Wygant v. Jackson Board of Education

WELLFORD, Circuit Judge,

concurring.

I concur in the result reached in this case, but I write separately in an effort to address an issue which the majority expressly refuses to answer. See supra note 1.

Judge Edwards has cited at length from the decision of the trial judge, and has agreed with and adopted Judge Joiner’s conclusions. My problem with this determination is that Judge Joiner expressly relied upon Oliver v. Kalamazoo Board of Education, 498 F.Supp. 732 (W.D.Mich. 1980), in stating a proposition essential to his decision:

[I]n the setting of this case, it is appropriate to compare the percentage of minority teachers to the percentage of minority students in the student body, rather than with the percentage of minorities in the relevant labor market. It is appropriate because teaching is more than just a job. Teachers are role-models for their students. More specifically, minority teachers are role-models for minority student's. This is vitally important because societal discrimination has often deprived minority children of other role-models. See, Oliver v. Kalamazoo Board of Education, 498 F.Supp. 732, 748 (W.D.Mich. 1980) (“faculty ought to begin to approximate the percentage of minority students in the district”).

Wygant v. Jackson Board of Education, 546 F.Supp. 1195, 1201 (E.D.Mich.1982).

This court, however, reversed the trial court in Oliver . In doing so it was made clear that comparing the percentage of minority teachers to the percentage of minority students and then requiring a minority quota of teachers based on the latter proportion was not only not constitutionally mandated, it was inappropriate under the circumstances because the court had ignored the practicalities of the situation in the school district. Oliver v. Kalamazoo Board of Education, 706 F.2d 757, 762 (6th Cir.1983). See also International Brotherhood of Teamsters v. United States, 431 U.S. 324, 375 , 97 S.Ct. 1843, 1874 , 52 L.Ed.2d 396 (1977) (court should take practicalities into account in devising remedies under Title VII and in any equitable decree.)

This court, moreover, in reversing the trial court in the Oliver case, stated:

In most school desegregation cases, as in this one, see 498 F.Supp. at 746, 751 , the constitutional rights to be vindicated are those of the students, not of the teachers or potential teachers. The students, however, do not have a constitutional *1160 right to attend a school with a teaching staff of any particular racial composition. See Fort Bend Independent School District v. City of Stafford, 651 F.2d 1133 (5th Cir.1981) (holding that the percentage of minority faculty need not approximate the percentage of minority students). Rather, with respect to the teaching staff, all that the students are entitled to is the “sustained good faith effort to recruit minority faculty members so as to remedy the effects of any past discriminatory practices.” Id. at 1140 .

706 F.2d at 762 (footnote omitted) (emphasis added).

This court, then, in citing with approval Fort Bend Independent School District v. City of Stafford, 651 F.2d 1133 , (5th Cir. 1981), a case decided after the district court decision in Oliver, held that there is no constitutional right to attend a school with a minority teacher ratio the same as the minority ratio of students. So long as the school district, over a period of years, had voluntarily hired minority teachers without evidence of discrimination, it was erroneous to impose a quota system utilizing the minority student ratio as the minimum quota for minority teachers. Oliver, 706 F.2d at 763 . The court, rather, advised:

But, generally, the wiser approach is a more flexible affirmative action program rather than a hiring quota. Cf. University of California v. Bakke, 438 U.S. 265 , 98 S.Ct. 2733 , 57 L.Ed.2d 750 (1978) (affirmative action admission programs of educational institutions may take race into account, but racial quotas are prohibited).

Id. at 763.

Had the plaintiffs in this case presented data as to the percentage of qualified minority teachers in the relevant labor market to show that defendant Board’s hiring of black teachers over a number of years had equaled that figure, I believe this court may well have been required to reverse under the rationale of Oliver. For example, had defendant shown that from 1969 to 1972 the qualified minority teacher ratio in the relevant market was 10% and that 16% of its teachers hired were a minority, the rationale of Oliver would have brought the contract provision at issue into very serious question. See United Steelworkers v. Weber, 443 U.S. 193, 209 , 99 S.Ct. 2721, 2730 , 61 L.Ed.2d 480 (1979), (Court indicated that a showing of “conspicuous racial imbalance” was required). It is a close case, moreover, as to whether the data which was presented was sufficient under ■ Oliver standards. 1

The case relied upon by the trial judge and the panel majority, Detroit Police Ass’n v. Young, 608 F.2d 671 (6th Cir.1979), ce rt. denied, 452 U.S. 938 , 101 S.Ct. 3079 , 69 L.Ed.2d 951 (1981), based its decision upon a comparison of hiring of minorities and the Detroit SMSA labor market ratio of eligible minorities in the Detroit Police Force. Thus, Young utilized an available, reasonable labor base of eligible minority workers, not the general population of the city served by the police force. The metropolitan labor market should be the “proper comparison.” See Young, 608 F.2d at 688 , and Hazelwood School District v. United States, 433 U.S. 299, 308 , 97 S.Ct. 2736, 2743 , 53 L.Ed.2d 768 (1977).

There can be no doubt, in light of the Teamsters case, that the District Court’s comparison of Hazelwood’s teacher work force to its student population fundamentally misconceived the role of statistics in employment discrimination cases. The Court of Appeals was correct in the view that a proper comparison was between the racial composition of Hazelwood’s teaching staff and the racial composition of the qualified public school teacher population in the relevant labor market. See Teamsters, supra, [431 U.S.] at 337-338, and n. 17 [97 S.Ct. at 1855-1856 and n. 17]. The percentage of Negroes on Ha *1161 zelwood’s teaching staff in 1972-1973 was 1.4% and in 1973-1974 it was 1.8%. By contrast, the percentage of qualified Negro teachers in the area was, according to the 1970 census, at least 5.7%.

Hazelwood School District, 433 U.S. at 308 , 97 S.Ct. at 2741-42 (footnotes omitted). Underrepresentation, then, of minority teachers as found by Judge Joiner based on a student minority ratio was simply improper under Oliver and Hazelwood; Bratton v. City of Detroit, 704 F.2d 878 (6th Cir.), vacated in part on reh’g, 712 F.2d 222 (1983), cert. denied, — U.S.-, 104 S.Ct. 703 , 79 L.Ed.2d 168 reh’g denied, — U.S. -, 104 S.Ct. 1431 , 79 L.Ed.2d 754 (1984), was decided prior to our decision in Oliver and cannot override Hazelwood on this issue.

I would Affirm the decision that this voluntary affirmative action layoff system, subjected to collective bargaining safeguards, was sufficient to meet the challenge presented by plaintiffs.

I concur with the majority that there was no basis for the exercise of pendent jurisdiction under United Mine Workers v. Gibbs, 383 U.S. 715, 726 , 86 S.Ct. 1130, 1139 , 16 L.Ed.2d 218 (1966).

. Judge Joiner conceded that from 1968-1969 to 1971-1972 the ratio of black minority teaching staff rose from 3.9% to between 8.3% and 8.8% in the Jackson School District. In Oliver, the minority ratio, of teachers in the Kalamazoo School District rose from 6.5% to 11.5% between 1970-1971 and March, 1979.