. There of black passed unanimously. employed by Corporation, the School and resolution proposed requests principals’ particular Def. Ex. K-l. that a vacancy be hired for a were of- substitute were held at several subse Discussions Only if no candidate could ten honored. meetings focusing prior quent Board Corporation found within the School would extremely in the discrimination manifested position recruiting be advertised and on the percentages of minorities School low place. take Def. Ex. K-3. from the outside Tr. teaching staff. Tr. 90- Corporation’s (minutes 91; K-1 to K-5 Def. Exs. As of the discussions at the a result meetings); F.Supp. school board fall, during meetings held on December in the recruit 1225. Past 18, 1978, adopted the Board Resolution ment, assignment minority hiring and App. 31-34.8 Resolution 1020 states reflected in and to said to be teachers was “[providing community quali- with gross disparity between be the cause of ty top priority education should be the employed of black teachers percentage schools,” App. sets out the Corporation percent and the by the School Corporation’s policies employ- School body student age in either the of blacks goals. goals adopted ment Two E-1, community. Exs. E-2. The Def. local (1) 1020 were Resolution that the School body percentage in the student of blacks Corporation strive to increase the would community approximated in the 22% teaching of minorities in its percentage of black late while percentage “approximately force until that teachers was 10.4%. corresponded]” of mi- presented evidence The statistical. body, student that the norities its merely present disparity of a between to ex- Corporation “endeavor minority teachers and percentages year previous year’s employ- ceed each ranged Rather it over a students. figures minority personnel ment ... See, period e.g., eight years. of at least percentages until the minimum desired E-1, K-3; see also Def. Exs. Def. Ex. App. 34. In the three reached.” [were] E-2. adoption years following the of Resolution presented Although no statistics were greater Corporation hired a 1020the School Corporation the School the effect that teachers than it had in percentage of black hiring disproportionately small num- result, prior period. As a any comparable teachers,7 testimony there was ber of black percentage of black teachers rose shortage qualified there was year academic for the 1978-79 10.4% teaching positions. applicants black year. academic Dur- for the 1981-82 13.0% There was testimonial evi- Def. Ex. K-2. pupils up made year latter particular qual- implied that five dence that population. 593 of the student 25.42% applicants had not been hired ified black F.Supp. at 1225. K-2, Def. Ex. at 2. because of their race. of filed suit Department The Justice established that Testimonial evidence also Corporation on against the School Febru- practice of Corporation the had School Bend ary 1980. United States they posting vacancies so could be full-time Corp., No. S80-35 Community by hiring already School filled substitute figures readily poration available. argument plaintiff had those for the At oral counsel 7. K-5, Def.Ex. appli- that records on the race of teachers stated year. Def.Ex. available for one cants is given adoption of reason for the 8. An additional K-3, Corporation School at 6. Counsel for the students, was that both Resolution 1020 figures pool or state stated that on the national white, mi- a sufficient number of and nority needed teaching applicants qualified black were of act as role models. See teachers to 103; apparently one probably available. This is not We, Def.Ex.H, App. Inj.Tr. at 31. any of adopted Resolution 1020 as set of the reasons course, particu- on do not rest our decision percentage minority goals of in terms of the the modeling theory and the dissent’s of role lar district; the School Cor- in the school students misplaced. subject emphasis on 8, 1980).9 (N.D.Ind. system filed Feb. Its com school as a whole. Educational Corporation alleged that the School plaint programs and extracurricular shall be engaged in racial discrimination had acts of equal serving for each school similar having effect intended to the grade levels and similar student needs. on segregating students and teachers the Among of race. these acts were the basis 8. The Board of School Trustees shall assignment hiring, promotion and of facul pursue present to continue its affirma- Appended of race. ty on the basis hiring policies. tive action by complaint Attorney the was certificate 3, App. Consent Order 37. The Board’s (as required by 42 U.S.C. 2000c- General policy affirmative action set out 6(a)) that had stating he received com Thus, order, Resolution 1020. the consent plaints racial discrimination and school by mandating policy, continuation of that investigated segregation and had the com required the Board to continue to increase they that plaints and determined were mer percentage the teaching minorities on its itorious. equalled staff until that by a The was settled consent order case roughly approximated the it Def. day the same was commenced. Ex. minority pupils body, in the student and to decrees, As in most App. 35. consent C — year previous to exceed each the endeavor Board that the defendant School denied year’s employment figures engaged in intentional acts of racial personnel. And it was in furtherance of The consent order re discrimination.10 light expected that policy, school en- develop quired Corporation the School to constraints, budgetary rollment and desegregation plan specific for student as minority layoff proposed the no clause was signments by September The 1980. con by Corporation, agreed by the School required Corpo sent order also the School negotiators strongly teachers’ ratified rectify past ration the effect discrimi union teachers.11 teachers, provided: nation beginning of By

6. the 1980-81 II. year, faculties each school Supreme consistently The Court has operated Corporation shall governmental body may held that a use adjusted appropriately so each plans to the ef race-conscious eradicate approximately average reflects racial teaching experience, fects of discrimination. Fullilove composition, Klutznick, disciplines faculty teaching judicial judge

9. The district took notice is no evidence at all that the teachers below There case, desegregation doing over which or could not record did know what Inj.Tr. presided. suggests. he had felt—as the dissent make their views the teachers no reason to believe that There is Attorney 10. present Assistant General for press their views did were not able not or Rights makes of this denial in a Civil misleading much leadership. key provisions It is about his footnote to amicus brief. recog- likely that the white teachers much more neglects government n. 4. U.S.Br. at 5 importance adequate nized the educational take fact almost all consent decrees teaching minority representation on the staff agree do it. We not to do it form "We didn’t lengths willing go unusual and were this, again.” at least The reasons support putting their own interests risk context, compellingly set out principle. opinion in United Blackmun in his Justice 209-11, 193, Weber, painful impact 443 U.S. 99 Steelworkers v. not insensitive We are 2721, 2730-31, 61 L.Ed.2d 480 seniority provisions S.Ct. on number white Further, (Blackmun, concurring). J. not oblivious But the teachers were teachers. alleged ignores government the fact that it possibilities voted when for of these discrimination, and must there been such had Apparently they recognized provision. that to stong it to be evi- have had what considered injustice longstanding right some sacrifice set by Attorney certi- because the complaints General dence of this fied inescapable. majority was of discrimination brought department suit. and the meritorious 802 (1980); Regents the Univer- L.Ed.2d 902 the union in order to conspic- “eliminate Bakke, sity v. 265, 438 U.S. uous racial imbalances in Kaiser’s then al- of California 2733, (1978); Unit- 98 S.Ct. 57 L.Ed.2d 750 exclusively forces,” most white craftwork Organizations Carey, ed Jewish 430 198, S.,Ct. 2724, 443 U.S. at 99 at by reserv- 144, 996, 97 51 U.S. S.Ct. L.Ed.2d 229 openings for blacks half newly- (1977); Charlotte-Mecklenburg Swann v. in-plant created training programs. Prior Education, 402 U.S. 1, Board 91 S.Ct. in-plant training to initiation of the pro- 1267, (1971); McDaniel v. 28 L.Ed.2d 554 grams, Kaiser had hired as craft-work- Barresi, 39, 1287, 402 U.S. 91 S.Ct. 28 plants persons prior ers for its with craft North Carolina Board L.Ed.2d 582 (who experience were almost all white be- Swann, 43, Education v. 402 U.S. cause long craft unions had excluded 1284, (1971). 28 L.Ed.2d 586 S.Ct. blacks). Id. The judicial Court took notice Bakke and Fullilove the court held that of the fact that craft unions excluded plans voluntarily affirmative action 1, blacks. 443 U.S. at 198 n. 99 S.Ct. at adopted by governmental bodies are not (“Judicial findings 2725 n. 1 of exclusion Fullilove, per se unconstitutional. grounds crafts on racial are so num- 2776; Bakke, 482, at S.Ct. at erous as to make such proper exclusion a 287, see Janowiak at U.S. at 98 S.Ct. subject judicial notice.”). Thus, for Bend, Corporate City 750 F.2d purpose plan of the mirrored those of the 557, (7th Cir.1984), petition for statute, “designed for it was to break down (U.S.

filed, June 53 U.S.L.W. patterns old segregation of racial and hier- (No. 84-1936). 10, 1985) Similarly, archy.” 443 U.S. at at S.Ct. employers may adopt has held that Court Second, plan “unnecessarily did not plans remedy dis- action affirmative employ- trammel the interests of the white United Steelworkers crimination. ees.” Id. The Court concluded, therefore, Weber, 443 U.S. America v. 99 S.Ct. plan that the fell “within the area of discre- (1979); Janowiak, 2721, 61 L.Ed.2d 480 private tion left Title VII to the sector Thus, programs race-conscious voluntarily adopt affirmative action not, law, violate either Ti- do as a matter plans designed conspicuous to eliminate ra- Equal tle or the Protection Clause VII traditionally segregated cial imbalance in Janowiak, Fourteenth Amendment. job categories.” 443 U.S. at 99 S.Ct. inquiry before this 750 F.2d at 561. The (footnote omitted). at 2730 court, therefore, particular is whether this Weber On its facts dealt with wheth is valid under the plan affirmative action er and to what private employer extent a begin Title We will constitution and VII. adopt plan could an action affirmative con plan provision under analysis with an applies sistent Title with VII. Title VII Title VII. public employers, including well to states III. See 42 U.S.C. agencies. and their official 2000e(a), (b), (h) (codifying amendments In United Steelworkers § America v. 2(1), (2), (6) Equal Em made Weber, ployment Opportunity Act of Pub.L. (1979), Supreme pro- L.Ed.2d 480 Court 92-261, 103). analysis No. 86 Stat. guidelines analyzing validity vided from Weber has been applied govern plan of an affirmative action under Title employers, mental so that an affirmative Weber VII. The Court declined Weber plan action that satisfies the criteria promulgate general distinguish test employer from Title will insulate the VII permissible impermissible between af- Weber, liability particular employment deci plans. firmative action 443 U.S. at Janowiak, pursuant However, sions to it. 750 F.2d the Court 562-63; Bushey v. New York State Civ plan lay did find that the on the before Commission, permissible side of the line. Id. il Service (2d Cir.1984) (“We reject employer into n. 8 Plaintiffs’ entered

803 inapplicable ty employees and the relevant la- is between Weber ... contention pri pool spite a Weber employer in was bor of the fact that two entity.”), public entity hiring practic- here it is a review boards had found the whereas vate — U.S.-, denied, Janowiak, rt. at es reasonable. 750 F.2d 562- ce City Bratton v. (1985); 83 S.Ct. 795 v (6th Cir.), Detroit, mod 884 704 F.2d step analysis The first in a Weber (6th respects, other 712 F.2d ified under Janowiak is to determine whether denied, Cir.1983), 464 U.S. finding past- there has been a discrimina Rivi La L.Ed.2d 168 S.Ct. Janowiak “by competent body.” In tion a EEOC, (9th F.2d ere held that Bend Board of we see Deveraux Cir.1982) cases); (collecting Safety body competent Public was a both (1st 268, 274 n. 5 Geary, 765 F.2d Cir. findings past to make discrimination also eases); see 1985) (collecting additional implement plan an affirmative action City Chicago, F.2d States v. United the Board is the ‘administrative “because (7th Cir.1978) (Title VII standards legally responsible operation body for vary depending on whether defend do not ” Ja Department.’ of the South Bend Fire private employer). public ant is a nowiak, (quoting 750 F.2d at 561 Ind.Code (West 1983)).12 Here, of 36-8-3-2 Ann. A. course, body the Board of Trustees is the reliance on Weber on the Court’s Based legally responsible operating the South “conspic of a employer’s determination district. Therefore it is com Bend school judi in what it took uous racial imbalance” findings past dis petent both to make “traditionally segregated notice to be a cial implement and to an affirma crimination interpreted category,” has job this court Board is not the plan. tive action But the governmental af Weber requiring as only body involved here —the Office for upon find plans “be based firmative action HEW, States Rights of the United Civil competent ings past discrimination Justice, and the United Department of Janowiak, at body.” cf. for the District States District Courts Inc., Freight System, Yellow Lehman v. the Northern District Indi Columbia and Cir.1981) (re 527 n. do plaintiffs been involved. ana have objectives other fusing decide whether not, not, argue that courts or they could remedying past than Depart Rights or the the Office of Civil plans). action support private affirmative competent to not ment of Justice are bodies Janowiak, that on a sum we determined In required findings. make the improper to judgment motion it was mary Rather, any find they argue that an affirm matter of law conclude that as a by these bodies ings were made chal plan a Title VII ative action survived disagree. None of adequate. We solely on adopted lenge when the was solely on evidence findings dispari- here were based grounds present of a statistical body legally responsible for apply to a the "administrative Obviously would not this rationale University at operation” of California is no adminis- private employer for whom there deter- opera- Justice Powell Medical School. body legally responsible for its Davis trative competent compe- was not Presumably employer that the Board is itself discrimination, mined tion. 309-10, Bakke, findings. past finding make tent to make (Powell, instance, catego- opinion). The determining job J. that the S.Ct. at 2757-58 the Board "traditionally segregated.” plurality ry determined Brennan Bakke, n. competent. 438 U.S. 366 was holding Board of Pub- South Bend that the White, (Brennan, Marshall at 2787 n. 42 findings of Safety competent make was lic Blackmun, opinion). The School Board JJ. discrimination, following the past we were analogous of Trustees to the Board here Justice plurality rather than in Bakke Brennan Therefore, approach of the under Bakke. opinion. of the issues One Powell's Bakke Janowiak, it is plurality followed Brennan body competent Regents the Board of Bakke was whether findings past dis- to make competent make University was of California crimination. findings The Board discrimination. by disparity of “statistical between tuted the South Bend Board of present a Public employed minorities and the of Safety study hiring procedures to the minorities the the of within city’s department, the fire reviewed the Janowiak, 750 community.” F.2d at 562. department’s application hiring proce- and course, Nor, did the district court here of dures. and Both the Task Force Re- the approve minority layoff provision the no application the view Committee found that summary judgment. a law on matter of testing procedures and were reasonable minority layoff provision The no was discriminatory and not and recommended the by the Board and as a adopted teachers that be retained. 750 F.2d at 558-59. way face further Resolution 1020 in the to Here, however, force, no task review com- possible layoffs by of enroll- necessitated body mittee or other ever studied the budget Res- ment decline and constraints. Corporation’s past School recruitment and adopted Board olution 1020 was hiring practices and determined that these meetings at con- after a series of which were reasonable. past problem vestiges sidered Indeed, opposite is the the direct case. system. discrimination in the school It is Rights The Office for of HEW Civil studied true that the Board received statistics con- policies aspects those other oper- and cerning percentages minority teach- system, ation of and the school concluded system. ers in the school pupils Corporation that the School discriminated not, however, merely for the statistics were against minority teachers on the basis year, covered a number of current but was, course, race. This conclusion Further, years. the Board heard nonstatis- showing present on based more than a testimony tical There was that evidence. percent- disparity statistical between shortage appli- there was not a ages pupils. of minority teachers and teaching positions. Ex. K-2. cants for Def. investigations on-site OCR conducted two testimony There was also that there were Corporation and reviewed School people “at who met the least five have complaints organiza- from individuals and qualifications a to become teacher and have applied tions. positions not been hired, K-2, Def. Ex. all blacks.” finding past This administrative dis

Further, testimony indicating there was recruiting hiring crimination in the posted first that vacancies were so teachers was confirmed Brown apply teachers could for them substitute (D.D.C. F.Supp. 1215 Weinberger, before the vacancies were advertised out- 1976). Brown, In the district court also system, principals side the school Corporation found that the had not ap- requested often that substitutes be brought compliance with itself into Title pointed vacancies. Def. Obvi- Ex. K-3. VI. hiring practice ously, this would tend response to the HEW and dis- It was in perpetuate effects of discrimi- in a findings, response trict court as well as hiring substitute teachers. We nation citizens, Board concerns evidentiary meets believe that this basis minority hiring began its consideration of legal sufficiency and is a every test of adoption which of Reso- practices the School that lead to broad foundation required Further, years and in Board was authorized fact two later the lution 1020. Janowiak, adopt 1020. Resolution See that he in- Attorney certified had General F.2d at race discrimina- vestigated complaints segregation and believed tion and school The difference between evidence meritorious. This complaints highlighted and in case Janowiak Depart- investigation the basis of crucial to our decision in fact Janowiak. that was settled ment of Justice suit Minority Task Recruitment that case Corpo- the School requiring consent decree Minority Recruitment Review Force and action hir- its affirmative Committee, ration continue consti- both of which embodied in Resolution that black suffered ing policies Community v. South Bend United States A contrary in South Bend. conclusion Corp., 8, (N.D.Ind. School No. Feb. S80-35 defy common sense. 1980). findings past the of dis believe that We B. to clearly here are sufficient crimination Weber prong of the test The second support Corporation’s School affirma the requires plan that an affirmative action including policy, action both Resolution tive “unnecessarily trammel the interests of the clause, layoff no minority 1020 and the employees.” 208, 443 white U.S. at 99 See challenge. of a Title VII the face Weber In S.Ct. at 2729. the court con v. School District Philadel Kromnick of determining sidered several factors in phia, 739 F.2d Cir.1984), 894, (3d 904-06 plan acceptable. plan the Kaiser was The — denied, 782, U.S.-, 105 S.Ct. require discharge did not the of white Smith, Valentine v. (1985); 83 L.Ed.2d 777 replacement their by workers new (8th 503, Cir.) (equal protection), 507-10 hires nor did it black create an absolute bar denied, 1124, t. 102 454 U.S. cer of employees. the advancement white also see (1981); 972, 71 L.Ed.2d 111 S.Ct. plan temporary The and would end as A, Further, felt it if we Part IV infra. percentage as the soon of black skilled (which necessary the is not because approximated craftworkers satisfy the findings past of discrimination local of blacks labor force. And the Janowiak requirements) not hes we would plan designed was not to maintain a racial Supreme lead to follow the Court’s itate balance but to eliminate a manifest racial judicial notice the fact and take 208-09, U.S. at imbalance. 443 99 S.Ct. job teaching “traditionally segregated is a 13 analy 2729-30. We believe that a similar category.” study practices A of racial layoff provision the no segregated by until sis shows Indiana law schools — Agreement certainly affords no basis for doubt the 1980-83 does not unneces- 1949— Bend) by by respect teaching, 13. With we mean found HEW to be in violation VI, traditionally taught investiga- in all that black teachers 14 school Title districts under schools, primarily in states in which possible of Title VI. The tion for violations But, legally segregated by Richardson, as schools were race. F.Supp. appendices in Adams v. 356 supra, earliest statistics in noted available 92, (D.D.C.), modified, F.2d 480 100-02 aff'd minority indicate that in the record 1963-64 curiam), (en banc) (D.C.Cir.1973) (per 1159 teaching staff in the South Bend schools Brown, whose list ten states case similar teaching amounted to 3.5% of the total by higher programs HEW were found education staff. Def.Ex.H. VI, with one Title 85 school districts to violate by findings of Judicial racial discrimination substantially disproportion- more schools of E.g., public systems legion. Dayton school VI, contrary composition, Title ate racial 526, Brinkman, v. U.S. Board Education 443 by HEW to be in school districts found 42 2971, (1979); 61 L.Ed.2d Columbus 99 S.Ct. 720 Supreme presumptive Court's violation 449, Renick, Education v. 443 U.S. 99 Board of Charlotte-Mecklenburg Swann v. decision in 2941, (1979); Keyes L.Ed.2d v. S.Ct. 61 666 1267, Education, 1, 28 U.S. 91 S.Ct. Board 402 1, Colorado, Denver, U.S. District No. 413 School (1971). L.Ed.2d 554 189, 2686, (1973); North 93 S.Ct. 37 L.Ed.2d 548 course, Weber, judi- Supreme Court's Swann, Board v. 402 U.S. Carolina 43, Education traditionally segre- that crafts were cial notice 1284, (1971); Swann 91 S.Ct. 28 L.Ed.2d 586 finding categories place gated job took of a Education, Charlotte-Mecklenburg Board (The by employer. past discrimination 1267, 554 402 U.S. 91 S.Ct. 28 L.Ed.2d plan was invalid Circuit had held that the Fifth Board, County Green past finding dis- there had (1968). 20 L.Ed.2d Alu- Kaiser. v. Kaiser crimination Weber Weinberger, appendices Brown v. Corp., 224-26 & Chemical minum (D.D.C.1976) six F.Supp. list rev'd, 1977), Cir. ineligible by found HEW school districts (1979).) pur- does not L.Ed.2d 480 Janowiak funding Emergency School Aid Act under an finding port require 92-318, VII, (Pub.L. Stat. 354 No. Title traditionally action in a an affirmative for segregated (1972), seq., et re- at 20 U.S.C. § codified job category VII a Title to survive 95-561, 601(b)(2), pealed Pub.L. No. challenge. (1978)), (including districts Stat. 2268 ployed during preceding year. This of the white the interests sarily trammel shall determined divid- teachers.14 bargaining the number of clearly, provision is First and most employees by the total number of unit a term in the 1980-83 temporary. It is employees Corpo- bargaining unit again the union Agreement. Unless computation shall be mutu- ration. expire provision, it would agreed to the by the Association and ally determined August Agreement terminated when February 1 Corporation on or before out, provi things worked 1983. As year. of each readopted and then altered in sion both was bargaining agree collective the 1983-84 January 1984 the committee recom- Id. Corporation and the School ment between following adoption mended the of the sub- Agreement The 1983-84 NEA-South Bend. stitute clause: language. provision in identical included action is defined as maintain- Affirmative 14, XXIII, 9. How . Ex. Art. § Pl percentage minority ing the same Understanding ap ever, Memorandum a in each classification up a Agreement set pended to the 1983-84 throughout period of reduction in force a to committee joint teacher-administrator employed prior as to such reduc- minority lay language of the no study the contract, purposes of this tion. For and make recommendations off clause minority shall be defined as members negotiations. Pl. Ex. contract the 1984-85 Hispanic Races. the Black and 14, pro further 61. The Memorandum F.Supp. (quoting “Final Re 593 1227-28 agreement if on a recommen vided that Language port Minority Committee” reached, thirty-five could be the first dation 45). (Pl. 12) p. App. 17 Ex. year would layoffs for the 1984-85 Court In these circumstances District language of the no governed be plaintiffs’ charac- reject correct to was lay minority layoff provision. If further ongoing provision as an gov terization necessary, they would be offs were measure. 593 following language: racial-balance-maintenance by the erned provision 1232. The was neces- F.Supp. at minority bargaining percentage of incorporat- sarily temporary it was during year employees employed unit agreement of bargaining in collective ed implement reductions are in which staff duration. Kromnick v. School limited See the same ed shall reflect 894, Philadelphia, 739 employees em- District minority bargaining unit be, so would seem to appear others will to treated some of filled Some courts have instance, prongs. independent prongs separate For of the Web as these factors as be redundant See, VII, e.g., Transportation Johnson v. plan’s purpose test. that of Title er mirrored if a California, Agency, County, 748 F.2d Santa Clara certainly include the mainte- does not which 1308, (9th Cir.1984). this is the We doubt 1311 particular a work- racial balance in nance of a First, Weber, approach. the text correct force, permanent plan be a then a could not and in word paragraph and sentence structure balance. maintain racial measure intended to Further, ing, two leads us to believe there spelled out as all these factors were if Boyd, prongs the test. See W. Affirmative nothing independent prongs, be left there would Decision, Employment Weber Action in — The could except which a court its own intuitions (1980) (explaining Weber Iowa L.Rev. unnecessarily tram- whether the "not determine Bushey two-pronged); see also v. New test prong prong That was satisfied. meled" Commission, 733 F.2d State Civil Service York pol- unprincipled and or become either vacuous (2d Cir.1984) prongs (implying two course, weigh of these we do each iticized. Of — U.S.-, denied, test), 105 S.Ct. Weber cert. whether the in our determination factors (1985); Kromnick v. L.Ed.2d 795 cf. unnecessarily the interests of trammels Philadelphia, 739 F.2d District may be employees, there well not and so white (3d Cir.1984) (implying temporal limitation any necessary in result under the difference — U.S.-, denied, prong), cert. factor is third these factors under approach that balances Lehman v. 83 L.Ed.2d 105 S.Ct. prong "unnecessary and an single trammels” Inc., Freight System, Yellow indepen- some of them as approach that treats Second, (dictum). Cir.1981) (same) logic prongs. dent are ful- some of these factors that if indicates — Cir.1984), (3d denied, provision cert. show that the unnecessarily tram- -, (1985). rights. They layoffs 105 S.Ct. 83 L.Ed.2d 777 mel their claim that Further, pursuant changes proposed by the Mi could have effected to the Committee, seniority system, Language rest of nority indeed the with black first, itself, layoffs teachers recalled or that constitution of the committee could proportionally, been made provision as under strong evidence was al approved the new contract and in the form temporary. ways meant Wygant v. Jackson Board Edu- provision require did the dis- Nor cation, (6th Cir.1984), 746 F.2d 1152 charge replace- of white teachers and their — U.S.-, granted, hires, ment new black create an abso- (1985).16 Layoffs pursuant L.Ed.2d 298 of the white lute bar advancement system the rest of the would have did require teachers. It some white reduced black teachers laid teachers be off who would not other- 10.8%,barely higher than the 13.0% forty-eight wise have been laid off. percentage of black teachers the staff at would not white teachers who have been time adopted Resolution provision up but for made laid off (10.4%). F.Supp. Layoffs un- (before Corporation’s of the School 3.33% proportionate system kept der a would have (and teaching layoff) staff of 1443 of 3.77% of black teachers at 13.0%. 1274). after-layoff staff of Those who But Resolution 1020 also stated that it was queue head were laid off were at the of the goal Corporation of the increase admit, plaintiffs And all for rehire. as the percentage minority employees every of twenty originally of the teachers laid but year, great- not Wygant and does hold that by August off had been recalled 1984. 593 proportionate layoffs impermis- er than F.Supp. provision at 1231-32.15 The did not light In factors of these we cannot sible. whites, hiring promotion of or affect layoff provision say minority the no tram- of any teachers. trammeled, meled, unnecessarily much less Furthermore, district found court merely of white teachers the interests testimony that at trial established that the layoffs pursuant to it raised the provision designed nothing to do more percentages of teachers on the staff hiring gains prevent than the loss of from 13.0% 13.8%. since the that had achieved Board layoff of its minority resolved increase We conclude that the no F.Supp. provision This unnecessarily black teachers. 593 1232. does trammel not finding clearly As the of white teachers. And is not erroneous. the interests noted, period provision prongs court in a of “de- because the satisfies both district enrollment, test, not Title layoff it does violate clining staff and student Weber VII. provisions retaining means of are the hiring procedures.” progress made c. F.Supp. at 1232. 593 plaintiffs argue Firefighters two that plaintiffs argue that alternative gain preserved Stotts, could and

methods Local Union v. No. 1784 docketed); argument recently Geary, plaintiffs' Deveraux v. 765 F.2d oral counsel stated 15. At Here, 268, (1st Cir.1985). re- all but five of the teachers had been 6 we discuss that 275 n. A, adequate parts called. III A IV there are and discrimination, past findings of and neither granted Wy- Supreme certiorari 16. The Court findings layoff provision was nor the those al- gant the Constitution to consider whether solely respective disparity in on a based layoffs preferences racial teacher lows minority faculty percentages members adopted by public employer, in the absence grant Supreme Thus the Court’s students. discrimination, findings that are based Wygant our re- should affect certiorari respective disparity solely upon the between or our liance on the Sixth Circuit’s decision faculty members and percentages of in this result case. — U.S.-, 2015, See, 105 summary 85 S.Ct. students. (subject of case 298 matter L.Ed.2d 808 (1984), city. objections 483 The Court ex- 81 L.Ed.2d S.Ct. 104 minority layoff provision city to decide whether the plicitly refused that the shows Stotts, Supreme voluntarily unable to Title VII. would have been

violates VII, particular Stotts, Title provision. held 467 adopt Court U.S. at such Orr, 703(h) 706(g), 42 U.S.C. 2590; Turner v. -, sections 104 S.Ct. at 2000e-2(h) 2000e-5(g), barred a dis Cir.1985); & (11th Van- F.2d 824-25 §§ modifying a consent decree Cleveland, trict court City v. guards Cleveland objection ordering party’s one over (6th Cir.1985); Wygant v. F.2d as to retain black made so layoffs Education, F.2d at Board Jackson the beneficiaries of had been hires who Third, Stotts purport did not even decree. The prior remedial consent overrule Weber. to, actually, less much modify itself limit or did not prior decree 274; Geary, Deveraux v. Van- 765 F.2d at See seniority rights. fide bona preexisting Cleveland, City v. guards Cleveland (1st Geary, 765 F.2d v. Deveraux 7; Wygant v. n. 753 F.2d at 487-88 & City Vanguards Cleveland Cir.1985); Education, 746 F.2d at Jackson Board of Cleveland, 486-87 considered All the circuits that have District Cir.1985); Kromnick v. School Weber re- the issue have concluded Grann Philadelphia, F.2d at Geary, law. Deveraux v. good mains Madison, City of 795 n. 5 (First Circuit decision col- F.2d at — U.S.-, denied, (7th Cir.), Second, Third, Sixth, lecting cases from see also L.Ed.2d 231 Circuits); see also and Ninth Seventh F.Supp. at 1230. Orr, (Eleventh Turner v. 759 F.2d at 825 distinguishable Circuit). Finally, note that in essence

Stotts several we First, 703(h), on which section grounds. a district court’s Stotts was a case about protects bona relied and which the Court amend a consent decree over the power to systems are not the re Stotts, that fide parties. objections of one of the — discriminate, is not of an intent (Ste sult at-, at 2594-95 105 S.Ct. U.S. here. The union and School applicable see vens, concurring judgment); in the J. “incorporated the Corporation 272-73; [no Geary, v. 765 F.2d at Deveraux in collective bar layoff provision] ... their Madison, n. City v. 738 F.2d 795 Grann contract, thereby agreeing that gaining Therefore, agree district we with the seniority are to be prerequisites of certain decide this case. court that Stotts does not Kromnick v. policy.” qualified Indeed, n. 4. F.Supp. at 1230-31 & 593 Philadelphia, 739 F.2d District School Pl. Br. finally concede as much. plaintiffs Stotts, there is no override at 911. Unlike at 17.17 v. seniority plan. Deveraux of a bona fide minority layoff the no conclude that We EEOC v. Local Geary, 765 F.2d at Agreement does provision of the 1980-83 638, Wy 1172, (2d Cir.1985); 1186 Title VII. not violate Education, 746 v. Board gant Jackson v. Dis 1157-59; Kromnick School F.2d at IV. Philadelphia, 739 F.2d at 911. trict of minority layoff provision Because the court-imposed Second, Stotts concerned VII, consider Indeed, Title we must does not violate the no mi plan. affirmative action claim that it violates plaintiffs’ imposed over nority layoff plan there was permissible VII it is under Title Because it is argument that if Stotts could be made 17. An 703(h). protected by If the compels presumably rather section decides this case it affirmance Weber, not overrule the white teach- reversal. Stotts does here had ordered than district court provision in that the we have determined and question have done so over reinstated it would ers and so the Weber test here satisfies objections, Corporation's and been in a School provision was Title VII. The does not violate analogous position to that of the district court bargaining agree- incorporated the collective in Stotts, Supreme Court held action the in whose effectively part of the seniori- became ment and 706(g). prohibited Section to be Corporation’s teachers. ty plan

809 Supreme is a Equal compelling Protection Clause. crimination interest. See Smith, considered merits of consti- n. Court has v. 654 F.2d at 508 Valentine 5 challenges to (identifying positions affirmative action tutional of Justices in Fulli- University plans Regents opinions). not, Cali- There love and Bakke is Bakke, 265, however, 438 98 S.Ct. any v. U.S. doubt interest fornia (1978), 2733, 750 and important 57 L.Ed.2d Fullilove enough to sup- substantial 2758, Klutznick, v. 448 U.S. 100 S.Ct. port Fullilove, plans. affirmative action (1980). case did 65 L.Ed.2d 902 In neither (Burger, at at 2762 448 U.S. any of a ma- opinion command the assent C.J., joined White, opinion, by Powell and opin- jority of the Court. Thus Court’s JJ.); 519-20, at at id. 100 S.Ct. provide guidance ions do not kind (Marshall, J., concurring judgment, in the area its decision constitutional Blackmun, joined by JJ.,); Brennan and analyzing Title VII chal- Weber does Bakke, at 98 S.Ct. at 2757 Indeed, recently lenges. this court has (Powell, opinion); J. id. at 98 S.Ct. at stated: (Brennan, Marshall, Blackmun and reviewing opin- separate eleven After White, Janowiak, opinion); JJ. 750 F.2d at decisions, plurality filed in these two ions In order to that the show affirmative agrees with the Circuit this court Sixth action serves the substantial im- gar- only clear consensus to be that “the portant remedying interest of the effects these nered from various statements discrimination, a finding there must be program affirmative action Janowiak, past discrimination. F.2d (1) must be governmental interest some 563-64; Smith, 654 F.2d Valentine served, some- program must again, the issue before us is 508. Once directed toward the achievement how be findings whether objective.” of that sufficient. Janowiak, (quoting 750 F.2d at Brat Janowiak, “failure we held that the Detroit, 878, 885 F.2d City ton v. any evidence other than evi- put forward (6th Cir.), respects, in other modified disparity statistical dence of [defend- Cir.1983), denied, (6th F.2d 222 hiring prac- that the own admissions ants’] 79 L.Ed.2d non-discrimi- appeared tices reasonable and Smith, see Valentine natory,” 750 F.2d at was insufficient (detail Cir.) 509 nn. & finding constitute a of discrimination on positions Justices the various of the summary for defendants support judgment past finding of necessary chal- matter of law on a constitutional as a review), cert. appropriate and standard of plan. action But lenge to their affirmative denied, 71 454 U.S. 102 S.Ct. present mere here was not a the evidence City 111 United States L.Ed.2d disparity finding a coupled with statistical Miami, (5th F.2d Cir. 614 1337 hiring procedures reasonable were that (“In fifty 1980) one over hundred part non-discriminatory. supra III See pages make Reports of United States [that noted, And, the district previously as A. up opinions], have the Bakke the Justices on for defendants not summa- found court mainly agreed that told us evidentiary hear- ry judgment but after an rehearing banc, F.2d 664 disagree.”), en findings ing and a trial. We believe Cir.1981). But at 811— 435 see infra adequate. fully 12 & n. 19. findings that Our conclusion

A. the no minori sufficient to enable here are Equal an provision to withstand ty layoff the no first examine We whether challenge supported by Protection governmen a minority layoff clause serves Philadel v. School District Kromnick uncertainty as There is some tal interest. Cir.1984), (3d cert. 894 de 739 F.2d phia, in governmental interest to whether — -, 83 nied, societal dis- past effects of remedying the 810 and Valentine v. (1985), 777 lumbia District Court and HEW were

L.Ed.2d denied, Smith, (8th Cir.), adequate to justify a 654 F.2d 503 race-conscious rem- 1124, 102 edy Findings close. previ- 71 L.Ed.2d 111 is not even (1981). statutory of title ous violations VI a justify district court and OCR the use of this Valentine on all fours with case. type remedy by some of race-conscious a Valentine, alleged The plaintiff, Bonnie constitutionally permis- its state serve had, University in that the Arkansas State objective remedying past sible discrim- Equal Protection Clause of violation ination. Amendment, refused to Fourteenth Valentine, (footnote at 509 omit- hire she was white.18 The her because ted). Eighth acknowledged that Circuit Valen race, of her Kromnick v. School District rejected tine had been Phila- university (and delphia judgment but for the arose a affirmed from Title VI hence applicant pur constitutional-standard-invoking) the black challenge because ASU hired plan. sought Val policy its affirmative action to a to maintain suant to a facul- entine, ty at the relevant at 507-11. The court re ratio schools of between F.2d system-wide ASU quired propor- predicate its affirmative ac 75% 125% tion of black and white finding teachers. From plan tion discrimina (We Rights 1978 to 1982 the Office for Civil Val F.2d relied on tion. 654 Janowiak, HEW required district main- requirement this in entine policy eligible tain in order to be 564.) The at Office Civil F.2d Emergency funds an federal under Rights compli had of HEW conducted (Pub.L. 89-10, VI, Act No. Title Aid ance of ASU under Title VI review (1965), 95-561, VI, Pub.L. Stat. 55 No. Title January gover HEW informed (1978), at 20 Stat. codified U.S.C. nor of Arkansas that state’s universi 3191-3207, 97-35, repealed No. Pub.L. ASU, § tites, including in compli were not 587(a), 95 Stat. 480 effective Oct. compliance Voluntary Title ance with VI. 1, 1982). In Depart- 1982 the OCR for the achieved, February was not Education, ment of which assumed District Court for the District of Columbia responsibility, compliance found district ordered HEW to commence enforcement compliance regulations its and no with proceedings bring ASU as to so required proportionality longer policy. university compliance into with Title VI. policy vol- The school district continued Richardson, Adams v. F.Supp. 92 untarily. F.2d 897-900. modified, 480 F.2d 1159 (D.D.C.), aff'd (D.C.Cir.1973) banc) curiam). (en (per ASU The district court held there finally submitted a late inadequate pol- evidence the 75%-125% response findings and the action icy purpose. serve a remedial continued to 505-06, by the taken OCR. Third Circuit reversed: Eighth 508-09. The Circuit held these apparently The district court believed findings adequate: once the School District was relieved findings obligation to There is no consensus on what in 1982 of the by the OCR policy, its action past justify of remedial maintain the 75%-125% Nevertheless, continuing policy is- ceased to be affirmative action. the in ignored the findings past dis- The district court whether the remedial. sue of proceedings history by year 15 state crimination made the District of Co- Valentine, white, affirmative action taught at business administration. The a ASU from 1974, personal resigned for of white until when she at ASU removed the names all 1967 officer Valentine’s, list, only replacement, including Her the reasons. candidates resigned faculty, 1976 Val- business in and applicants one of the two black recom- and applied position. her former She entine for by action officer was the affirmative mended faculty by qualified most candidate rated the Valentine, by F.2d at ASU. 654 506-07. hired college and the dean of search committee

811 District, B. which are School court, directed to in state pending still The next factor to be considered in the Philadelphia integration of the effecting challenge constitutional is whether the no long history system. public school minority layoff provision is “somehow di “racially as Philadelphia public schools the achievement rected” toward or schools” as either “white identifiable” Corporation’s remedying interest School gainsaid. As cannot be schools” “black period discrimination. In the since the District was early 1969 the School Supreme Court’s decisions in Bakke decree entered operating under a consent Fullilove of circuits devel number Rela- Pennsylvania Human into with the principles, underlying oped based on the it to remove requiring tions Commission opinions, concerns of the various Justices’ among the racial imbalance determining challenged whether its schools. plan voluntary affirmative action is suffi

ciently governmental objec related to the See, repeated remedying past court discrimination. In the context of tive Kromnick v. District Phila the ra- e.g., School orders to eliminate administrative schools, 903-04; delphia, South Flor the School identifiability 739 F.2d at cial this end Chapter Metropolitan v. Dade Coun plan further ida District’s 846, (11th Cir.), must be considered ty, 723 F.2d cert. integrating faculty 851-52 — ongoing denied, part -, a vital remedial as 83 unitary system. City Bratton v. (1984); to achieve effort L.Ed.2d Detroit, (6th Cir.), 704 F.2d Kromnick, F.2d at 904-05. respects, 712 F.2d in other modified findings by the OCR We believe denied, Cir.1983), cert. (6th in the District HEW, court by the district (1984); Val 104 S.Ct. 79 L.Ed.2d 168 Weinberger in Brown v. of Columbia Smith, v. see also entine 654 F.2d certification under- Attorney General’s Prescott, v. F.2d 1530- Paradise v. States lying the consent order United Cir.1985); Wygant v. Jackson (11th Corpora- Community Bend Education, Board of 746 F.2d remedy any inade- tion to be sufficient to — U.S.-, granted, Cir.1984), (6th findings might in the quacies there 2015, 85 L.Ed.2d 298 series Trustees its made the Board of Alexandria, City States United leading up adoption meetings in 1978 Cir.1980). (5th F.2d Thus the of Resolution 1020. agree We with the recent statement supported. provision adequately layoff of the Eleventh Circuit that “the differences Indeed, Eighth Circuit agree with the we are more approaches various “is not between facts the question that on these Para phraseology than of substance.” more would be require close.” To even Prescott, dise equity beyond pursuit of racial burden event, Cir.1985).19 need not we reason. all nation; (2) long plan as is Circuit, so endures example, in Val- Eighth held legitimate reasonably necessary its to achieve plan be "substan- must v. Smith that entine hiring (3) remedying past goals; not result tially objective of does related” (4) plan does unqualified applicants; The court discrimination. "substantially completely all vacancies related:" bar whites from then defined invidiously unnecessarily or program otherwise action affirmative A race-conscious remedying past trammel their interests. substantially dis- related approvingly has been cited Id. Valentine implementation results crimination if its Palmer v. context. hiring of circuits in this number designed the of result in or is 595, Trustees, 600 n. F.2d Board 748 minority applicants District so number of sufficient of Cir.1984); (11th Wygant Jackson Board v. employer’s 14 work of the racial balance that the of Cir.1984), 1152, (6th Education, F.2d 1157 746 roughly, not un- approximates but does force reasonably — 2015, -, 105 S.Ct. 85 exceed, granted, U.S. cert. balance that the (1985); O’Bryant, Morgan 671 v. 298 L.Ed.2d discrimi- the been achieved absent 812 — granted, cert. them, U.S.-, 2015, of among because a review 105 S.Ct.

choose (1985). Indeed, mi- 85 L.Ed. 2d 298 us that the no the teach the evidence convinces stigmatized laid off are ers no more than and nority layoff provision was reasonable any employees laid off for lack of merely “somehow directed” but essen- not any seniority syst under other contractual crucial to the achievement of the tial and em.20 policies action of Resolution affirmative 1020, scrutiny and so would survive under Second, provision require does not any standards. of these unqualified retention of teachers. Detroit, City v. Bratton 891; 704 F.2d at of First, provision stigmatize did not Smith, v. Valentine 511; Unit- 654 F.2d at laid any of the white teachers who were Miami, City ed v. States 1322, 614 F.2d of merit layoff off. The was not related to (5th Cir.1980); Wygant v. Jackson 1340 provision and

but was determined Education, Board F.Supp. 546 of seniority. Thus teach aspects other of stamped laid off were not Third, ers who were provision require did not Bakke, 371, inferior. 438 U.S. at 98 S.Ct. layoff forty- of all white teachers. (Brennan, White, Marshall and at 2789 eight teachers who would not have been Fullilove, Blackmun, opinion); JJ. 448 U.S. provision laid off but for the amounted to 484, (Burger, opin Thus, at 2777 C.J. faculty 100 S.Ct. of the of 1274. 3.77% Edu Wygant v. Jackson Board ion); provision invidiously did not trammel of cation, 1195, (E.D.Mich.1982), 1202 F.Supp. 546 interests of the act as an white 'd, (6th Cir.1984), Fulli- employment. 746 F.2d 1152 absolute bar to their aff denied, 23, Cir.), (11th Cir.1985); (1st cert. 459 U.S. 827 767 F.2d at see 28 1531 also United 178, 881, Miami, 1322, L.Ed.2d & 146 City & (1982). 103 S.Ct. 62 & 64 States v. 614 F.2d 1335-38 Indeed, Morgan banc, (5th Cir.1980), the First Circuit stat rehearing en 664 F.2d 435 First, Fifth, Eighth Sixth and Circuits (5th Cir.1981). ed that the "substantially proper in accord” on the test The Third Circuit has held that the relevant applied. Morgan O’Bryant, v. 671 F.2d at to be reviewing plan factors in a race conscious “(1) importance validity and of the remedial plurali The Sixth Circuit follows the Brennan aim, (2) competence agency of the to choose ty requires Bakke and that the remedial mea (3) remedy, tailoring such a sure be “reasonable.” Detroit Police Officers’ remedy so as to limit the burden suffered 671, (6th Cir.1979), Young, Ass’n v. 608 F.2d v. School District Phila others.” Kromnick 3079, denied, cert. 452 U.S. 101 S.Ct. delphia, 739 F.2d at 904. (1981); City L.Ed.2d see Bratton v. De positions are detailed The Eleventh Circuit troit, 704 F.2d at 885 & 887. "Reasonableness" Prescott, (re v. 767 F.2d at 1531-32 Paradise by examining the facts of the case is determined viewing Chapter Metropolitan South Florida v. group see discrete or individual "whether (11th Cir.), County, Dade 723 F.2d 851-52 stigmatized by program and whether ra is — denied, -, cert. reasonably used in cial classifications have light Smith; (1985); Valentine v. L.Ed.2d 150 objectives.” program's Bratton Alexandria, City United States v. 614 F.2d 887; Detroit, City see Detroit 704 F.2d (5th Cir.1980)). Young, 608 F.2d at Police Ass’n v. Officers’ Education, Wygant Board see also v. Jackson matter, though rely general 20. As a we need not ("test asks whether the affirma 746 F.2d at 1157 here, is not en on it the self-esteem whites ‘substantially plan related’ to the tive action objectives is dangered by attempts remedy past acts un remedying past discrimination and purpose fairly militating their favor. The correcting and 'chronic' underre 'substantial' blacks, programs to aid not to exclude such presentation"). majority socially dominant white whites. requires that the must The Fifth Circuit being subject amounts to constitu to what "reasonably the interest in reme- related" to City tionally stigma. Bratton v. invidious discrimination, dying and considers three Detroit, (6th Cir.), 704 F.2d modified (1) remedial relief is tem- factors: whether the (6th Cir.1983), respects, other 712 F.2d porary and terminate when the manifest will denied, 79 L.Ed.2d eliminated, (2) have been racial imbalances Nagel Equal see T. Treatment establishes an absolute bar whether the relief Discrimination, Compensatory 2 Phil. & Pub.Aff. whites; whether the advancement - (1973), reprinted in Equality persons. only qualified Unit- relief will benefit and Preferential Scanlon, (Cohen, Nagel ed. & Alexandria, City ed States v. atment Tre 1977). Prescott, Cir.1980); see Paradise

813 2777; only recently hired. ers had been Without love, 100 S.Ct. at at 448 U.S. 511; Smith, percentage F.2d at Unit- provision the of black teach v. the Valentine Miami, 614 F.2d at City v. dropped ed States have from ers would 13.0% 1340; Edu- Board Wygant v. Jackson 10.8%, to what it had been almost back 1202; Weber, cation, F.Supp. at see adopted. 1020was At the when Resolution 208-09, 2729-30. 99 S.Ct. at percentage of black students same time the Wygant district court agree with the We Def. Ex. had risen from 22.1% 25.8%. (absent a conceive how it is difficult to that plaintiffs apparently concede E-l. The represen- duty of fair claimed breach layoff provision straight percentage a that voluntarily tation) was plan which a PI. Br. at would have been reasonable. See membership the NEA- adopted by the provision a Layoffs pursuant such Bend, majority of whom were a kept percentage have the would black in- white, their invidiously trammel could 13.0%, layoffs while the actual teachers fact, this F.Supp. at 1202. In terests. minority layoff provi pursuant to the no in validat- most decisive is one of the factor sion increased the to 13.8%. challenged plan. the do not believe this minor difference We temporary Fourth, was a provision provision constitutionally unrea makes partic- a designed to maintain measure not This conclusion rests on the fact sonable. teaching in the staff. racial ular balance required that Resolution City part III B. Bratton v. supra See Corporation strive to exceed each School 892; v. Detroit, F.2d at Valentine year minority employment figures of Smith, States 654 F.2d at United previous year. Vanguards Cf. Miami, 614 F.2d City of Cleveland, City 753 F.2d Cleveland v. that a serious claim is teachers’ most (6th Cir.1985)(rejecting “entire procedure would layoff less burdensome argument speculative” the ly too is provision so the possible, and have been may approve not a consent district court It is true that considered reasonable. not adopting an affirmative action decree possible have been in the abstract would may, over “simply other measures excluding provi- by seniority lay off years, of future achieve the course first, or to rehire sion and black original)); (emphasis result” same (as now layoffs is engage proportional Philadel District Kromnick School layoff provi- the revised the case under (“No Supreme Court phia, 739 F.2d at 907 designed sion). provision But competent agency to required a opinion has 1020 and goals of Resolution further the convassing of alternatives as a undergo gains that had been loss of the prevent the legitimate for a prerequisite constitutional made. opinions action. The various remedial without the been effected layoffs If expressly reject any re either Fullilove (27.3%)of one-quarter than provision, more remedy chosen be the that the quirement teachers would school district’s black restrictive, rigor adopt a far less least off, almost one-third laid have been (citations omitted)). ous standard.” off teachers would (32.9%)of the laid believe of these reasons we For all The reason for Ex. F-1. black. Def. sufficiently furthered the provision distressing one that a is the usual objective.21 legitimate Corporation’s teach- disproportionate action under may status of affirmative be the v. Illinois on Donovan dissent's reliance 21. The equal protection Cir.1982), rights (7th or the Ass’n, statutes civil Education Amendment, Education, those Fourteenth clause Board and Oliver v. Kalamazoo litigation." involved in Cir.1983) [that] misplaced. laws [were] Dono- Donovan, Anything Don- F.2d at 640. found a in which we labor case van was a today rely the dissent 401(e) Labor-Manage- on which ovan of section violation court-imposed involved dicta. Oliver mere Act of Reporting Disclosure ment a bona fide seniori- layoff system overrode 481(e). not involve That "case [did] U.S.C. objections of one of ty system over Whatever legality action.... of affirmative by pendent jurisdiction supported adequate exercise over the it was also state Because discrimination, dismissing findings preju- was valid them without claims challenge. Gibbs, constitutional dice. survives 86 S.Ct. at Delcambre, v. Delcambre V. plaintiffs’ the turn to We now plan An affirmative action is a serious minority challenges to the no law state It must not into measure. be entered with- Having found merit to layoff provision. no out consideration of the need careful claims, the district teachers’ federal the plan plan. and the But the burdens pendent jurisdic court declined to exercise here, XXIII, Article involved Section the claims.22 The district over state tion agree- bargaining the 1980-83 collective correctly the decision noted court the ment between South Bend School Cor- the state law claims to entertain whether Bend, poration the NEA-South was citing discretionary, United Mine was carefully considered and reasonable under Gibbs, Workers the circumstances. We have concluded (1966), 1130, 1139, 16 L.Ed.2d 218 that it did not violate either Title VII or the the on the merits in which even after trial Equal Protection Clause of the Fourteenth proven, citing claim not federal has been Amendment. We have also concluded that Delcambre, 635 F.2d 407 Delcambre the district court did not its discre- abuse Cir.1981) curiam). (per The court then rea dismissing pendent tion the state claims. as soned follows: above, given For the reasons the order of crux state claims in this The the court is district Affirmed. XXIII, Article impact is the case seniority rights plaintiffs’ under POSNER, dissenting. Judge, Circuit The Indiana Teacher Tenure Act. system Bend, public school The ac- question of whether an affirmative All laid off 146 Indiana teachers. the Teacher Tenure Act tion violates white; seniority had more than blacks by not addressed Indiana has off; years not two later 20 of the 48 laid Therefore, where, here, courts. sys- The school yet had not been recalled. ques- state proper resolution of the law laying carrying policy tem out a was unclear, may prop- court tion is a federal racially off This discrimi- blacks. was pendent erly is- decline to address question natory action and the is state Any judgment this court on sues. it denied the 48 white teachers the whether advisory question purely would be laws, in equal protection of the violation of precedential value to the state and of the Fourteenth Amendment. court. whites, against when con- Discrimination omitted). (citation F.Supp. at 1233 On tenuously, way, in some however nected argu- merely restate their appeal plaintiffs whites, history discrimination is merits of their state concerning ment or, action,” less eu- called “affirmative is The correct standard review claims. however, phemistically, “reverse discrimination.” discretion, not error on abuse legality The its is bounded debate over the district merits. We do not believe that, like dis- declining positions. two first court abused its discretion were, plaintiffs’ below explicitly state-law claims parties litigation. The court "(1) validity challenges essentially, distinguished voluntary action affirmative 2, 1982; Meeting Oliver, 1 and of June n. Board plans. See 706 F.2d at 763 n. 6 & 765 Education, (2) respect to Board’s decision with Wygant Board v. Jackson Meiss, by plaintiffs Jeanne supports posi- Jan claims advanced our which the dissent concedes Ujdak; tion, Reabarger, Bonita simply Patricia Toth and Sixth stated that Oliver Circuit layoff and, minority validity of 'no anticipated Wygant, 746 F.2d at 1157-59. Stotts. Stotts, Act, I.C. Oliver, Wy- the Teacher Tenure distinguishable under clause like seq." F.2d at 1232-33. et § 20-6.1-4-1 gant, case as well. from this against members of reverse discrimination is less vicious and crimination se; rights illegal per that since groups, it is harmful than against less discrimination personal rather traditionally against. discriminated rights, emphasized as group than Con- For even severest critics of reverse 440, Teal, 453-54, 457 U.S. v. necticut object programs discrimination do not to 2533-34, (1982), 2525, 73 L.Ed.2d 130 S.Ct. recruiting training or blacks and other membership group in a racial confers no minority persons, programs though such entitlements; that to there is and hold that preference, though create a racial and good discrimination and bad racial racial recruiting program training whites only and that the bad is un- discrimination gravest as such would be viewed with the make the lawful would antidiscrimination suspicion. contingent, empirical, too principle too too evaluating inSo what South Bend has caprice, subject judicial and at once too to to done these white teachers we legitimate rights of white heedless permitted by judicial superiors our either to people condescending too toward black condemn it out of illegal hand as discrimi- position The second is that reverse people. nation its because motivation was racial or permissible if reasonable discrimination to it evaluate under a standard of reason- circumstances; that the law all the whereby anything goes ableness that is not among capable differentiating should be clearly arbitrary. We have to look at it types discrimination that differ histo- it, critically give in Justice Brennan’s —to motivation, ry, consequence; and that words, review, and searching” “strict Re- a col- inflexible commitment the idea of gents University v. of California prevent or-blind would Constitution Bakke, 361-62, supra, 438 U.S. at 98 S.Ct. overcoming of cen- people from the effects (separate opinion) to ad- —and turies of severe discrimination. judge equal protection it a denial of the positions between is as The choice these if say the laws we cannot that it is a facing as issue the nation. contentious clearly well-tailored means to end. lawful Supreme has avoided it steer- Court possible There are two ends to which the course, obliging thus to do a middle us laying might off of these teachers conceiva- has to con- likewise. Court refused bly proper be a The first is to means. outright, as demn reverse discrimination Suppose remedy a violation law. South against mi- discrimination blacks and other formerly Bend had to hire black refused See, e.g., nority groups is condemned. teachers, it not correct the violation Klutznick, 448, v. 448 U.S. 482- Fullilove jumped hired but ahead blacks them 83, 2758, 2776-77, L.Ed.2d 902 100 S.Ct. seniority of some white teachers on the (1980). permis- But it has not it as treated remedy roster. This defended could be discrimination, sively purely “economic” as that, ground city’s past but for the per- exempting such from a as individuals discrimination, the black teachers whom tax, property Compare id. sonal treated. recently hired been hired had would have J., (Marshall at 2795 con- 100 S.Ct. earlier and would thus have accumulated curring), University Regents Cal- seniority as much as white teachers— 358-62, Bakke, U.S. ifornia prove though city would have 2782-85, L.Ed.2d given super- particular black teachers Brennan, J.), (separate with opinion fact, example as- seniority my as Lake Parts Lehnhausen v. Shore Auto sumes, city’s past dis- victims of the Co., 359-60, 93 S.Ct. Local Union Firefighters crimination. See 1003-04, (1973). 35 L.Ed.2d 351 All of the Stotts, No. Justices seem troubled state action (1984). lines, Applied 81 L.Ed.2d 483 even draws racial if the benefited case, fail for two group target, rather than a defense would is a traditional is no practitioner beneficiary, discrimina- reasons. There evidence or a su- particular also who received tion. Yet all seem to believe black teachers schools, if, segregated even with ratio had ever been discriminated perseniority system. by the South Bend lower of black white teachers was than put teachers ahead city students, the black And ratio of black to white teachers, giving them thus the white of all throughout it has been apparently plausible to imag- than it is more history. Maybe there were Bend’s fewer had there have accumulated ine qualified black teachers than white teach- against blacks— never been ers; system the school therefore hired few- them, fact, they could what giving er black teachers relative to black students get only in a world where expected to white teachers relative to white than stu- systematically discriminated whites were dents; ratio so student-teacher against. higher in the in the black than white would, this; There if forget for the more funda- schools. the schools were all But discrimination, case racially segregated, is this is not a point mental be but in hiring, hiring out of discrimination in arises not distinction fundamental to —a against particular black teach- whether this case. more kept jobs their when senior ers who remedy The rational for the discrimina- any laid off other were or whites engaged tion in which South Bend —for in teaching jobs candidates for black segregation school as distinct refusal public South Bend Bend schools. South qualified to hire teachers—is black not su- teachers, against black used to discriminate perseniority for but equal black teachers true, lay in it is but assignments for black teachers. It predomi- assigning them to with schools surprising therefore not that the consent not in nantly population, re- black student provi- decree entered in 1980 contained no scanty fusing hire references to them. superseniority. sion for The defendants’ are to the in the record to “recruitment” argument conceded oral counsel that no until the 1970s the school board fact that competent body a finding had ever made aggressive efforts to recruit did not make that the school board had turned down a agressive eforts It did not make blacks. teaching qualified applicant job. black in anyone. hir- recruit Affirmative action important I not find this concession re- do permitted, but it is sometimes not majority opinion. in the marked mandatory, equate not and its does absence discriminating against than Rather black appli- refusing qualified hire black hiring, Bend has discrimi- such I can find no indica- cants. Of refusal in their since before the con- nated favor unelaborated, except record an tion is a unsubstantiated, signed. decree was This more sent statement made unsworn pertinent fact than what Indiana did to public at a community a black activist territory, it meeting My when was a before the school board. brethren black-s War, “testimony”; describe this statement as the Civil or even 1949. Whatever testimony, nothing aggressive is not and there is else. past failure in the area its recruiting blacks, by 1978 South Bend My may brethren think that (we argument) hiring told were system segregated blacks whites applicants three times fraction black against blacks in must have discriminated jobs applicants. teaching as of white too; hiring actually there need be no but True, the of black teachers was fraction forms of correlation between the two dis- high yet so the fraction of black not segre- Indeed, complete crimination. with students, prove discrimi- but that does blacks, gation of whites identical nation, any ratio of more than the student-teacher in black white ratios (7 percent) percentage of black teachers schools, the ratio of to white teachers black (16 per- percentage of black students equal would be ratio of black to cent) proved hir- in 1968 discrimination—in matter of fact white students —which as a proper comparison is not ing. The between goal in this is the school board’s case. teachers and might hiring percentages of black There be discrimination the students, any more than the ratio At the time of the consent decree 11 employees percentage of black percent between of the teachers in the South Bend percentage and the black, of soft-drink vendors public schools were which was half buyers who are black would be soft-drink of black students and was charging in a suit the vendors relevant thought to too low. per- To raise this proper compari- with discrimination. centage it was decided that half of the new number of black teach- son is between the By hires should be black. the time the hired the school district and the ers layoffs began percent of the teachers qualified black teachers in the number black, grant super- and but for the market, see Hazelwood relevant labor seniority in 1982 that States, District v. United percent have fallen back to 11 299, 308, 2736, 2741, 53 L.Ed.2d many of the black teachers had been hired appears number that no- —a recently and therefore had less where in this record but that the absence than white teachers. approximated by the of evidence is best plausible It is both that black teachers on applicants. teaching of black And number average relate better to black students applicant had three times in 1978 a black signifi- than white teachers do and that a appli- being chance of hired as a white presence cant of black teachers a school then, years appears, cant. It that two be- necessary legitimize is to educational decree went into effect fore the consent in achievement the minds of black students hiring larger Bend was a fraction of South come, educationally deprived who qualified whites—and qualified blacks than homes. every But it does not follow that is no it had ever re- there evidence ought school black with students to strive qualified to hire blacks. The record fused percentage for the identical of black teach- argument supersen- not sustain an will ers at whatever cost to white If teachers. iority necessary teachers was to for black teachers, appears these white so far who as legal keep eliminate a violation or even practitioners are neither nor beneficiaries trouble, legal school board out of for there of racial discrimination and who I am sure violation, no of a is evidence relevant actu- economically are not the most secure mem- arguable, present. al or or The lack either, community bers are to be of “fit” between the discrimination found pawns struggle sacrificed as complete, remedy prescribed and the is are, justice they my racial because by to is not to be brushed aside reference it, put socially brethren members of “the history segregation in Indi- majority,” dominant white there should be ana; for, emphasize, as I have tried to educational, competent some refusing evidence— segregating the schools and to psychological, sociological their qualified logically, hire black teachers are —that Evidence, necessary. sacrifice is for exam- factually, and for all we know distinct ple, percent that the difference between forms of racial discrimination. being of the teachers black a school 26 giving ground The other black teach- percent of whose students are and 13 black superseniority might preserve ers be to percent being of the teachers black is edu- “role models” for the black students in cationally relevant. There is no such evi- schools, theory public South Bend’s be- findings dence and there are no relevant ing that scholastic underachievement is one by judge, who deci- fact the district based legacies of discrimination case, sion on his earlier decision a similar Although the defendants have blacks. case, panel another the Janowiak which ground, to this I made little effort establish my this court reversed in a decision that willing give every am them benefit pains distinguish. brethren consider the doubt and therefore whether point comparing percent- any possible upholding Even there is basis for age of teachers who are black with the grant superseniority reference to black, percentage of students who are rath- the need for black role models. students, the percentage so that of black teachers with black than the number er students, appar- percent percentage is not of black teachers is but the the number ent, explained. is not Com- 20 percent, and of course students and then we of black black teachers to paring bring the number would add 100 white students. This is of black students relevant number percentage of black students to down the for black students role models issue of percent, so that under the defendants’ how often a black stu- it indicates because students now have view the black would a likely encounter black teacher. dent models, enough black role for there would percentage of comparing the black But percentage the same of black teachers of black stu- teachers to as of black students. I am baffled paradoxes. Sup- merely generates dents logic. The black students would have nei- sharp result of a decline pose that as a higher per- nor ther more black teachers (because lay- of teachers the number teachers; centage they just of black would offs), decline in the number of with no white have more fellow students. students, the ratio of black teachers The record what I have contains said fell some black students because black comparison the more relevant ratio of —the off, percent- laid but the students, teachers to black which black (that is, age black teach- of black teachers ranged from 1 to 40 to to 60 in the teachers) of all rose as a ers period. the record contains relevant But higher fraction white than I interpretation of these ratios. would had been laid off. The num- black teachers many like know how black teachers de- role models would have ber Bend schools have to have the method of calculation yet clined under guarantee every order to black student defendants black students used I year, least two black teachers Actually off. would be deemed better opinion should like to have the of an edu- the stu- would be worse off both because sociologist cator a as to whether black or higher, dent-teacher ratio was so that each significantly students would benefit expect student could less individual atten- having more role models than that. Eleven tion, there would be fewer and because percentage percent, which is what the up for the students to look black teachers public in the South Bend black teachers to. if they had not schools would been suppose some reason the Or that for seniority, approxi- given been extra is the students in the school number of white percentage mate of blacks in the nation’s system and the number black increased population. why is not obvious to me a It students, teachers, and white teach- black provide higher percentage necessary is same. ers remained the models, enough students with role black be same but black teachers would happen if the students to attend even' low- percentage of students would be black percentage of blacks ex- school where the (because white stu- er Again average. I em- ceeds the national higher), so the ratio of dents would be any on the phasize the lack evidence percentages higher. ex- two would be For point. ample, white students in if the number of arbitrary well as There is an insidious as doubled, public Bend schools arguments that quality to “role model” percentage of black teachers would be ought make us insist be percentage of roughly the as the same Supposing that black backed evidence. (the percentage hav- black latter students need male teachers as male students black roughly half what it had declined to models, preference given been), role should reasoning defendants’ applicants for male over black female quota full black have their black students would jobs? Are concrete, teaching whites entitled suppose we of role models. To be where or teachers, white models schools black one black role start with white students, Hispanic overrepre- teacher, Asian black 80 white teaching every Must the sented? staff of more black role models. Even if the need public school the United States reflect adequate required role models that the racial, ethnic, sexual, religious com- fraction of teachers equal who are black position population of the student black, fraction of students who are system assign school? Should proper does not follow that the means to only black teachers to a school that has goal lay never to off a black. An only Morgan black students? See v. Ker- alternative would be to hire an higher even (1st Cir.1974). rigan, 509 F.2d fraction of blacks. The adverse effect on argument, Would not the “role model” car- job security of whites would be less. extreme, carry ried to an us back to where I am not much point comforted system Indiana was before with a schools, provision that the segregated preference for racial which blacks attend- ex- (presumably) by ed schools staffed pires with the collective bargaining agree- heavily teachers? order to answer these ment, only and thus lasts years three un- questions yet accept rhetorical “no” less renewed. Now a matter of fact it argument defendants’ role-model in this renewed, has though only year. for a evidence, case we need some and have The system union and the school are think- none. ing moving system toward a of racially if Even the defendants had made a case proportional layoffs, so that the fraction of giving black teachers some extra se- system black teachers in the would not rise niority, policy laying off white layoffs. because of This would still mean teachers is equal hard to describe as the giving blacks seniority more than whites on laws, protection of the if Ias assume the purely grounds, racial though not as much equal protection requires clause careful more as under the 1980 So the agreement. scrutiny against of discrimination directed persist, indefinitely will per- race, race, any including the though white haps, though in a somewhat milder form perhaps group less careful than if the dis- years. than in its first four Collective bar- criminated were smaller and less gaining noted, agreements, be it almost policy secure. The defendants’ amounts to always lapse years, after three but no one saying every black teacher shall have likely argue that on that account teacher; seniority more than white employers unions and should be free to so far as is concerned the discriminatory provisions write into them. separate blacks shall constitute a supe- rior caste. This seems to me a little like persuaded Nor am I that since the union giving each black citizen of South Bend two give voted to the superseniority, blacks it in votes elections to the school board com- okay, though my regard must be brethren pared to one for whites—a discrimination point this as “one of the most decisive in imagine any upholding. that I cannot court validating challenged plan.” the policy The defendants’ has the curious bargaining Under the collective ar- increasing effect of the of black rangements between South Bend and the public in teachers the schools of South union, only teachers’ union members can merely Bend because economic conditions ratify proposed vote on whether a collec- Suppose have worsened. the South Bend bargaining tive A contract. teacher who is lay schools had had to off half their teach- voice, not a member of the union has no ers; off, since no blacks could be laid the percent teachers, including and 28 percentage of blacks would have zoomed plaintiffs, some of the were not members percent. from 13 to 26 The actual number If of the union. all the union members layoffs great, of was not so so that while and fewer than percent voted of them the of black teachers did in- contract, voted for the then a crease, the only increase was from 13 to Still, all the teachers voted for it. do not percent. laying off whites We seems pretty creating a weird mechanism for know what the was. vote the voted for the members of union do not vote were the union members Even provi- the did provisions, such as and as to those who vote particular contract on they superseniority; plaintiffs gives sion who did— blacks it —if were there A up or down. whole contract vote the they supported not whether we do know pro- might wanted the racial majority have opposed it but for blacks or superseniority for the con- yet have voted vision deleted it was better to thought that on balance remaining pro- they liked the because tract discriminatory contract than to have a they fearful of or because visions no contract. conjec- is This working without a contract. away public employee’s job a take To justify- course; ture, the burden but identity is serious of his racial is those who do discrimination on racial ought lightly as as it step. It not be taken this discriminating, the defendants the say not that it is the here. This is case, no evidence consent presented who reverse form of discrimination worst beyond discrimination by the victims of Hiring imagined. unqualified can be collective fact of ratification bare qualified in lieu of whites a worse blacks contract. bargaining principle and to social affront to the merit minority rights that provision on 3. The not a efficiency. For meritoc- is word- appears as ratified contract principle, laying so that off more sen- ratic provision that was differently from the ed not of less senior workers need ior ahead submitted draft of the contract force, and quality of the work reduce of the union to vote on. the members rights pre- may job it. But increase original word- record does not contain (the Supreme commodities workers cious ing. course, tenure, Court, which these views know vote on 4. We do not had, plaintiffs “property” as within said, contract, I not unani- but it was meaning process clauses of the due mous, charge it is no answer to see, Amendments, and Fourteenth Fifth electoral ma- an racial Sindermann, Perry e.g.,

jority supports it. See Alexander Gard- 2698, 2699-2700, 601-02, Co., 36, 51-52, ner-Denver (1972)), deprivation and the L.Ed.2d 570 1021-1022, L.Ed.2d 147 grounds is rights nakedly racial of those (1974). Suppose majority black if merit not a sufficient affront lay union had voted off members equali- of racial principle than to the ideals first, seniority. regardless blacks with indi- ty judgment accordance that other black members Would this mean require something more worth to vidual complain of racial discrimination? could not rationalization slapdash effort at than My nonmembers could not? That black case; attempted defendants by the say “the were not brethren seem to be- judicial superiors our at least [i.e., that possibilities of these oblivious that. lieve jobs] voted they might lose their when I provision.” would word differ- for the once enough that South Bend It is say, accurately more than ently. I would teachers on discriminated grounds who voted brethren, my that the teachers unrelated to anything for which bargaining contract collective superseniority be a rational correc- for were, pos- not oblivious tive and there presumably, that are valid educational jobs might wanting their be- reasons for sibility they expose that lose black stu- the contract provision dents to black cause of teachers. This would be We superseniority enough to blacks. granting justify efforts to recruit more not plaintiffs of the did it is enough that some teachers but justi- know not contract, they fy taking (whether away were for the temporarily vote permanently, and therefore depending of the union not members on economic condi- tions) do know ineligible jobs. to vote. We not white teachers’ Cf. Kromnick District, v. who many, any, plaintiffs if (3d how Cir.1984). by my brethren, particularized they a more unremarked but For that do showing required conclusion, of need is than was at- not draw the obvious which is tempted. ought required that defendants to be show that this discrimination was neces- scrutiny the defend My brethren’s sary clearly to achieve some lawful end. searching”; “strict and ants’ conduct is not My painful brethren remark the character brief, casual, although is not but it is of what defendants have done to the supported Sixth Circuit’s decision plaintiffs, yes, only but solace Educ., Bd. Wygant v. Jackson 746 F.2d — plaintiffs, offer these who have lost their Cir.1984), granted, jobs, is, is to note that the loss for most of -, (1985), 85 L.Ed.2d 298 105 S.Ct. anyway, temporary; them many white approach previous inconsistent with the teachers, though necessarily plain- not circuit, see Janowiak v. ly taken in this tiffs, give Bend, voted to the blacks extra seniori- Corporate City 750 F.2d ty; any and that (7th Cir.1984), plaintiffs, event Donovan v. 563-64 Ass’n, white, being “stigmatized” have not Illinois Education 667 F.2d (7th Cir.1982), spirit by being Although laid off. with man does not v. alone, McDonald Supreme decisions in Court’s live bread neither does he live Co., Transp. Trail Santa Fe alone, self-esteem and it is small comfort to (1976), 96 S.Ct. 49 L.Ed.2d 493 person job who loses as a his result of Firefighters Local Union No. discrimination in favor of a black to be told Stotts, supra, 104 S.Ct. at 2584, 2588, with has, all, that he after the consolation of decision, Oliver v. an earlier Sixth Circuit white, being people that most of the who Education, Kalamazoo Board have discriminated him are them- (6th Cir.1983), and with evident white, may get job selves and that he his Supreme with all of the seriousness which day though back some some of these soon— regard any form of racial Court Justices plaintiffs waiting have been three Wygant provides discrimination. Even years. willing accept I am support today. limited for the decision equal protection prac- clause means as a Wygant did not policy involve of not tical matter less for whites than for blacks just provided laying off blacks —it all, nothing not that it which means but higher percentage of blacks than of approxi- if this decision stands will be the process whites could be laid off —and the today. mate situation in this circuit after bargaining for ratification of the collective (so agreement was not far as remarked flawed, opinions, anyway) as was the today

process here. No case before has so harsh a form of reverse discrimi-

upheld up-

nation. The of affirmative action Weber, United Steelworkers

held 61 L.Ed.2d 480

(1979), example, did not involve dis-

charging any workers. But I shall not

pretend precedent dictates the out-

come of this case. We princi- must distill

ples, apply them. principle I distill

is that the kind of reverse discrimination case,

involved in this which away job takes

rights and just job opportunities, re-

quires review; careful and critical and it

has not received it.

The harshness of prac- the discrimination

ticed in this case go does not completely

Case Details

Case Name: Elmer Britton v. South Bend Community School Corporation

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Oct 21, 1985

Citation: 775 F.2d 794

Docket Number: 84-2841

Court Abbreviation: 7th Cir.